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(1960) 2 SCR 866 : AIR 1960 SC 610 : (1960) 1 LLJ 251

In the Supreme Court of India

(BEFORE P.B. GAJENDRAGADKAR, K. SUBBA RAO AND K.C. DAS GUPTA, JJ.)

STATE OF BOMBAY AND OTHERS … Appellants;

Versus
HOSPITAL MAZDOOR SABHA AND OTHERS … Respondents.
Civil Appeal No. 712 of 1957* , decided on January 29, 1960
Advocates who appeared in this case :
C.K. Daphtary, Solicitor-General of India, (R.H. Dhebar, Advocate, with him), for the
Appellants;
K.R. Chaudhuri, T.S. Venkataraman and K.R. Sharma, Advocates, for the
Respondents.
The Judgment of the Court was delivered by
P.B. GAJENDRAGADKAR, J.— This is an appeal by the State of Bombay (hereinafter
called “the appellant”) and two others and it arises from a writ petition filed against it
by the Hospital Mazdoor Sabha, a trade union registered under the Industrial Trade
Unions Act 14 of 1926 and two of its members Mrs Vatsala Narayan and Mrs Ruth
Isaac (hereinafter called Respondents 1 to 3). Respondents 2 and 3 were employed as
ward servants in the J.J. group of Hospitals. The superintendent of this said group of
Hospitals informed the said respondents by notices issued respectively against them
that their services would be terminated with effect from the dates mentioned in the
said notices and in accordance with the said notices their services were in fact
terminated; subsequently in their place two State servants who were discharged from
the Civil Supplies Department were appointed. The writ petition filed by the
respondents alleged that the retrenchment of Respondents 2 and 3 was void as it did
not comply with the mandatory provisions of Sections 25-F and 25-H of the Industrial
Disputes Act, 1947 (14 of 1947)(hereinafter called the Act) and it claimed a writ of
mandamus directing the appellant to reinstate them in their posts. This petition was
resisted by the appellant on several grounds. It was urged that the orders terminating
the services of Respondents 2 and 3 were not void and so the respondents' claim for a
writ was unjustified on the merits and it was argued that the writ application was
wholly misconceived inasmuch as the J.J. group of Hospitals did not constitute an
industry and so the relevant provisions of the Act were inapplicable to the
respondents' case.
2. This writ petition was heard by Tendolkar, J. The learned Judge did not think it
necessary to consider what he called the somewhat ticklish question as to whether the
group of Hospitals constitutes an industry because he held that even assuming that
the relevant provisions of the Act were applicable and could be invoked by the
respondents it was not shown that the impugned orders were void. In his opinion non-
compliance with the provisions of Section 25-F did not invalidate the said orders, and
it was open to the respondents to seek for an appropriate remedy under Section 25-I
of the Act. He also held that the question about the application of Section 25-H did not
arise. On these findings the writ petition filed by the respondents was dismissed.
3. The matter was then taken before the court of appeal. The court of appeal held
that the impugned orders had not complied with the mandatory provisions of Section
25-F and so they were invalid and inoperative. That is why the question as to whether
Section 25-H applied was not considered by it. The finding that the impugned orders
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were invalid for contravention of the mandatory provisions of Section 25-F made it
necessary to decide the larger issue as to whether the Act applied to the Hospitals.
The court of appeal has observed that it was first inclined to send the matter back to
Tendolkar, J. but it was requested by the learned counsel appearing for both the
parties that it would be better if the said question was decided by it — as it was a
question of law and the decision of the said issue by the court of appeal would avoid a
remand and a further appeal. That is how the issue was considered by the court of
appeal and answered in favour of the respondents. In the result the decision of
Tendolkar, J. was reversed, the writ petition was allowed and a writ in the nature of
mandamus was issued against the appellant.
4. The appellant then applied for and obtained a certificate of fitness from the
Bombay High Court and with the said certificate it has brought the present appeal
before us. On behalf of the appellant two points have been raised for our decision in
the present appeal: Was the appellate court justified in holding that the contravention
of the material provisions of Section 25-F of the Act rendered the impugned orders
invalid; and do the relevant provisions of the Act apply to the group of Hospitals run
by the appellant; are they an industry within the meaning of the Act?
