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The Cosmopolitan Club Vs. the District Employment Officer - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1975)IILLJ235Mad
AppellantThe Cosmopolitan Club
RespondentThe District Employment Officer
Cases ReferredSlate of Bombay v. Hospital Mazdoor Sabha
Excerpt:
- .....the definition and concentrated his attention mainly upon clause (b). according to him, though the words 'business' or 'occupation' occurring independently would have a wider connotation, inasmuch as those words occur in the company of the words, ' industry ' and 'trade' they take their colour from those words and must, therefore, be given a restricted connotation. if such a restricted connotation is given to those words 'business' and 'occupation', it is argued, they must be construed to mean commercial business or occupations like industry or trade having a profit motive. in support of this proposition, reliance is placed upon the following passage at page 321 in maxwell on interpretation of statutes, 11th edition--when two or more words which are susceptible of analogous meaning are.....
Judgment:

Maharajan, J.

1. This appeal is directed against the order of Srinivasan, J,, dismissing the appellant's writ petition No. 459 of 1963. The District Employment Officer, Madras, who is the respondent herein, sent a communication on 23-3-1963 calling upon the appellant to furnish particulars of the number of persons employed by the appellant, treating the appeallant as an establishment within the meaning of the employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The appellant called into question the jurisdiction of the respondent to issue the proceedings dated 23-3-1963. The appellant is the Cosmopolitan Club, Madras. That club is intended to serve its members only, and no person other than a member of the said club is entitled to participate in the amenities provided by that club. The main objects of the club are (a) to provide accommodation for its members, (b) to promote social intercourse among its members, and (c) to provide physical and intellectual recreation for its members. The club being only a. members' club, is not run with any profit motive. The conduct of the club is not in the nature of a commercial undertaking. Consequently, the appellant contended that it is not an establishment within the meaning of the definition contained in Section 2, Clause (e) of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (which will be hereinafter referred to as the Act). The learned Judge rejected the contention of the appellant holding that the presence or absence of a profit motive in the carrying on of a business is wholly immaterial in construing the definition of 'establishment' in the Act, and that the appellant is an establishment within the meaning of the Act and liable to furnish the particulars called for by the respondent. Consequently, the learned Judge dismissed the writ petition, and against the order of dismissal, this appeal has been filed.

2. The preamble to the Act recites that it is an Act to provide for the compulsory notification of vacancies to employment exchanges. Section 2, Clause (e) of the Act defines 'establishment' to mean--

(a) any office, or

(b) any place where any industry, trade, business or occupation ig carried on,

Section 2, Clause (f) of the Act defines 'establishment in public sector' to mean 'an establishment owned, controlled or managed by (1) the Government or a department of the Government, (2) a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956; (3) a corporation (including a co-operative society) established by or under a Central, Provincial or State Act, which is owned, controlled or managed by the Government; (4) a 'local authority.' Clause (g) of Section 2 of the Act defines 'establishment in private sector' to mean--

an establishment which is not an establishment in public sector and where ordinarily 25 or more persons are employed to work for remuneration.

Section 3(1) provides--

an establishment which is not an establishment in public sector and where ordinarily 25 or more persons are employed to work for remuneration.

Section 3(1) provides--

This Act shall not apply in relation to vacancies--

(a) in any employment in agriculture (including horticulture) in any establishment in private sector other than employment as agricultural or farm machinery operatives;

(b) in any employment in domestic service;

(c) in any employment the total duration of which is less than three months;

(d) in any employment to do unskilled office work;

(e) in any employment connected with the staff of Parliament.

Section 4(1) provides--

After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed.

Sub-section (2) of Section 4 provides:

The appropriate Government may, by notification in the Official Gazette, require that from such date as may be specified in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchange as may be prescribed, and the employer shall thereupon comply with such requisition.

Sub-section (4) of Section 4 provides:

Nothing in Sub-sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchange to fill any vacancy merely because that vacancy has been notified under any of those subsections.

Section 5 of the Act provides that the employers ought to furnish information and returns in the prescribed form, Section 6 of the Act provides that the prescribed officer of the Government shall have the right of access to any relevant record or document in the possession of any employer required to furnish any information or returns under Section 5.

3. Sub-section (1) of Section 7 of the Act prescribes that if the employer fails to notify to the employment exchanges concerned any vacancy in contravention of Sub-section (1) or Sub-section (2) of Section 4, he shall be punishable for (the first offence with fine upto Us. 500 and for every subsequent offence with fine upto Rs. 1,000. Subsection (2) of Section 7 of the Act provides that if any person required to furnish any information or return refuses or neglects to furnish the same or furnishes information which he knows to be false, or refuses to answer, or gives a false answer to, any question necessary for obtaining any information required to be furnished under Section 5, or impedes the right of access to relevant records or documents or the right of entry conferred by Section 6, he shall be punishable with fine. The only remaining Sections in the Act are Sections 8, 9 and 10, which are not relevant for the present purpose. If we consider the scheme of the Act in the light of the statement of objects and reasons, it would become clear that the main purpose of the Act is to provide an effective machinery by which the authorities may gather relevant, statistics for the purpose of assessing the volume and pattern of employment in the Indian employment market, on the basis of which the Government may frame its vocational training programme and give advice to unemployed persons about the kind and number of jobs that are vacant and give advice to employers about the employment characteristics and conditions. It is but proper that a welfare State should be constantly watching and assessing the employment potential in various categories of employment and counsel unemployed persons about the needs of employers and counsel the employers about the availability of different categories of labour. In order to achieve this objective, it is necessary for the Government to have a total picture of the vacancies that have occurred or are about to occur in the different establishments in the country, whether such vacancies arise in any industry, trade or business or occupation or in any non-commercial office. Under Section 4, Sub-sections (1) and (2), an obligation is imposed upon every employer in every establishment in the public sector and every notified employer in every establishment in a private sector to notify vacancies to the Employment Exchanges concerned. But Sub-section (4) of Section 4 makes it clear that this obligation to notify the vacancy does not carry with it any corresponding obligation to recruit any person through the Employment Exchange for filling up the vacancy.

