1. In the Management of the Madras Pinjrapole v. Presiding Officer Labour Court, Madras, : (1960)IILLJ686Mad Ramachandra Iyer, J. (as he then was) held that the Madras Pinjrapole was not an ''Industry' within the meaning of Section 2(j) of the Industrial Disputes Act, XIV of 1947, namely, 'any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen'; the institution not being an 'industry' within the definition, it followed that the reference by the State Government of the alleged industrial dispute between the Madras Pinjrapole and its workmen, under Section 10(1)(c), for adjudication to the Labour Court, was incompetent. The petition before the learned Judge was by the Madras Pinjrapole under Article 226 of the Constitution, for the issue of a writ of prohibition or other appropriate writ, prohibiting the presiding officer, Labour Court, Madras, from proceeding with the enquiry. The learned Judge quashed the order of the Labour Court, which held that it had jurisdiction, and directed the issue of a writ of certiorari. The present appeal is from this judgment.
2. It is important to note, at the very outset, that there was no sufficient material before the Labour Court, enabling a satisfactory decision upon the main issue of fact, whether the Madras Pinjrapole was an 'industry' within the meaning of the definition, earlier set forth by us. The learned Judge explicitly finds this, and this deficiency seems to have been practically conceded by learned counsel upon both sides. Before the learned Judge (Ramachandra Iyer, J.) further material was adduced, in the shape of affidavits furnishing particulars, and, as far as the petitioner-Institution was concerned, of two documents, the first a copy of the Golden Jubilee Souvenir and the second a similar copy of the proceedings of a Committee meeting held on 13-4-1958. The affidavit of the petitioner institution was followed by a detailed counter affidavit on behalf of the workers, and, again, by a reply affidavit on behalf of the institution. It is upon this additional material, not before the Labour Court that the learned Judge largely rested his decision.
3. The judgment contains a history of this institution, and it is unnecessary, for our present purpose, to duplicate it here. But certain salient facts concerning the development of this institution are essential, and deserve notice. As stated by Mr. Justice Boddam when the foundation-stone of the Madras Pinjrapole was laid, the institution was an off-shoot of the beneficent activities of the Society for the Prevention of Cruelty to Animals (P.C.A.), but with a distinct purpose of its own. The idea of the Pinjrapole was that a place should be established in Madras 'where all non-carnivorous animals may be taken in and kept to live out to remainder of their lives in peace and without labour, until in the natural order of things they die a natural death.' In other words, the object was not merely purely humanitarian, it was really the fulfilment of a religious sentiment felt by many Hindus, particularly of an orthodox persuasion. The central idea was to save from the butcher's knife, or from sales to butchers, those old and infirm cattle, those dry or barren cows, the maintenance of which by the owners had become uneconomic and a burden.
4. But there can be no doubt whatever that, as the activities of this institution expanded, subsidiary activities which had definite economic objectives were also included within the scope of the institution. Thus the dicta of the learned Judge (Ramachandra Iyer, J.) are sustained by the record that, broadly speaking, 'there is no element of tradeor business involved in the various activities of thesociety. It cannot even be said that the activitiesin question are in any way analogous to a tradeor business.' These observations, however, do notextend to subsequent developments, the result ofthe growth of the institution, and its attempt toachieve self-sufficiency. There were (1) purchaseand sale of milk, upon a fairly wide scale, (2) themaintenance of a dairy farm during a period of thehistory of the institution and (3) similarly, the maintenance of stud bulls, to enable dry cows to conceive and bear calves. As the learned Judge states:'These activities would certainly partake thecharacter of a business, though the profits of suchbusiness might have gone to the humanitarian activities undertaken by the society.' What mainly induced the learned Judge to holdthat these features did not detract from the essentialcharacter of this institution as not being an 'industry' at all within the scope of the definition in Section 2(j) of the Act, was his conviction, upon theadditional material, that these activities had beendefinitely abandoned since 1-4-1958; and, in anyevent, prior to the reference by Government. Beforeproceeding to the authorities, and the enunciationof the principles upon which the matter has to bereally determined, we desire to emphasise that, aftera careful examination of the record, we do not findit to be conclusive. For this reason at least, it cannotbe said that the issue of fact could be held to havebeen completely left with the impression that furtherfacts are essential, and that oral and documentaryevidence might have to be adduced to clarify theissue, and to enable a clear decision.
