1. This is an appeal from an order making absolute a Rule obtained by two persons W. F. Depending and B. A. E. Depenning who practise the profession of Patent and Trade Mark Agents in partnership against the Third Industrial Tribunal of West Bengal, the Patent and Trade Mark Agencies Employees' Union, the employees of Depenning and Depenning represented by Patent and Trade Mark Agencies Employees' Union and the State of West Bengal directing the issue of a writ in the nature of mandamus commanding the respondents not to give effect to the order of reference dated January 4, 1958, made by the State of West Bengal referring certain disputes between the De Pennings on the one hand and their employees on the other represented by the said Union.
2. According to the De Pennings the practice of the profession of Patent and Trade Mark Agents is not an industry within the meaning of the Industrial Disputes Act of 1947 and the persons employed by them are not and cannot be workmen within the meaning of the said Act and any dispute between the said groups is not and cannot be an industrial dispute capable of reference by the Government to an Industrial Tribunal. The first petitioner is a qualified engineer and an associate member of various institutes. The second petitioner is a member of the Institute of Trade Mark Agents, London and the petitioners are registered Trade Mark Agents under the Indian Trade Marks Act 1940 and Rules made thereunder. They claim to be fully conversant with the laws and practice relating to Trade Marks and to be fit in other respects to practice as Trade Mark Agents. According to the petitioners their profession is essentially of a specialised legal and technical nature and consists in the application of their personal knowledge, training and experience to the handling of the affairs of their clients, inter alia, in:-
(a) applying for and prosecuting applications for Patents and Designs on behalf of clients in India and abroad at the Patent Office,
(b) applying and prosecuting applications for the registration of Trade Marks on behalf of clients in India and abroad at the Trade Marks Registry, and
(c) advising clients regarding infringement of their Patent and/or Trade Mark rights, conducting oppositions, appeals and all other matters relating thereto.
3. The petitioners claim that in practising their profession they have to do various acts including :-
(a) preparation of specifications of new inventions for the grant of Patents;
(b) making and prosecuting applications on behalf of clients for grants of Patents at the Patent Office and advising and conducting proceedings in opposition to grants applied for by others;
(c) preparation of documents for registration of Designs and making and prosecuting such applications;
(d) making and prosecuting applications for registration of Trade Marks and advising and conducting oppositions to registration and/or supporting clients' applications which have been, opposed by others:
(e) drawing up documents affecting proprietorship of Patents, Designs and Trade Marks, such as Assignments, Licence Agreements and Registered Users, etc., and the recording of such at the Patent Office and/or Trade Marks Registry.
4. The petitioners have a permanent clerical staff and a subordinate staff who claim, to be represented in the disputes relating to the terms ot their employment by the Patent and Trade Mark Agencies Employees' Union which in its turn claims to belong to the Federation of Mercantile Employees' Union.
5. In 1957-58 there were disputes and differences between the petitioners on one hand and their employees on the other with the result that the Government of West Bengal made an order in writing dated January 4, 1958, referring certain disputes alleged to exist between the petitioners and their employees in respect of various mattera including minimum pay and scales of pay, dearness allowances etc., to the Third Industrial Tribunal. This Tribunal called upon the petitioners by writing dated January 16, 1958, to appear before its and answer questions relating to the disputes and to produce books and papers by January, 29, 1958. The petitioners through their solicitors Messrs. Orr. Dignam and Co., called upon the Government of West Bengal to treat the order of reference as a nullity and not to give effect to it. A copy of the said letter was sent to the Third Industrial Tribunal requesting it not to assume jurisdiction in the matter. As the respondents threatened to proceed with the reference the petitioners moved this Court by application dated March 17, 1958, contending, inter alia, that the Tribunal has no jurisdiction to go into the matter and praying for the issue of a writ in the nature of mandamus commanding the Tribunal to forbear from adjudicating upon the alleged disputes and praying foe the issue of appropriate orders or directions restraining the respondents and each of them from giving any effect to the order of reference.
6. The first affidavit in opposition to the application was affirmed by one J. A. Joseph, Secretary of the Patent and Trade Mark Agencies Employees' Union on May 6, 1958. The points raised in this affidavit are as follows: -
(1) The petitioners had by their past conduct professed themselves to be traders and were consequently estopped from urging that their business was not an industry. They had accepted this position before the Labour Tribunal, Conciliation officers and other Courts.
(2) It was not correct to say that the petitioner's work was essentially of a specialised legal and technical nature. The work done by the petitioners required collective efforts, experience and knowledge of their employees. In addition to legal matters the firm undertook jobs of various technical and industrial nature set forth in paragraph 8 of the affidavit, to wit --
I. Preparing labels and supplying printing: blocks prepared therefrom.
II. Supplying trade mark journals and other publications.
III. Renewing subscriptions of Trade Mark Journals.
IV. Effecting searches,
V. Renewing Trade Marks.
VI. Preparation of drawings and tracings (structural electrical, chemical etc.) both for Patents and Industrial Designs.
VII. Manufacture of blue prints (Purely technical).
VIII. Supply of printed, photostat, and typed copies of patent specifications.
XI. Advertising in Newspapers inviting licences for the exploitation of inventions.
X. Directly approaching the Industry offering licences for the exploitation of Inventions.
XI. Renewal of Patents and Designs.
XII. Patent searches (Technical).
(3) The services rendered by the petitioners were not dependent solely on their talent, knowledge and experinence and in many cases service was rendered quite independently and exclusively by the employees.
