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Bhopal Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 92 of 1972
Judge
Reported in1976WLN639
AppellantBhopal Singh
RespondentUnion of India (Uoi) and ors.
DispositionPetition dismissed
Cases ReferredMahesh Chandra Sharma v. State of Rajasthan
Excerpt:
fundamental rules - rule 56(b) and industrial disputes act--workman--care taker mechanic in locust warning organization is not a workman and he cannot invoke f.r. 56(b). - - jodha naturally seeks to rely on the institution case & points out that the indian standards institution was a con profit making body like locust warning organisation and there is no reason why oh parity of reasoning locust warding organisation should not be considered to be an industry. it is for this purpose that the field organisation known as the locust warning organisation has been set up by government of india, the functions of this, organisation are :(a) to undertake control measures during the period of locust invasion so as to keep agricultural crops safe from their ravages, (b) to undertake during the..........that before the petitioner could invoke fundamental rule 56(b) to his aid be has to show that the locust warning organisation is an industrial establishment. that further poses the question as to what is an industry because on that will depend the further question whether the locust warning organisation is an industrial establishment. normally in such circumstances one would attribute meaning to the word industrial, as is understood by a man in the street. so under stood industry would be taken to be an establishment where some production of goods take place and as such locust warning organisation will patently sot be counted an industry. i do not find any definition of 'industry' in the fundamental rules. the petitioner however invokes the concept of industry given in the industrial.....
Judgment:

Rajindar Sachar, J.

1. Whether a Care Taker Mechanic in the Locust Warning Organsiation of Government of India is a Workman employed in an Industrial Establishment within the meaning of Fundamental Rule 56(b) is a question that calls for determination in the present case.

2. The petitioner challenges the impugned order dated 12-2-71 by which he has been retired with effect from 15-2-71 on his attaining the age of 58 years. The petitioner's claim in the writ petition is that he is entitled to continue upto 60 years. He invokes Fundamental Rule 56(b) which says that a workman who is governed by these Rules shall be retained in service till the day he attains the age of sixty years. Note under the said sub-clause makes it clear that a workman means a highly skilled, skilled, semi skilled, or unskilled artisan employed on a monthly fate of pay in an industrial or a work charged establishment.

3. Respondent No. 1 Union of India does not seriously dispute that the petitioner is workman. There is however serious controversy raised whether the petitioner is employed in an industrial establishment and Fundamental Rule 56(b) applies; whereas the Union counters this. It is apparent that before the petitioner could invoke Fundamental Rule 56(b) to his aid be has to show that the Locust Warning Organisation is an industrial establishment. That further poses the question as to what is an industry because on that will depend the further question whether the Locust Warning Organisation is an industrial establishment. Normally in such circumstances one would attribute meaning to the word industrial, as is understood by a man in the street. So under stood industry would be taken to be an establishment where some production of goods take place and as such Locust Warning Organisation will patently sot be counted an industry. I do not find any definition of 'industry' in the Fundamental Rules. The petitioner however invokes the concept of industry given in the industrial Disputes Act 1947 for this purpose. I am not very sure whether this is permissible. The concept of industry in the Industrial Disputes Act is for that specific statute and by itself it cannot be invoked for interpreting the word in some other provision of law. But I shall, for the present purposes proceed on the assumption that the concept of Industry in the Industrial Disputes Act may be applicable for interpreting the word 'Industry' in Fundamental Rule 66(b). I shall therefore proceed to s6e whether even applying that concept the Locust Warning Organisation will be an industry so as to become an industrial establishment within the Note to Fundamental Rule 56(b).

4. It is unnecessary to go into the vast case law as to what constitutes industry. All these cases have been noticed and summarised in Supreme Court case Workman, I.S. Institution v. I.S. Institution : (1976)ILLJ33SC in which it has been held that the Indian Standards Institution must be regarded as 'industry' within meaning of Section 2(j) of the Industrial Disputes Act. The Court referred with approval to the earlier observation in the Safdarjung Hospital v. K.S. Sethi : (1970)IILLJ266SC wherein it was said 'that the basic requirement of 'industry' is that the employers must be 'carrying en any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such'. Mr. Jodha learned Counsel for the petitioner does not say that the Locust Warning Organisation is any trade or a manufacture. His whole contention is that it is a undertaking and therefore fulfils the definition of Industry; But before it can be an undertaking it must be analogous to trade or business, the activity in order to be recognised is an economic activity in the sense that it is productive of material goods or material services See Workman, I.S. Institution v. I.S. Institution : (1976)ILLJ33SC .

