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William Frederick De Penning and anr. Vs. Third Industrial Tribunal of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 34 of 1958
Reported inAIR1959Cal749
ActsIndustrial Disputes Act, 1947 - Sections 2 and 10
AppellantWilliam Frederick De Penning and anr.
RespondentThird Industrial Tribunal of West Bengal and ors.
Cases ReferredBrij Mohan Bagaria v. N. C. Chatterjee
- .....i shall presently advert to these decisions. in so far as the petitioners carry on their work as patent and trade mark agents in its legal side there is little controversy upon the point, and it is not seriously contended that such work would constitute an 'industry' within the meaning of the said act. an affidavit has, however, been filed by one john archibald joseph on 6-5-1958 in which he describes himself as the secretary of the patent and trade mark agencies employees' union. upon enquiry i find that he has no qualification technical or otherwise in respect of patent or trade marks. he is an i. sc. (intermediate in science) of the calcutta university and has some experiences in searching records. however, he has affirmed an affidavit and in paragraph 8 thereof, which he.....

D.N. Sinha, J.

1. The petitioners in this case are husband and wife and practise the profession of Patent and Trade Mark Agents, in partnership with each other, under the name and style of 'De Penning and De Penning', at No. 10, Government place East, Calcutta. On 4-1-1958, the Government of West Bengal in purported exercise of powers conferred upon it by Section 10 of the Industrial Disputes Act. 1947 (herein referred to as 'the Act') made a reference of certain disputes, which are described as 'industrial disputes', said to exist between Messrs. De Penning and De Penning and their workmen represented by the Mercantile Employees' Union, Calcutta. This name has been corrected by a corrigendum dated 14-2-1958 and altered to 'Patent and Trade Mark Agencies Employees' Union, C/o. Federation of Mercantile Employees' Union, 23A. Netaji Subhas Road, Calcutta-1'. The issues that have been referred to for adjudication by the Third Industrial Tribunal, West Bengal are the following :

'(1) Minimum pay and scales of pay,

(2) Dearness Allowance.

(3) Leave and holidays.

(4) Retiring benefit.

(5) Bonus for 1956 and 1957.

(6) Free Medical Aid.

(7) Tiffin Allowance.

(8) Whether the members of sub-staff should be paid an extra allowance for extra work after working hours.'

2. The petitioners first of all objected to Government about the reference order itself, stating that the petitioners did not carry on any industry and that there was no industrial dispute and that the Act had no application to the petitioners' work whatsoever. The Government, however have not withdrawn the order of reference and the matter is before the Tribunal which is proceeding to adjudicate on the dispute. The petitioners have come up to this Court for a writ in the nature of Certiorari quashing the order of reference, so that the Tribunal, which according to them has no jurisdiction, should not proceed with the reference and adjudicate upon the same. The short point made out on behalf of the petitioners is that the practice or the profession of Patent and Trade Mark Agents is essentially of a specialised legal and technical nature requiring a thorough knowledge of the law relating to Patents and Trade Marks, as well as technical knowledge in various branches of science and manufacture, and consists of the application of the petitioners' personal knowledge training and experience to the handling of the affairs of the petitioners' clients . Therefore, it is stated that the petitioners cannot be said to carry on an 'industry' within the meaning of the Act, and the employees of the petitioners, which consist of 22 permanent clerical staff and 7 subordinate staff, are not 'workmen' within the meaning of the said Act, and therefore any dispute between them cannot be called an industrial dispute, and the Government has no jurisdiction to refer the same to adjudication of an Industrial Tribunal under the provisions of the said Act. It has been argued that the matter is covered by two decisions of this Court--one of mine Brij Mohan Bagaria v. N. C. Chatterjee : (1958)IILLJ190Cal , where I have held that a Solicitor practising in this Court cannot be said to be carrying on an 'industry' unless there were special facts showing that he was. The second decision relied upon is the decision of Mukharji, J., D. P. Dunderdale v. g. P. Mukharji, : (1958)IILLJ183Cal , in which the learned Judge approved of my decision and decided that a firm of Solicitors cannot be said to carry on an industry, and the Industrial Tribunal has no jurisdiction to settle a dispute between its employers and its employees. I shall presently advert to these decisions. In so far as the petitioners carry on their work as Patent and Trade Mark Agents in its legal side there is little controversy upon the point, and it is not seriously contended that such work would constitute an 'industry' within the meaning of the said Act. An affidavit has, however, been filed by one John Archibald Joseph on 6-5-1958 in which he describes himself as the Secretary of the Patent and Trade Mark Agencies Employees' Union. Upon enquiry I find that he has no qualification technical or otherwise in respect of Patent or Trade Marks. He is an I. Sc. (Intermediate in Science) of the Calcutta University and has some experiences in searching records. However, he has affirmed an affidavit and in paragraph 8 thereof, which he affirms true to his knowledge, he has set out a list of the activities of the petitioners by which he has sought to establish that the petitioners carry on an 'industry* within the meaning of the said Act. These headings may be briefly stated as follows :

'(1) Preparing labels and supplying printing blocks.

