Bombay High Court
Dattatraya Gopal Paranjpe vs Rashtriya Mill Mazdoor Sangh And Ors. on 10 November, 1994
Equivalent citations: 1996(5)BOMCR246, (1995)IILLJ913BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. These writ petitions under Articles 226 and 227 of the Constitution of India impugning the orders of the Labour Court under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act) raise identical issues of facts and law and, therefore, can be conveniently disposed of by a common judgment.
2. There are two important issues thrown up by these writ petitions and they are : (a) Whether a Trade Union registered under the Trade Unions Act is an 'industry' within the meaning of section 2(j) of the Industrial Disputes Act, 1947, and, (b) even if it is, whether an office bearer of a Trade Union doing work of Trade Unionist, properly so-called, would be a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act, 1947.
3. Patanjali says in his Mahabhashya : "Dushtah Shabdah Swarato Varnato Vaa mithyaa Prayukthah na tamarthammaaha". ["A word, wrong in accent or syllable, is falsely used and does not convey the (intended) meaning']. The facts of this case exemplify this apopthegm and the extent to which the ratio decidendi of a case is distorted by a Printer's Devil.
4. A brief survey of the relevant facts :
The First respondent in these three writ petitions is a Trade union registered under the Trade Unions Act and under section 13 of the Bombay Industrial Relations Act, 1946 as a representative union of the employees in the cotton textile industry in the local area of Greater Bombay. It is also entered in the approved list maintained by the Registrar under section 23 of the Bombay Industrial relations Act, 1946.
5. The original Writ Petitioner in Writ Petition No. 3695 of 1987 and the Writ Petitioners in Writ Petition No. 3697 of 1987 and 3698 of 1987 were employed in the First Respondent Trade Union as Organising Secretaries/Assistant Secretaries. (The Original Writ Petitioner in Writ Petition No. 3695 of 1987 having died during the pendency of the writ petition, the writ petition is being prosecuted by his legal heir and representative who has been brought on record). The petitioners who were required to perform the duties of Organising Secretaries/Assistant Secretaries, were paid certain remuneration therefor. Some time in 1984, there was a serious dissension in the First Respondent Trade Union which resulted in the group consisting of the three Writ Petitioners and certain others falling into disfavour. The direct consequence of this was that, although the three Writ Petitioners were candidates for election to the post of Secretaries, they had to hastily abandon their candidatures and withdraw their nominations in the face of mounting pressure. On 23rd July, 1984, the General Secretary of the First Respondent addressed identical letters to the Writ Petitioners informing them that their services were no longer required by the First Respondent Union and that their services were terminated with effect from 28th July, 1984, upon payment of one month's salary in lieu of notice.
6. The three Writ petitioners being aggrieved with their abrupt removal from employment, challenged the orders of termination of their services by filing Complaints (ULP) No. 109 of 1984, 108 of 1984 and 110 of 1984 before the Labour Court at Bombay under section 28 of the Act. In these complaints the Petitioners described the activities carried on by the First Respondent and contended that those activities were carried on with the cooperation of the staff employed and, therefore, the First Respondent was an 'industry' amenable to the provisions of the Industrial Disputes act, 1947. They also contended that the Petitioners were 'workmen' within the meaning of section 2(s) of the Industrial Disputes Act and, therefore, 'employees' within the meaning of section 3(5) of the Act. They alleged that their abrupt removal from employment amounted to unfair labour practices under Item 1(a) and (b) of Schedule IV of the Act, of which they claimed appropriate declaration and relief by way of reinstatement in service with continuity and full back wages.
7. The complaints of the Writ petitioners were contested by the first Respondent both on facts and law. The First Respondent admitted that the complainants were permanent employees. It put forward the plea that they were simultaneously office-bearers of the First Respondent Trade Union as Secretaries, that the nature of the activities carried on by the First Respondent did not render it an 'industry' within the meaning of section 2(k) of the Industrial Disputes Act and, therefore, the provisions of the Industrial Disputes Act and consequently, the provisions of the Act, were not applicable to the First Respondent. A subsidiary contention was also advanced that, in any event even if the Act was applicable to the First Respondent, the Petitioners were not 'workmen' as defined under section 2(s) of the Industrial Disputes Act, 1947 and 'employees' within the meaning of section 3(5) of the Act and, therefore, the complaints were not maintainable. The Labour Court tried the three complaints and, after recording detailed evidence, upheld both objections as to maintainability put forward and dismissed the complaints. The petitioners being aggrieved by the orders of dismissal of their complaints are before this Court by the present writ petitions.
8. The contentions urged before this Court by the learned counsel on both sides are the same as urged before the Labour Court. Mr. Kochar, learned Advocate for the Petitioners, contends that the Labour Court seriously erred in taking the view that the First Respondents was not an 'industry' and further that the Petitioners were not workmen. Ms. Buch learned counsel for the First Respondent, contends to the contrary and urges that the orders of the Court below are valid in law and need to be sustained.
9. Although the contention urged was somewhat broad in nature, namely, whether a Trade Union can be an 'industry' within the meaning of section 2(j) of the industrial Dispute Act, for the purposes of the present writ petitions, it would suffice to consider whether, on the material on record the First Respondent Trade Union can be held to be an 'industry' within the meaning of section 2(k) of the Industrial Disputes Act. This is the question requiring consideration and decision.
10. The complaints were filed under section 28 of the Act invoking the jurisdiction of the Labour Court constituted thereunder. A complaint under the Act would be maintainable only if the Act is applicable to a particular industry. The applicability of the Act is indicated in section 2 of the Act which makes the Act applicable to an industry to which the Bombay Industrial Regulations Act, 1946 applies or to an industry as defined in Clause (j) of section 2 of the Industrial Disputes Act, 1947. It is common ground that the First Respondent is not an industry to which the provisions of the Bombay Industrial Relations Act, 1946 apply. It meeds to be considered whether it is an 'industry' within the meaning of section 2(j) of the Industrial Disputes Act, 1947.
11. Section 2(j) of the Industrial Disputes Act defines an expression "industry" in the following terms :
"Section 2(j) : "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or a vocation of workmen."
Though the question as to whether different types of establishments would fall within the ambit of this definition had been discussed and decided by the Supreme Court from D. M. Bannerjee v. P. R. Mukherjee (1953 (1) LLJ 195) to Bangalore Water Supply and Sewerage Board v. A Rajappa and others , the law has been authoritatively and finally (i) settled by the decision of the Supreme Court in Rajappa's case (supra), a decision of a Bench of seven Judges, a watershed in the law. Rajappa's case undertook a survey and critique of all the extant decisions of the Supreme Court, attempted to reconcile the apparently irreconcilable view expressed in different judgments, and summarised the law authoritatively in five propositions which have been reproduced in the penultimate paragraph of the judgment. Since there is some difficulty, on account of what is presumably a Printer's Devil, as the taxes of the relevant crucial portions of the Supreme Court judgment, reported in Bangalore Water Supply and Sewerage Board v. A. Rajappa and others and the one reported in Bangalore Water Supply & Sewerage Board v. A. Rajappa and others (1978 (1) LLJ 349), are different, I shall refer to the report in the Official Report of the Judgment in , from which I have culled out the observations on pages 282 to 283 from the majority judgment of Krishna Iyer J., which are as under :
"I. 'Industry' as defined in Sec. 2(j) and explained in Banerji, has a wide import.