5. Mr. Jodha naturally seeks to rely on the Institution case & points out that the Indian Standards Institution was a Con profit making body like Locust Warning Organisation and there is no reason why oh parity of reasoning Locust Warding Organisation should not be considered to be an industry. But the differences between these two is very material. It was noticed in the Institution case that one of the functions of the Institute which was to fix standards which were necessary in order to meet the challenges posed by the fast developing economy of the country and that the standards which are based on consolidated results of science, technology and experience; furnish guidance to the manufacturer in this behalf and confer economic benefits for the development of industry and smooth flow of commerce. The institute was also found to be publishing Indian Standards on different subjects and the activity of the institute in regard to the preparation and publication of Indian Standards resulted in increasing its income from year to year until it reached a figure Rs. 16,24,170/- in 1973-74, Another activity carried on by the institute was as a result of the implementation of Indian Standards Institution (Certification Marks) Act, 1952 which prohibited any person from using in relation to any article or process, or in the title of any patent or to any trade mark of design the standard Mark or any colourable imitation thereof except under a licence granted under the Act end another prohibition was imposed that no person shall, notwithstanding that he has been granted a licence, use in relation to any article or process the Standard Mark or any colourable imitation thereof, unless such article or process conforms to the Indian Standard. And under rules no one could use Standard Mark without a licence from the Institution. The total income from the certification mat king according to the Annual report for 1973-74 ran into Rs. 5.2 millions. It also had laboratories in which samples were tested and the value of testing work done exceeded rupees 8 lacs. The Court thus found that the Institute derived large income from its activities which rose to amount Rs. 10.2 million in 1973-74, a bulk of the income being accounted for by sale proceeds of Indian Standards and Certification Marking fees. It was because of the these peculiar facts that it was held that the activities of the institution fell within the category of an undertaking analogous to made or business & must be regarded as an industry within the meaning of the Industrial Disputes Act.

6. Now Locust menance is an international problem and its control in India particularly in the scheduled desert areas is the responsibility of the Central Government. It is for this purpose that the Field Organisation known as the Locust Warning Organisation has been set up by Government of India, The functions of this, organisation are : (a) to undertake control measures during the period of locust invasion so as to keep agricultural crops safe from their ravages, (b) to undertake during the recession period, in tenaive and extensive surveys in scheduled desert areas so as to stop possible breeding of locusts and to take immediate control measures to also the evil in the bad. Apart from the Head quarter office at Jodhour it has 61 outposts located all over Rajasthan and parts of Haryana and Gujarat States The our posts are grouped up in circle and zones with separate circle and zone offices at different places. The Care Taker Mechanic like the petitioner can be transferred to the circle office at Bikaner or anywhere within the Locust Warning Organisation. ID order to Carry out its work the organisation has a number of vehicles and other equipments. Evidently as it has vehicles and equipments they require repairs, and for this purpose it has a workshop which exists for the maintenance and upkeep of the vehicles and equipments of this organisation It has teen stated in the reply and the same Das not been countered that the workshop mainly attends to the maintenance of the vehicles and equipment and gets all the major repair work done from outside on payment. There is no suggestion that the Workshop is entertaining any orders from outside the organisation. It functions like any other department of the Government. It is not registered as a separate unit, industrial or otherwise under any Industrial Act of Central State or State Legislature. Provisions of Factories Act are not applicable. The petitioner has alleged that a Care Taker Mechanic is only posted in the Work-shop, but the same is disputed and it is pointed out that the Care Taker Mechanic exists in zonal offices at different places. It has also been pointed out that the petitioner had joined the Works up at Jodhour only on 6-3-70 on his transfer from Central Plant Protection Station, Indore where he was the only single handed workmen concerned with the repairs and maintenance of of vehicles and Plant Protection Equipments. If will thus be seen that the workshop of the organisation is a facility which it is employing for its purpose to repair the vehicles and plant protection equipment go that they can be attended immediately without having to be referred outside if the repairs is of not of very major nature. A reference to the various works done by the Locus Warning Organisation completely negatives the suggestion of the petitioner that the Locust Warning Organisation must be taken to be an undertaking carrying on economic activity and producing material services, have been 'Material services' have been stated to involve an activity carried on through cooperation 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. The activity must be of commercial character, on which something is brought into existence quite apart from the benefit to particular individuals. It is the production of this something which is described as the production of material services See Safdarjuing Hospital v. K.S. Sethi : (1970)IILLJ266SC . Here on the contrary what I find is that because of the Locust menace which would greyly be harmful to the agricultural production in this country the Central Government has an organisation to see not only that the locust menance whenever it arise. It is met firmly but also to give warning in advance. I do not find in the nature of is activities anything remotely similar to an undertaking supplying material services, to as to constitute industry. It is a beneficial activity which is being undertaken by the Central Government, the purpose being to see that the crops in the country are saved from the locust. The tests which have been laid down for determining any undertaking to be an industry are woefully lacking in the present case.

7. Mr. Jodha has referred to State of Rajasthan v. The Industrial Tribunal, Rajasthan 1970 RLW 137 wherelu it was held that the Survey and Investigation Division in the Irrigation Department is an industry within the meaning of Industrial Disputes, Act. This view was also followed in a subsequent case Mahesh Chandra Sharma v. State of Rajasthan 1074 RLW 338 wherein it was held that the Irrigation Department of the State Government is an industry within the meaning of the Act. It should however be noticed that the reason why it was so held was because the Court came to the conclusion that the Irrigation department of the Government were engaged in activities which were analogous to trades or business because the irrigation facilities and supply of water was provided on payment of certain charges. I do not see how the ratio of those cases is in any way applicable. It is not the petitioner's case that for the work performed by the locust warning organisation any charges are received or any money is collected from the agriculturists. These two cases are therefore distinguishable.

8. In the result I have no hesitation in holding that the petitioner was not a workman employed in an industrial establishment and therefore he could not invoke the Fundamental Rule 56(b). As the claim was based solely on Fundamental Rule 56(b) and as the said rule is inapplicable, the petition fails and is hereby dismissed but with no order as to costs.


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