5. In this view of the matter, we feel compelled to allow the appeal, to the extent of modifying the writ of certiorari now issued by this court, by remitting the proceedings to the labour court for the recording of essential evidence and for a clear adjudication on the issue in the light of that evidence, the available evidence being both inadequate and contradictory. It will be for the labour court, now that its order holding that the institution is an 'industry' and that hence it possesses the necessary jurisdiction, has been set aside, to record evidence, and to decide in the light of our observations and the guiding principles as could be gleaned from the authorities and stated by us, the question afresh. On this aspect, it will be sufficient for us to state, quite briefly, why we have found even the additional material placed before the learned Judge (Ramachandra Iyer, J.) to be inconclusive on the central issue.
6. It is not seriously disputed by learned counsel upon both sides that, though the institution itself may not be an 'industry' as defined, a separate activity of that Institution which comprises an individual unit of activity, such as, for instance, a dairy farm, could fall within the definition. Any dispute between the employer and the workmen in such a unit, would be an 'industrial dispute', attracting the provisions of the Act. Again, even if the institution at the inception, and as basically defined, be purely humanitarian, non-industrial and not amenable to any of the tests upon which the definition has been applied, it cannot be gainsaid that, if the institution had largely altered its complexion through the years, so as to have become a locus of economic production, the definition, again, might be applicable. It is in this context that the affidavit of the petitioner institution, the counter affidavit of the workers and the reply affidavit are all of significance. In the affidavit, the Honorary secretary states that (1) the dairy farm was started in the year about 1936, as an experimental measure, but was abandoned long ago; (2) that there were purchases and sales of milk till 1-4-1958, but that the practice had been discontinued from that date; and (3) that there were stud bulls, and that they were previously used for servicing dry cows, mostly sent by the donors at their request and this has been discontinued from 1-4-1958. But, in the counter affidavit, these statements are refuted. As stated in one context, the workers claim that 'the original object with which the institution was founded has practically, become obsolete and it has been changed over to a commercial institution, earning large income by way of purchase and sale of milk, dairy farm, cow dung, feeding and other charges...the institution has its own stud bulls which are also yielding income, as the institution used to invite admissions of cows belonging to private parties towards covering charges'. We find that these records, including the reply affidavit of the institution, are no more than mere refutations. In our view, it is clear that the issues of fact cannot be decided merely upon that plane; evidence will be required, which might be both oral and documentary in character. Before proceeding to the authorities, it would be necessary for us to refer, very briefly, to the issue of jurisdiction, in the context of the writs of prohibition or certiorari where that issue does not depend upon a question of law, but upon collateral questions of fact, themselves requiring evidence.
7. As pointed out in Halsbury's Laws of England, Simonds Edn. Vol. II page 114, Prohibition does not lie on 'a wrong decision on the merits of proceedings'. Again,
'Where the Judge of an inferior court has given himself jurisdiction by an erroneous conclusion on a point of law, prohibition will lie, but where the judge, for the purpose of ascertaining whether he has or has not jurisdiction, has decided a question of fact, on conflicting evidence, the court will not interfere except on very strong grounds'
Joseph v. Henry (1850) 1 LM & P. 388 and R v. Fulham Hammersmith and Kensington Rent Tribunal; ex parte Zerek, 1951 2 KB 1:
8. With regard to certiorari, the same authority observes (page 142 Section 270):
'The case is more difficult where the jurisdiction of the inferior Tribunal depends, not upon some preliminary proceeding, but upon the existence of some particular fact.'
In the instant case, the want of jurisdiction arises, not 'from the absence of some essential preliminary proceeding' but from the existence of certain facts. It cannot, therefore, be seriously doubted that the industrial tribunal had every jurisdiction to enquire into those facts, in order to determine whether it had jurisdiction or otherwise. Vide Express Newspapers Ltd., Employees Union v. Express Newspapers (Pr) Ltd., Madras, : (1960)ILLJ351Mad , a Bench decision to which one of us was a party. It is because of these considerations that we feel that the preliminary jurisdiction of the Labour Court extends, and must be permitted to extend, to that point of time when, upon adequate material adduced, it is able to come to a definite conclusion, whether the Institution is an 'industry' as defined in the Act, and it hence possesses jurisdiction, or otherwise. Of course, if such material is adequate, and the finding is erroneous a writ of certiorari will lie. But to arrive at that point of time necessarily implies further evidence; the record, as it stands, is insufficient and inconclusive.