(a) Where (i) systematic activity, (ii) organized by co-operation between employer and employee, (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods an service calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, prasad or food), prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive of gainful objective is irrelevant, be the venture on the public, joint private or other sector.
(c) The true focus is functions and decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organisation is a trade or business it does not cease to be one because of philanthrophy animating the undertaking.
II. Although sec. 2(j) uses words of the widest amplitude in is two limbs, their meaning cannot be magnified to overreach itself.
(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment, so also service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. the employer-employee basis bears resemblance to what we find the trade or business. This takes into the fold of 'industry' undertakings callings and services adventure 'analogous to the carrying on of trade or business. All features' other than the methodology of carrying on the activity viz., in organizing the co-operation between employer and employee may be dissimilar. It does not matter, if on the employment terms there is analogy.
III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense the incongruity or other sense of motivation for or resultant of the economic operations. The ideology of the Act, being industrial peace regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more.
(a) The consequences are (i) professions, (ii) Clubs, (iii) educational institutions, (iiia) cooperatives, (iv) research institutes, (v) charitable projects and (vi) other kindred adventures, if they fulfil the triple test listed in I (supra), cannot be exempted from the scope of sec. 2(j).
(b) A restricted category of professions, Clubs, co-operatives and even Gurukulas and little research labs, may qualify for exemption if in simple ventures substantially and going by the dominant nature criterion substantively, in single simple ventures, no employees are entertained but in minimal matters marginal employees are hired without destroying the non-employee character of the unit.
(c) If in a pious or altruistic mission many employ themselves, free or for small honorarial or likely return mainly by sharing in the purpose of cause, such as lawyers volunteering to run a free legal services cleanse or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality and there services are supplied free or at nominal cost and those who serve are not engaged of remuneration or on the basis of master an servant, relationship, then the institution is not an industry even if stray servants, manual or technical, are hired, Such eleemosynary or like undertakings alone are exempt - not other generosity, compassion, developmental passion or project.
IV. The dominant nature test :
(a) Where a complex of activities some of which qualify of exemption, others not, involves employees on the total undertaking, some of whom ar not 'workmen' as in the University of Delhi Case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained it Corporation of Nagpur will be true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, aloe qualify for exemption, not the welfare activities of economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries, and they are substantially severable, then they can be considered to come within sec. 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove for the scope of the Act categories which otherwise may be covered thereby.
We over-rule Safdarjang, Solicitor's case Gymkhana, Delhi University, Dhanrajgirji Hospital and other rulings whose ration runs counter to the principles enunciated above, and Hospital Mazdoor Sabha is hereby rehabilitated.
We conclude with diffidence because Parliament which has the commitment to the political nation to legislate promptly in vital areas like industry and trade and articulate the welfare expectations in the 'conscience' portion of the constitution, has hardly intervened to restructure the rather clumsy, vaporous and tall-and dwarf definition or tidy up the scheme although Judicial thesis an antithesis, disclosed in the two decades long decision, should have produced a legislative synthesis becoming of a warfare State and Socialistic Society, in a word setting where I.L.O. norms are advancing and India needs updating. We feel confident, in another sense, since counsel stated at the bar that a bill on subject is in the offing. The rule of law, we are sure, will run with the rule of Life - Indian Life - at the there should of the decade of new development in which Labour and Management, guided by the State, will constructively partner the better production and fair diffusion of national wealth. We have stated that save the Bangalore Water Supply and Sewerage Board appeal we are not disposing of the others on the merits. We dismiss that appeal with costs and direct that all the other be posted before a smaller bench for disposal on the merits in accordance with the principles of Law herein laid down."
12. The Supreme Court in Rajappa's case approved of the reasoning in D. N. Banerjee's case (Supra) and expanded on it. The learned Judge of the Labour Court rightly referred to and relied upon the above observations of the Supreme Court and the test of 'industry' propounded therein. Unfortunately, he seems to have relied on the test of the judgment reported in 1978 (i) LLJ 349, where in paragraph 131 (a), the text of the first test is reported as :
"Where (i) systematic activity (ii) organized by co-operation between employer and employee the direct and substantial element is commercials, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material thing or services geared to celestial bliss, i.e., making on a large scale, or Prasad or fool) prima facie, there is an "industry" in that enterprise.
In contrast, it may be noted that text of the judgment reported in the Supreme Court Reports contains the word "the direct and substantial elements is chimerical" in parenthesis in sub-para (a) of paragraph 1. Naturally, the import of the judgment having been totally distorted by the misreporting, the learned Judge of the Lower Court persuaded himself to believe that the direct and substantial element as "commercial". With this impression he analysed the evidence on record and come to the conclusion (vide paragraph 9 :
"Keeping in mind the above observations and the test laid down in Banerji's case, I find that in the Sangh there is a systematice activity. The question is whether it is organised by co-operation between employer-employee, the direct and substantial element in commercial. The Rastriya Mill Mazdoor Sangh is of the Mill Mazdoors, for the Mill Mozdoors and the activities ar carried out by the Mill Mazdoors they are self service. There is not employer-employee relationship. The Mill Mazdoors in the Sangh do not work for remuneration. All the members of the Sangh are the textile workers and they carry out their main activities and for some purpose they required Clerks, Peons, Motor Drivers, but the activities cannot be said to the commercial activities. The element of employing Clerks, Peons and Motor Drivers cannot transfers the Sangh into an Industry. It is true that the Sangh runs tailoring class, typing classes, library, but these activities of the sangh are not predominant activities. By applying a dominant nature test, the predominant nature of the services and intergranted nature of departments as explained in Corporation of Nagpur is the true test. The Sangh can carry out its activities. The Sangh does not exist for those activities. Predominant activities of the Sangh are as per object of the Union and they not being of Commercial nature, the Sangh cannot be held as an Industry."
Thus, notwithstanding the somewhat inelegant turnout of phrases, it is clear that the learned Judge of the Labour Court held that the activities carried out by the first Respondent did involve the operation of the employer-employee relationship, but since the activities could not be said to be commercial activities, the First Respondent could not be held to be an Industry. If the test of the Supreme Court judgment contained words. "the direct and substantial element is commercial", then the learned Judge is right. Unfortunately, however, the official Reporter of the Supreme Court (S.C.R.) reproduces the words "the direct and substantial element is chimerical". I presume, by a mischief of Printer's Devil; the words 'chimerical' got transformed into 'commercial' and led to the avoidable confusion. This conclusion is reached on a careful reading of the entire judgment in Rajappa.
13. After having analysed the judgment of Chandrasekhara Aiyer J. (on pages 229 to 234), on page 235 of his judgment, Justice Krishna Iyer extracted apportion from the judgment of justice Chandrasekhara Aiyer in which the learned Judge pointed out that if a public utility service carried on by a private company or business Corporation could amount to an industry, there was no reason for excluding the same from the sweep of the definition merely because it was carried out by local bodies like Municipalities, District Boards or Local Boards. The learned Judge rhetorically observed :
"If the public utility service is carried on by a corporation like a Municipality which is the creature of a statute, and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason ? The only ground on which own could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work is carried on by a local body lime a Municipality is that in the letter (sic) there is nothing like the investment of any capital or the existence of a profit earning motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element in the modern conception of industry ?"
