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1. In this petition under Article 226 of the Constitution of India the petitioner company has claimed a "Writ of Prohibition against the Industrial Tribunal for preventing the Tribunal from proceeding with the adjudication of the dispute referred to the Tribunal under Order of Reference No. AJC. 25(4) 670 LAB II dated November 4, 1967 and/or from proceeding with Reference (IT) No. 390 of 1967.

2. The facts which require to be noticed are as follows:

3. By an Indenture of Settlement dated October 12, 1941 made by Bai Bhicaiji Bennet and Bai Putlibai Broacha two immoveable properties known as "Shapurji Bharucha Baug" situated at Vithalbhai Patel Road, and one immoveable property situated at Khetwadi Main Road were settled upon certain private trusts. The Deed of Trust is produced at exh. F, in the present proceedings. By another Indenture of Settlement dated November 13, 1941 Bai Bhicaiji Bennet and Bai Putlibai Broacha settled one immoveable property situated at Dadar upon certain private trusts. This Indenture of Settlement is produced in the present proceedings at exh. G. After these two trusts were administered privately for certain duration of time, in accordance with the authority given in that connection by Clause 33 in each of these two deeds of trust, the retiring trustees of these trusts executed separate Deed of Appointment of new trustees in March 1958 and thereby appointed the petitioner company to be trustee of the above two Deed of Settlement-Trusts (hereinafter referred to as "Bhicaiji Bennet Trust No. 1" and "Bhicaiji Bennett Trust No. 2"). Since March 1958, the petitioner company, as trustee of the above two trusts, has been administering and managing the affairs of the two trusts and accordingly the immoveable properties and other assets belonging to these two trusts. Respondent No. 2 Union by its letter dated October 6, 1965 (exh. D to the petition) wrote to the petitioner company that the workmen of the petitioner company employed at Shapurji Bharucha Baug had joined respondent No, 2 Union and requested for fixing an early meeting to discuss the grievances of the workmen. By his letter dated October 19, 1965, the secretary of the petitioner company wrote to say;

7. The main contention of the petitioner company for challenging the validity of the above order of reference and the jurisdiction of the Industrial Tribunal appears in paras. 17 and 18 of the petition and may be summarised as follows:

8. The petitioner company is the trustee of the above two trusts by reason of the two Deeds of Appointment of new Trustees dated March 8, 1958 and March 10, 1958 and as such the petitioner company is managing the estate of the above two trusts. The petitioner company "as such trustees collect the rents etc. of the said trust properties, pay thereout the expenses of collection and other outgoings and hold the balance for the benefit of the beneficiaries under the trusts." The petitioner company as trustees of the above trusts had employed one plumber, four watchmen, four sweepers and four malis for the purpose of looking after the trust properties. The petitioner company was not an industry within the meaning of Section 2(i) of the Industrial Disputes Act, 1947. These employees do their work purely in a personal or domestic matter and they were merely domestic servants. These employees were the employees of the above two trusts and their wages were paid out of the income of the respective trusts. The activity of the petitioner company was not for production of goods or for rendering of service; nor was there any co-operation between the capital and labour or between the employer and employees in connection with the administration by the petitioner company of these two trusts. Under the circumstances, there did not exist any industrial dispute in respect whereof an Order of Reference could be made by the State Government under Clause (d) of Sub-section (1) of Section 2(i) of the Industrial Disputes Act.

No. 6243 THE CENTRAL BANK EXECUTOR AND TRUSTEE CO. LTD.

Received from the Trustees of Bhicaiji H. Benette the sum of Rs. 50/- Rupees Fifty only being the wages for the month of Feb. 1972, for services rendered at Dadar property.

Name and designation: Kankoo Dhanji.

Date 4 Mar. 1972.

Sd. Kankoo Dhanji (one revenue stamp of ten paise and one refugee relief stamp of ten paise.) Mr. Joshi pointed out that this illustrative receipt clearly evidenced the fact that in respect of the second trust Kanku Dhanji mentioned in the receipt was employed by the second trust at its Dadar property and Es. 50 were paid to him by the second trust which employed him. The argument was that in respect of both the above trusts salaries of each and all the employees were paid by each of these two different trusts and salaries were paid by the petitioner company as a trustee of these two trusts and in its individual capacity as such trustee. Mr. Joshi submitted that each and all the receipts in all the three receipt books were clear proof of this fact (on which very strong reliance was placed on behalf of the petitioner company). He relied upon the Statements of Accounts. It is difficult to incorporate these Statements in the present judgment. It is sufficient to point out that the account of the first trust is entitled "Bhicaiji H. Bennett No. I Schudle A in trust account with Central Bank Executor and Trustee Co. Ltd." The account of the second trust is entitled "Bai Bhicaiji H. Bennett III in trust a/c with Central Bank Executor & Trustee Company Limited." In these accounts there are debit entries for payment of wages of the present employees as follows:

12. Mr. Joshi emphatically submitted that these entries in the Statements of Accounts go to show that the employees concerned were employees of the two different trusts mentioned above and were not employees of the petitioner company as such. These employees were employed by the petitioner company acting in its capacity as a trustee of these two trusts and that employment had nothing to do with the petitioner company as such. He submitted that the work of administration of these two trusts was undertaken by the petitioner company upon its being appointed the sole trustee of these two trusts under the above two Deeds of Appointment of New Trustees and that the petitioner company could never be held to be "industry." This was so because the activity undertaken by the petitoner company in connection with these two trusts was merely of looking after the investments. This activity did not partake of any business or trade, nor was it an undertaking or manufacture or calling of employers. The work undertaken by the watchmen, the supervisors, malis (gardners) and the plumber was of domestic nature. This work was far remote and had no relation with the work of management and administration that the petitioner company undertook in respect of these two trusts as trustees thereof. For the purposes of the management and administration as trustee the petitioner company did not receive any co-operation of these employees. No activities were undertaken by the petitioner company and its employees in co-operation with each other for production of any material service. The profits that the petitioner company made had no relation of any kind with the services which these employees were rendering as sweepers, gardeners and watchmen.