(2) Supplying trade mark journals and other publications.

(3) Renewing subscriptions of Trade Mark Journals.

(4) Effecting searches.

(5) Renewing Trade Marks.

(6) Preparation of drawings and tracings.

(7) Manufacture of blue prints.

(8) Supply of printed, photostat, and typed copies of Patent specifications.

(9) Advertising in Newspapers inviting licences for the exploitation of inventions.

(10) Directly approaching the Industry, offering licences for the exploitation of inventions.

(11) Renewal of Patents and Designs.

(12) Patent searches.'

3. It is stated that many of the items do not require knowledge of law. but consist of work which can be done by anybody. It is, therefore, denied that the services rendered by the petitioners are dependent on their individual talent, knowledge and experience.

4. Before proceeding further, I must say that in this case the material placed before the Court in the first instance by either party was quite insufficient and I have ordered from time to time supplementary affidavits to be filed, from which the relevant facts have now clearly emerged. It is certainly true that some of the works done by the petitioners are not by themselves dependent on a knowledge of law. It appears, however, that the way in which the matter has been approached by the Union cannot be held to be the right approach. 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 professional work an industry. This may be illustrated by an example. Take the profession of a Solicitor, which by the two decisions above named, has been held to be a profession not coming within the expression 'industry' as used in the said Act. It has been held that the work of a Solicitor is an individual work dependent upon his own intellectual skill. But even such work requires incidental processes which by themselves cannot be said to be entirely dependent upon a Solicitor's intellectual skill. For example, in the course of the work of a Solicitor, he has to make searches in the Registration Office. These searches are carried out by clerks who do not necessarily possess a knowledge of law, because to search or make notes of searches in the Registration Office does not require any legal knowledge. Then again, clerks or Assistants may do a variety of work which by themselves do not draw upon the legal knowledge of the Solicitor. It cannot, however, be said that because such incidental works are carried out in the office of the Solicitor, the profession of a Solicitor constitutes an 'industry'. In the case of : (1958)IILLJ183Cal (Supra) Mu-kharji J. stated as follows ;

'An individual Solicitor can certainly employ a typist and a Book-keeping Accountant, but the money he earns is not by the book-keeping Accountant nor by the typist but by reason of the professional skill which he employs himself and which is personal and individual to him ..... The distinctive work of a Solicitor is not the work of book-keeping and actual typing. His skill is the skill of law. It is true that in communications and in keeping books of account, help is needed and for that purpose a staff is employed. But I cannot see how employment of typists and correspondence clerks or Accountants can convert a profession which remains by its nature the personal work dependent on the individual, corporate and professional skill of the Solicitor or Solicitors concerned, into an industry so long, of course, as the Solicitor and their firm carry on the work of Solicitors.'