7. To substantiate the first point reference was made to three letters written by the petitioners between June 10, 1957 and October 5, 1957 to different persons. In the first letter written to one of their peons the petitioners stated that his service for a certain period would be treated as leave without pay 'subject to the approval of the Conciliation Officer'. In the second letter dated February 19, 1957, addressed to the Secretary of the Patent and Trade Mark Agencies Employees' Union the petitioners pleaded inability to pay bonus to any of their employees because the trading result for the year 1956-57 was not known at the relevant time.
8. An affidavit in reply was affirmed jointly by the petitioners on May 20, 1958. Allegations about the work of the firm in which the efforts, experience and knowledge of its employees and specially in matters of technical and industrial nature apart from the legal matters entrusted to the petitioners were not sufficiently dealt with.
9. Finding himself unable to decide on the basis of the affidavits on record the learned trial Judge gave the parties liberty to file further affidavits. The petitioners did so by an affidavit of July 29, 1958, in which items 1 to 12 of paragraph 8 of the affidavit in opposition were dealt with at some length. With regard to item No. I it was said that labels and blocks formed a part of the requirements in prosecuting an application for registration of a Trade Mark under the provisions of the Indian Trade Marks Act. The petitioners did not prepare any label or supply any blocks by way of trading in them. In some cases the labels supplied to them by their clients in connection with applications for registration had to be modified or amended to meet the objections of the Trade Mark Registry These modifications or amendments directed by the Registry were carried out under the supervision of the petitioners by their employees. Again in other cases where the clients failed to supply a sufficient number of labels for the purpose of registration the petitioners had further copies printed by outside printers from printing blocks prepared by outside block makers. As regards blocks it was the case of the petitioners that the marks of their clients in respect of which applications for registration were made had to be advertised in the Official Journal known as Trade Mark Journal to keep the public informed of the marks of which registration was sought and to enable the members of the public to oppose such registration if their interests were likely to be jeopardised by the new registration. For this purpose the Registry in some cases asked the petitioners to supply it with printing blocks of the labels in question. Sometimes these were supplied by the petitioners' associates abroad from whom instructions were obtained on behalf of clients but in those cases where blocks had not been supplied the petitioners had to place orders for them with block makers in the town and when these blocks were received they were forwarded to the Registry.
10. With regard to item No. II it was said that the petitioners sometimes supplied their clients or associates abroad with copies of the Trade Mark Journal or the Gazette of India out of courtesy. For this purpose the petitioners purchased such publications and forwarded them on to their associates or clients and did not carry on any trade or industry in respect of supply of those publications. With legard to item No. III it was said that some of the petitioners' associates (persons practising as patents and trade marks agent abroad) instead of subscribing directly to the Trade Marks Journal and the Gazette of India paid their subscriptions through the petitioners. In such cases the petitioners charged the associates with the actual amount of subscriptions together with a further small amount to cover postage, packing etc. Explanations were similarly given with regard to the other items of paragraph 8 of the affidavit in opposition.
11. It is not necessary to deal with every single item in paragraph 8 of the affidavit in opposition or the comments thereon made in the affidavit of the petitioners dated July 29, 1958 in explanation of the nature of the work covered by the said items. Some reference however may be made to items VI, VII, VIII, XI and XII. With regard to item VI it was said that drawings and tracings formed a part of the documents to be filed with an application for a patent or a design registration, that in the majority of these applications the required drawings were supplied to the petitioners by their clients but in some cases where the clients supplied only informal drawings and in other cases where the petitioners were instructed by the inventors personally and supplied sketches of the drawings to the petitioners the drawings were found not to be in conformation with the Patents and Designs Rules regarding their size, manner of preparation etc., the petitioners had to get the drawings prepared in the proper form according to the Rules. Such drawings were usually done by a clerk in the petitoners' employment under their supervision and whenever the work was of a complicated nature it was entrusted to a professional draughtsman not in the petitioners' employment. Every application for registration of a design had to be submitted along with four photographs of the design to be registered or four copies of a drawing of the design had to be filed. Generally these were supplied by the petitioner's clients but in a few instances where a specimen of the object itself was supplied to the petitioners instead of photographs or drawings, photostat copies were obtained by placing orders with photographers not in the petitioners' employment and in cases where the object was simple, sketches were prepared by a clerk under the petitioners' supervision. With regard to item VII the petitioners denied that they manufactured any blue prints. It was said that under the Patents and Designs Rules drawings to be filed with an application for Patent had to be submitted in duplicate, one set being on tracing linen while the other might be a paper print. As and when required in connection with such applications on behalf of clients in respect of chemical Patents, tracings on tracing linen were made from the original specifications supplied by clients and the same were also copied on ferro-paper and filed with the Patent application. In respect of other Patents (electrical, mechanical etc.) where tracings were prepared by a clerk in the petitioners' employment or by a professional draughtsman not in such employment the same were copied on ferro-paper. With regard to items IX and X the petitioners' explanation was that the Patents and Designs Act required that inventions for which Patents had been granted in India should be worked in India to the extent that they were capable of being worked. Such working was necessary for the continuance of the patent in force, but a nominal working sufficed in the absence of any actual manufacture under the patent particularly when manufacturing was not possible in this country. Such nominal working was effected by advertising that the patentee was desirous of exploiting the patent and inviting applications for licences or by writing to particular persons likely to be interested in being licensed to use the patent. Such advertisements and letters were issued by the petitioners on behalf of patentees who were their clients (usually residing abroad) as part of the normal functions of a patent agent in keeping the patent in force. With regard to item XII it was said that
'patent searches are necessary in order to find out whether a particular invention is already protected by a Patent in India. The details of such invention may be supplied by clients to the petitioners either by quoting the serial number of the corresponding U. K. or U. S. A. or other foreign patent or by an extract of the abridgment of the specification of inventions issued by such foreign patent office. The abridgments issued by foreign patent offices are received in the patent office, Calcutta. Particulars of inventions for which patents have been granted are contained in the specifications of inventions published by the patent office. These specifications of inventions are classified and indexed industrywise and abridgments have also been published separately. When a search has to be made in respect of a given invention a technical officer of the petitioners gives the particular headings in the indexes and Gazettes to a clerk and also gives the clerk directions and guidance to look under these headings'.
