P.N. Shinghal, J.
1. The petitioner has stated that he was employed by the Director of the Defence Laboratory at Jodhpur as a mechanic-mate on February 1, 1963, in the Defence Laboratory, Central Workshop, Jodhpur. He was promoted as a mechanic on January 27, 1965, and he claims that he was senior to respondents Nos 3, 4 and 5. There were two sections in the Defence Laboratory, namely, the Central Workshop and the Training Aids Cell Centre, and the petitioner has stated that due to amalgamation of these two sections, some staff was retrenched and was declared surplus. This led to the issue of order Ex. 2 dated February 21, 1968 by which the petitioner among others, was given notice that his services would not be needed with effect from the afternoon of April 1, 1968. Individual notices were also issued to the same effect. It was intimated that those who were desirous of alternative appointment should fill | up the prescribed form before February 24, 1968. The petitioner protested against his retrenchment, but he expressed his willingness to accept an alternative appointment in the 'same and equivalent grade'. An order was issued for his transfer as a mechanic at VRDE, district Avadi, but it was cancelled by order Ex. 6 of March 30, 1968 and the petitioner was again informed that his services would stand terminated with effect from May 1, 1968. He was however informed that he had been posted to COD Delhi Cantt. as a fittermate and that he should join that post. He was informed by memorandum Ex. 9 dated May 1, 1968, that if he did not do so his services would be terminated on the afternoon of April 30, 1968. He made representation Ex, 11 dated May 3, 1968, in which he pointed out that the alternative appointment amounted to reversion to a lower rank, and that he was only prepared to accept a post of equivalent status That representation was rejected by memorandum Ex. 13 dated May 13, 1968 The petitioner made some representations thereafter, He was ultimately informed by memorandum Ex. 14 dated August 21st. 1968 that as the Training Aids Cell in which he was working had been wound up from April 1, 1968, his services were terminated because he had refused to accept the job which had been offered at COD Delhi Cantt. It is in these circumstances that the petitioner has filed the present petition for a redress of his grievance, on a number of grounds. I shall refer to those grounds which have been selected by his learned Counsel for my consideration.
2. Before doing so it may be mentioned that the first two respondents have filed a joint reply stating that the petitioner was a temporary employee and that he was retrenched in preference to respondents Nos. 3 to 5 in accordance with the Army Instructions As regards the cancellation of the petitioner's appointment as a mechanic at VRDE, Avadi, it has been stated that this had to be so because the vacancy ceased to exist. I shall refer to the other parts of the reply when I deal with the arguments. It may be mentioned that the petitioner has filed a rejoinder, and an affidavit dated January 2, 1973, while the respondents have also filed affidavits. One of the affidavits has been filed by respondent No. 2 in pursuance of an order of the Court dated September 5, 1972, by which learned Deputy Government Advocate was required to file an affidavit in regard to the nature of the functions of the Defence Laboratory.
3. It has been argued by the learned Counsel for the petitioner that the Defence Laboratory, Jodhpur, where the petitioner was employed before his retrenchment, was an 'industry' within the meaning of the Industrial Disputes Act, 1947, hereinafter referred to as 'the Act', and that as he was a 'workman' in that industry, the contesting respondents have contravened Section 25G of the Act in retrenching him even though he was senior to respondents Nos. 3 to 5, The learned Counsel has invited attention to the averments in paragraphs 18 and 19 of the petition in this respect On the other hand, the contesting respondents have taken the plea that the Defence Laboratory was not an industry and that the petitioner was not a workman within the meaning of the Act. They have also stated that they have retrenched the petitioner in accordance with the Army Instructions which governed retrenchment in Defence Establishments as they formed part of the petitioners conditions of employment.
4. In support of his argument that the Defence Laboratory was an 'industry' within the meaning of Section 2(j) of the Act, the petitioner's learned Counsel has placed reliance on the decisions in Baroda Borough Municipality v. Its Workmen and Ors. : (1957)ILLJ8SC , Ahmedabad Textile Industry's research Association v. State of Bombay and Ors. : (1960)IILLJ720SC , and Bombay Panjrapole, Bhuleshwar v. Workmen and Anr. 1971 LIC 1401, He has also made a reference to Management of Safdar Jung Hospital, New Delhi v. Kuldip Singh Seth : (1970)IILLJ266SC .