5. In the case of B.M. Bagaria, : (1958)IILLJ190Cal (Supra), I have pointed out that although the professions of law and medicine are essentially professions dependent on the personal skill of an individual, it may be that a lawyer or a Doctor might carry on such work as do not in fact depend upon his personal skill, and in that case he might be said to be carrying on an 'industry'. For example, if a Doctor starts manufacturing medicines, or if a lawyer starts a business in the sale and purchase of real estate, then in that case it might be said that what is being carried on is an industry. Therefore, where the profession that is in question is primarily and basically dependent on individual knowledge and skill, then it will be for the opposite side to establish that it was being carried on in a manner by which the basical characteristic has vanished and what would be ordinarily considered as a profession has been turned into an industry. I have already stated above the various headings under which the facts are enumerated to show that in the present case the petitioners carry on an industry. Before I deal with those headings, I must say that it has not been seriously disputed before me that basically the profession of a Patent and Trade Mark Agent is one which is dependent on individual knowledge and skill like that of a Solicitor or a medical man. In fact, it is the specialised legal and technical knowledge of the petitioners in respect of Patent and Tade Marks work, that has created the standing of the firm, and the skill with which the petitioners protect the interest of their clients in respect of Patents and Trade Marks, is the measure of the popularity of the firm. It is true that part of the work may be mechanical or not specialised, but as I have stated above, it is only incidental to the specialised work. An ordinary person, not having a specialised knowledge of Patents and Trade Marks, and the law relating thereto, and/or the procedure in connection thereof, cannot assist a client in such operations as the taking out of Patents, of protecting Patents and Trade Marks and/or deal with infringements thereof. It is this specialised and/or technical work which has created the firm, and is the reason for which clients go to this firm rather than elsewhere. It is, therefore, necessary to investigate as to whether the petitioners carry on certain activities which have destroyed this basical characteristic of the firm, and which can be said to have transformed their firm into an 'industry' within the meaning of the expression as used in the said Act. These activities have been set out in the affidavit of John Archibald Joseph affirmed on 6-5-1958 and have been met seriatim in the affidavit of Beryl Alice Enid De Penning affirmed on 29-7-1958. It appears from these answers that the activities mentioned in paragraph 8 of Mr. Joseph's affidavit are not activities which are independent and unconnected with the professional work carried on by the petitioners. On the contrary, they are purely incidental to the activities of the petitioners in connection with their work as. Patent and Trade Mark Agents. Coming to item (1), a complaint has been made that the petitioners prepared labels and printing blocks. What they do is clearly stated in paragraph 4 of Mrs. De Penning's affidavit. It has been pointed out that labels and blocks form a part of the requirement in prosecuting any application for registration of a Trade Mark. The petitioners do not prepare labels or printing blocks but it so happens that sometimes the labels or printing blocks that are supplied by clients, turn out to be defective, or are such as are unacceptable to the Patent Office. In such cases, the petitioners cause labels or printing blocks to be prepared, not by their own workmen, but by outside block-makers or printers and thus serve the cause of their clients. To take the analogy of a Solicitor. It often happens that a Solicitor has to get plans made of a property to be annexed to a conveyance or has to have an estimate of the valuation of a house for the purpose of a legal action. In such cases, it would be part of his work to procure the same, or have the same done on behalf of his client. It is easy to see, however, that such work is only incidental to his profession. If the petitioners had a printing press or a manufactory for blocks, wherein labels or blocks were manufactured on a large scale and made available to any who required labels and printing blocks as such, unconnected with particular cases of Trade Marks or Patents entrusted to the firm, then in that event, such activities would be industrial, but not otherwise. Items Nos. 2 and 3 tend to establish that the petitioners act as, Agents for the sale of Trade Mark Journals and other publications. The answer shows that this is not at all true. When the petitioners' associates abroad or clients desire a particular issue of the Trade Mark Journal or the text of a new enactment or a commentary thereon, they request the petitioners to purchase such publications on their behalf and to forward the same to them. That again, is a purely incidental matter for carrying the petitioners' profession. It is said that such services are really a matter of professional courtesy, and it is necessary to perform them because sometimes it becomes necessary to have reciprocation. So far as items 4, 5, 6. 7, 8 and 9 are concerned, they are purely matters incidental to the carrying out the profession of the petitioners. The effecting of searches in the Patent Registry or the procedure of renewing Trade Marks which had to be renewed from time to time, the preparation of drawings and tracings necessary to apply for a Patent or Registration, or the preparation of blue prints for that purpose, are all directly necessary for the carrying on of the profession of the petitioners. Again, these processes are not the basical feature of the profession carried on by the petitioners. Nobody comes to the petitioners merely to get a blue print or a tracing or a patent specification. It is done for a purpose, and that purpose is to avail of the services of the petitioners as Patent and Trade Mark Agents, which is dependent on their specialised knoweldge of the law and procedure in respect of such work. Item 9 is also of the same nature but has called for a special explanation. It is said that the Patent and Designs Act requires; that the inventions for which a Patent has been granted in India should be worked in India to the extent that they are capable of being worked. Such working is necessary for the continuance of the Patent in force, but a nominal work suffices in the absence of any actual manufacture under the Patent, particularly when the manufacturing is not possible in this country. Such nominal working is effected by advertising that the patentee is desirous of exploiting the Patent