In certain cases, searches also extended to finding out the name of the person to whom the patent had been granted. The information obtained by the clerk from these publications was checked by the Technical officer with reference to the particulars of the given invention and thereafter the petitioners advised their clients in the matter.
12. In dealing with the explanations in the affidavit of the 29th July, 1958, Joseph said in his further affidavit that the same were wrong and misleading. He stated that regular rectification work relating to labels was carried out by the petitioners and drawings for guiding the manufacture of the printing blocks were mostly prepared by their employees. It was also said that the petitioners made profit by supplying regularly trade mark journals and other publications to their customers. With regard to item No. VI it was said that full fledged (technical) drawings were prepared from the models and rough sketches or informal drawings by G. N. Mitter, an employee of the petitioners who was an artist himself. As regards items Nos. IX and X it was said that the petitioners reaped benefits of the work done by their employees without their taking part in it at all and with regard to item No. XII it was said that the patent searches were conducted by the deponent himself who had 'considerable experience in this line.
13. When the matter was taken up for hearing after the filing of these affidavits Counsel on behalf of respondent No. 2 contended that the petition ought to be dismissed on the preliminary ground of suppression of facts. As the learned Judge was not satisfied that the affidavits were very clear on this point he gave the parties liberty to use further affidavits. By an affidavit dated November 24, 1958, J. A. Joseph said that the petitioners had participated in an industrial dispute before the First Labour Court which had after a protracted hearing given its award the same being published in the Calcutta Gazette Extraordinary dated August 29, 1957. It was contended that this award precluded the petitioners from urging that they did not carry on an industry as defined in Section 2(j) of the Industrial Disputes Act. Joseph further said that the petitioners had relied on the said award as a shield in their written statement against an action brought against them by one of their employees and an ex-member of the respondent No. 2 in the City Civil Court at Calcutta, being Misc. Case No. 70 of 1958, Joseph quoted a portion of the judgment of the Judge of the City Civil Court whereby it was held that the plaintiff before him having elected the remedy provided for by a Special law and having failed there could not be allowed to start proceedings afresh in the ordinary Civil Court.
14. In the further affidavit filed on behalf of the petitioners on November 27, 1958, it was asserted that the petitioners had throughout claimed that they were not carrying on an industry, that they had objected to the jurisdiction of the First Labour Court at Calcutta in the alleged industrial disputes in respect of the discharge of Hari Sadhan Ghosh and that in spite of the said contention the First Labour Court had made its award. It was said further that this award had been pleaded in bar of the suit in the City Civil Court and that as the petitioners had throughout maintained their position that they were not engaged in an industry there had been no suppression of any material fact.
15. From the judgment of the learned trial Judge it appears that it had not been seriously contended before him that in so far as the petitioners carried on their work as Patent and Trade Mark Agents in its legal side, the work did not constitute an industry. With regard to the items of work in paragraph 8 of the affidavit in opposition of Joseph he remarked that 'some of the works done by the petitioners were not by themselves dependent on a knowledge of law'. He added that the approach of the Union to the question was not right and that
'where a person carries on a profession, which is basically, or mainly dependent on his or her personal skill or knowledge, then the fact that such work involves as incidental thereto certain matters of routine, or matters which are incidental and do not by themselves require individual skill, cannot render the entire profession work an industry.'
According to the learned Judge the activities mentioned in paragraph 8 of Joseph's affidavit were not independent and unconnected with the professional work carried on by them. He went on to examine the various items of activity and commented thereon. With regard to item No. I regarding preparation of labels and blocks he accepted the explanation of the petitioners that they had no printing press or a manufactory for blocks wherein these were manufactured on a large scale and made available to any one who required them but in cases where the labels or blocks supplied by their clients turned out to be defective they took the trouble of getting the same made by outside blocks makers or printers to serve the cause of their clients. With regard to items II and III the learned Judge seems to have accepted the explanation that these were done purely as a matter of courtesy and incidental to the practice of the profession of Patent and Trade Mark Agents. With regard to items IV to VIII he held that these were purely matters incidental to the carrying on the profession of the petitioners. With regard to item IX the learned Judge was of opinion that advertisements and letters were issued by the petitioners on behalf of their patentee clients in order to ensure the continuance of the patent in force to comply with the requirements of Patent and Designed Act, that the inventions for which the patent had been granted in India should be worked in India to the extent that they were capable of being worked and that such advertisements in proof of the desire of the patentee to exploit the patent constituted nominal work. With regard to items XI and XII the learned Judge took the view that the fact that any body who was not a patent agent could take up the work of renewal of patents and designs or institute patent searches did not affect the question at all since people who were interested in this work would go to persons having specialised knowledge in the subject. In the result the learned Judge held that the Union had failed to show that the petitioners had been carrying on an industry within the meaning of the expression used in the Industrial Disputes Act. He concluded by saying
'that the mere fact that there are certain employees assisting the petitioners in practising their profession does not affect the question, because the work of these employees and/or assistance is not such as would satisfy the tests laid down, so as to constitute the work, a co-operation between capital and labour for the production of wealth, which was not dependent on individual skill and knowledge of the employer.'
