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Rangaswami and anr. Vs. Registrar of Trade Unions and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberO.P. No. 19 of 1960
Judge
Reported inAIR1962Mad231; (1961)ILLJ599Mad; (1961)2MLJ554
ActsTrade Unions Act, 1926 - Sections 4 and 11; Constitution of India - Article 309
AppellantRangaswami and anr.
RespondentRegistrar of Trade Unions and anr.
Cases ReferredBengal Club Ltd v. Shanti Ranjan
Excerpt:
.....to be employed in an undertaking be the employer coming within the scope of the definition of the term industry in indian industrial disputes act (xiv of 1947), as they did material services systematically for the benefit of, not merely for the members of the governor's house- hold, but also visitors and guests as well and further, as the comptroller directed the sale of unserviceable articles as well as surplus produce of the gardens in raj bhavan, whether the activity of the employer should be held to partake the character of a trade or business as well,; held, the union of the workers at raj bhavan would not come within the scope of act xvi of 1926, so as to entitle to registration under the act, as it could not be stated that they were employers in a trade or business carried on by..........under the act would include one employed in an industry. although there is no definition of the term industry in the act itself, the definition of the term given in the industrial disputes act should be adopted for ascertaining its meaning, as both the enactment related to the same subject, viz, the betterment of the conditions of labour in the country. if that were done, the term 'industry' which is defined to include an undertaking would be comprehensive enough to cover the case of employees like these engaged in services at the raj bhavan who systematically do material service for the benefit of not merely the members of the governor's household but also to visitors and guests as well. therefore, the employees in the present case should be held to be employed in an undertaking by.....
Judgment:

(1) This is a petition under S. 11 of the Trade Unions Act seeking to set aside the order of the Registrar of Trade Unions, Madras refusing to register the union of employees of the Madras Raj Bhavan as a trade union under the Trade Unions Act XVI of 1926, which for the sake of brevity I shall hereafter refer to as the Act.

(2) In the Raj Bhavan at Guindy, a number of persons are employed in various capacities such as household, staff, peons, chauffers, tailors, carpenters, maistries, gardeners, sweepers etc. There are also gardeners and maistries employed at the Raj Bhavan at Ootacamund. Those persons are employed for doing domestic and other services and for the maintenance of the Governor's household and to attend to the needs of the Governor, the members of his family, staff and State guests. There are two categories of employees : (1) those whose services are more or less of a domestic nature. They number 102. The services of these persons are pensionable and are governed by certain rules framed by the Governor of Madras; and (2) those who formed part of the work charge establishment consisting of maistries and gardeners. There are 33 such persons employed at Guindy and 35 at Ootacamund. Their duties consist of maintaining the gardens. Their service is not pensionable but they would be entitled to gratuity at certain rates. There are separate rules prescribing the conditions of their service framed under the proviso to Art. 309 of the Constitution. Both the categories of the staff are appointed by and are under the disciplinary control of the Comptroller.

With the object of securing better service conditions and to facilitate collective bargaining with the employer, the employees formed themselves into a union called the Madras Raj Bhavan Workers' Union. On 9-2-1959, seven of the employees applied to the Registrar of Trade Unions, Madras, for registration of their union as a trade union under the Trade Unions Act of 1926. The applicants did not however claim before the Registrar that the employees were engaged in either trade or an industry the claim was that their services could not be held to be purely domestic services and that therefore their union would be entitled to the benefits of registration under the Trade Unions Act. The Registrar was of the view that before a union can be registered, the members thereof must be connected with a trade or industry or business of an employer, and that condition not being fulfilled in the present case, the employees could not be held to be workmen within the meaning of the Act to entitle them to the registration; the application for registration was rejected.

(3) Mr. Ramsubramaniam, who appeared for the petitioners, impugned the correctness of the view taken by the Registrar. His argument ran thus. The term 'workman' under the Act would include one employed in an industry. Although there is no definition of the term industry in the Act itself, the definition of the term given in the Industrial Disputes Act should be adopted for ascertaining its meaning, as both the enactment related to the same subject, viz, the betterment of the conditions of labour in the country. If that were done, the term 'industry' which is defined to include an undertaking would be comprehensive enough to cover the case of employees like these engaged in services at the Raj Bhavan who systematically do material service for the benefit of not merely the members of the Governor's household but also to visitors and guests as well. Therefore, the employees in the present case should be held to be employed in an undertaking by the employer within the meaning of that term. Further, as the Comptroller directs the sale of unserviceable articles as well as surplus produce of the gardens in the Raj Bhavan, the activity of the employer should be held to partake the character of a trade or business as well.

