(1) This appeal, filed under the Letters Patent, is directed against he judgment of Veeraswami, J., in Writ Petn. No. 1222 of 1959, which was filed by Pappammal Annachatram by its trustee T.K. Subramania Pillai for the issue of a writ under Art. 226 of the Constitution, quashing the order, dated 17th October 1959 passed by the presiding officer, Labour Court, Madurai, in Industrial Dispute No. 49 of 1959. The prior facts necessary for he consideration of this appeal can be set down briefly.
(2) A lady by name Pappammal endowed certain lands as well s a Chatram, several years ago. For the express object of feeding poor desantries (pilgrims from distant places). Subsequently, the charge was extended to give free boarding and lodging for about 225 poor students. The establishment of the Chatram is a small one and consists of three clerks and three cooks. Respondent 3 in the writ petition, one M. Sivaswami, who was one of these clerks, was dismissed by the trustees on certain charges of misfeasance ad misconduct. Thereafter, the Tiruchirapalli Hotel Workers' Union, which admittedly included none of the employees under the Pappammal Annachatram except the aforesaid Sivaswami, took on itself the duty of sponsoring he case of Sivaswami, and thereafter he State Government of Madras refereed the question of the dismissal of Sivaswami to the Labour Court, Madurai for adjudication treating it as an industrial dispute.
Before the Labour Court, Madurai, the trustees of the Chatram raised a specific plea that the Labour Court had no jurisdiction to entertain the claim, and that here was no industrial dispute within the meaning of the Industrial disputes Act of 1947. The Labour Court held that it had jurisdiction to decide the dispute, and held hat the dismissal of Sivaswami was illegal, and directed that he should be restored to his employment and paid a portion no of the back-wages due to him. Against the above order, the trustee filed the writ petition before this Court, for a writ of certiorari.
(3) Three points were raised before the learned Judge, in support of the petition. They were:
(1) the Chatram is not an industry, and the dispute in question is not an industrial dispute, as defined in the Industrial Disputes Act, 1947 (referred to hereinafter in this judgment as the Act):
(2) in any event, the dispute is an individual dispute, and not a collective dispute; and
(3) the labour Court was in error in holding that the order of discharge was violative of the principles of natural justice.
(4) Veeraswami, J. upheld the decision of the Labour Court, and overruled the third point. In regard to the second point, though the view of the admitted facts the objection had force, the learned Judge was not prepared to take the objection into account, because the Labour Court had no opportunity to deal with it. So far as the first point is concerned, elaborate arguments were advanced before the learned Judge, and in his view, the activity conducted by Pappammal Annachatram, was an industry as defined in S. 2(j) of the Act, he dismissed the writ petition. The trustee has filed this appeal under the Letters Patent.
(5) So far as the second point is concerned, as stated already, there was a distinct plea by the trustee before the Labour Court, a that he dispute in this case was not an industrial dispute within the meaning of the Act, and that the Labour Court had no jurisdiction to entertain. In view of the definition of "industrial dispute" in S. 2(k) of the Act, and several decisions of the Supreme Court as well as of his Court, explaining he scope of this definition which it is not necessary to recapitulate here, it would be clear that an individual dispute between a workman and his employer is outside the definition. To bring the dispute within the scope of the definition, it is necessary that it should be supported by an appreciable number of workmen employed under the same employer, but employer has supported the dispute, and it is taken up by an outside body, namely, the Tiruchirappalli Hotel Workers' Union, it will not fall within the scope of the definition. This view has been expressed by the Supreme Court in the well-known case of Bombay Union of Journalists v. The 'Hindu', Bombay, .
From this point of view, there is clearly in this case no industrial dispute as defined in S. 2(k) of the Act, and therefore, the matter is outside the jurisdiction of he Labour Croat for adjudication. However, on the short ground that he Labour Court had no opportunity to deal with this ground, the learned Judge declined to go into it. What we find in his case is that he relevant plea about want of jurisdiction was in fact raised by the trustee, before the Labour court, but he failed to urge there, the particular argument now referred to, in support of that plea. This argument involves an application of law to admitted facts. In our view, as along as the requisite plea has been raised in the Lower Court, and the omission relates only to the failure to put forward a relevant argument in support of it, there will be no bar to prevent the party from urging that argument in support of the plea, before the High Court wherein he has sought the remedy by way of writ. No further investigation into the facts is involved, because the facts are apparent from the record itself and have not been early decision of this Court in O. A. O. K. Lakshmanan Chettiar v. Commr. of Corporation of Madras ILR 50 Mad 130 : (AIR 1927 Mad 130), where it was remarked :
"..................the test that they lay down is whether the applicant armed with a point either of law or of fact which would oust the jurisdiction of the Lower Court has elected to argue the cause on its merits before that Court. If, so, he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate."