16. The learned Judge also turned down the further contentions raised on behalf of the respondents and directed the issue of a writ of Prohibition forbidding the first respondent from going on with the proceedings or adjudicating thereupon.
17. The question whether particular activities constitute an industry within the meaning of the expression used in the Industrial Disputes Act has engaged the attention of different High Courts and the Supreme Court in several cases. Foremost in this line is that of the Supreme Court in the State of Bombay v. The Hospital Mazdoor Sabha, : (1960)ILLJ251SC . There the main question was whether a group of hospitals which served as a clinical training grounds for students of the Grant Medical College, a Government College run and managed by the State of Bombay for imparting medical sciences leading to the degrees of Bachelor of Medicine and Bachelor of Surgery of the Bombay University as well as various Post-Graduates qualifications of the said University were an industry within the meaning of the Act. There was no dispute that the hospitals were managed for providing medical relief and promoting the health of the people of Bombay. The Supreme Court observed that though the words used in the definition clause of Section 2(j) of the Act were 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.'
After considering the arguments for and against the Supreme Court observed that
'it is the character of the activity which decides the question as to whether the activity in question attracts the provision of Section 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference.' On the point as to the presence of the attributes which makes an activity an undertaking within Section 2(j) on the ground that it is analogous to trade or business, the Court observed -- '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 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 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 cooperation between employer and tie employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which Section 2(j) applies.'
18. In the result, the Court was satisfied that the High Court of Bombay was right in coming to the conclusion that the conduct and running of the group of hospitals by the appellant amounted to an undertaking under Section 2(j) of the Act.
19. The reason why the Supreme Court upheld the decision of the Bombay High Court was explained in National Union of Commercial Employees v. M. R. Meher, Industrial Tribunal, Bombay, : (1962)ILLJ241SC . In this case the central question was whether a firm of Solicitors practising in Bombay was pursuing an industry within the meaning of the Industrial Disputes Act. The Court referred to the Hospital Case, : (1960)ILLJ251SC and observed --
'The concept of Industry postulates partnership between Capital and Labour or between the employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view. In other words, the co-operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to industry, is the co-operation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co-operation between capital and labour or between the employer and his employees must be direct and must be essential.' Considering the Hospital Case, : (1960)ILLJ251SC the Court remarked that service was rendered to patients in the hospital for a period of time during which their needs had to be attended to, food had to be supplied to them, nursing assistance had to be given to them and medical help had to be rendered from time to time until complete recovery. Accoiding to the Court
'in the case of the activities of an organised hospital the co-operation of the employees is thus directly involved in rendering one kind of service or another which it is the duty of the hospital to render. It is true that the patients are drawn to the hospitals primarily because of the doctors or surgeons associated with them. But there can be no doubt that the work of the hospital and its purpose are not achieved merely when a surgical operation is performed or medical prescription provided. After medical treatment is determined or a surgical operation is performed, the patient coming to a hospital as an indoor patient needs all kinds of medical assistance until he is discharged and the services rendered to Mm both initially and thereafter until his discharge are all services which the hospital has been established to render and it is in the rendering of the said services that the employees of the hospital co-operate and play their part.' With regard to a firm of solicitors the Supreme Court held that
'the service rendered by a Solicitor functioning either individually or working together with partners is service which is essentially individual; it depends upon the professional equipment, knowledge and efficiency of the Solicitor concerned. Subsidiary work which is purely of an incidental type and which is intended to assist the Solicitor in doing his job has no direct relation to the professional service ultimately rendered by the Solicitor. For .his own convenience, a Solicitor may employ a clerk because a clerk would type his opinion; for his convenience, a Solicitor may employ a menial servant to keep his chamber clean and in order; and it is likely that the number of clerks may be large if the concern is prosperous and so would be the number of menial servants. But the work done either by the typist or the stenographer or by the menial servant or other employees in a Solicitor's firm is not directly concerned with the service which the solicitor renders to his client and cannot, therefore, be said to satisfy the test of co-operation between the employer and the employees which is relevant to the purpose. There can be no doubt that for carrying on the work of the solicitor efficiently, accounts have to be kept and correspondence carried on and this work would need the employment of clerks and accountants. But has the work of the clerk who types correspondence or that of the accountant who keeps accounts any direct or essential nexus or connection with the advice which it is the duty of the solicitor to give to his client? The answer to this questions must in our opinion be in the negative.' The Court further observed that'a person following a liberal profession does not carry on his profession in any intelligible sense with the active co-operation of his employees and the principal, if not the sole, capital which he brings into his profession is his special or peculiar intellectual and educational equipment. That is why on broad and general considerations which cannot be ignored, a liberal profession like that of an attorney must, we think, be deemed to be outside the definition of industry under Section 2(j).' The Supreme Court incidentally referred to tha view taken with regard to solicitors by learned Judges of this Court in Brij Mohan Bagaria v. N. C. Chatterjee, : (1958)IILLJ190Cal and D.P. Dunderdale v. G. P. Mukherjec, : (1958)IILLJ183Cal .
