Q1.

Industry section 2(j) defines industry, industry" means any business, trade,

undertaking, manufacture or calling of employers and includes any calling,

service, employment, handicraft, or industrial occupation or avocation of

workmen.

This definition is in two parts. The first says that industry means any business,

trade, undertaking, manufacture or calling of employers and the second part

provides that it includes any calling, service, employment, handicraft, or

industrial occupation or avocation of workmen. "If the activity can be described

as an industry with reference to the occupation of the employers, the ambit of

the industry, under the force of the second part takes in the different kinds of

activity of employees mentioned in the second part. But the second part

standing alone cannot define industry. By the inclusive part of the definition the

labour force employed in any industry is made an integral part of the industry

for the purpose' of industrial disputes although industry is ordinarily something

which employers create or undertake". However, the concept that "industry is

ordinarily something which employers create or undertake" is gradually

yielding place to the modern concept which regards industry as a joint venture

undertaken by employers, and workmen, an enterprise which belongs equally to

both. Further it is not necessary to view definition of industry under Section 2(j)

in two parts. The definition read as a whole denotes a collective which

employers and employees are associated. It does not consist either by employers
alone or by employees alone. An industry exists only when there is relationship

between employers and employees, the former engaged in business, trade,

undertaking, manufacture or calling of employers and the latter engaged in any

calling, service, employment, handicraft or industrial occupation or avocation.

There must, therefore, be an rise in which the employers follow their avocations

as detailed in the defamation and employ workmen.Thus, a basic requirement of

'industry' is that the employers must "Be" ""carrying on any business, 'trade,

undertaking, manufacture or calling of employers'. There is next much difficulty

in ascertaining the meaning of the words business, trade, manufacture, or calling

of employers in order to determine whether a particular activity carried on with

the co-operation of employer and employees is an industry or not but the

difficulties have cropped up in defining the word 'undertaking'.

"Undertaking" means anything undertaken, any business, work or project

which one engages in or attempts, or an enterprise. It is a term of very wide

denotation have been evolved by the Supreme Court in a number of

decisions which But all decisions of the Supreme Court are agreed that an

undertaking to be within the definition in Section 2(j) must be read subject to a

limitation, namely, that it must be analogous to trade or business.1 Some

working principles furnish a guidance in determining what are the attributes or

characteristics which will indicate that an undertaking is analogous to trade

Hospital MazdoorSobfefl case as follows :

"As a working principle it may be stated that an activity systematically or

habitually undertaken for the production or distribution of goods or for the

rendering of material services to the community at large or a part of such

community- with, the help of employees is an undertaking. Such an activity

generally involves the co-operation of the employer and the employees; and its

object is the satisfaction of material human needs. It must be organized an

arranged in a manner in which trade or business is generally organized or

arranged. It must not be casual, nor must it be for one's self nor for pleasure.

Thus the manner in which the activity in question is organized or arranged, the

condition of the co-operation between the employer and the employee necessary

for its success and its object to render material service to the community can be

regarded as some of the features which are distinctive of activities to which

Section 2(j) applies."

In Bangalore Water Supply v. A. Rajappa, a seven Judges' Bench of the

Supreme Court exhaustively considered the scope of industry and laid down the

following test which has practically reiterated the test laid down in Hospital

Mazdoor Sabha case :

Triple Test.—Where there is (i), systematic activity, (ii) organised by co-

operation between employer and employee (the direct and substantial element is
chimerical), (iii) for the production and/or distribution of goods and services

calculated to satisfy human wants and wishes, prima facie, there is an "industry"

in that enterprise. This is known as tripple test. The following points were also

emphasised in this case :

(1) Indtistry does not include spiritual or religious services or services

geared to celestial bliss, e.g., making, on a large scale, prasad or food. It

includes material services and things.

(2) Absence of profit motive or gainful objective is irrelevant, be the

venture in the public, joint, private or other sector.

(3) The true focus is functional and the decisive test is the nature of the

activity with special emphasis on the employer-employee relations.

(4) If the organisation is a trade or business-it does not cease to be one

because of philanthropy animating the undertaking.

Therefore the consequences of the decision in this case are that professions,

clubs, educational institutions co-operatives, research institutes, charitable

projects and other kindered adventures, if they fulfil the triple test stated above

cannot be exempted from the scope of Section 2(j) of the Act.