In the judgment in Rajappa the extract from Banerji has been reproduced with emphasis added. It is this tenor of reading of Banerji which echoes throughout the judgment of Krishna Iyer J. It is because of this reasoning that, while setting done the first postulate in paragraph 1, clause (a), on page 282, the learned Judge observed parenthetically that the direct and substantial element was chimerical, meaning thereby that it was only the result of a chimera or myth - emphasising that what was to be looked at was the organisation of the pattern and not the motive or the intention in establishing the organisation. Thus read, the first test formulated in Rajappa's case clearly applies to the functions of the First Respondent as we shall see presently.
14. The First Respondent is constituted under the Indian Trade Unions Act, 1926, which defines a Trade Union as any combination formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more Trade Unions [Sec. 2(h)]. Section 5 provides for the Registration Trade Union on application made to the Registrar with a copy of the Rules of the Trade Union. Section 6 indicated that the Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules there of provide for the matters enumerated in Clauses (a) to (j) of section 6. Of interest to the present discussion are only Clauses (c) and (h) of section 6, which reads as under :
"Section 6 (c) : the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall; be purposes to which such funds are lawfully applicable under this Act;
Section 6(h) : the manner in which the members of the executive and the other "office bearers" of the Trade Union shall be appointed and removed;
Section 15 of the Trade Unions Act inductees the objects on which general funds may be spent. This section is negatively worded and says that the general funds of a registered Trade Union shall not be spent on any other objects then the ones enumerated in Clauses (a) to (k) of section 15. Of relevance to the present discussion, are Clauses (a), (b), (h), (i) and (j) of section 15, which read as under :
Section 15 : (a) the payment of salaries, allowances and expenses to "office-bearers" of the Trade Union;
(b) the payments of expenses for the administration of the Trade Union, in clouding audit of the accounts of the general funds of the Trade Union;
(h) the provision of educational, social or religious benefits for members (including the payment of the expenses of funeral or religious ceremonies for deceased members) or for the dependents of members;
(i) the upkeep of periodical published mainly for the purpose of discussion question affecting employers workmen as such;
(j) the payment, in furtherance of any of the objects on which the general funds of the Trade Union may be spent, of contributions of any cause intended to benefit workmen in general, provided that the expenditure in respect of such contributions in any financial year shall not at any time during that year be in excess of one fourth of the combined total of the gross income which has up to that time accrued to the general funds of the Trade Union during that year and do the balance at the credit of those funds at the commencement of that year"
In conformity with the provisions of the Trade Unions Act, the First Respondent has drawn up its Constitution and Rules. It might be mentioned in passing that the Objects clause in rule 3 is sufficiently wide and, in general, enables the First Respondent Trade Union to carry out all activities which would enure to the benefit of the workmen to make them better citizens and more enlightened constituents of Society. It is of interest that the Rule 3 the First respondent has declared that the means to be adopted for the furtherance of the objects mentioned in Article No. 2 shall always be based on truth and non-violence. (What a refreshing contrast to the current ethos where violence is though of as a necessary and legitimate ingredient of Trade Unionism !). Rule 12 provides that the management of the affairs of the Union shall be in the hands of the Executive Committee consisting of the office-bearers, honorary members and not less than 75 and not more than 100 members elected by the Members of the Joint Board of Representatives from among their own number, provided that, the number of employees shall not be less than half. Rule 9 defines the Office Bearers. Clause(a), of Rule 9, deals with a particular category of the office bearers who can be elected by the General Board of Representatives, and they are President, vice President, General Secretary, on or more secretaries and treasurer and other acting appointments of the President, General Secretary and Treasures. clause (b) provides that the President may appoint one or more Assistant Secretaries who will carry on duties entrusted to them by the President, provided that the number of Assistant Secretaries to be appointed shall not exceed the total number of Mills of Factories from which the workers have joined the Union. The reading of Rule 9 makes it clear that the Constitution of the First Respondent Union provides for some elected office bearers and some office bearers appointed by the president. Under Rule 12, both types of office bearers, inter alia, comprise the Executive Committee in which the management of the Union is vested.
15. Having dealt is extenso with the provisions of the Statute and the Constitutional Rules under which the First Respondent is required to function, let us turn to the facts on record. During the trial of the complaints, material was placed on record to the effect that the Petitioners were permanent employees and office bearers of the First Respondent. Because of the peculiar situation which has arisen, the Petitioners having lost the confidence of the workers, could not be elected as Honorary Members and, therefore, had lost usefulness to the organisation. It is not disputed that, be cause of the apparent loss of usefulness, the services of the Petitioners were summarily dispensed with.
16. The First Respondent's evidence showed that it was carrying out its activities in conformity with the objects as setout in section 2(h)of the Trade Unions Act and its own Rules. That the First Respondent was carrying out a Printing Press for publishing its receipt books and other registers, a Kamgar Weekly, hand bills etc., was not disputed. It was contended by the First Respondent that no work from outsiders was accepted in the Printing Press. About the running of the canteen the stand of the First Respondent was that it was only for the use of the workers, staff members and visitors of the office. It was emphasised that the rates of the food and drinks sold in the canteen were kept low, sine the canteen was run on no profit basis. The First Respondent admitted that it was running a typing class with an object of training workers, their children and family members. IT was also admitted that a nominal fee of Rs. 5/- per month was charged for workers and their family members and that admission was restricted to them. Similar was the pattern of running of the tailoring class for the workers and their family members, who were charged a nominal fee of Rs. 15/- per month, the class not being open to members of public. Similarly, that the First Respondent was running a library and a co-operative society for the benefit of the workers was emphasised by the First Respondent. It was emphasised that all the above activities were undertaking as being incidental or ancillary to the main object of the Trade Union, namely the general upliftment of the workers and members so as to make term self-supporting, to improve their character and knowledge, so as to make them better citizens of the country. The First Respondent also maintained that there was no trade, business or commercial element in conducting any of these activities and that its staff members, secretaries and other office bearers carried out their work as voluntary social service, at a salary and remuneration, which was much less compared to those payable to commercial service.