(4) I am however unable to accept the argument. The question whether Government servants who form an association amongst themselves would have their union registered under the Trade Unions Act was considered by me in O. P. No. 312 of 1958. I expressed the opinion that employees under Government whose service were regulated by statutory rules could not form themselves into a union so as to have it registered as a trade union. I am informed that the judgment in that case is the subject-matter of an appeal which is pending. It is however unnecessary to decide this case on the basis of that judgment as I am of the view that the claim of the petitioners has to fail on an independent ground as well, as ground which was not dealt with by me in the former case.

(5) Under Sec. 4 of the Trade Unions Act, a trade union could apply for and obtain registration therefor. That provision states :

'any seven or more members of a trade union may be subscribing their names to the rules of the trade union and by otherwise complying with the provisions of this Act with respect to registration apply for registration of the trade union under this Act.'

(6) IT is therefore necessary to consider what would be a trade union. Section 2(h) defines a trade union thus :

'Trade union means any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers or between workmen or workmen, or between employers, and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes any federation of two or more Trade Unions' (Proviso is omitted as unnecessary).

The term 'workmen has not been independently defined in the Act. But in the definition of the term 'trade dispute' (which defines such dispute as one between employers and workmen etc), the definition of the term 'workmen' is found. That runs :

'Workman means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.'

The term 'trade union' as defined under the Act contemplates the existence of the employer and he employee engaged in the conduct of a trade or business. The definition of the term 'workmen' in Sec. 2(g) would prima facie indicate that it was intended only for interpreting the term 'trade dispute'. But even assuming that that definition could be imported for understanding the scope of the meaning of the term 'trade union' in S. 2(h), it is obvious that the industry should be one as would amount to a trade or business, i.e, a commercial undertaking. So much is plain from the definition of the term 'trade union', itself. I say this because the definition of 'industry' in the Industrial Disputes Act, is of wider significance. Section 2(j) of the Industrial Disputes Act which defines 'industry' states its meaning as

'any business, trade undertaking, manufacture or calling of employers and includes any calling, services, employment, handicraft or industrial occupation or avocation of workmen.'

(7) An undertaking which is not of a commercial nature will come within the scope of that enactment (Vide State of Bombay v. The object Mazdoor Sabha, : (1960)ILLJ251SC ). The object behind the Industrial Disputes Act is to secure industrial peace and speedy remedy for labour discontent or unrest. A comprehensive meaning of the term 'industry' was evidently thought necessary by the legislature in regard to that Act. But the same thing cannot be said of the Trade Unions Act. The history and object of that enactment show that it was intended purely to render lawful, organisation of labour to enable collective bargaining. The provisions of the Act contemplate the admission of even outsiders as members and participation in political activities. That would itself dictate that the benefits conferred by the Act should be enjoyed by a clearly defined category of unions. I am very doubtful whether at all it could be said that the Industrial Disputes Act and the Trade Unions Act form as it were a system or codes of legislation so far that either could be read together as in pari materia, that is, as forming one systems and interpreting one in the light of another.

(8) There can be no doubt that if a trade union is interpreted as one connected with a trade or a business, it cannot be said that the employer in the present case is having such a trade or business. This however is subject to the consideration of the question whether the sale of unserviceable materials and surplus garden produce will amount to a trade or business activity. I shall refer to it a little later.

(9) Let me assume however that the definition of the term industry in S. 2(j) of the Industrial Disputes Act will apply to the Trade Unions Act. It has then to be seen whether the authorities of the Raj Bhavan could be held to be employers engaged with the workmen in any under taking with in the meaning of the term 'industry' in the Industrial Disputes Act.

(10) In : (1960)ILLJ251SC the question arose whether the employees in a hospital run by the State could be held to be engaged in an undertaking of the State so as entitle them to raise an industrial dispute. The Supreme Court observed :

'It is clear, however, that though S. 2(j) (Industrial Disputes Act) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning all claims would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep and word 'service' is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason'.

(11) The Supreme Court held that the definition of the term 'industry' in S. 2(j) was wider than the conception of trade or business as commonly understood. But an undertaking in order to come within that definition would be an activity which involves the co-operation of the employer and the employees with the object of a satisfaction of material human needs, if organised or arranged in a manner in which trade or business is generally organised or arranged, and if it were no of a casual nature nor one for oneself or for pleasure. It is well known that in an industry, capital and organisation, on the one hand, and, labour, on the other, co-operate to achieve industrial production. Therefore, a mere personal service however much it might have been organised, would not possibly be an undertaking within the meaning of the Act; the essential condition is only personal service given to the employer.

