1. This is a petition 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 in I. D. No. 103 of 1958, on his file. By G. O. No. 3621, Department of Industries, Labour and Co-operation, dated 22nd September, 1958, the State Government referred for adjudication by the Labour Court, Madras, certain questions in a dispute between the Madras Pinjarapole and its workmen.
The questions related to the fixation of scales of pay, dearness allowance etc, for the various categories of workmen and whether the termination of services of the five workers mentioned in the reference was justified, and to what relief they were entitled. A preliminary objection was taken before the Labour Court to its jurisdiction to entertain the reference on the ground that there had been no valid reference to it by the Government.
The objection was that the Madras Pinjarapole was not an industry, and any dispute between the management of Pinjarapole and its workmen could not be held to be an industrial dispute, so as to entitle the Slate Government to refer the same for adjudication by the Labour Court, The Labour Court overruled the objections relying on the judgment of the Bombay High Court (which has since been affirmed by the Supreme Court) in Hospital Mazdoor Sabha v. State of Bombay, 1957-1 Lab LJ 55. That decision was concerned with the case of the workers in a hospital.
The Labour Court held that, although in the present case the Pinjarapole was only a charitable institution whose object was to maintain old and disabled animals, it should be held to be an industrial concern, as it employed workmen for carrying out its objects. The Labour Court posted the industrial dispute to a later date for adjudication on the questions referred to it. The manage-went of the Pinjarapole has thereupon, filed this writ petition for prohibiting the Tribunal from proceeding with the adjudication on the ground that it has no jurisdiction to entertain the reference.
2. The Substantial point for consideration in this petition is whether the Madras Pinjarapole is an industry, so that a dispute between it and its workmen could be considered to be an industrial dispute. That question has got to be considered in its two aspects, namely, (1) whether under the Memorandum of Association, it could validly carry on an industry, and (2) whether even so it did actually carry on such an industry on the material date, namely, the date of the order of the State Government under Section 10(1)(c) directing a reference of the dispute to the Labour Court.
3. When the petition came up for hearing on 26-7-1960, it was found that the materials placed before the Labour Court were not sufficient to enable a satisfactory answer to the two questions referred to above. The learned counsel, appearing for both sides, themselves realised the defect and agreed to file further affidavits giving necessary details for proper adjudication of the questions.
The petitioner has, since then filed a further affidavit supported by two documents, (1) -The Madras Pinjarapole Golden Jubilee Souvenir which gives an account of its origin & growth, & (2) a copy of the proceedings of the meeting of the committee held on the 13th April 1958. There was no objection to the admission in evidence of these documents. On behalf of the workers, a detailed counter affidavit has been filed, to which the petitioner has filed a further reply affidavit. On the materials now available, the following facts emerge.
4. The Madras Pinjarapole is a charitable society, registered under the Societies Registration Act on 20-12-1906. The institution is situate within the City of Madras, and its premises Occupy an area of about 12 acres of land, on which the munificence of several donors had enabled the construction of shelters for animals as well as a sanctuary or birds. The objects of the society, as stated in the Memorandum of Association, are the protection, care and treatment of old, infirm and injured cows, calves, bullocks etc., and affording freedom to such animals from being slaughtered unnecessarily and to guarantee old age relief to the old, infirm and unserviceable animals till they die of natural causes.
To achieve those objects, the means envisaged to be adopted are (a) maintenance of a shelter house for aged and unserviceable animals, (b) the feeding and treatment of all animals entrusted to the care of the society either by the owners anxious to pension their old animals or rescued by philanthrophic persons from the hands of butchers and the protection of animals remanded by magistrates, (c) the breeding of bulls under Ideal and sanitary conditions, (d) the maintenance of a dairy farm with special attention being paid to proper feeding, accommodation and water supply, the proceeds of which will go to the benefit of the other animals of the Pinjarapole, and (e) the bringing up of the calves of the young cows under healthy conditions.