4. It is against the background of the considerations set out above, that we have to understand the definition given in the Act of the expression 'establishment' and the contention of the appellant that it is not an establishment within the meaning of the definition, because it is a Members' Club run without any profit motive and it is not carrying on any industry, trade, business or occupation within the meaning of the definition. According to the definition, 'establishment' means (a) any office, or (b) any place where any industry, trade, business or occupation is carried on. Learned Counsel for the appellant overlooked Clause (a) of the definition and concentrated his attention mainly upon Clause (b). According to him, though the words 'business' or 'occupation' occurring independently would have a wider connotation, inasmuch as those words occur in the company of the words, ' industry ' and 'trade' they take their colour from those words and must, therefore, be given a restricted connotation. If such a restricted connotation is given to those words 'business' and 'occupation', it is argued, they must be construed to mean commercial business or occupations like industry or trade having a profit motive. In support of this proposition, reliance is placed upon the following passage at page 321 in Maxwell on interpretation of Statutes, 11th Edition--

When two or more words which are susceptible of analogous meaning are coupled together noscuniur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, that is, the more general is restricted to a sense analogous to the less general.

The applicability of the rule embodied in this passage was examined by the Supreme Court in Slate of Bombay v. Hospital Mazdoor Sabha 1963 L.L.J. 251 : (1960) S.C.J. 679. In that ruling their Lordships observed as follows--

It must be borne in mind that noscuntur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful, but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.

5. There are two reasons why we should refuse to apply this rule of construction poscuntur a sociis to the definition of the word 'establishment.' In the first place, the object of the Legislature in using the words like 'business' or 'occupation' is clear and free from ambiguity; that object is to enable the authorities to have a comprehensive picture of all vacancies in ail the establishments in the country except the vacancies specially exempted under Section 3 of the Act. In any fiscal enactment, like the Income-tax Act or the Sales Tax Act, there may be good reasons for the Legislature to discriminate between trade and industrial concerns having a profit motive, on the one hand, and self-service clubs like the appellant having no profit motive. But the Employment Exchanges (Compulsory Notification of Vacancies) Act of 1959, is not a fiscal enactment, but an enactment intended to facilitate the gathering of statistics which have a bearing upon the employment potential in the country, and there is, therefore, no need or reason for the Legislature to discriminate for the purposes of this Act between an industrial or trade establishment and a non-commercial establishment, 'occupation' has been defined in the Concise Oxford Dictionary to mean 'what occupies one, means of filling one's time, temporary or regular employment, business, calling, pursuit.' The meaning of this word is thus found to have a very wide amplitude and would undoubtedly cover the activities of the appellate club. The word 'business' has also a wide connotation. It means, among other things, 'being busy' according to the Concise Oxford Dictionary, and it undoubtedly covers the activities of a nonprofit making organisation like the Cosmopolitan Club. As the object of the Legislature in using these wider words is clear and free of ambiguity, we refuse to restrict these words to a sense analogous to the words 'industry' and 'trade' which occur in the definition.

6. In the second place, there is no doubt about the meaning of the words 'business' or 'occupation' and it is only where the intention of the Legislature in associating wider words with words of narrower significance, is doubtful, that the rule of construction noscuntur a sociis can be usefully applied. Further the argument of the learned Counsel for the appellant is based exclusively upon Clause (b) of the definition 'establishment' and without any regard for Clause (a), which says that 'establishment' means 'any office' 'office' according to the Concise Oxford Dictionary, means 'place for transacting business, room, etc., in which the clerks of an establishment work, counting house; (with qualification) room, etc., set apart for business of particular department of large concern.' There is nothing in the meaning of the word 'office' to indicate that it must mean the office of a non-profit making concern. The word 'office' is broad enough to indicate any place of business. Clause (g) of Section 2 of the Act defines 'establishment in a private sector' to mean 'an establishment which is not an establishment in public sector and where ordinarily 25 or more persons are employed to work for remuneration.' If both the limbs of the definition of 'establishment' are taken into account and considered in the light of the legislative object behind the Act, we have no doubt that the Cosmopolitan Club, Madras despite the fact that it is not a profit making concern with a commercial motive, is nonetheless an establishment within the meaning of the Act and is liable to furish particulars called for in the respondent's communication dated 23-3-1963. We consequently confirm the order of the learned Judge and dismiss this appeal with costs. Counsel's fee Rs. 150.


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