17. The Vice-President of the First Respondent who filed his affidavit was cross-examined and under cross-examination he admitted that the typing and tailoring classes were not meant for members only and that outsiders also had access to both. Similarly, he admitted that the membership of the library was open to all members of public and not restricted to the members of the First Respondent. He also admitted that the cooperative society selling grains and provisions run by the first Respondent was also open to outsiders who were permitted to make purchases therein and that the said society even had an agency of selling cement and carried out its activities from its office situated within the premises of the First Respondent. As to the guest house at Khandala, the witness of the First Respondent stated that it was the property of the First Respondent and the entire building situated in Bombay was also the property of the First Respondent. He went on to say that the guest house was run by the First Respondent and admitted that the said guest house was available to the officials of the First Respondent at Rs. 5/- per day per room and also to outsiders on payment of Rs. 10/- per day per room at higher charges. He also admitted that there is one Hall known as Mahatma Gandhi Hall, situated in Mazdoor Manzil, which was let out on rent for cultural activities and could accommodate 650 persons at a time. That the said Trust owned staff quarters in the compound of the First Respondent's premises and recovered rent from the occupants of quarters and that it had another building which housed existing and retired employees of the First Respondent from whom service charges were recovered, was also admitted by him. He admitted that the First Respondent, apart from collecting subscription from its members, was also collecting service charges of 3% to 5% from its members, who received their gratuity or retrenchment compensation and adhoc payment of Rs/- to Rs. 5/- from members who received their bonus amounts. That different types of employees had been placed in different grades and paid dearness Allowance, Transport Bhatta and reimbursement of Travelling Concession, was also admitted by him. The learned Judge of the Labour Court seems to have misread the evidence, in so far as the admissions made by the Vice-President of the First Respondent, about the different activities carried on, such as typing class, tailoring class, printing press, canteen, library, co-operative society, etc. As I have already referred to while reproducing and applying the test laid down by the Supreme Court in Rajappa's case, the learned Judge of the Labour Court misdirected himself in assuming that, in order to be an "industry", the predominant activity must be of commercial nature. With this misdirection the learned Judge immediately came to the erroneous conclusion that inasmuch as all activities carried on by the First Respondent were incidental or ancillary to main activities of the Trade Union, there being no activity of commercial nature, the First Respondent could not be held to be an industry within the meaning of section 2(i) of the Industrial Disputes Act. A careful and proper application of the true test in Rajappa would have otherwise.
18. What results are yielded by application of the true test of industry as postulated in Rajappa. The First Respondent carries on systematic activities. Its activities are organised by co-operation of the First Respondent and its employees. It is admitted that about 60 to 100 employees are employed by the First Respondent on its different types of activities inclusive of its own administrative staff, apart form employing Trade Unionist, properly so-called. That the First Respondent also employed non-Trade Unionist employees for administrative purpose such as Clerks, Accountants, Peons, Drivers and so on, is not disputed. Ms. Buch disputes that there is any production and/or distribution of goods and services calculated to satisfy human wants and wishes in the enterprise. She contends that, even assuming that all elements of the test in paragraph (1) of Clause (a) are fully satisfied in the First Respondent's case, element (3) of the test in Rajappa remained unsatisfied. In he submission, by carrying out the legitimate activities of a Trade Union, the Trade Union does not cater to human wants and wishes. On the other hand, it is contained that, what is catered to are the spiritual wants, inclusive of material things or services, needed by human beings to turn themselves into better citizens. The true aim of a Trade Union is to emancipate, educate and elevate a workman to become an ideal citizen of the country fully aware of his rights and duties, as a responsible constituent of society. This does not entail rendering of services to satisfy human wants and wishes, as contemplated in element (iii) in paragraph I, Clause (a), of the test formulated in Rajappa, according to Ms. Buch. I must confess that the argument does have prima facie appeal. Looked at from a purely theoretical point of view, the argument may be plausible, but I cannot consider the argument in abstracto. The tenability of this argument must be tested against the backdrop of the facts in the First Respondent's case. That, at the ideal or ideological level, the First Respondent caters to the inner carvings of the spirit of the human being for betterment may be true but at the objective level, the First Respondent's primary objective is to organise the employees in the textile Mills in Bombay, to educate them as to their rights - and perhaps their responsibilities also - to ensure that they are better fitted for collective bargaining for their wages and other conditions of service. The primary emphasis is not really on the spiritual aspects, but on the material aspects, I find it difficult to persuaded myself that the periodical strikes and exercises in collective bargaining are intended more for satisfaction of the spirits than of material wants. It is not possible, therefore to accept the contention that the First Respondent's services are rendered only to satisfy the spiritual cravings of workers. The primary objective of the First Respondent is really the material wants and perhaps, after the material wants have been substantially satisfied to cater to the workmen's spiritual wants. After all as Swami Vivekanand once said, one cannot teach philosophy to people with empty stomachs, AT the current stage of evolution of Trade Unions in this country - the First Respondent being no exception - it it difficult for me to accept that the role of the Trade Union is merely that of a spiritual mentor. In my considered view the activities of the First Respondent to positively answer the test in paragraph (I) (a) (iii) formulated in Rajappa's case. Once the test in paragraph I is answered positively as pointed out in Rajappa's case, prima facie there is an industry. The Supreme Court pointed out in Rajappa that absence of profit motive or gainful objective is irrelevant. That the true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relationship, is the content of Clause (c) of paragraph I of the test in Rajappa. Applying this to the activities of the First Respondent, in find it difficult to take the view that the nature of the activity, with special emphasis on the employee-employer relationship between the First Respondent and its employees, which would be inevitable for successful carrying out of its objects, could leave the First Respondent out of the net of section 2(j).
19. Then we turn to Paragraph II of the test, where the Supreme Court pointed out that all organised activities possessing the triple elements in paragraph I (supra), although not trade or business, may still be 'industry', provided the nature of the activity, viz. the employer-employee relationship bears resemblance to what we find in trade or business. The Court then pointed out that all features, other than the methodology of carrying on the activity, namely, in organising the co-operation between the employer and employee, may be dissimilar, and that it does not matter, if on the employment terms there is analogy. For a clerk driver, liftman peon and accountant, or any other employee, the work that is done is work which fetches his livelihood. That he does the work in the office of the registered Trade Union or in the factory of a trading company is irrelevant in so far as co-operation between capital and labour and the employer-employee relationship is concerned. The pattern is identical and it is this structural parallelism which the Supreme Court was at pains to emphasise from R. M. Bannerje to Rajappa. Perceived from the perspective of methodology, there is hardly any difference between the work in First Respondent's employment or elsewhere in a business house.
20. Then come the observations of the Supreme Court in paragraph III, where the Supreme Court in paragraph III, where the Supreme Court administers a stern caveat :
"Application of these guidelines should not stop short of their logical, reached by invocation of creeds, cults or inner sense of incongruity or other sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less nothing more."