5. It is not disputed that the aims and objects of the Society are purely humanitarian. The starting of the Pinjarapole was inspired by another charitable institution namely the Society for the prevention of cruelty to animals. Mr. Justice Boddam, in his welcome speech at the time of laying of the foundation stone of the Madras Pinjarapole stated:
"It may seem anamalous that the SPCA should take the initiative in starting such an institution but there are many reasons for our doing so. It unfortunately often happens that in pursuance of their duties the Inspectors of the Society find animals being driven which are quite unfit for further work, either from old age or from other causes. On conviction being obtained, these animals are sent to the Raja Venugopal Bahadur Hospital which is SPCA's headquarters for treatment and sometimes it is found that an animal is hopelessly incurable either from old age or from some other cause and the SPCA is confronted with the difficult question of what is to be done with the animal. The owner is probably too poor to be able to afford to keep a useless animal and if it is returned to him it will either be starved to death or be used again in spite of its unfitness or "sold and used by the purchaser. What is the SPCA to do with it? In the absence of the Pinjarapole the only thing that the SPCA could do is to destroy it. To do so In this country is to run counter to the religious principles of all Indians who are members of the Society and so naturally to alienate their sympathies.........In these circumstances the SPCA has for the last few years been endeavouring to get a Pinjarapole established in Madras, a place where all non-carnivorous animals may be taken in and kept to live out the remainder of their lives in peace and without labour until in the natural order of things they die a natural death."
The Madras Pinjarapole could be said to be an improvement upon the humanitarian activities of the SPCA in two substantial matters: (1) the SPCA had no means of providing shelters for the injured or discarded animals, whereas the Pinjarapole has provided such shelters; and (2) merciful killing would not be objectionable from the point of view of the SPCA if that could relieve the animal of its distress, whereas the Pinjarapole being (as it has been stated) a purely "an oriental institution", there would be an objection to the killing of the animals. Its objects and aims envisage the support and care of the animals till they die a natural death.
6. It was realised in the year 1912 that the progress of the institution was hampered by want of funds. Leading members of the Sowcar community, most of them being Jains, came forward to help the institution with necessary funds on condition of their being given a preponderating voice in the management of its affairs. They formed themselves into a committee called the Madras Pinjarapole Mahajana Committee, and out of 12 members who managed the Pinjarapole, 8 members were agreed to be elected from the Mahajan Committee.
In the following year, the Provincial Government declared the Madras Pinjarapole an infirmary under the Prevention of Cruelty to Animals Act XI of 1890, The activities of the Pinjarapole were gradually increased, and in the year 1937, the aims and objects of the institution were enlarged. A resolution was passed that protection of dry cows which were not necessarily old and infirm should be included among the aims and objects of the society.
It is a matter of common knowledge that a number of dry cows in the City of Madras are sold away to butchers by the poor milkmen who could not support them. Butchers themselves offer tempting prices for such cows, a temptation which the poverty of the milkman could not but lead him to succumb. Dry cows were admitted into the Pinjarapole to prevent them from going into the slaughter house. Maintenance of the dry cows called for stud bulls. Stud bulls were presented to the Society by the Government.
In course of time, the dry cows brought forth their progeny and began to yeild milk. The Pinjarapole was, therefore, in a position to sell milk yielded by the cows which were received by it with a view to protect them from the slaughter house. The second respondent has given details of the Sale amounts in respect of the milk produced by the Pinjarapole from the year 1936 upto (he year 1958 as an annexure to the counter-affidavit. That shows that the institution had been receiving substantial sums every year by sate of milk.
7. As I stated already, the ideals of the SPCA and of the Madras Pinjarapole were different in some respects. It was but natural that the latter should, in course of time, desire to stand on its own legs and develop.
8. A separation was effected between the SPCA and the Madras Pinjarapole in the year 1948; the immovable property and funds belonging to the institution which were till then in the name of SPCA wer(c) transferred to the name of the Pinjarapole. A fillip to the activities of the institution was given hi the year 1950, when the Madras Pinjarapole and the Mahajan Gowsala were amalgamated. At the end of 1957, there were 458 animals and in the following year, they increased to 523, The animals included cows, calves, bullocks, buffaloes, horses, asses and stud bulls.
9. It is apparent from the foregoing statement of the progress of the Pinjarapole that its object is purely humanitarian. There is no element of trade or business involved in the various activities of the Society. It cannot even be said that the activities in question are in any way analogous to a trade or business, though I will have to refer to certain features which existed for some years which may be said to partake of such a character.