5. A number of decisions have been rendered by their Lordships of the Supreme Court on the meaning of 'industry' as defined in Section 2(j) of the Act. Their Lordships' decision in the case of Safdar Jung Hospital : (1970)IILLJ266SC has settled and declared the law on the point, after a review of their Lordships' earlier decisions, including their decision in Madras Gymkhana Club Employees' Union v. Management of the Gymkhana Club : (1967)IILLJ720SC , no useful purpose will be served by referring to the decisions cited by Mr. Ganpat Singh. Stated briefly, their Lordships have declared the law relating to the definition of 'industry' in Section 2(j) of the Act as follows,--
(1) Every case of employment is not necessarily productive of an industry, for domestic employment, administrative services of public officials, etc. cannot be regarded as in the course of industry. Their Lordships have reached this decision after an examination of the definition of 'workman' in Section 2(s) of the Act.
(2) An industry is to be found when the employers are carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such.
(3) Industry has been accepted to mean only trade and business, manufacture or undertaking analogous to trade or business for the production of material goods or wealth and material services.
(4) Material services involve an activity carried on through co-operation between employers and employees to provide the community with the use of something such as electric power, water, transportation, mail delivery, telephones and the like. In providing these services, emphasis is upon the productivity of a service organised as an industry and 'commercially valuable'.
(5) Before an industrial dispute can be raised between employers and their employees or between employers and employers or between employees and employees in relation to the employment or non-employment or the terms of employment or with regard to the conditions of labour of any person, there must be first established a relationship of employers and employees assordating together, the former following a trade, business, manufacture, undertaking or calling of employers in the production of material goods and material services and the latter following any calling, service, employment, handicraft, or industrial occupation or avocation of workmen in aid of the employees' enterprise. It is not necessary that there must be a profit motive but 'the enterprise must be analogous to trade or business in a commercial
(6) If an activity is not embarked in the form of an economic activity analogous to trade or business, it would not be an industry. Thus if an activity forms part of the functions of Government, and is run as its department, it cannot be said to be an industry.
(7) If in an institution research and training is undertaken as its dominant purpose, and if some public utility service like a hospital is run for that purpose, it cannot be described as an industry.
6. The above propositions of law laid down by their Lordships in the Safdar Jung Hospital case AIR 1970 SC 1407 have a bearing on the present controversy and leave me in no doubt that the Defence Laboratory, Jodhpur, cannot be said to be an industry within the meaning of Section 2(j) of the Act. Respondent No. 2 has filed an affidavit dated November 14, 1972, as also the President's order regarding the formation of the Laboratory. It appears from these documents that the scope of work of the Laboratory consists of the following activities, as stated in order Ex. R. 2 dated May 21, 1959,--
Scope of Work
4. The scope of work at the Defence Laboratory, Jodhpur, will cover the following activities:
a) Meteoroloical and climatological conditions of the desert area,--The study will entail evaluation of tropical conditions relating to high temperature and low humidity and conditions of dry heat in dust, sand and intense solar radiation.
b) Desert Physiology--Studies on limits of human tolerance to heat and means of overcoming. Problems of clothing and foot, wear under the peculiar conditions existing in the desert area, Loss of nutrition and minerals in sweat and physiology of heat effects (heat stroke).
c) Fundamental studies.--Study of Physics of sand dunes, engineer of sandy soils and propagation of radio waves and micro waves over the desert region.
d) Performance of weapons, equipment under desert conditions. Among the most important studies to be carried in this Laboratory will appertain to field studies of weapons, equipment including electronics and stores under the desert conditions. Problems of ventilation for armoured vehicles would also be examined.
e) Development of training side--The training side cell will be responsible for development of training aids for the three Services.
5. To support the scientific work as stated above, the following sections will be set up:
a) The workshop to cater for the needs in general and also for the Training Aids Cell
b) Photographic Section
c) Chemical and Meteorological Sections
d) Metallurgical Laboratory
These activities go to show that the Laboratory is engaged on research For the benefit of the defence organisation of the country, and that is its dominant purpose. There is nothing to show that its activities can be said to be commercially valuable, In fact the activities of the Laboratory are not analogous to trade or business in a commercial sense. It no doubt runs a Central Workshop, but that serves the purpose of enabling the Laboratory to function within the scope of the work laid down by the Presidential order. I am therefore unable to think that there is any Justification for the argument that the Defence Laboratory is an industry within the meaning of Section 2(j) of the Act.