(6) That decision relate to proceedings for the issue of a writ of certiorari before this Court. Applying the same principle to this case it would appear that since the appellant had challenged the jurisdiction of the lower Court before it, it was open to him to support the contention in the High Court in certiorari proceedings, by a ground of law applicable to the admitted faces, even though he had not relied on that ground before the Lower Court. From this point of view, the appeal requires to be allowed. Therefore, the appellant is entitled to succeed on this ground of want of jurisdiction of the Labour Court, as the dispute it rally an individual dispute falling outside the scope of the definition in S. 2(k) of the Act.
(7) On the first point, elaborate arguments were addressed before us to whether the activity of Pappammal Chatram, is an industry as defined in S. 2(j) of the Act. That definition reads thus:
" 'industry' means any business, trade, undertaking manufacture or calling of employees and includes and calling service, employment, handicraft, or industrial occupation or avocations of workmen."
No doubt, the language of this definitions very wide, and will extend to a larger variety of activities than what is commonly understood by the terms "trade" or "business". In Banerjee v. Mukherjee, the Supreme Court observed :
It is obvious that the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry, so that dispute arising in connection with them might be settle quickly without much dislocation and disorganisation of the needs of society and in a manner more adapted to conciliation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles. The conflicts between capital and labour have now to be determined more format the stand point of status than of contract, without such an point of status than of contract, without such an approach, the numerous problems that now arise for solution in the shape of industrial disputes cannot be tackles satisfactorily and this why every civilized Government has thought of the machinery of conciliation officers, boards and tribunals for the effective settlement of disputes."
The next land mark is furnished by the decision of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha, . The views laid down by the Supreme Court and other Courts in India prior to the decision had been taken into account, and the Supreme Court again stressed the need to take a wide concept of the term "trade" and "business" for the definition of industry, in view of the progressive socio-economic thought under modern conditions. In that particular case, there was a group of hospitals, managed by the State Government of Bombay, wherein the services of two employees wee terminated by the head of the institutions, and the Hospital Mazdoor Sabha or union of the employees of the institutions, took p the case, and made it into an industrial dispute, which came up for adjudication before the labour court. On the facts of the case, the Supreme Court recognized that if an hospital is run by a private citizen for profit, it would be an undertaking very much like "trade" or "business" in their conventional sense. But it did not make any difference, whether a hospital is run by the Government and the profit motive was absent, because:
"It is the character of the activity which decides the questions to whether the activity in question attracts the provisions of S. 2(j); who conducts the activity and whether it is conducted for profit or not, do not make a material difference."
They followed with approval the view of Isaacs, J., who wrote a dissenting judgment in a case from Australia, Federated Sate School Teachers' Association of Australia, v. State of Victoria, (1929) 41 CLR 569 that he question must always be activity in question. The Supreme Court laid down certain working principles for defining the particular form of activity, which will constitute it an "undertaking" and make it an industry, as defined in S. 2(j) of the Act. They are:
(1) The activity should be systematically or habitually undertaken for the production 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 employees;
(2) The activity will generally involve the co-operation of the employer and the employees; such co-operation will be lacking where the employer supplies his special skill like that of a solicitor or attorney; therefore his work was held not to an industry within the meaning of the Act in National Union of Commercial Employees v. Industrial Tribunal, Bombay, :
(3) its object is the satisfaction of material human needs:
(4) the activity must be organized or arranged in manner in which trade or business is generally organized or arranged; with reference to the remarks of the Supreme Court already extracted this organisation or arrangement should be very much like the organisation of trade or business in the conventional sense;
(5) the activity should be casual nor must it be for oneself nor for pleasure; and
(6) no quid pro quo is necessary, and the activity might be actuated by philanthropic or charitable motives.