20. The question whether the business of a chartered accountant was an industry came up for consideration by a Division Bench in the case of N. R. Mukherjee v. Arnold Hartmen Just, : AIR1961Cal95 . The Tribunal to which the dispute was referred look the view without taking any evidence on the point that such a business was an industry. The firm came to this Court with a Writ petition for quashing the order of the Tribunal and for prohibiting it from exercising any jurisdiction over the issue referred to it. The trial Judge directed the Tribunal to come to a conclusion upon the evidence to be adduced by the parties on the question whether the firm indulged in business which was not strictly the business of a Chartered Accountant. The Division Bench found it impossible to decide the question upon the pleadings of the parties and remarked
'that the question ......... cannot be decided without a specific finding of the Tribunal as to the manner in which the firm carries on its business and also ...,...,. whether the activities of the firm are confined only to business of a Chartered Accountant simpliciter or they extend to other activities, which are not connected with the business of a Chartered Accountant ......... The manner in which the firm carried on its business of a Chartered Accountant is also germane to the determination of the question whether that business is an industry within the meaning of Section 2(j) of the Act ......... That point will have to be decided after taking evidence on the two questions, namely, (a) whether the professional income of the firm was earned solely by the efforts of the partners of the firm and (b) whether the firm carries on other business besides the business of a Chartered Accountant.'
With the above order the matter was sent back to the Tribunal for determination of the issues.
21. The latest judgment of the Supreme Court as that in the case of University of Delhi v. Sam Nath, Civil Appeals Nos. 650 and 651 of 1962: (reported in : (1963)IILLJ335SC ). This judgment has not been reported but we were supplied with certified copies of it. The question arose in connection with the termination of the service of two drivers of the University who claimed retrenchment compensation. The Court held that although the University employed subordinate staff who were not connected with teaching
'ia the main scheme of imparting education, this subordinate staff plays such a minor, subsidiary and insignificant part that it would be unreasonable to allow this work to lend its industrial colour to the principal activity of the University which is imparting education. The work of promoting education is carried on by the University and its teacher, and if the teachers are excluded from the purview of the Act, it would be unreasonable to regard the work of imparting education as industry only because its minor, subsidiary and incidental work may seem to partake of the character of service which may fall under Section 2(j).' Finally the Court held that 'the predominant activity, of the University of Delhi 5s outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution.'
22. We have therefore to approach the question as to whether the work of the De Pennings constitutes an industry or not in the light of the above decisions. According to paragraph 4 of the petition the petitioners satisfied the Registrar of Trade Marks and the Central Government about their knowledge of the laws and practice relating to trade marks and their fitness in other respects to practice as trade mark agents. The Trade Marks Act of 1940 stood repeated by the Trade and Merchandise Marks Act, 1958. Section 123 of the latter Act provides that
'where, by or under the Act, any act, other than the making of an affidavit, is required to be done before the Registrar by any person, the act may, subject to the rules made in this behalf, be done, instead of by that person himself, by a person duly authorised in the prescribed manner, who is:
(a) a legal practitioner, or
(b) a person registered in the prescribed manner as a trade marks agent, or
(c) a person in the sole and regular employment of the principal.'
Obviously the petitioners come under the category 'b'. Rules 146 to 158 of the Rules framed uader the Act relate to registration of trade mark agents, their qualifications etc. Under Rule 148
'subject to the provisions of Rule 149, a person shall be qualified to be registered as a trade marks agent if he :
(i) is a citizen of India;
(ii) is not less than 25 years of age;
(iii) has passed the examination prescribed in Rule 152;
(iv) is a graduate of any University in India or possesses an equivalent qualification; and
(v) is considered by the Central Government as a fit and proper person to be registered as a trade marks agent.'
Under Rule 152 a person desirous of qualifying himself as a trade mark agent must possess a detailed knowledge of the provisions of the Act and the rules and a knowledge of the elements of trade marks law and appear at a written examination in the subjects. It is therefore clear that a person or body of persons who practise as trade mark agents must be fully qualified and possess sufficient working knowledge of the Act and the rules. They have to advise clients about the procedure to be followed and the steps to be taken for compliance with the provision of the Act and for protecting their rights under the Act. So long as they confine their activities to these things it may be said that they pursue a liberal profession which would be outside the scope of Industrial Disputes Act. But I venture to think that if they overstep that limit and help their clients or do things for them not in an advisory capacity nor merely in a representative capacity permitted under the Act but indulge in other activities which may help their clients in complying with the formalities prescribed by the Act and the rules for protecting or perfecting their rights under the Act they may be said to pursue an industry. No conclusion on this can bo arrived at unless an examination is made of the manner in which the activities of the firm are carried on and an estimate is made of the volume of the transactions effected which are not purely advisory or representative. For instance it is no part o the business of the trade mark agents to prepare labels or supply printing blocks for their clients. If labels are prepared or printing blocks are supplied only casually it could hardly be said that the trade mark agents were pursuing an industry but if such labels or printing blocks were prepared and supplied regularly to meet the needs of the clients I see no reason why such activity would not constitute an industry if there was a regular co-operation between the agents and their empoyees. The same remark would apply to item VI of paragraph 8 of the affidavit of Joseph with regard to the preparation of drawing and tracing for patents and industrial designs as well as to the making of blue prints. I do not find it possible to hold that any and every activity of trade mark agents which would help their clients in acquiring or securing their rights under the Trade and Merchandise Marks Act. 1958 is attributable to the practice of their profession as agents arid as such outside the ambit of the word 'industry' in the Industrial Disputes Act. If after taking full evidence with regard to the items mentioned in paragraph 8 of the affidavit of Joseph the conclusion to be arrived at is that the predominant activity of the firm is outside the Act and those mentioned in paragraph 8 are only minor and casual activities carried on by the subordinate staff it must be held that the work oi the firm does not constitute an industry. In my view, no conclusion is possible before evidence is adduced with regard to the activities of the De Pennings, the manner in which the items of work mentioned in paragraph 8 of the affidavit of Joseph is executed and the part played by the employees rendered with regard thereto. If it be found that the firm transacts a considerable volume of work which does not have to be performed by trade mark agents under the Act with the help of the employees it must be held that the work of the firm constitutes an industry. In my opinion, it ia not possible to come to any conclusion merely on the affidavits filed. Both oral and documentary evidence will be necessary and books of account and other papers of the firm will have to be examined before coming to a conclusion as to whether there is an industry within the meaning of the Act or not.