5. Before dealing with these points it would be relevant to state the material facts
in regard to the group of Hospitals themselves which are not in dispute. This group
consists of five hospitals. It appears that in 1835 Sir Robert Grant, the then Governor
of Bombay, desired to start an institution for the purposes of imparting medical
education in the Presidency of Bombay. His proposal in that behalf was sanctioned by
the Board of Directors of the East India Company and funds amounting to Rs 44,000
were collected for the purpose and an equal amount was contributed by the Directors
to defray the cost of construction of the College building. In 1843 the foundation of
the Medical College building was laid and the same was completed in 1845. About that
time an idea of building a hospital for the sick people of all classes and castes was
mooted and Sir Jamsetjee Jeejibhoy offered donation and some contribution was made
by the Government with which the J.J. Hospital was constructed and it was formally
opened on 15-5-1845. Similarly the other four hospitals in the group were built in
course of time from donations. Except for a small amount of Rs 10,000 the rest of the
expenditure which is in the neighbourhood of Rs 27 lakhs is entirely met by the
appellant out of the grant sanctioned in the budget under the head “38-Medical”. The
group is under the administrative control of the Surgeon-General of the appellant and
its day-to-day affairs are conducted and controlled by the Superintendent who is a full
-time employee of the appellant; the residential staff including the Resident Medical
Officers, Assistant Medical Officers, Housemen, Nurses and others are all full-time
employees of the appellant and their salaries are drawn on the establishment pay bills
every month and paid entirely by the appellant. This group serves as a clinical training
ground for students of the Grant Medical College which is a Government Medical
College run and managed by the appellant for imparting medical sciences leading to
the Degrees of Bachelor of Medicine and Bachelor of Surgery of the Bombay University
as well as various Post-Graduate qualifications of the said University and the College of
Physicians and Surgeons, Bombay; the group is thus run and managed by the
appellant to provide medical relief and to promote the health of the people of Bombay.
6. Now, turning to the first point, it may be stated that the facts on which the
respondents' plea is based are not in dispute. It is conceded that the services of
Respondents 2 and 3 have been retrenched though it may be for the purpose of
making room for other government servants with a longer record of service who had to
be retrenched owing to the closure of the appellant's Civil Supplies Department. It is
also not disputed that the said respondents had not been paid at the time of
retrenchment compensation as prescribed by Section 25-F(b). The respondents'
contention is that the failure to comply with the said requirement makes the order of
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retrenchment invalid. This plea has been upheld by the court of appeal. Section 25-F
(b) provides that no workman employed in any industry who has been in continuous
service, for not less than one year under an employer shall be retrenched by that
employer until he has been paid of retrenchment compensation which shall be
equivalent to fifteen days' average pay for every completed year of service or any part
thereof in excess of six months. Clauses (a) and (c) of the said section prescribe
similar conditions but we are not concerned with them. On a plain reading of Section
25-F(b) it is clear that the requirement prescribed by it is a condition precedent for
the retrenchment of the workman. The section provides that no workman shall be
retrenched until the condition in question has been satisfied. It is difficult to accede to
the argument that when the section imposes in mandatory terms a condition
precedent, non-compliance with the said condition would not render the impugned
retrenchment invalid. The argument which appealed to Tendolkar, J., however, was
that the consequence of non-compliance with the requirement of Section 25-F(b) was
not to render the impugned retrenchment invalid, because he thought that by Section
25-I a specific provision has been made for the recovery of the amount prescribed by
Section 25-F(b). Section 25-I provides for the recovery of monies due from employers
under Chapter V, and according to Tendolkar, J. this provision covers the amount due
to the workman by way of compensation under Section 25-F(b). In our opinion, this
view is untenable. Having regard to the fact that the words used in Section 25-F(b)
are mandatory and their effect is plain and unambiguous it seems to us that the court
of appeal was right in holding that Section 25-I covered cases of recovery of monies
other than those specified in Section 25-F(b), and it is obvious that there are several
other cases in which monies become due from the employers to the employees under
Chapter V; it is for the recovery of these monies that Section 25-I had been enacted.
Therefore, we see no substance in the argument that the court of appeal has
misconstrued Section 25-F(b). That being so, failure to comply with the said provision
renders the impugned orders invalid and inoperative.