7. The learned Counsel for the petitioner has invited my attention to the First Schedule to the Act in which there is a specific mention, at serial No. 8, of 'Defence establishments', and has argued that this by itself is sufficient to show that the Defence Laboratory, being a defence establishment, has been specifically recognised to be an industry within the meaning of the Act. But the precise meaning and significance of the Schedule, which has been made with reference to Section 2(n)(vi) of the Act, has already been examined by their Lordships of the Supreme Court in the case of the Safdar Jung Hospital (4), and they have made it quite clear that when Parliament added the sixth clause under which other services could be brought within the protection afforded by the Act to 'Public Utility Services', it did rot intend that the entire concept of industry in the Act could be ignored and anything brought it. In fact their Lordships have made it clear that ''what could be so declared had to be an industry in the first place.' The heading of the First Schedule and the words of Clause (vi) have therefore been held to presuppose the exit&tence; of an industry which may be notified as a public utility service, for special protection under the Act. Their Lordships have gone on to declare that 'It is hardly to be thought that notifications can issue in respect of enterprises which are not industries to start with', and that 'it is only industries which may be declared to be public services.' Thus the condition precedent to the existence of an industry has first to be satisfied, and all that has been provided by the Schedule is that an industry may be notified as a Public Utility Service. But that is 'insufficient to convert non-industries under the Act to industries.' Nothing would therefore turn on the mere fact that Defence Establishments have been included in the First Schedule of the Act.
8. It has next been argued that as application Ex. CW I was made by the Director of the Defence Laboratory for the renewal of the licence under Rule 4 of the Rajasthan Factories Rules, 1951, that would be sufficient to show that the Central Workshop of the Dafence Laboratory was a factory on the admission of the Director that is was an industry under the Act. This argument is however also untenable in view of the definition of 'factory' in Section 2(m) of the Factories Act, 1948. On the basis of that definition it is not possible to take the view that a factory is necessarily an industry within the meaning of Section 2(j) of the Act.
9. Then it has been argued that the contesting respondents, have violated the audi alteram partem rule of natural justice because they have retrenched the petitioner without a hearing. My attention has, in this connection, been invited to paragraph 21 of the writ petition. The contesting respondents have pleaded, on the other hand, that the rule is not applicable in the case of such an administrative matter, and that the petitioner had the opportunity of appearing before the Trade Test Board and that it was not necessary to give him any other hearing.
10. In order to appreciate the argument, I have gone through the various documents on the record. The first of these is the aforesaid order Ex. 2 dated February 21, 1968, which was in a form of notice. It was stated in that notice that, due to reduction in establishment, the services of the person mentioned in it, including the petitioner, would not be needed from April 1, 1968. and that those desiring alternative appointment should fill up the form which was supplied along with the notice. Toe petitioner expressed his willingness, under certificate Ex-4 dated February 24, 1968, to accept alternative appointment in the same or equivalent grade. He was given an appointment as a mechanic at Avidi by order Ex. 5 dated March 25 1968, The respondents have stated that that post ceased to be available soon after, and therefore notice of discharge Ex. 6 was issued to the petitioner on March 30, 1968 informing him that his service would stand terminated with effect from the forenoon of May 1, 1968, in cancellation of the earlier notice of February 21, 1968 There was thus an interval of about a month between the notice and the effective date of termination of the petitioner's employment, and this was an and quate opportunity for him to represent his case to the authorities concerned. As a matter of fact it may well be said that the petitioner was aware of the precise nature of the stand which had been taken by his employers in retrenching him ever since the issue of notice Ex. 2 dated February 21, 1968. It cannot therefore be said that he was not given an adequate opportunity to represent his case. I am fortified in this view by the following observation in 'Judicial Review of Administrative Action' by S.A. de Smith, 2nd edition, at page 177,--
In some administrative situations; remote from the typical setting of adjudication the courts have held that failure to give any formal opportunity to be heard is immaterial if the person affected was in fact aware of what was proposed or knew or ought to have known that he could have made representations had he wished.
The fact however remains that the petitioner has not been able to contend that he made any representation after the receipt of the order Ex. 6 dated March 30. 1968 He made representation Ex 11 dated May 3, 1968, but it was rejected by order Ex 12 dated May 13, 1968. Such an ex post facto opportunity has also been recognised in law as 'potentially capable of curing original defect.' (S.A. de Smith's Judicial Review of Administrative Action 'P. 178) I am therefore unable to find any force in the argument that the impugned order of the petitioner's retrenchment from service has been passed in violation of the aforesaid rule of natural justice.
11. It has lastly been argued that respondent No. 2 has not followed the requirements of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, and that he had violated the provisions of Articles 14, 16 and 311 of the Constitution in taking an arbitrary decision to terminate the petitioner's employment. In so far as the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952 are concerned, it will be sufficient to say that they were repealed long ago by Rule 34 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The petitioner was a temporary employee, and as his employment was not terminated by way of penalty, it did not attract Article 311 of the Constitution of India. As has been stated, some retrenchments had become necessary in the Defence Laboratory and, in the absence of any requirement of the law that it would be undertaken on the basis of seniority, it is futile to contend that respondent No. 2 violated Articles 14 or 16 in taking the decision that the petitioner should be brought under retrenchment.
12. Their is thus no force in the arguments which have been advanced on behalf of the petitioner, and the writ petition is dismissed. In the circumstances of the case, there will, however, be no order as to the costs.