23. The question remains as to where this examination is to take place. Should evidence be adduced in this Court to find out whether the work of the firm constitutes an industry or should it be referred to the Industrial Tribunal to take evidence to come to a finding? It was argued by Mr. Meyer on behalf of the respondents that if the Court felt that evidence was necessary on this point it should direct that such evidence and finding thereon be recorded here. Mr. Meyer cited some instances where evidence had been allowed to be adduced by learned Judges taking applications under Article 226 of the Constitution but such instances are extremely rare. In the case oi Management of Express Newspapers (Private) Ltd., Madras v. The Workers, : (1962)IILLJ227SC the question was whether there was a lock out or a closure of a business. If it was the former there was an industrial dispute but if the latter there were none such. The supreme Court observed that in law the employees were entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute was not an industrial dispute and that the Industrial Tribunal had no jurisdiction to embark upon the proposed enquiry. According to the Supreme Court proceedings before the Industrial Tribunal were in the nature of quasi-judicial proceedings and if the Tribunal proceeded to assume jurisdiction over a non-industrial dispute the same could be successfully challenged before the High Court by a petition for an appropriate writ. In such a case the Court observed that
'if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an industrial dispute or not ......... and the finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not......... The finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional fact and it is only when the jurisdictional fact is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute.' In this case an appeal bench of the Madras High Court had held that it would not be proper to issue a writ oi prohibition unless a disputed question of fact was tried by the Tribunal in the first instance anJ the disputes were then referred to the Industrial Tribunal for disposal according to law. The Supreme Court said that
'the High Court undoubtedly has jurisdiction to ask the Industiral Tribunal to stay its hands and to embark upon the preliminary enquiry itself......
Normally, the question of fact, though they may. be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. After the Special Tribunals try. the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facto should be circumvented and the decision of sach a preliminary issue brought before a High Court in its writ jurisdiction.'
The Court however was careful to point out that this was not a fixed or inflexible rule and there might be preliminary facts which could be tried by a High Court in a writ petition. In the result the Supreme Court approved of the course adopted by the Appeal Bench of the Madras High Court.
24. In K.K. Kochunni v. State of Madras : AIR1959SC725 , the Supreme Court had observed that in a proper case the Supreme Court itself would not hesitate to take evidence on a petition under Article 32 of the Constitution and noticed such instances in K.R. Rawat v. State of Saurashtra, : 1952CriLJ805 and Ram Krishna Dalmla v. S. R. Tendolkar, : 1SCR279 .
25. In : AIR1961Cal95 which has already been referred to a division bench of this Court directed the Tribunal to determine the question whether the activities of the firm of Chartered Accountants constituted an industry within the mealing of Section 2(j). of the Act and in my view, that is the proper course to be followed in the case before us. The matter mentioned in paragraph 8 of the affidavit in opposition of Joseph cannot be satisfactorily dealt with on affidavits. The exact nature of the work involved, the respective parts played therein by the employees as well as the employers, the number of instances during a particular period in which activities of the nature mentioned in the said paragraph 8 were carried on and the regularity with which they were pursued have all got to be examined before one can come to any conclusion as to whether there was co-operation between the employers and the employees in matters not strictly covered by the duties of trade mark agents under the Trade Marks Act to constitute an undertaking for the purpose of the Act. It is therefore necessary and proper that the matter should go back to the Industrial Tribunal for determining the jurisdictional fact as to whether the work of the firm of De Pennings having regard to the activities mentioned in paragraph 8 of the affidavit of Joseph constitute an industry or not.
26. I now proceed to deal with certain other points taken on behalf of the appellants. They were: (1) The petition should have been thrown out because the petitioners were guilty of deliberately suppressing material facts in their application; (2) the petitioners were precluded by their former conduct from contending that they did not pursue an industry and (3) the matter was barred by the principles of res judicata by reason of a former industrial award.