According to the second respondent, the Pinjarapole had been doing business in the purchase and sale of milk. The Society is also stated to have purchased cows as economic asset for the purpose of assisting them in their industry relating to the dairy farm. It is conceded that stud bulls earn monies when they are employed for breeding dry cows of the public. Detailed figures are given for the sale of the milk since the year 1939.
It is also stated that the Pinjarapole has been selling dry cow dung cakes and also manure. It is contended that, as the objects of the Society themselves envisage the adoption of means for acquiring monies for the maintenance of the animals, its activities should be held to be commercial in nature, and, therefore, an industry. I shall consider seriatim the factual basis for the several points mentioned above.
1. Purchase and sale of milk: The Honorary Secretary of the Pinjarapole has stated that the activities of the Society after 1-4-1958 were confined only to the following matters: (a) the maintenance of shelter house for aged arid unserviceable animals, (b) the feeding and treatment of all animals entrusted to its care either by owners anxious to pension their old animals or rescued by philanthropic persons from the hands of butchers and the protection of animals remanded by magistrates; and (c) the saving of old and infirm cows, bullocks, horses, dogs etc.
The Honorary Secretary has categorically stilted that a dairy farm was started in 1936 as an experimental measure, but that it was abandoned long ago. He has also stated that the management purchased outside milk and sold It along with their own, but that even was stopped from 1-4-1958. This statement is not accepted by the workers. But J have no hesitation in accepting the affidavit filed on behalf of the petitioner. That statement is further corroborated by resolution at the meeting of the committee of the Pinjarapole held on the 30th April 1958. That resolution specifically states that steps should be taken to stop the purchase of outside milk within three months thereof. As regards the stud bulls, the Honorary Secretary has stated that the services were rendered by the Pinjarapole only to dry cows, in the Pinjarapole, though occasionally some dry cows belonging to the donors had the benefit. But it is stated that the latter practice had been stopped since 1-4-1958.
In view of that statement, I am of opinion that the presence of stud bulls in an institution like the Pinjarapole would not justify the Inference that they were employed for commercial purposes. It may be that charges had been collected when cows from outside sent to the Pinjarapole for breeding. Those instances were of a casual nature and even that has been stopped.
The mere fact that occasionally the stud bulls in the Pinjarapole were utilised for the cows no being inmates thereof, could not alter the essential character of the institution, namely, the care of derelict cows and animals. Service, even if done to cows owned by outsiders, would still be service to animals, though incidentally it might benefit the owners as well.
(2) Periodical sales by the. Society of the following: (1) milk, (2) cow dung cakes and manure and (3) calves born of the cows in Pinjarapole and after they reach proper age and after the mother cows go dry. It is admitted that, for some years past, the Pinjarapole had been selling milk. During certain years, it even went a Step further. The Pinjarapole purchased cows, maintained a dairy farm and supplemented their own production of milk with outside milk and sold them.
These activities would certainly partake the character of a business, though the profits of such business might have gone to the humanitarian activities undertaken by the Society. But the activities have long ago ceased. What the Society is now having is the milk yielded by its own cows. Those cows are admittedly kept by the Pinjarapole till their lives. They are not sold. They are the property of the Pinjarapole. The milk yielded by those cows could only be considered as an incidental product in the maintenance of the cows. The sale of cow dung cakes and manure and of the calves after the mother cows become dry are also incidental.
It cannot be held that a trade or business is conducted by the institution. A private owner of a cow who sells surplus milk or its products cannot be said to be doing business without further evidence that he intended it as a commercial venture. Similarly sales of the yield of the inmates of the institution cannot in any way change its character which is essentially one, for the benefit of the voiceless animals who would otherwise be starved or marched to the slaughter house.
10. TO sum up, the main objects and activities of the Madras Pinjarapole are for affording shelter for all unserviceable animals, including dry cows, till the end of their lives. During their stay in the Pinjarapole, which is till they die a natural death, they are looked after by properly feeding them; medical attention is also provided for them. The means adopted and existing on the material date do not contemplate any trade or business The sales of milk and manure etc., are the natural and incidental results of the maintenance of the animals and cannot by themselves be regarded as changing the main object of the institution, namely, the care and preservation of the animals.
11. The question then is whether, under those circumstances, it can be said that the Madras Pinjarapole is engaged in any industry within the meaning of Section 2(j) of the Industrial Disputes Act. That section defines an industry as meaning "any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. I have already pointed out that there is no business or trade by the Pinjarapole.