9. We may now proceed to a consideration ofthe reasoning upon which the learned Judge restedhis decision. The learned Judge referred to thedicta in the State of Bombay v. Hospital MazdoorSabha : (1960)ILLJ251SC , which isthe central decision, wherein the prior case law hasbeen reviewed, and the principles set forth in theirmost ample form. The question which arose waswhether a group of hospitals run and managed bythe State Government could be held to be an'industry' within the meaning of the Act. TheSupreme Court held that an activity would be an'industry' with particular reference to the term'undertaking' occurring in Section 2(j), though in theconduct of the activity there was no profit motive,nor quid pro quo. There are two passages in thatdecision which are of considerable significance. Wemay set them forth here, as we shall have occasionto revert to them later, when discussing the groundof the learned judge's decision in this case.
10. The first passage occurs where, after having referred to and discussed the rule of construction nos contur a sociis, and in dealing with both the criteria of profit and quid pro quo, the learned Judges observed:
'We have yet to decide which are the attributes, the presence of which makes an activity an undertaking within the meaning of Section 2(j), on the ground that it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of 'material services' to the community at large or a part of such community with the help of the employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of 'material human needs'. It must be organised or arranged in a manner in which trade or business is generally organised or arranged.' (italics (here in ' ') ours).
In the second passage, the learned Judges quote with approval the dictum of Issacs and Rich, JJ. in Federated Municipal and Shire Council Employees Union of Australia v. Melbourne Corporation, (1918) 26 CLR 508 to the following effect: (at page 554).
'Industrial disputes occur when in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed, by the parties engaged, respecting either a share of the product or any other terms and conditions of their co-operation.'
11. We might immediately clarify the principle still further, by the negative approach or exclusion, which is the characteristic key-note of : (1960)ILLJ251SC , rather than by the positive approach of definition. In our judgment in Tamilnad Non-gazetted Government Officers Union, Madras v. Registrar of Trade Unions, Madras, : (1962)ILLJ753Mad we have emphasised one principle of exclusion, based upon the test of an inalienable, regal or state function. As pointed out by the Supreme Court both in : (1960)ILLJ251SC and in Corporation of the City of Nagpur v. Its employees, : (1960)ILLJ523SC , it was not the. contemplation of the legislature to bring in 'regal functions of the State within the definition, of industry, and thus confer jurisdiction on industrial courts to decide disputes in respect thereof.' Vide also dicta of Issacs, J. to the effect that 'regal functions are inescapable, and inalienable' in Federated State School Teachers Association of Australia v. State of Victoria, (1929) 41 CLR 569. As we have emphasised, if there is any difficulty at all, with this class of activity, it only arises where there is some doubt whether the functions relate to the sovereign and regal aspects of Government or constitute productive activities sponsored by Government not within that scope. Similarly, another class of cases would have to be excluded, where it is clear that the co-operation between the employer and labour is purely casual and incidental to the activity, and the activity is an individual intellectual service, dependent upon personal equipment, knowledge or efficiency, with regard to which the form of the organisation is not the pith and essence of the matter. Authorities upon the aspect are Brahmo Samaj Education Society v. West Bengal College Employee's Association. : (1960)ILLJ472Cal , Employees of Oosmania University v. Industrial Tribunal Hyderabad, : (1960)ILLJ593AP and National Union of Commercial Employees v. Meher, : (1962)ILLJ241SC , which is a leading decision, so far, on this aspect. But the present case is a difficult one, in that it does not fall within either category of exclusion. It cannot be pretended that the Madras Pinjrapole is an institution exhibiting the characteristics of any Regal or inalienable function of Government. Similarly, it cannot be argued that this institution corresponds to a solicitor's firm, or a University, either in the sense that the essential service is intellectual, individual and not capable of industrial organisation directly, or in the sense that the co-operation between labour and capital, which is the distinctive test, is purely incidental to the life and activities of the institution. The Madras Pinjrapole not merely employs labour, but, without that labour, its essential activities could not be carried on. The services that it renders are rendered through the instrumentality of the workers employed, and those are not mere incidental aspects, such as might be the case with regard to the clerks of a solicitors firm, or the attendants and the clerical staff of a University, but they form the very core of the beneficent work of the institution.