It is trite to say that the Trade Union striving of the ideal of social justice to its member-workmen, should render social justice to its own workmen. That all charity must begin at home is an adage that is conveniently forgotten. I see no reason why a Trade Union must be excluded from the definition of 'industry' in section 2(j), merely because its objects are ideal or ideological. The reasons adumbrated by the Supreme Court in Rajappa's case for roping in charitable and religious establishments into the net of the definition in section 2(j) of the Industrial Disputes Act, are equally applicable to the case of Trade Unions and it is unnecessary to repeat them. Conceptually, to think of a Trade Union as an industry is not only foreign, but may even appear incongruous. It was equally so in the case of charities, academia and religious institutions. That there can be occasions of break-down of industrial relations and industrial peace, that there can be utter chaos in industrial relations and there there can be recurring industrial disputes within the set up of a Trade Unions itself are hard facts of life which need recognition. Being mindful of the stern caveat administered by the Supreme Court in paragraph III of the test in Rajappa, I am of the view that these considerations require the Court to ensure that the range of the statutory ideology must inform the reach of the statutory definition, nothing less, nor nothing more ought to be done by the Court. Ergo in my judgment the First Respondent clearly answered the definition of industry as laid down in section 2(j) of the Industrial Disputes Act as expound in Rajappa I am not inclined to accept the argument of Ms. Buch that all the persons employed by the First Respondent are motivated by a spirit of self-sacrifice. True they may be accepting employment on terms for below those obtainable elsewhere in open market but that is not necessarily indicative of a lack of employer-employee relationship. That is a necessary ingredient of the market forces of Labour Economics. Apart from ideal or ideological considerations several other forces operate and prevail upon a person to accept employment on terms lesser than what he might have bargained for in an open market. Per se, that does not militate against there being an employer-employee relationship. I am also not inclined to accept the argument of Ms. Buch that the test indicated in paragraph IV by the Supreme Court in Rajappa's case should override and result in holding that a Trade Union can never be an industry. True the Supreme Court emphasises the dominant nature/test and points out that where an entity carries on a complex of activities, some of which qualify for exemption from the ambit of industry and some do not, it is the nature of dominant activity which must decide the issue. In the case of the First Respondent however as I see from its constitution, apart from employing employees on ancillary objects such as administrative work, test constitution empowers the President or Vice-President to appoint Assistant Secretaries to carry out functions of Trade Units, properly so-called. That this power has been exercised and the three Petitioners were employed as Assistant Secretaries, is an admitted fact. That their services were no longer required is evident from the letters dated 23rd July, 1984 termination their services. It is therefore difficult to agree with Ms. Buch when she says that there is some other dominant activity which should dominate the colour or character of the First Respondent as a whole. As far as I can read from the constitution of the First Respondent it appears to be empowered to employ persons on both types of activities. In any events, even if I consider the running of A Trade Union as the dominant activity and the employment of workmen was for administrative and other peripheral purposes, even then, I am of the view that the dominant activity itself falls within the ambit of the term industry of section 2(j) of the Industrial Disputes Act. Whichever way I look at it there seems to be no escape for the First Respondent from the net of section 2(j). I am therefor of the view that the learned Judge of the Labour Court erred in law in holding that the First Respondent is not an industry within the meaning of section 2(j) of the Industrial Disputes Act. Differing therefrom, I am inclined to take the view that the First Respondent clearly falls within the meaning of the term industry as defined in section 2(j) of the Industrial Disputes Act, 1947.
21. This takes me to the second issue, namely whether the Petitioners could be said to be workmen within the meaning of section section 2(s) of the Industrial Disputes Act, 1947. Unfortunately, the material on record is some what sketchy. Mr. Kochar, learned counsel for the Petitioners, pointed out that the objection as to the Petitioners not being workmen had not been raised initially in the written statement filed by the First Respondent an was raised only by way of an amendment moved on 11th January 1985. Perhaps this explains the lack of emphasis on the factual aspects of the work done by the Petitioners. The parties are however agreed that the Petitioners were appointed as Assistant Secretaries and were carrying on functions of pure Trade Unionists. As to any other activities carried out by them, there is singular lack of evidence.
22. Mr. Kochar referred to the provisions of the Bombay Industrial Relations Act and pointed out that the legitimate Trade Union activities which can be carried out by a representative and approved Union under the Act is indicated in the Act itself under the umbrella on which the First Respondent functions. He drew may attention to section 25 of the Bombay Industrial Relations Act, 1946 and Rules 29, 30, 31, 32, 33 and 34 of the Bombay Industrial Relations Rules, 1947. He contends that these provisions show that even if the Petitioners were employed as Assistant/Organising Secretaries their work consisted of activities like (a) collocation sums payable by members to the Union on the premises were wages are paid to them (b) putting up notice boards on the premises of the Undertaking for the information of their members, (c) holding discussions with the employees who are members of the Union on the premises of the Undertaken (d) holding discussions with the employer for ventilation the grievances of the members (e) to carry out inspection of such work done. He also pointed out that, under the Model Standing Orders, a Representative Union has the right to defend its members in domestic enquiries and this right is exercised on behalf of members by the Assistant/Organising Secretaries.
23. Even the duties required to be carried out and actually carried out by the Assistant Secretaries as Trade Unionists do not appear to be in dispute. But the question that has been seriously debated is whether these duties turn them into workmen within the meaning of section 2(s) of the Industrial Disputes Act. Mr. Kochar contends that section 2(s) of the Industrial Disputes Act was thoroughly revamped by an amendment made with effect from 21st August 1984, by the Industrial Disputes Amendment Act, 1982, (Act 46 of 1982) and that much of the law as laid down by the Highest Court while interpreting this section as it stood prior to the amendment is not good law any longer. To understand the argument of Mr. Kochar, in proper perspective, it is necessary to reproduce the text of section 2(s) as it stood before 1984 and as it stood on the date of the cause of action, Prior to 21st August 1984, section 2(s) read as under :
"2(s) "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute or whose dismissal discharge or retrenchment has led to that dispute, but does not include any such person -
(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in his functions mainly of managerial nature."
After 21st August 1984, section 2(s) as amended by Act 46 of 1982 now reads as under :
"2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute but does not include any such person -
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who being employed in a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercises either by the nature of the duties attached to the Office or by reason of the powers vested in him functions mainly on a managerial nature."
According to Mr. Kochar, the re-arrangement and rejuxtapositioning of the words in this section indicates that words describing the different types of jobs, manual unskilled 'skilled', 'technical', 'operational', 'clerical', or 'supervise', are independent of each other and are not necessarily controlled by each other. He also pointed out that the word operational has been deliberately added in order to widen the scope of the definition in section 2(s). He then contends that Oranising/Assistant Secretaries would be persons employed to do skilled technical or operational work. Since these words have been the subject matter of judicial interpretation, Mr. Kochar attempted to persuade me to his view point, by relying on a number of decisions.
24. Mr. Kochar cited the judgment of this Court in Waman Ganpat Raut v. Cadbury - Fry (India) Pvt. Ltd. (1980 (41) FLR 156) and, relying on this judgment he contends that this judgment lays down the law that if the employer admits the relationship of employer-employee and yet contends that such a person is not a workman within the meaning of section 2(s) of the Industrial Disputes Act because he falls into one of excepted categories, then the burden of proving the said exception clearly lies upon the employer. In the instant case, since the First Respondent Trade Union, which is the employer, adduced no evidence to show any exclusionary facts, the case of the Petitioners must be considered only on the basis of the main body of definition, without applying the exclusionary part. There are two difficulties in the way of accepting this contention. Firstly, as I read the judgment, the learned Judges of the Division Bench in terms say that they had decided the controversy between the parties in the facts and circumstances of the particular case "without attempting to lay down any general proposition of law". Assuming however, that a proposition of law, as stated by the learned counsel, has been laid down by the Division Bench, the question of burden of proof is not very material since the parties led evidence and were pressing their respective contentions on the basis of the evidence led by them. I would, therefore, prefer not to be influenced by the so-called onus of proof and decide the case on the basis of the evidence adduced before the trial Court and the facts found by the trial Court, subject to the statutory provisions applicable.