(8) The Supreme Court expressly left open the question whether an educational activity will be an industry, but this question specifically came up for consideration in a subsequent decision inUniversity of Delhi v. Ram Nath, . There was a
concession in that case that the teachers employed by educational institutions were not workmen under S. 2(s) of the Act. From this, it followed that one of the tests, namely, co-operation between the employer on the one hand and the workmen (as defined in the Act) on the other, would be lacking where an educational activity was concerned. But on a larger ground also, the Supreme Court decided that educational activity was not an industry.
"Indeed, from a rational point of view, it would be regarded as inappropriate it describe education even as a profession. Education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide my be the denotation of the two latter words under the Act. That is why we think it would be unreasonable to hold that educational institutions are employers within the meaning of S. 2(g), or that the work of teaching carried on by them is an industry under S. 2(j) because, essentially, the creation of a well-educated, healthy young generation imbued with a rational progressive outlook on life which is the sole aim of education, cannot at all be compared or assimilated with what may be described as an industrial process."
The Supreme Court also laid stress on the fact that what was relevant, was the principal activity of the institution namely, imparting education and not subsidiary activate like those of the clerks and so on. This decision was followed by the Calcutta High Court in B. S. E. Society v. West Bengal College Employees' Association, . But this decision of the Supreme Court in
was not available for reference when Veeraswami J., pronounced the judgment now under appeal.
(9) So far as this Court is concerned, the test given by the Supreme Court, of co-operation between the employer and he workmen for the production of the goods involved in the activity, was applied to exempt the work engaged by the employees of Raj Bhavan (residence of the Governor of Madras), Guindy, from the definition of industry in the Act, by one of us, in a case reported inRangaswami v. Registrar of Trade Unions, . In that case reference was made manner in which trade or business is generally organised or arranged."
The facts in that case were that a number of persons who were employed in the Raj Bhavan at Guindy in various capacities, such as, household staff, peons, chauffeurs, gardens, etc. formed a union and they wanted recognition of the union under the Trade Unions Act. It was observed that the definition of "industry" under S. 2(j) of the Act, was of wider significance than for the purpose of recognizing a trade union of workmen under the Trade Unions Act. It was held that the activity of the employees of the Raj Bhavan would not satisfy even the wider test of an "industry" under the Industrial Disputes Act, and much less so for the purpose of the Trade Unions Act.
In another case of his Court, also decided by one of us, i.e., Madras Pinjarapole v. Labour Court, Madras, the question which arose was, whether the Madras Pinjarapole, whose main objects and activities on the material date were affording shelter for all unserviceable animals including dry cows till the end of their lives, was engaged in an "industry" within the meaning of S. 2(j) of he Act Stress was laid on the fact that the Madras Pinjarapole was also carrying on sale of milk and manure. It was decided firstly, that the principal activity was the one to be considered for finding out whether it is an industry, that the subsidiary activities above referred to will not affect the question and that from this pint of view, the Pinjarapole did not constitute an industry. Secondly, it was held that the Madras Pinjarapole was designed to serve the needs of animals, that it had nothing to do with human needs, and that this circumstance also would made it not an industry.
That case came up in appeal before a Bench consisting of Anantanarayanan and Venkatadri, JJ. who, however, were not inclined to treat the date available in the case as complete so far as the other activities (like selling surplus milk, cowdung, etc.) above referred to were concerned, and they remanded the case to the labour court for recording additional evidence to enable a decision to be arrived at. At the time when the above Bench decision was given the learned Judges did not have the advantage of the decision of the Supreme Court in in which stress was laid on the principal for
guidance, the learned Judges also expressed a doubt, as to whether the test of satisfying the needs of animals could be properly applied to the case on hand. However, it is not necessary for the purpose of the present case to go into this debatable issue of the conflict between the needs of animals and the needs of men.
(10) In the light of the principles, extracted in the earlier paragraphs above, and in the light of the admitted facts, of this case, we have got to consider whether Pappammal Annachatram is in industry, to which the Act would apply.
