Rajindar Sachar, J.
(1) This is a petition U/Art. 226 of the Constitution challenging the award by Additional Industrial Tribunal, respondent No. 3, by which it has held that Hindustani Dawakhana is not an Industry and the reference under the Industrial Disputes Act was thereforee beyond the power of the Lt. Governor.
(2) The dispute having arisen between the management of Board and its workers as represented by Shops and Commercial Workers Union, Delhi the Lt. Governor of Delhi by his order dated 28-12-1966 referred the dispute to the tribunal. Two items were referred to the tribunal. With regard to item No. 1 the union stated that they would seek a separate reference and the reference be confined to term No. 2 which referred to the retirement of certain workmen who were employed by the Board in Hindustani Dawakhana. A preliminary objection was taken by the management that Hindustani Dawakhana is not an industry and thereforee no reference can be made. From the history given by the tribunal it appears that Hindustani Dawakhna a Pharmaceutical Institute was set up by Hakim Mohd. Ajmal Khan, a Unani physician sometime in 190). He also established the medical college known as Tibbia College. The society named Anjuman-I Tibbia was formed by him and registered under the Societies Registration Act, 1860 as a charitable trust. The Tibbia College and the attached hospital vested in the Board. In 1952 Tibbia College Act was passed by which the management of the Unani Tibbia College Delhi was transferred to the Board under the Act and the entire control and management of the college had vested in the trustees. Hindustani Dawakhna was also vested under the statutory Board. The Tribunal has also found that the Hindustani Dawakhana has its own production and sales department where the medicines are used and the Dawakhana has manager, accountant and clerks and other staff and that it supplie medicines to the hospital and colleges though at a less than market price. The tribunal referred to the test to determine whether the establishment is an industry as laid down in Madras Gymkhana Club Employees Union and Gymkhana Club : (1967)IILLJ720SC and noticed that of the five tests laid down for an undertaking to be called industry namely(l) whether the operation rests upon the Cooperative between employees and employer, (2) whether it bears a definite character of trade and industry or business of manufacturing (3) activities to be considered as an Industry must not be casual but must be distinctly systematic. (4) the work for which labour of workmen is required must be productive and workmen must be following an employment called an industrial avocation and (5) when private individuals are the employees, the industry is run with capital and with a view to profits All the tests excepting test No. 5 were satisfied. This conclusion he drew because of the fact that Hindustani Dawakhana is running in loss and that it made no profit. It also was much impressed by the fact that the object of the board was to improve the indigenous system of medicines on scientific lines and not to earn profit. The workmen feeling aggrieved have come up to this court in writ petition.
(3) It will be seen that even on the test laid down in Madras Gymkhana case all the tests were said to have been satisfied. Frankly according to me even that test was satisfied because it is nobody's case that Hindustani Dawakhana is giving medicine on charity. On the contrary the evidence was clear that the Hindustani Dawakhana was producing Medicines and was selling in the market. The fact whether it was actually making profit or not was dependant on many factors. The medicines were sold and were not given on charity and thereforee, even this test would be satisfied. But since then it is well settled that it is entirely irrelevant whether or not there is no-pros fit motive of investment of capital in such activity and even without these two features an activity can be an undertaking analogous to trade or business, it is also immaterial that its objects are charitable or that it does not make profit or even where profits are made they are not distributed amongst the members or that its activity is subsidised by the Government (see I.S.T. v: Management 1977. 2. SCR. 138. These observations were referred to with approval in the latest case of Supreme Court 1978 (1)S.C.C.281 , which case has now laid down very broad tests for determining whether undertaking is an industry and most of the tests laid down in earlier cases have been disapproved. This case has specifially overruled the Safdarjung case and Gymknana Case on which reliance was placed by the tribunal. In present case it is apparant that Hindustani Dawakhana is like any other manufacturing unit manufacturing medicines and selling it to the public and the Tribunal was completely in error in holding that notwithstanding these trading activity, Hindustani Dawakhana was not an industry and the reference was thereforee incompetent. I would in the circumstances allow the writ petition and quash the impugned order of the Industrial Tribunal and hold that the reference was competent and valid.
(4) Unfortunately the tribunal did not decide the petition on merits. The result is that 13 years after the government made the reference and ten years after the decision of the tribunal and the filing of the writ petition in this court the matter on merits has not yet been decided namely whether the workmen who were retired were retired wrongly or not. This course of deciding only the preliminary point has necessitated the matter to be remitted to the Tribunal for decision on merits with inevitable suffering to the workmen who are still not sure of their status after being on the road for the last 13 years. highly unsatisfactory situation indeed. It is precisely to avoid such a none too complimentary position that the courts insist that the tribunal should decide a reference fully even when the matter of jurisdiction is raised before it. Had the decision been given on merits of disputes between the parties this delay of remand back to the tribunal could have been avoided and the matter decided finally here. As a matter of fact thinking now in courts is not to entertain petition U/ Art. 226 of the Constitution against judgment of the tribunal on preliminary points and to insist that a full decision must be obtained unless there are extra ordinary reasons to do otherwise. This is a matter not so much of jurisdiction as a matter of sound exercise of discretion.