25. Mr. Kochar then contended that the expression skill is generic in nature and would apply to all cases where a certain amount of 'skill' has to be brought to bear on the subject matter for accomplishing a desired result. He illustrated that there could be skill of a mechanic, a turner, a singer, a lawyer or even as a Trade Unionist. It cannot be gainsaid that a Trade Unionist also must be skilled in the sense that, with training and practice, he hones his ability to carry in the activities to sharpness, urges Mr. Kochar. Mr. Kochar relied on the judgment of the Division Bench of this Court in the Bombay Dying & Manufacturing Co. Ltd. v. R. A. Bidoo & Ors. (1989 I CLR 248) in support. He points out that this was a case where the Division Bench was required to consider whether the employee in question was a 'skilled' person or a technical persons and that, after a survey of the relevant authorities, the High Court has laid down the two tests for deciding as to who would be a skilled employee. He particularly emphasises the observations in paragraphs 12, 13 and 17 of the judgment, Bidoo's case was a case arising under the provisions of the Bombay Industrial Relations Act which defines the terms 'employee' in section 3(13) as :
"Employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes
(a)................
(b)................
but does not include -
(i) a person employed primarily in a managerial, administrative supervisory or technical capacity drawing basic pay (excluding allowances) exceeding one thousand rupees per month ......."
Construing this definition, the Division Bench was of the view that the collocation of words used in the term 'employee' indicated that a person employed in any of the four categories mentioned in the exclusion clause must necessarily be held to be include in either an unskilled category or in a skilled category of employees. The Division Bench then considered that, for obvious reasons, they were inclined to take the view that a person employed in a technical capacity must be deemed to be include din the larger class of skilled employed. This discussion per se does not assist me as I am required to interpret the nuances of the expressions used in section 2(s) of the Industrial Disputes Act which is not pari materia with section 3((13) of the Bombay Industrial Relations Act. It is true that (in paragraph 14) the Division Bench does say;
"From these meanings given in the Shorter Oxford english Dictionary, it can be said that skilled work is some work which requires expertise or special knowledge about the work which is to be performed. Technical work requires a training or knowledge or expertise of a particular art or science to which that work pertains ...... The word 'technical' embraces within itself not only the expertise and competence of a person, but also knowledge and experience relating to the particular work which may be said to be technical work."
The Division Bench thereafter proceeded to consider the law laid down by the Supreme Court in Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Management Staff Associations wherein a useful discussion as to the meaning of the word technical is to be found. At this stage, I need not make any reference to the Burmah Shell case as it has been referred an considered in a recent judgment of the Supreme Court in H. R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc. (1994 II CLR 552) on which Mr. Kochar heavily relies. In paragraph 20, the Division Bench of our High Court in Bido summed up the discussion and observed, "In our opinion what has been examined by us so far should be sufficient for the purpose of understanding the meaning of "employment" in technical capacity". A person can be said to be employed in a technical capacity if he is, in the first place, a skilled person. He must have enough dexterity to discharge the work assigned to him with speed and accuracy. He must also have a skill, but that skill is not a general skill like that of aweaver who is in charge of several looms in a textile unit. Such a weaver is skillful enough to look after several looms at one time and if something goes wrong he is able to attend to and mend the same. But he is not employing any particular knowledge or art in which he has been trained or in which he had some education, formal or otherwise. In the case of a person employed in a technical capacity, the application of a knowledge of a particular craft or work is the distinguishing feature. With the assistance of the knowledge he possesses, a person employed in a technical capacity is able to bring about a result which could not be brought about by a person, howsoever skilled, who is to perform routine, repetitive work. A person employed in a technical capacity has to use his judgment and has to find out whether a particular work can be done in the one manner or another and then he does that work in the manner in which he thinks it is better done. The work which results from the labours of such a person necessarily bears, at least in some small measure, the imprint of his personality and the knowledge of the person who does that work. It is necessary that the work that such a person does must be inventive, but it must necessarily be a work the contours of which are no pre-determined before that work is actually performed by the person employed in a technical capacity. Indication of this is available from the fact of Marshal Braganza's case. That case, in our opinion, very vividly describes the work of a person employed in a technical capacity."
26. Since the Division Bench has relied upon the judgment of the Supreme Court in Burmah Shell (Supra) for the formulation of the test of employment in technical capacity, it would be better to deal with the judgment in Burmah Shell while discussing Adhyanthaya's case. As far as the judgment in Bidoo's case is concerned, though the Division Bench has formulated the test with regard to employment in skilled capacity I am of the view that the 'skill' contemplated by the definition of 'workman' in section 2(j) of the Industrial Disputes Act calls more for attributes of manual dexterity than intellectual dexterity. For, otherwise, it would mean that whatever the avocation, a person would necessarily be skilled. In order to be successful in any avocation, it would be necessary that the person must have a certain amount of skill - be a he craftsman, mechanic, driver, teacher or preacher. If the expression 'skill' were to be given an extended meaning as suggested by Mr. Kochar, then even a teacher or a preacher, who is extremely good at his vocation, would also be a workman within the meaning of this definition running counter to the interpretation of this section and the law laid down by the Supreme Court in Miss A. Sundarambal v. Government of Goa, Daman & Diu and others .
27. The Supreme court in Sundarambal had to consider the definition under section 2(j) and was faced with the contention that a teacher, particularly one teaching in a technical institution, ought to be considered 'skilled' or 'technical' within the meaning of this definition. The Supreme Court rejected the contention and took the view that, whatever be the nature of the subject taught, the emphasis was on the teaching and merely because a person was skilled in the job of an academic, he could not be considered a skilled within the meaning of the definition which connoted manual skill as opposed an intellectual. I am, therefore, unable to accept the contention that the Petitioner were carrying out skilled work for hire or reward so as to fall within the sweep of section 2(s) of the Industrial Disputes Act, 1947.
28. With regard to the other two facets, viz. that the Petitioners could be considered to be employed in 'technical' or 'operational' capacity, the argument of Mr. Kochar runs thus. Trade Unionism is an intricate subject which is not the cup of tea of every lay person. It requires, not only a deep and thorough study of the different facets of the industry in which the workmen were employed, but also an equally deep and thorough study of intricate provisions of law which affect industrial relations. A Trade Unionist who is not aware of these technical aspects of the matter can hardly educate and advise the workmen on their rights and liabilities. The subject, being intricate, can appropriately be called 'technical' and a person who is required to possess and use such 'technical' knowledge for effectively carrying out his job as a Trade Unionist, must necessarily be considered as employed in a 'technical capacity.