Nor is there a manufacture or calling of the employers. It has only to be considered whether the activities of the Society aforesaid would amount to an "undertaking" by the Society so as to come within the definition of that section. In State of Bombay v. Hospital Mazdoor Sabha, , the Supreme Court considered the scope of the definition referred to above and enunciated the attributes which would make an activity an undertaking within the meaning of Section 2(j) of the Act. That case was concerned with the decision of the question whether a group of hospitals run and managed by the State Government could be held to be an Industry within the meaning of the Act.
The Supreme Court held that an activity would be an industry, though in carrying it out there was no profit motive. It was held that the presence of investment of capital would have no bearing on the question, and that it was the character of the activity which would be decisive as to whether it would come under Section 2(j). Considering the attributes, the presence of which would make an activity an undertaking within the meaning of the section, the Supreme Court observed at p. 686:
"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. It must not be casual nor must it be for oneself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to tender 'material services' to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) applies"
(Italics (here in single quotation marks--Ed.) mine.) I have already considered the circumstances prevailing in the Madras Pinjarapole on the date of the reference by the Government, and indicated that there is nothing in them to suggest that there was any activity of the Society analogous to a trade or business. But such activity as the Society is having cannot, however, be stated to be casual, though it could be said to have been inspired by the humanitarian instinct in man.
12. Two further aspects have however to be considered (1) whether the activity involves the co-operation of the employer and the employee and (2) whether it Is one for rendering of material service to the community at large. On the first question, there can be no difficulty, as co-operation is essential for proper functioning of the Society. But can the activity undertaken by the Society be said to be one for the satisfaction of human' wants and desires?
It is no doubt true that, in certain cases, an owner, unwilling to maintain his dry or old or in firm animal, might send it to the Pinjarapole. But the object with which the Pinjarapole receives the animal is not for doing service to the owner, but to the animal by affording its protection till death. Essentially, therefore, the service rendered Is not for human wants and desires, but for sake of the voiceless animals themselves.
In , Gajendragadkar, J., referred with approval to the decision of Isaacs, J., in the Federated State School Teachers Association of Australia v. State of Victoria, (1929) 41 CLR 589. I shall presently refer to the relevant passage in that case. Before doing so it will be useful to refer to the earlier case in Federated Municipal and Shire Council's Employees Union of Australia v. Melbourne Corporation, (1918-19) 26 CLR 508, where Isaacs and Rich, JJ., while considering the meaning of the phrase "industrial dispute" observed at p. 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 cooperation-"
Again at p, 561, the learned Judges stated;
"Some of these will be particularised, but in the meantime it should be said that they will show in themselves and from the character of the disputants this will he 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 o labour are the same whether the result of the operations be 'money or money's worth'." (Italics (here in ' ' -- Ed.) mine.)
In (1929) 41 CLR 569, Issacs, J., observed at p. 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, (1918-19) 26 CLR 508 at P. 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."
Therefore, the two essential requirements to constitute an industry are (1) that there should be an operation in which capital and labour co-operate, and (2) that such operation should be for the satisfaction of human wants or desires, The decisions in D. N. Banerji v. P. R, Mukherji, , Employers of Osmania University v.
Industrial Tribunal, and National Union of Commercial Employees v. M. R. Meher, AIR 1960 Bom 22, were concerned with first of the two requisites mentioned above, namely, whether there was a co-operation between labour and management for the purpose of fulfilling human needs or desires.
There was no controversy in those cases whether the activities were with the object of satisfying human needs. I am not, however, to be understood as saying that whenever service is done to animals, it will not be to satisfy human needs. For example, a person may manufacture and sell food for animals; maintain a breeding station for profit or as a business; keep a dairy farm for sale of milk and its products. In all those cases, there is an Intention to trade or do business.
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 Pinjarapole 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; the objects are mainly religious and humanitarian.
It would follow that the tests laid down by the Supreme Court in the Hospital case, , could not be held to be satisfied in that the activities of the Pinjarapole have not been directed to the satisfaction of human needs. I am, therefore, of opinion that there is no industrial dispute to empower the State Government to refer to the Labour Court for ad judication. There is, however, an order by the Labour Court holding that it had jurisdiction. It is But appropriate that the order should be quash ed. A writ of certiorari will Issue. There will be no order as to costs.