27. All these points are somewhat inter-linked and a brief resume of some facts is necessary to examine the contention. Some time before the present dispute started there had been another dispute between the employers and the employees which had been referred by the Government of West Bengal by order dated April 10, 1957 to the First Labour Court at Calcutta. This related to the dismissal of one Harisadhan Ghose. The petitioners filed a written statement in those proceedings contending that their firm was not an industry and the Industrial Court had no jurisdiction to go into the matter. This was however negatived and an award was made on August 3, 1957 holding that the dismissal of the employee was justified and that he was not entitled to reinstatement. The dismissed employee then asked for leave of the City Civil Court to file a Suit against the petitioners in forma pauperis. On March 13, 1958 the petitioners filed a petition wherein they referred to the award of the Tribunal in bar of the proposed suit and did not expressly plead that the Industrial Court had no jurisdiction to entertain the dispute. According to the appellant the petitioners thereby accepted the jurisdiction of the Industrial Court on the basis that their firm was carrying on an industry.
28. The contention about the suppression of facts is based on the absence of any mention of the proceedings before the Labour Court and the award passed by it in the petition filed in this Court. While it is true that these had not been referred to in the petition filed in this Court they do not in my view, amount to suppression of any material fact. A party can be said to be guilty of such practice, if it be found that it had kept back from the Court something which was material for the Court to know to appreciate the correct position. If the adjudication of the Labour Court was binding on this Court the suppression of the former award would certainly be material. But as this Court is not bound by the determination of a jurisdictional fact by the Tribunal in another case, and as the petitioners had taken the point as to jurisdiction before the Labour Court in my view there was no suppression of any material fact.
29. I am unable to hold that the petitioners are precluded by any act of theirs in the past from asserting now that their firm did not constitute an industry. It is true that no reference was made to this contention in the written petition filed by them in the City Civil Court. But it was not necessary for them to assert there that they were not pursuing an industry within the meaning of the Industrial Disputes Act. The City Civil Court could not possibly go into that question as the award of the First Labour Court was against the dismissed employee and it was enough for the petitioners to point out that the claim of the employees had already been adjudicated upon.
30. Our attention was drawa to two decisions' of the Supreme Court and it was argued that ones it was shown that the petitioners had acquiesced in the jurisdiction of an Industrial Tribunal they could not be allowed to object to it in another case. The first decision is that of Pannalal Binjraj v. Union of India, (S) : 1SCR233 . There a number of petitions were heard together and a common judgment passed in respect of all them, but we may take the case of two groups of persons described in the judgment as the Raichur group and the Amritsar group. These groups did not raise any objection to their cases being transferred under Section 5(7A) of the Income-tax Act from one set of income-tax officers to another but submitted to their jurisdiction. It was only after the judgment of the Supreme Court in the case ofr Bidi Supply Co. v. The Union of India, (S) : 29ITR717(SC) that they complained against the transfers and filed the petitions under Article 32 of the Constitution raising the point that Section 5 (7-A) of the Income-tax Act was ultra vires the Constitution and in infringement of the fundamental rights enshrined under Article 14 and Article 19(1)(g). This contention was negatived on the ground that having acquiesced in the jurisdiction of the Income-tax Officers to whom their cases were transferred the groups were not entitled to invoke jurisdiction of the Supreme Court under Article 32 substantially because they had submitted to such, jurisdiction.
31. The other case relied on is that of Manak Lal v. Dr. Premchand, (S) : 1SCR575 , There a complaint had been filed against the appellant Manak Lal under Section 13 of the Legal Practitioners' Act by the respondent Dr. Premchand in that he had improperly procured an orders in respect of certain proceedings under Section 145 of the Criminal Procedure Code and got them, signed by the Reader of the Court of the Sessions. Judge to the prejudice of the respondent Dr. Premchand. The Tribunal nominated by the Chief Justice of the High Court of Rajasthan which inquired into the conduct of the appellant was composed of three persons including one Mr. Chhangani. It transpired that Mr. Chhangani had at some stage of the proceedings between the parties under Section 145 of the Code of Criminal Procedure appeared and pleaded for Dr. Prem Chand. Before the Supreme Court a point wag raised on, behalf of the appellant that the Tribunal waa not properly constituted in that Mr. Chhangani could reasonably be accused of bias against the appellant who did not know about the part played by Mr. Chhangani. The Supreme Court found itself unable to accept this version of the appellant and held that the failure to take this plea at the earlier stage of the proceedings created an effective bar of waiver against him inasmuch as he had taken, a chance of securing a favourable report from the Tribunal as constituted and having found that the same was against him had adopted the device of raising this technical point.
32. In my view the principle laid down in these two cases has no application to the facts of the case before us. In both the cases the Supreme Court held that the conduct of the appellants amounted to acquiescence in the jurisdiction of the Income-tax Officers and the Tribunal constituted under the Legal Practitioners' Act. It cannot be argued that the petitioner's conduct before the Labour Court in the first dispute amounted to any admission that they were engaged in an industry. Nor cart any such admission be spelt out of the objection before the City Civil Court which was not concerned to go into the question as to whether there was an industry within the meaning of the Act or not. In this view of the matter the petitioners cannot be said to have acquiesced in the jurisdiction of the Industrial Tribunal in the present case.
33. The last point urged by the appellant was that the award of the Industrial Tribunal of August 3, 1957 operated as estoppel by judgment against the petitioners and debarred them from raising the plea that their firm was not an industry. The paragraph of the award which has any bearing on this point is to be found at page 109 of the paper book in which the Judge, Labour Court, remarked:
'that the company raised a point that it was not an industrial dispute because his (the dismissed employee's) case was not taken by the Union nor did anybody of workmen collectively espouse his cause. This contention was of course not pressed with vigour. The fact is that the case of the workman was taken up by the Patent and Trade Mark Agency Employees' Union. That being so, the contention of the company that it is not an industrial dispute is overruled.'