29. Mr. Kochar contends that Parliament, intentionally and deliberately, amended section 2(s) with effect from 21st August 1984, by inserting the word 'operational' in the amended definition of "workman" in section 2(s) of the Act. The word 'operational' is of wide import and anything that could be properly said to be connected with the operations carried out in any job could be legitimately described as 'operational'. Focussing on the nature of activities of a Trade Unionist, Mr. Kochar contends that a Trade Unionist must necessarily know the different types of operational activities described in section 25 of the Bombay Industrial Relations Act to which reference has already made. Going one step ahead, he submitted that a decision like where to call a strike and when to call a strike, if the strike is to be successful, is a technical matter and a person who is not well versed in Trade Unionism would be hard put to take such a decision and that the details of organising strikes or exercising collective bargaining are necessarily operational matters of a Trade Union. Since the Petitioners who are Assistant/Organising Secretaries had to urgently deal with this kind of technical or operational matters, they should be held to be covered by the definition in section 2(s) of the Industrial Disputes Act. Mr. Kochar cited a recent judgment of the Supreme court in H. R. Adhyanthaya etc. etc. v. Sandoz (India) Ltd. etc. (1994 II C.L.R. 552) in support of his twin arguments that the Petitioners should be considered to be employed in technical and/or operational capacity. Adhyanthaya was a case arising in the pharmaceutical industry. The Appellant was employed as a Medical Representative for canvassing sales of products of a pharmaceutical company. He filed a complaint before the Industrial Court under the Act, which was opposed on the ground that the Appellant, being a sales promotion employee, was not a 'workman' within the meaning of section 2(s) of the Industrial Disputes Act and, therefore the complaint was not tenable. The Industrial Court upheld the contention and dismissed the complaint. The matter was taken up in appeal before the Supreme Court. It was strenuously urged before the Supreme Court that the statutory intent in amending section 2(s) by introduction of words "operational" was to enlarge the meaning of the definition and to bring within its ambit almost all categories of employees except the excepted ones. The Supreme Court emphatically rejected this argument by pointing out that, inspite of the apparent width of the expression 'operational' its meaning must be held coloured by the other words used in the collocation of words in the definition, by application of the principle of Noscitur a Sociis. Thus, whittling down the apparent extensive width of the expression 'operational', the Supreme Court indicated in Subs. Adyanthaya's case that 'operational' would necessarily be of the nature of 'skilled', technical supervisory or clerical, which are the other words used in the definition. Mr. Kochar was quick to contend that though the Supreme Court has pointed out what the word 'operational' did not mean, the Supreme Court in Adyanthaya's case has not laid down as to what exactly the term means. He contends that a negative test of this nature is useful only adhoc and has no universal utility. He submits that the definition contains several expressions like 'manual' 'unskilled', 'skilled', 'technical', 'clerical', or 'supervisory', and it could not have been the intent of the legislature to add to work 'operational' to the definition without some definite additional connotation. If the connotation of the term operational was already contained in the other words used in the definition then the word operational would be redundant and redundancy of words cannot be attributed to the legislature. He, therefore, contends that inasmuch as the Supreme Court has not indicated in Adyanthaya's case as to what exactly is the connotative content of the expression 'operational' used in section 2(s) of the Act, but has merely indicated that medical representatives would not fall within the said expression the judgment does not conclude the issue and, therefore, the matter is once again res integra. Even assuming that there is some substance in the grievance made by Mr. Kochar, it is not possible for me to accept the contention, as I am bound by the law laid down in Adyanthaya's case by the Supreme Court. The Supreme court has said in Adyanthaya's case that the word 'operational' is not a word of unlimited generic content, but that its operational should be limited by the company it keeps and its association with the other words used in the definition section. The Supreme Court considered the apparently conflicting pronouncements in several of its previous judgment and finally indicated that the judgments in May & Baker (India) Ltd. v. Their Workmen 1961 II LLJ 94), Western India Match Co. Ltd. v. Their Workmen and Burmah Shell Oil Storage & Distribution Co. of India v. Burmah Shell Management Staff Association & Ors. laid down the law correctly and that the judgments in S. K. Verma v. Mahesh Chandra & Anr. , Ved Prakash Gupta v. Delton Cable India (P) Ltd. and Arkal Govind Raj Rao v. Ciba Geigy of India Ltd. Bombay (1985 Supp. 1 SCR 2821) were without noticing that the view accepted therein had been expressly negative by a larger Bench and, therefore, the observations in the latter judgments had to be confined to the peculiar facts of their respective cases. Finally, the Supreme Court summed up the law by observing.
".... the position in law as it obtains today is that a person to be a workman under the I.D. Act must be employed to do the work of any of the categories viz., manual, un'skilled', 'skilled', technical, operations, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation.
Repelling the argument that the work of medical representative was 'skilled work', the Supreme Court observed.
"As regards the word "skilled" we are of the view that the connotation of the said work in the context in which it is used, will not include the work of a sales promotion employee such as the medical representative in the present case. That word has to be construed ejusdem generis and thus construed, would mean skilled work whether manual or non-manual, which is of a genre of the other types of work mentioned in the definition."
Notwithstanding the change in the language of section 2(s) after the 1984 amendment by which the words "skilled or un'skilled', manual" were changed to 'manual', 'unskilled', 'skilled", the Supreme Court appears to have taken the view that the word 'skilled' would take its colour from the other words used in the definition. Having considered the nature of sales promotion work, the Supreme Court rejected the contention that it was skilled work of the genre of the other types of work specified in the definition. In the same judgment, the Supreme Court also rejected the contention that sales promotion employees would fall within the word operational by saying :
"We are afraid that these contentions are not well placed. We have already pointed out as to why the word "skilled" would not include the kind of work done by the sales promotion employees. For the very same reason, the word "operational" would also not include the said work. To hold that everyone who is connected with any operation of manufacturing or sales is a workman would render the categorisation of the different types of work mentioned in the main part of the definition meaningless and redundant. The interpretation suggested would in effect mean that all employees of the establishment other than those expressly excepted in the definition are workmen within the meaning of the said definition. The interpretation was specifically rejected by this Court in May & Baker, WIMCO, Burmah Shell and a. Sundarambal cases (supra). Although such an interpretation was given in S. K. Verma, Delton Cables and Ciba Geigy cases (Supra) the legislature impliedly did not accept the said interpretation as is evident from the fact that instead of amending the definition of "workman" on the lines interpreted in the said latter cases, the legislature added three specific categories, viz., unskilled, skilled and operational. The "unskilled" and "skilled" were divorced from "manual" and were made independent categories. If the interpretation suggested was accepted by the legislature, nothing would have been easier than to amend the definition of "workman" by stating that any person employed in connection with any operation of the establishment other than those specifically excepted is a workman. It must further be remembered that the independent categories of "unskilled", "skilled" and "operational" were added to the main part of the definition after the SPE Act was placed on the statute book ......"
Mr. Kochar contends that if the interpretation given to the word "operational" in Adyanthaya's case is correct, then the Parliament must be taken to have indulged in mere cosmetic changes in the definition of section 2(s) of the Industrial Disputes Act, without any read change. Unless the exact nature of the connotative content of the word "operational" is expounded by the Courts, Mr. Kochar contends, a decision would have to be made adhoc in every case. May be, the argument has an element of truth, and perhaps in an appropriate case, the Supreme Court might be persuaded to lay down with greater precision the connotation of the word "operational" which would facilitate the application of the test in a given case. For the nonce, however, I consider myself bound by the law laid down by the Supreme Court in Adyanthaya's case, which I read as meaning that the word "operational" has to be whittled down and made to take its colour from the other words used in the definition. Read in this fashion, I am afraid, it is not possible to accept Mr. Kochar's contention that the Petitioners before me could be said to have been employed in the operational capacity, as Trade Unionists, within the meaning of the definition 'workman' in section 2(s) of the Act. The judgment in Adyanthaya's case, far from supporting the contention made by Mr. Kochar, in my opinion is completely against the contention. The law has been laid down in the case of Adyanthaya judicial discipline and Article 142 of the Constitution of India, require me to apply it to the case of the Petitioners before me. The contention that the Petitioners were workmen is therefore, not sustainable and cannot be accepted.