(11) Pappammal appears to have been a prima Hindu Lady. Desantries, as ordinary understood, are Hindu pilgrims from a distance parts of the country undertaking a pilgrimage. We do not have the original deed of endowment. But it is common ground that she made the endowment for giving annadanam or gift of food to desantries, and provided a Chatram or building for the purpose. In 1922, the Sub-court framed a scheme for the endowment. Subsequently, the Board of supervision and the trustees spent the funds in manner so as to include free boarding and lodging for 225 poor students and employed a staff consisting of three cooks and three clerks.
(12) The first point to note is the Hindus have got a firm faith in the law of karma and in a cycle or successive births, till the soul attains salvation or complete liberation from this cycle. The sastras have ordained various forms of dharma or gifts for charity, to attain this spiritual benefit, It is for the latter purpose, that such charities are performed so as to be continued even after the death of the donor, for the good of his soul. In such charities, the main purpose is the spiritual satisfaction of the founder. The benefit conferred by such charities, in the sense of satisfying a material human want, is often of a casual or occasional character, and cannot be equated to an organized form of poor relief to supply widely-felt material needs of human beings. We can recall in this connection endowments for deeding a specific number of Brahmans on Dwadasi day, or for feeding a specific number of people on the sradha day of and ancestor. In such acts greater stress is laid on the religious merit which the gift confers on the donor, than on the aspect of the material wants of the donee it goes to fulfil.
In making an endowment for giving food to desantries Pappammal no doubt, had the view that pilgrims hailing from other parts of the country should be helped with supply of food, while going on their pilgrimage. But the fact that subsequently it was found necessary to divert a substantial portion of the endowment for the purpose of giving free lodging and food to 225 poor students, would also show that the requirement of giving food to desantries was not felt to be a widespread human want. It is possible that desantries so called, who visited the chatram, were few and far between and that therefore the main object of the charity, which the trustees felt it was necessarily to fulfil was not so much the food requirements of the desantries, as the spiritual need of providing salvation to the donor's soul, by continuing the gift in a suitable manner. Further, we do not know what proportion of the funds is diverted to the work of feeding the poor students and boarding them, and whether any amount is still spent on feeding desantries.
It might be that with the passage of time, helping poor and deserving students had become the principal activity of the chatram, and feeding desantries had receded to the background. If at the present time the work of providing help by way of boarding and lodging to students studying in educational institutions has become the principal activity, we can regard that activity also, as one subserving the cause of education, to attain the objective of mens sana in corpore sano. It is as necessary to provide students with good food and lodging as with education. From this point of view, the principles laid down in will be attracted as regards this activity of the
chatram, and though the trustees of the chatram are not the educational authorities, the concerned activity can be viewed as an adjunct of education, rather than an activity partaking the nature of a trade or business.
(13) In the tests laid down by the several decisions of the Supreme Court, already extracted, one important item is that the activity must be organised or arranged in a manner in which trade or business is generally organised or arranged. In some of the decisions of the Supreme Court they had to deal with a municipality in a chain of hospitals, which were organized as a trade or business, in and finally a University of vast dimensions in
. There is absolutely nothing to show that the
activity in this chatram, which involves the simple task of cooking and serving food and which required no more than the service of three cooks, could be equated to organisation as a business or trade.
The three clerks probably had a great deal to do with the general supervision of the lodging and boarding arrangements of the hostel, which had a large strength of 225 students. In this connection one can think of a well-to-do and pious Hindu deciding to feed a specific number of persons on particular days. He could have engaged regularly extra cooks for the purpose. But his activity will not be a business or trade. If he decides, instead of feeding people in his house to feed them in a separate building set apart for the purpose, and makes the cooks work there, instead of in his house, that would not make it an industry or a business. No doubt, the activity of preparing and serving food is involved in a catering business, but it is well known that cooking and serving food from only one part of its activity, whose overall scope makes it one of the recognised business activities sometimes with large scale organisation. But by no stretch of imagination can such a type of activity be inferred in the case of the annadana chatram in the instant case.
(14) The learned Judge himself clearly felt the result of treating the annadana chatram as an industry would be a surprising one, but it would appear that in his view, such a result was incapable bearing in mind the law on the subject. But with the due respect, on account of the reasons enumerated above, we hold that Pappammal Annachatram is not an industry.
(15) The appeal is allowed. The writ petition is also allowed and the order of the Labour Court is quashed. The appellant will get his costs in this appeal.
(16) Appeal allowed.