Dominant nature test.—Where a complex of activities, some of which qualify

for exemption, others not, involve employees on the total undertaking some of
whom are not workmen 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 will be true test, the whole undertaking will

be "industry" although those who are not workmen by definition may not

benefit by status.

Exceptions.—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, no employees are entertained but in minimal matters, marginal

employees are hired without destroying the non-employee character of the unit.

If in pious or altruistic mission, many employ themselves, free or for small

honorarium or like return, mainly drawn by sharing in the purpose or cause,

such as lawyers volunteering to-run a free legal services, clinic or doctors

serving in their spare hours in a free medical centre of ashramites working at the

bidding of the holiness, divinity or like central personality, and the services are

supplied free or at nominal cost and-those who serve are not engaged for

remuneration or on the .basis of 'master and servant relationship, then, the

institution is not an industry even if stray servants, manual or technical are

hired. Such elementary or like undertakings alone are exempt not other

generosity, compassion, developmental passion or project.

Sovereign functions, strictly understood, (alone) qualify for exemption, not

statutory bodies. 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 Section

It was further observed that :

"Undertaking must suffer a contextual and associational shrinkage as explained

in D.N. Barterjee v. P.R. Mukher]ee,b so also, service calling and the like. This

yields to the inference that all organised activities possessing the triple elements

abovementioned, although not trade or business, may still be industry provided

the nature of the activity,, viz. the employer-employee basis, bears resemblance

to what is found in, trade or business. This takes into the fold of "industry"

undertaking, callings and services, adventures 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".

The Supreme Court in Management of Safdarjung Hospital, Delhi v. Kuldip

Singh counter to the principles enunciated in Bangalore Water Supply v. A.

Rajappa case and overrule its decision

the court in D.N. Banerjee v. P.R. Mukherjee. In this case the Budge

Municipality dismissed two of its employees, Mr. P.C. Mitra, a Head clerk and

Mr. P.N. Ghose a Sanitary Inspector on charges for negligence, insubordination

and indiscipline. The Municipal Workers Union of which the dismissed

employees were members questioned the propriety of the dismissal and the

matter was referred to the Industrial Tribunal. The Tribunal directed

reinstatement and the award was challenged by the Municipality on the ground

that its duties being connected with the local self-government it was not an

industry and the dispute was not an industrial dispute and therefore reference of

the dispute to the tribunal was bad in law. The Supreme Court observed that in

the ordinary or non-technical sense industry or business means an undertaking

where capital and labour co-operate with each other for the purpose of

producing wealth in the shape of goods, tools etc. and for making profits. In the

opinion of the Court every aspect of activity in which the relationship of master

and servant or employer and employees exists or arises does not become an

industry

It was further observed that 'undertaking' in the first part and industrial

occupation or avocation in the second part of Section 2(j) obviously mean much

more than what is ordinarily understood by trade or business. The definition

was apparently intended to include within its scope what might not strictly be
called a trade or business. Neither investment of capital nor profit making

motive is essential to constitute an industry as they are generally, necessary in a

business, A public utility service such as railways, telephones, and the supply of

power, light or water to the public may be carried on by private companies or

business corporations and if these public utility services are carried on by local

bodies like a Municipality they do not cease to be an industry,For the reasons

stated above Municipal Corporation was held to be an industry.

In Permanand v. Nagar Palika, Dehradun and others} the Supreme Court held

that the activity of a Nagar Palika in any of its department except those dealing

with levy of house tax etc, falls within the definition of industry in U.P.

Industrial Disputes Act, 1947.

The question whether hospital is an industry or not has come for determination

by the Supreme Court on a number of occasions and the uncertainty has been

allowed to persist because of conflicting judicial decisions right from Hospital

Mazdoor Sabha case to the Bangalore Water Supply v. A. Rajappa. In State of

Bombay v. Hospital Mazdoor Sabha case, the Hospital MazdoorSabha was a

registered Trade Union of the employees of hospitals in the State of Bombay,

The services of two of its members were terminated by way of retrenchment' by

the Government and the Union claimed their reinstatement through a writ

petition. It was urged by the State that the writ application was misconceived

because hospitals did not constitute an industry. The group of hospitals were run
by the State for giving medical relief to citizens and imparting medical

education. The Supreme Court held the group of hospitals to be industry and

observed as follows :

(1) The State is carrying on an 'undertaking' within Section 2(j) when it

runs a group of hospitals for purpose of giving medical relief to the citizens and

for

helping to impart medical education.