7. Does the said provision apply to the present proceedings? In other words, is the
Act itself applicable to the group of Hospitals with which we are concerned? That is the
next question which calls for an answer in the present appeal. Indeed it is this general
question which has been strenuously argued before us by the learned Solicitor-General
on behalf of the appellant. The decision of this question depends upon the
interpretation of the definition of “industry “prescribed by Section 2(j) of the Act.
8. Let us first read the definition. Section 2(j) provides that “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. It would be noticed that the words used in the definition are very wide in
their import and even so its latter part purports to provide an inclusive definition. The
word “undertaking” according to Webster means “anything undertaken; any business,
work or project which one engages in or attempts, an enterprise”. Similarly, “trade”
according to Halsbury, in its primary meaning, is “exchange of goods for goods or
goods for money”, and in its secondary meaning it is “any business carried on with a
view to profit whether manual or mercantile, as distinguished from the liberal arts or
learned professions and from agriculture”; whereas “business” is a wider term not
synonymous with trade and means practically “anything which is an occupation as
distinguished from a pleasure”. The word “calling” again is very wide; it means “one's
usual occupation, vocation, business or trade”; so is the word “service” very wide in its
import. Prima facie, if the definition has deliberately used words of such wide import,
it would be necessary to read those words in their wide denotation; and so read,
hospitals cannot be excluded from the definition.
9. It is, however, contended that, in construing the definition, we must adopt the
rule of construction Noscitur a Sociis. This rule, according to Maxwell, means that,
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when two or more words which are susceptible of analogous meaning are coupled
together they are understood to be used in their cognate sense. They take as it were
their colour from each other, that is, the more general is restricted to a sense
analogous to a less general. The same rule is thus interpreted in Words and Phrases
(Vol. XIV, p. 207): “Associated words take their meaning from one another under the
doctrine of Noscitur a Sociis the philosophy of which is that the meaning of a doubtful
word may be ascertained by reference to the meaning of words associated with it;
such doctrine is broader than the maxim Ejusdem Generis.” In fact the latter maxim
“is only an illustration or specific application of the broader maxim Noscitur a Sociis”.
The argument is that certain essential features or attributes are invariably associated
with the words “business and trade” as understood in the popular and conventional
sense, and it is the colour of these attributes which is taken by the other words used
in the definition though their normal import may be much wider. We are not
impressed by this argument. It must be borne in mind that Noscitur a Sociis is merely
a rule of construction and it cannot prevail in cases where it is clear that the wider
words have been deliberately used in order to make the scope of the defined word
correspondingly wider. It is only where the intention of the legislature in associating
wider words with words of narrower significance is doubtful, or otherwise not clear that
the present rule of construction can be usefully applied. It can also be applied where
the meaning of the words of wider import is doubtful; but, where the object of the
legislature in using wider words is clear and free of ambiguity, the rule of construction
in question cannot be pressed into service. As has been observed by Earl of Halsbury,
L.C., in Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd.1 in dealing
with the wider words used in Section 6 of Valuation of Lands (Scotland) Act, 1854,
“the words ‘free from all expenses whatever in connection with the said tramways’
appear to me to be so wide in their application that I should have thought it
impossible to qualify or cut them down by their being associated with other words on
the principle of their being ejusdem generis with the previous words enumerated”. If
the object and scope of the statute are considered there would be no difficulty in
holding that the relevant words of wide import have been deliberately used by the
legislature in defining “industry” in Section 2(j). The object of the Act was to make
provision for the investigation and settlement of industrial disputes, and the extent
and scope of its provisions would be realised if we bear in mind the definition of
“industrial dispute” given by Section 2(k), of “wages” by Section 2(rr), “workman” by
Section 2(s), and of “employer” by Section 2(g). Besides, the definition of public
utility service prescribed by Section 2(m) is very significant. One has merely to glance
at the six categories of public utility service mentioned by Section 2(m) to realise that
the rule of construction on which the appellant relies is inapplicable in interpreting the
definition prescribed by Section 2(j).
10. There is another point which cannot be ignored. Section 2(j) does not define
“industry” in the usual manner by prescribing what it means; the first clause of the
definition gives the statutory meaning of “industry” and the second clause deliberately
refers to several other items of industry and brings them in the definition in an
inclusive way. It is obvious that the words used in an inclusive definition denote
extension and cannot be treated as restricted in any sense. (Vide: Stroud's Judicial
Dictionary, Vol. 2, p. 1415). Where we are dealing with an inclusive definition it would
be inappropriate to put a restrictive interpretation upon terms of wider denotation.