30. Mr. Kochar referred to a number of cases in order to illustrate how different types of employees have been held to be workmen. He referred to the judgment of the Supreme Court in Prithipal Singh v. Union of India (1990 II C.L.R. 776) and contended that in that case the Supreme Court held that the word 'artisan' used in Rule 56(b) was held wide enough to include the driver of the car. This judgment does not advance the case any further as it turns on the interpretation of the phraseology used in Fundamental Rules 56(b). He then cited the judgment of Punjab and Haryana High Court in Ajit Singh v. Labour Court & Anr. (1992 II C.L.R. 482). In this case a person employed as a Legal Assistant in a Co-operative Sugar Mills, upon consideration of the actual work carried out by the employee, was held to be a workman. This judgment follows another judgment of the same High Court in Rajesh Garg v. Management (1984 (e) SLR 397), wherein the detailed nature of work was given. The High Court had taken the view that in Rajesh Garg's case that the Petitioner's duty 'at best' was that of a skilled clerk required in discharge of his clerical duties to put up notes and seek instructions. Besides that, he had to tender legal advice when asked by the Corporation and draft and approve documents as asked by the Corporation from the legal point of view. The duties of the Petitioner had even been termed by learned counsel to be 'techno-clerical' with the aid of legal knowledge which the Petitioner possessed. In my view, this case turned upon the peculiar facts and no principle of general application can be called out therefrom. He also relied upon the judgment of the Supreme court in national Engineering Industries Ltd. v. Shri Kishan Bhageria and others (1988 I CLR 152), in which the employee was working under the Company as an Internal Auditor on a monthly salary and his duties were mainly reporting and checking up on behalf of the management, but he had no independent right or authority to take decision and his decision did not bind the company. The employee was held to be a 'workman' within the meaning of section 2(s) and not supervisor. The Supreme Court observed that a checker on behalf of the management or employer was not a supervisor and the conclusion recorded by the High Court, on appreciation of evidence, could not be interfered with under Article 136 of the Constitution. Interestingly, this judgment relied on the judgments of the Supreme Court in Maheshwari v. Delhi Administration and Ved Prakash Gupta v. Delton Cable India (P) Ltd. , both of which were held to be confined to the facts peculiar to their cases, in the latest judgment in Adyanthaya's case. In any event, the three illustrations cited by Mr. Kochar, namely, a Driver, an Internal Auditor and a Legal Assistant necessarily carried on duties akin to or associated with the other duties enumerated in the definition. Obviously, the first was manual and the latter two were carrying out duties akin to clerical duties. In these circumstances, it is possible that they might have been held by the Courts to be workmen. I am afraid, I fail to discern any principle of universal application in these decisions which have proceeded from case to case on the peculiar facts of each case.
31. Mr. Kochar then relied on the judgment of a Division Bench of the Madras High Court in Pondicherry State Weavers Co-op Society v. Regional Director, Employees State Insurance Corporation, Madras (1983 I L.L.J. 17) and of the Supreme Court in Shri Ram Prasad v. Commissioner of Income Tax, New Delhi and contended that it is possible that an employee may have dual capacity - one in which he participates in management and, the second, in which he executes those policy decisions as a workman. None of these two cases lay down the proposition of law that Mr. Kochar canvasses. No one can doubt that a person may be invested with dual capacity - one as part of the management of an institution, and, the second as an employee to excute the management policy. However, in the instant case, I am of the view that the Petitioners were employed only as Assistant/Organising Secretaries and their appointment was purely and simply as members of the Executive Committee. There is no other capacity in which they have been shown to have been employed. Despite Mr. Kochar's contention to the contrary, there is nothing on record indicating that these Petitioners were doing anything other than the work of Assistant/Organising Secretaries. Thus, the contention based on dual capacity has no relevance and these authorities do not advance the case of the Petitioners.
32. Mr. Buch, learned counsel for the First Respondent relies on the judgment of the Supreme Court decision in D. P. Maheshwari v. Delhi Administration and Others and contends that, once the competent Tribunal has on facts come to a conclusion that the Petitioner was not a workman under section 2(s) of the Act, it was not open to the High Court under Article 226 of the Constitution to take a different view of the matter. I respectfully agree with the proposition but on this aspect I am not inclined to take any different view of the matter than the one taken by the trial Court.
33. There is another crucial argument of Ms Buch which should be noticed and considered before parting with this judgment. Ms. Buch argued that the petitioners were, under the Constitution of the Trade Union, members of the Executive Committee, by virtue of a conjoint reading of Rule 9(a) and Rule 12 of the Constitution and Rules of the First Respondent. She also points out that Rule 12 of the Constitution mentions that the management of the affairs of the Union would be in the hands of the Executive Committee consisting of the office-bearers elected under Rule 9(a) and officer-bearers appointed by the President under Rule 9(b), such as the present petitioners. She contends that, having been repositories of the managerial powers of the Executive Committee under Rule 9 of the Constitution and Rules of the Trade Union, the Petitioners were not entitled to content that they were mere employees discharging the fiat of the Employer. If such an argument were to be accepted, the situation would become incongruous. A member of the Executive Committee is a part of the management and, therefore, the petitioner being a workman, would be bound to discharge the lawful order given by the Employer, viz. the Trade Union, which functions through the Executive Committee; a situation totally incongruous, as an Employer cannot himself be a workman. In my view, there is substance in this contention of Ms. Buch. Although Rule 9(b) does permit office bearers to be appointed to the Executive Committee, it is conceivable that those appointees may be employed under a contract of employment and exercise only the powers of the management of the Trade Union invested collectively by Rule 12 in the Executive Committee. In my view, the petitioners who were themselves part of the Executive Committee of the Trade Union, cannot be said to be 'workman' of the Trade Union. For this reason also, I reject the contention of Mr. Kochar and I am inclined to uphold the finding of the trial Court that the Petitioners were not 'workmen' within the meaning of section 2(s) of the Industrial Disputes Act.
34. In the result, in the facts and circumstances of the case, it is held as under :
(1) The First Respondent Trade Union is an 'industry' within the meaning of section 2(j) of the Industrial Disputes Act, 1947 and amenable to the jurisdiction of the Courts constituted under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
(2) The Writ Petitioners in Writ Petition Nos. 3695, 3697 and 3698 of 1987 are not 'workmen' within the meaning of section 2(s) of the Industrial Disputes Act, 1947.
(3) Consistent with the second finding above, I hold that the Complaints (ULP) Nos. 108, 109 and 110 of 1984 under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 were not maintainable and that the Labour Court was justified in dismissing them.
35. In the result, the writ petitions are dismissed and the rules issued therein are discharged, without any order as to costs.