(2) An activity systematically or habitually undertaken for the production

or distribution of goods or for the rendering of material services to the

community at large or a part of such community with the help of employees is

an undertaking.

(3) It is the character of the activity in question which attracts the

provisions of Section 2(j), Who conducts the activity and whether it is

conducted for profit or not make a material difference. {4} The conventional

meaning attributed to the words, 'trade and business' has lost some of its validity

for the purposes of industrial adjudication...it would be erroneous to attach

undue importance to attributes associated with business or trade in the popular

mind in days gone by.

Hospital run by the Government as a part of its function is not an industry.

Hospitals run by the State of Orissa are places where persons can get treated.
they are run as departments of Government. The mere fact that payment is

accepted in respect of some beds cannot lead to the inference that the hospitals

are run as a business in a commercial way. Primarily, the hospitals are meant

as free service by the Government to the patients without any profit motive".

But in view of the decision of the Supreme Court in Bangalore Water Supply v.

A. Rajappa Dhanrajgiri Hospital case has been overruled and all hospitals

fulfilling the test laid down in Bangalore Water Supply case will be industry.

Thus on an analysis of the entire case law up to Bangalore Water Supply case

on the subject it can be said that such hospitals as are run by the Government as

part of its sovereign functions with the sole object of rendering free service o

the patients are not industry. But all other hospitals, both public and private;

whether charitable or commercial would be industry if they fulfil the triple test

.laid down in Bangalore Water Supply v. A. Rajappa.

respondent Mr. Ram Nath was employed as driver by University College for

women. Mr. AsgarMashih was initially employed as driver by Delhi University

but was later on transferred to the University College for women in 1949. The

University of Delhi found that running the busess for transporting the girl

students of the women's college has resulted in loss. Therefore it decided to

discontinue that facility and consequently the services of the above two drivers

were terminated. The order of termination was challenged on the ground that
the drivers were workmen and the termination of their services amounted to

retrenchment. They demanded payment of retrenchment compensation under

Section 25-F of the Act by filing petitions before the Industrial Tribunal. The

Tribunal decided the matter in favour of the drivers and hence the University of

Delhi challenged the validity of the award on the ground that activity carried on

by the University is not industry. It was held by the Supreme Court that the

work of imparting education is more a mission and a vocation than profession

or trade or business and therefore University is not an industry. But this case has

been overruled by the Supreme Court in Bangalore Water Supply case and in

view of the triple test laid down in Bangalore Water Supply^ case even a

University would be an industry although such of its employees as are not

workmen within the meaning of Section 2(s) of the Act, may not. get the desired

benefits to which a workman in an industry may be entitled to.

In Brahma Samaj Education Society v. West Bengal College Employees'

Association, the society owned two colleges. A dispute arose between the

society and non-teaching staff of the colleges. It was pleaded that the society

was purely an educational institution and not an industry because there was no

production of wealth with the co-operation of labour and capital as is necessary-

to constitute an industry. The Calcutta High Court observed that our conception

of industry has not been static but has been changing with the passage of time.

An undertaking which depends on the intelligence or capacity of an individual

may be an educational institution to which pupils go because of the excellence

of the teachers; such institutions are not industry. On the other hand, there may

be an institution which is so organised that it is not dependent upon the

intellectual skill of any individual, but is an organisation where a number of

individuals join together to render services which might even have a profit

motive. Many technical institutions are run on these lines. When again we find

these institutions also do business by manufacturing things or selling things and

thereby making a profit they certainly come under heading of "industry". These

being the tests, it is clear that it will be a question of evidence as to whether a

particular institution can be said to be an industry or not.

In Osmania University v. Industrial Tribunal Hyderabad, a dispute having arisen

between the Osmania University and its employees, the High Court of Andhra

Pradesh, after closely examining the Constitution of the University, held the

dispute not to be in connection with an industry. The correct test, for

ascertaining whether the particular dispute is between the capital and labour, is

whether they are engaged in co-operation, or whether the dispute has arisen

inactivities connected directly with, or attendant upon, the production

or distribution of wealth.