and inviting applications for a licence. Such advertisements and letters are issued by the petitioners on behalf of the Patentees who are their clients. It is a part of the normal functions of a Patent Agent, in keeping the Patent in force. Such advertisements are published normally once in 3 or 4 years in respect of a Patent, there being a standardised form of advertisement. Here again, the item is a purely incidental activity, in connection with the discharge of the functions of the petitioners as Patent and Trade Mark Agents. A.s put in Mr. Joseph's affidavit, it seems as if these advertisements form a part of some kind of commercial enterprise on behalf of the petitioners. In Tact, it is far from being the true state of affairs. I do not see why items 11 and 12 were set out at all. These are certainly obvious appendages to the work of a Patent or Trade Mark Agent, whose duty is to renew Patents and Designs or to search the Patent Office on behalf of his clients. Item 11 as set out seems to suggest that such work, namely, renewal of Patents and Designs, can be effected by any person other than a Patent Agent. In my opinion, that does not affect the question at all. It may be that the renewal of Patents and Designs can be done by anybody. that is to say. in law there may not be a restriction on such actions. But it is quite clear that the question of renewal of Patents and Designs would in most cases involve questions of law or technical questions and restrictions or no restrictions people would go for their work to a person having specialised knowledge in respect thereof. In my opinion, the contentions set out in paragraph 8 of Mr. Joseph's affidavit fail to show that the petitioners have been carrying on an 'industry' within the meaning of the expression as used in the said Act. At a somewhat late stage in the hearing of this application, the point was advanced that the petitioners had by their action in several legal proceedings, accepted the position that they carry on an industry and that their employees were 'workmen' and that any disputes between them were 'industrial disputes'. The first instance happened in 1957. By order dated 10-4-1957. the Government, in purported exercise of its powers under Section 10 of the Industrial Disputes Act. referred an alleged industrial dispute existing between the petitioners and one Harisadhan Ghosh, a dismissed employee. This reference was before the First Labour Court, West Bengal. The firm filed a written statement, and the first objection that it took was that the firm was not an 'industry' within the meaning of the Industrial Disputes Act, and that the alleged dispute was not an industrial dispute. What happened was that the First Labour Court decided in favour of the petitioners and against the employee, on the merits. In other words, having gone into the merits, the Labour Court held that the dismissal was justified and that the employee was not entitled to reinstatement. aS the firm won the case, it had no occasion to prefer an appeal, nor does it appear that the said Harisadhan Ghosh preferred an appeal. But what he did was that in 1958 he filed a case in the City Civil Court, being Miscellaneous case No. 70 of 1958, against the petitioners for more or less the very same reliefs as before the Labour Court, and made an application for leave to sue in forma pauperis. The petitioners filed a petition of objection thereto on or about 13-3-1958 and pointed out inter alia that it was not necessary or relevant at that stage to traverse the various allegations unrelated to the alleged pauperism of the petitioner therein. It was. however, 'pointed out, that Harisadhan Ghosh had agitated the matter before the Labour Court, lost there, and was again seeking to harass the petitioners regarding the same matter. In fact, the City Civil Court accepted this contention and dismissed the application of Harisadhan Ghosh. From these facts, it cannot be alleged that the petitioners had waived their rights and accepted the position that they carried on an industry. Before the Labour Court they expressly took the objection of jurisdiction, but the Labour Court held in their favour on the merits. I do not see what they were supposed to do under the circumstance. No man in his senses would appeal against an order which was in his favour. Then again when Ghose came to the City Civil Court, it was natural for the petitioners to urge that this dismissed employee having once lost before the Labour Court was again harassing them in another jurisdiction, and this contention was actually upheld. Here again, I do not see how the petitioners can be said to have accepted the fact that their status was that of an industry rather than a profession. In my opinion no such conclusion can He drawn from the facts and circumstances as have been related before me. As J have stated above, an attempt Was made by Mr. Joseph to impute activities to the petitioners which would take them out of the basical requirements for a profession rather than an industry and would constitute them as an industry. In the facts and circumstances of this case, I am perfectly satisfied that the petitioners carry on a profession in which the basic requirements are their personal and specialised knowledge of the law and procedure of Patents and Trade Marks, and that everything they do is in aid thereof and incidental thereto. Applying all the tests which have now been fully established, they or their firm do not come within the expression 'industry' as used in the Industrial Disputes Act, and therefore, their employees are not 'workmen' as defined in the Act, nor are any disputes between them and their employees, an 'Industrial Dispute', which could be referred under Section 10 of the Act for adjudication by a Labour Court. I also hold that the mere fact that there are certain employees assisting the petitioners in practising their profession does not affect the question, because the works of these employees and/or assistants are 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. The result is that this application must succeed and I must hold that the order of reference is bad and that the Labour Court has no jurisdiction to deal with the matter. The Rule is accordingly made absolute and there will be a Writ in the nature of Certiorari quashing the order of reference dated .4-1-1958, a copy whereof is annexure 'A' to the petition as well as the corrigen dum thereto, and there will be a Writ in the nature of Mandamus directing the respondents not to give effect thereto. There will be a Writ in the nature of Certiorari quashing the proceedings based on the said order of reference and a writ of prohibition directing the First Respondent not to go on with the said proceedings or to adjudicate the same. There will be no order as to costs.

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