It is clear from the above quotation that the petitioners did not urge before the Labour Court that they were not engaged in an industry. It may foe noted here that the issue which was referred to the Labour Court was 'whether the discharge of Harisadhan Ghose was justified? Is he entitled to reinstatement and/or relief?' There was no isssue raised about the existence of an industry. The question then arises as to whether it was incumbent on the petitioners to have taken that point then and having failed to do so will the point be concluded against them for all time to come.
34. That an adjudication by an Industrial Tribunal must have a long term operation though liable to be modified by changes in the circumstances on which they were based is clear from the judgment of the Supreme Court in Burn and Co. v. Their Employees, (S) : (1957)ILLJ226SC . There the question was whether the Appellate Industrial Tribunal was in error in brushing aside an award made by a former Tribunal and in deciding the matter afresh. The Court posed the question
'are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under Section 19(6) of the Industrial Disputes Act and that the Tribunal has no option when the matter was again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision?'
The Court held that this would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties alter a full enquiry should not be permitted to be re-agitated. The same remark cannot obviously apply to the circumstances in the present case.
35. In my view, the doctrine of res judicata or any principle analogous thereto does not apply to the facts of the present case. In so far as the petitioners act merely as patent and trade mark agents within the bounds of agency recognised by statutes by the exercise cf their knowledge of the law and practice of patents and trade marks they cannot be said to be carrying on an industry: only when it is found that they regularly pursue some other activities with the co-operation of their employees not falling within the ambit of their work as agents that they can be said to carrying on an industry. We do not know when the activities mentioned in paragraph 8 of the affidavit of Joseph, were first indulged in or how long they continued and whether they are still being pursued. If they had given up such activities when the dispute was referred to the Industrial Tribunal they could not be said to be engaged in an industry. The former award would no doubt bind the parties thereto within the limits imposed by the Industrial Disputes Act but the same would not be binding for all time to come and I very much doubt whether in the absence of a direct finding on this point the parties can be held to be estopped from raising the same afterwards. The point as to whether the former award would have such binding force was considered in the case of : (1958)IILLJ183Cal . There the Court observed that
'the principle of res judicata is governed by the doctrine of the competence of the Court whose decision is put forward as a bar. It requires that the decision must be given by a competent Court having jurisdiction to decide the point. An Industrial Tribunal is not such a Court when it assumes jurisdiction outside the Act under which it acts. It is not a Court of general jurisdiction to finally decide its own jurisdiction. The Industrial tribunal is not a Court of general jurisdiction competent to decide this question in a manner so as to exclude the powers of this Court under Article 226 of the Constitution to examine its assumption of jurisdiction.'
I respectfully agree with the above and I would only add that the First Labour Court never decided the jurisdictional fact namely whether the petitioners carried on an industry or not. It is therefore not possible to hold that the former award operates as a bar to the petitioners objecting to the jurisdiction of the Industrial Tribunal now.
36. One last point remains. Mr. Meyor, counsel for the respondent, argued that the appeal was not maintainable at all as the appellants were not the employees of the firm, but the Patent and Trade Mark Agency Employees' Union the respondent No. 2 in the petition filed in this Court under Article 226 of the Constitution which espoused the cause of the employees before the Industrial Tribunal and who were named as parties to the reference made by the State of West Bengal on February 14, 1958. Mr. Meyer drew our attention to a judgment delivered by me in the case of the General Secretary, Eastern Zone Insurance Employees Association v. Zonal Manager, Eastern Zone Life Insurance Corporation, : (1961)ILLJ59Cal . There an application under Article 226 of the Constitution was presented not by any of the aggrieved parties but by some one who was at best entitled to represent the aggrieved parties under Section 36 of the Industrial Disputes Act which was limited to proceedings under that Act. It was there held that an application under Article 226 could only be filed by an aggrieved person himself, and he could not pursue such an application through a representative on the analogy of Section 36 of the Industrial Disputes Act. This point was not however urged before the learned Trial Judge and I do not think it would be right to allow this preliminary objection to be taken in the appellate stage. After all it was the petitioners who had come to this Court and had made the appellant union a party to their application in the shape of respondent No. 2. It was respondent No. 2 who alone contested the application before the learned trial Judge. If the point as to the right of the respondent No. 2 to oppose the application had been taken before the learned Judge he might have rejected the application in limine because the employees of the firm had not been made parties to the application individually but only as represented by the second respondent. On the other hand, he might have directed the petitioners to implead the employees individually and heard the matter in their presence. If it be the law that only a party himself aggrieved who can come forward with an application under Article 226 it must necessarily follow that anybody questioning the authority of the Industrial Tribunal to determine whether there is an industry or not must bring the persons in the position of the employees as respondents to his application. As the parties have proceeded on the basis that the employees of the petitioners are properly on record it would not be right to throw out the appeal now when the petition itself might have been thrown out on that ground.
37. In the result, the appeal is allowed and we direct that the Industrial Tribunal will first determine the question whether the activities of the respondent firm constitute an industry within the meaning of Section 2(j) of the Industrial Disputes Act and thereafter adjudicate upon the other issues referred to it. The parties will pay and bear their own costs.
38. I agree.