11. Besides, it would be relevant to point out that too much reliance cannot be
placed on what are described as the essential attributes or features of trade or
business as conventionally understood. The conventional meaning attributed to the
words “trade and business” has lost some of its validity for the purpose of industrial
adjudication. Industrial adjudication has necessarily to be aware of the current of socio
-economic thought around; it must recognise that in the modern welfare State healthy
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industrial relations are a matter of paramount importance and its essential function is
to assist the State by helping a solution of industrial disputes which constitute a
distinct and persistent phenomenon of modern industrialised States. In attempting to
solve industrial disputes industrial adjudication does not and should not adopt a
doctrinnaire approach. It must evolve some working principles and should generally
avoid formulating or adopting abstract generalisations. Nevertheless it cannot harp
back to old-age notions about the relations between employer and employee or to the
doctrine of laissez faire which then governed the regulation of the said relations. That
is why, we think, in construing the wide words used in Section 2(j) it would be
erroneous to attach undue importance to attributes associated with business or trade
in the popular mind in days gone by.
12. It is clear, however, that though Section 2(j) uses words of very wide
denotation, a line would have to be drawn in a fair and just manner so as to exclude
some callings, services or undertakings. If all the words used are given their widest
meaning, all services and all callings would come within the purview of the definition;
even service rendered by a servant purely in a personal or domestic matter or even in
a casual way would fall within the definition. It is not and cannot be suggested that in
its wide sweep the word “service” is intended to include service howsoever rendered in
whatsoever capacity and for whatsoever reason. We must, therefore, consider where
the line should be drawn and what limitations can and should be reasonably implied in
interpreting the wide words used in Section 2(j); and that no doubt is a somewhat
difficult problem to decide.
13. It is true that under the old-world notion prevailing under the capitalist form of
society industry generally means an economic activity involving investment of capital
systematically carried on for profit for the production or sale of goods by the
employment of labour. When it is urged by the appellant that an undertaking should
be analogous to trade or business what is really intended is that unless the
undertaking in question shares the aforesaid essential features associated with the
conventional notion of trade or business it should not be treated as falling under
Section 2(j). There are two serious difficulties in accepting such a suggestion, and
indeed the appellant concedes the presence of these two difficulties. It is not disputed
that under Section 2(j) an activity can and must be regarded as an industry even
though in carrying it out profit motive may be absent. It is also common ground that
the absence of investment of any capital would not make a material difference to the
applicability of Section 2(j). Thus, two of the important attributes conventionally
associated with trade or business are not necessarily predicated in interpreting Section
2(j). What then can be said to be the attributes or features which should be common
between trade and business on the one hand and an undertaking and other items
mentioned in Section 2(j) on the other?
14. It would be possible to exclude some activities from Section 2(j) without any
difficulty. Negatively stated the activities of the Government which can be properly
described as regal or sovereign activities are outside the scope of Section 2(j). These
are functions which a constitutional Government can and must undertake for
governance and which no private citizen can undertake. This position is not in dispute.
An attempt is, however, made by the appellant to suggest that in view of the Directive
Principles enunciated in Part IV of the Constitution and in view of the ideal of a welfare
State which has been placed before the country, Governments, both at the level of the
States as well as at the Centre, undertake several welfare activities; and the argument
is that the field of governmental or regal activities which are excluded from the
operation of Section 2(j) should be extended to cover other activities undertaken by
the Governments in pursuit of their welfare policies. In our opinion, this contention
cannot be accepted. The activities which do not fall within Section 2(j) and which are
described as governmental or regal or sovereign have been pithily described by Lord
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Watson as “the primary and inalienable functions of a constitutional

Government” (Vide: Coomber v. Justices of Berks2 ; and it is only these activities that
are outside the scope of Section 2(j). It sounds incongruous and self-contradictory to
suggest that activities undertaken by the Government in the interests of socio-
economic progress of the country as beneficial measures should be exempted from the
operation of the Act which in substance is a very important beneficial measure itself.