12. The learned Judge (Ramachandra Iyer, J.) found a distinction, in the present case, in the sense that the sendees rendered by the institution were related to the satisfaction of animals' needs, and not human needs. He said
'where there is no element of trade, but a mere service is done purely out of the instinct of pity or of religion, it cannot be an undertaking except when such service is to satisfy human needs. In the present case, the activities of the Pinjrapole have nothing to do with human needs. They are solely devoted for the needs of helpless animals. Though incidentally, such activities may have a business tinge about them, it cannot be said that they have for their object, any human need or material welfare....... It would follow that the decision laiddown by the Supreme Court in the Hospital Mazdoor case could not be held to be satisfied, in that the activities of the Pinjrapole have not been directed to the satisfaction of human needs.' is industrially organised for the production and distribution of wealth in the sense of tangible ponderable corpuscular wealth and therefore an 'industrial dispute' cannot possibly occur except where there is furnished to the public......wealth of that nature'.
In other words, the argument was that all incorporeal or intangible services would be excluded, however, intimately capital and labour might be organised for the production of those services. This argument was strongly repelled by the learned Judge. But, at the same time, he observed (581):
'The next feature to observe is that it has reference to the co-operation of the two groups for the satisfaction of human wants and desires'. As appears from the Municipal Employees case, (1918) 26 CLR 561, the wants and desires referred to are 'material', that is, not spiritual. It is not that the objects by which they are satisfied are material, that is to say, corpuscular.'
We are afraid that this reasoning, however much it might be reinforced by the obvious fact that a line must be drawn somewhere, in applying the tests of the definition to human activities, cannot be sustained, in the last analysis. It could well be contended, for instance, that the animals do not directly express any needs, nor can it be said that the institution really seeks to satisfy animals' needs per se. The history of the institution makes it clear beyond doubt that it exists to satisfy deep-seated religious sentiments in human beings, regarding the propriety of selling or giving away for slaughter such infirm and barren cattle or animals, whose further maintenance is a burden to their owners. Services directed towards the satisfaction of needs, can only be related to articulate needs; it is the human owners of these animals, impelled by particular sentiments, to whom services are truly rendered by the institution.
13. But we think that there is another line of distinction that would have to be made clear, apart from the cases of exclusion that we have already reviewed. That line of distinction can be sustained, on the dicta in the Hospital Mazdoor case that we have earlier extracted, and upon the two leading Australian decisions that have played a large part in any discussion on this subject, namely, (1929) 41 CLR 569 and (1918) 26 CLR 508. The following passages from the judgment of Issacs, J. in the former, and from the judgment of Issacs and Rich, JJ. in the latter decision, are particularly relevant here:
'Industrial disputes occur when, in relation to operations in which capital and labour are contributed in co-operation for the satisfaction of human wants or desires, those engaged in the co-operation dispute............from the character, of the disputantsthis will be confirmed, that so long as the operations are of capital and labour in co-operation for the satisfaction of material human needs, the objects and demands of labour are the same, whether the result of the operations be money or money's worth.' (1918) 26 CLR 508. In the other decision (1929) 41 CLR 569 there is a very important passage in the judgment of Issacs, J. where he deals with the argument that 'society
14. We are of the view that this is a vital and valid distinction. Certainly, even services may be organised to constitute an 'industry', and even such services are undoubtedly expressed in terms of material objects, which would include human beings, and the satisfaction of human wants.
15. But where the activity is, in its essence, religious or spiritual, we do not think that the definition would apply. For, we do not think that it could be seriously contended that a temple or a church is an 'industry', because human wants are satisfied in such an institution, and there might well be an organisation of labour, such as priests, or archakas. A meditation centre, similarly, cannot be termed an 'industry', though it may employ workmen; the same remarks would apply to any religious group, organised as such (as for instance, in Ashram or Vedanta centre) or even a large family living together for the satisfaction of the mutual impulses of love and affection. How far the Madras Pinjrapole can claim the application of this principle, would depend on the extent to which it is essentially an institution satisfying certain purely spiritual needs. As we observed earlier, the complexion might be altered by later developments, and material economic activities might have obstruded so largely into the picture as to render the institution, as at present organised and acting, an 'industry' within the meaning of the Act. Equally, individual units of the organisation (like a distinct Dairy farm) might constitute an 'industry', though the society itself may not be one. We can only enunciate the broad guiding principles. The actual decision will have to be arrived at only after the record of adequate evidence, by the Labour Court in the light of those principles.
16. The writ appeal is partly allowed, accordingly, to the extent that we have indicated in our judgment. There will be no order as to costs.