In Ahmedabad Textile Industry's Research Association v. State of Bombay? an

association was formed for founding a scientific research institute. The institute
was to carry on research in connection with the textile and other allied trades to

increase efficiency. The Supreme Court held that "though the association was

established for the purpose of research, its main object was the benefit of the

members of the association, the association is organised, and arranged in the

manner in which a trade or business is generally organised; it postulates co-

operation between employers and employees; moreover the personnel who

carry on the research have no right in the result of the research. For these

reasons the association was held to be "an industry".

But a society which is established with the object of catering to the intellectual

as distinguished from material needs of men by promoting general knowledge

of the country by conducting research and publishing various journals and

books is not an industry. Even though it publishes books for sale in market,

when it has no press of its own the society cannot be termed even an

'undertaking' for selling of its publication was only an ancillary activity and the

employees were engaged in rendering clerical assistance in this matter just as

the employees of a solicitor'firm help the solicitors in giving advice and service.

Since University of Delhi v. Ram Natb? has been overruled by the Supreme

Court in Bangalore Water Supply v. A. Rajappa the present position is that the

educational institutions including the university are industry in a limited sense.

Now those employees of educational institutions who are covered by the

will be treated as workman of an industry.

Is Government Department an industry.—In State of Rajasthan v. Ganeshi lal,

the Labour Court had held the Law Department,of Government as an industry.

This view was upheld by the Single Judge and- Division Bench of the High

Court. It was challenged by the State before Supreme Court.

It was held that the Law Department of Government could not be considered as

an industry. Labour Court and the High Court have not indicated as to how the

Law Department is an industry. They merely stated that in some cases certain

departments have been held to be covered by the expression industry in some

decisions. It was also pointed out that a decision is a precedent on its own facts.

Courts should not place reliance on decisions without discussing as to how the

factual situation fits in with the fact situation of the decision on which reliance

is placed.

Clubs.—Clubs or self-service institutions or non-proprietary member's club will

be industry provided they fulfil the triple test laid down in Bangalore 'Water

Supply v, A. Rajappa.1 The Cricket Club of India case and Madras Gymkhana

Club case (discussed below) which were the two leading cases, on- the point so

far have been overruled by Bangalore Water Supply case. In Cricket Club of

India v. Bombay Labour Union2 the question was whether the Cricket Club of

India, Bombay which was a member's club and not a proprietary club, although
it was incorporated as a company under the Companies Act was an industry or

not. The club had membership of about 4800 and was employing 397

employees. It was held that the club was a self service institution and not an

industry and "it was wrong to equate the catering facilities provided by the club

to its members or their guests (members paying for that), with a hotel. The

catering facility also was in the nature of self service by the club to its

members". This case has now been overruled.

Madras Gymkhana Club Employees' Union-v. Management;' is another case on

this point. This was a member's club and not a proprietary club with a

membership of about 1200. Its object was to provide a venue for sports and

games and facilities for recreation and entertainment. It was running a catering

department which provided food and refreshment not only generally but also on

special occasion. It was held that the club was a member's self-serving

institution and not an industry. No doubt the material needs or wants of a

section of the community were catered but that was not enough as it was not

done as part of trade or business or as an undertaking analogous to trade or

business. This case has also been overruled. Now it is not necessary that the

activity should be a trade or business or analogous to trade or business

It may, therefore, be submitted that both Cricket Club of India and Madras

Gymkhana Club would now be an industry because they fulfil the triple test laid

down in Bangalore Water Supply case. Both are systematically organised with
the co-operation of employer and employee for distribution of service to satisfy

human wishes.

Supply v. A. Rajappa.

Q2. Industrial Dispute:-The main objective of the Act, as pointed out in

preamble is "to make provision for the investigation and settlement of

industrial dispute". Therefore the definition of "industrial dispute" has special

significance. The following elements should exist to constitute an industrial

dispute

1. a dispute or difference between (a) employers and employers, or

(b) workmen, or (c) workmen and workmen;

The dispute or difference should be connected with (a) employment or

non-employment, or (b) terms of employment, or (c) conditions of

labour of any person;

(3) the dispute may be in relation to any workman or workmen or any

other person in whom they are interested as a body.

The expression "of any person" appearing in the last line of Section 2(k) means

that the person may not be a workman but he may be some one in whose

employment, terms of employment or conditions of labour the workmen as a