(12) Two distinctive features of an industry therefore are (1) that the employer as well as the employees should be engaged in the industry, however wide the meaning of the term might be; ad (2) there should be co-operation between both of them for achieving the particular result. The first of the two attributes of an industry is succinctly stated by Isaacs, J., in Jambunna Coal Mine No Liability v. Victorian Coal Miners Association, 6 CLR 309 thus :

'An industry contemplated by the Act is apparently one in which both employers and employees are engaged, and not merely industry in the abstract sense, or in other words, the labour of the employees given in return for the remuneration received from his employer. As suggested, not only by the words defining 'industry' itself, but also by schedule B and by such a phrase in the definition of 'industrial dispute' as employment in industries carried on by or under the control of the Commonwealth etc., an 'industry' as intended by Parliament seems to be a business etc, in which the employer in his own behalf is engaged as well as the employees in his employment. Turning to the specific definition of 'industry', it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour miller), undertaking (as a gas Company), calling (as an engineer) or service (as a carrier), or an employment (a general term like 'calling', embracing one of the others, and intended to extent to vocations which might not be comprised in any of the rest) all of these expressions so far indicating the occupation in which the principal, as I may call him, is engaged whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage, or reward, that is, as employees, then, with the exceptions stated, it is an industry within the meaning of the Act.'

This view was accepted in Federated Engine Drivers and Fireman's Association of Australasia v. Broken Hill Proprietary Co., Ltd., (1911) 12 CLR 398.

(13) There can thus be no industry where the employer is not engaged in common with the employees with the definite objective of the achievement of the material needs of humanity and that in an organised manner. In the definition of the term 'trade union' to which I made reference earlier, the regulations of relationship contemplated is in regard to the conditions of service of the employees which postulates the existence of an employer who is concerned in the business trade or industry. It has therefore to be seen whether in the circumstances of the case it can be said that persons in control of the Raj Bhavan can be held to be an employer in an industry however widely that term may be understood. The answer to that question presents no difficulty and can only be in the negative.

(14) The decision in : (1960)ILLJ251SC emphasised that the activity contemplated by term 'industry' in section 2(j) of the Industrial Disputes Act involved the co-operation of the employer and the employees. In Employees of Osmania University, Hyderabad v. Industrial Tribunal, Hyderabad, : (1960)ILLJ593AP it was held that if there was no co-operation between capital and labour, a dispute between an employer and an employee would not be an industrial dispute. The learned Judges laid down that the correct test for ascertaining whether there was such relationship so as to entitle the workers to raise an industrial dispute was to see whether capital and labour were both engaged in the purpose sought to be achieved by the undertaking. In that case, there was a dispute between the Osmania University and its employees. It was held that such a dispute could not be held to be an industrial dispute for there are neither co-operation of capital and labour nor were the activities of the university strictly connected with the production and distribution of wealth. In the case before me, the test of co-operation between the employer and employee for advancing the material need, of humanity has not been satisfied. It cannot be said either that the employer is engaged in any such activity and that he requires the services of the employees to be done for the purpose.

(15) I cannot agree with the learned counsel for the petitioners, that the mere fact that employees serve the visitors and State guests of Raj Bhavan, nor the fact that unserviceable materials and surplus produce of the gardens of the Raj Bhavan are occasionally sold would show that there was co-operation between the employer and the employees for the purpose of a trade or business. The services rendered to the State guests are personal services to them and indirectly to the employer. The occasional sale of unserviceable articles and garden products are incidents of the ordinary administration of Government property. They are done in accordance with certain rules framed by the Government. They would not amount to a trade or business.

(16) Learned counsel for the petitioners placed considerable reliance on the decision in Bengal Club Ltd v. Shanti Ranjan, AIR 1956 Cal 548, where it was held that an incorporated company maintaining and carrying on a club of the kind mentioned in the case which did a catering business and also a business in licenced alcohol was an industry within the meaning of the Industrial Disputes Act. It is obvious that there was an element of trade or business in that case.

(17) To sum up, even apart from the circumstance that a large section of employees at Raj Bhavan are Government servants who could not form themselves into a trade union, it cannot be stated that the workers are employed in a trade or business carried on by the employer. The services rendered by them are purely of a personal nature. The union of such workers would not come within the scope of the Act, so as to entitle it to registration thereunder.

(18) The order of the Register of Trade Unions rejecting the application of the petitioner is, therefore, correct. This petition is dismissed with costs.

(19) Petition dismissed.


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