15. In this connection it would be relevant to point out that the definition of the
word “employer” given by Section 2(g) is not without significance; an “employer”
means under Section 2(g)(i) “in relation to an industry carried on by or under the
authority of any department of the Central Government or State Government authority
prescribed in this behalf, or where no authority is prescribed the head of the
department”. This definition clearly indicates that the legislature intended the
application of the Act to activities of the Government which fall within Section 2(j).
16. In considering the question as to whether the group of Hospitals run by the
appellant undoubtedly for the purpose of giving medical relief to the citizens and for
helping to impart medical education are an undertaking or not, it would be pertinent
to enquire whether an activity of a like nature would be an undertaking if it is carried
on by a private citizen or a group of private citizens. There is no doubt that if a
hospital is run by private citizens for profit it would be an undertaking very much like
the trade or business in their conventional sense. We have already stated that the
presence of profit motive is not essential for bringing an undertaking within Section 2
(j). If that be so, if a private citizen runs a hospital without charging any fees from the
patients treated in it, it would nevertheless be an undertaking under Section 2(j).
Thus the character of the activity involved in running a hospital brings the institution
of the hospital within Section 2(j). Does it make any difference that the hospital is run
by the Government in the interpretation of the word “undertaking” in Section 2(j)? In
our opinion, the answer to this question must be in the negative. It is the character of
the activity which decides the question as to whether the activity in question attracts
the provision of Section 2(j); who conducts the activity and whether it is conducted for
profit or not do not make a material difference.
17. We have yet to decide which are the attributes the presence of which makes an
activity an undertaking within Section 2(j), on the ground that it is analogous to trade
or business. It is difficult to state these possible attributes definitely or exhaustively;
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 cooperation of
the employer and the employees; and its object is the satisfaction of material human
needs. It must be organised or arranged in a manner in which trade or business is
generally organised or arranged. It must not be casual nor must it be for oneself nor
for pleasure. Thus the manner in which the activity in question is organised or
arranged, the condition of the cooperation between employer and 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. Judged by this test there would be no difficulty in holding that
the State is carrying on an undertaking when it runs the group of Hospitals in
question.
18. Is quid pro quo necessary for bringing an activity under Section 2(j)? It has
been urged before us that though profit motive may not be essential, it is nevertheless
necessary that the person who carries on the activity should receive some
consideration in return; and it is only if the test of quid pro quo is satisfied that an
activity should be treated as an undertaking. Though this argument is put in a slightly
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different form, in substance it is really based on the idea that profit motive is
necessary to make any activity an undertaking analogous to trade or business. If the
absence of profit motive is immaterial why should an activity be excluded from Section
2(j) merely because the person responsible for the conduct of the activity expects no
consideration, does not want any quid pro quo and is actuated by philanthropic or
charitable motive? In our opinion, in deciding the question as to whether any activity
in question is an undertaking under Section 2(j) the doctrine of quid pro quo can have
no application. Therefore, we are satisfied that the High Court was right in coming to
the conclusion that the conduct and running of the group of Hospitals by the appellant
amounted to an undertaking under Section 2(j) and the relevant provisions of the Act
were applicable.
19. In this connection it would be relevant to refer to the fact that in the First
Schedule to the Act which enumerates industries which may be declared as public
utility service under Section 2(n)(vi), three entries have been added by Act 36 of
1956. They are Defence Establishment, services in hospitals and dispensaries, and Fire
Brigade service. In other words, by the addition of these three entries the legislature
has clearly indicated its intention that service in hospitals and dispensaries can be
declared to be a public utility service under Section 2(n)(vi); and there is no doubt
that unless the service in hospitals falls under Section 2(j) and is treated as an
industry it cannot be declared to be a public utility service. It is true that this
particular entry had not been included in the First Schedule at the time when the
present reference was made, but its subsequent inclusion can be reasonably taken as
evidence of legislative intention, and, if on a construction of Section 2(j) we have
independently reached the conclusion that service in hospitals is service or the
conduct of hospitals is an undertaking, we may reasonably seek to derive corroboration
to our conclusion by this subsequent legislative enactment. After the addition of the
relevant entry in the First Schedule it would not be open to anybody to suggest that
service in hospitals does not fall under Section 2(j).
20. It now remains to consider some of the decisions to which our attention was
invited. In D.N. Banerji v. P.R. Mukherjee3 this Court was dealing with an industrial
dispute raised by the Municipal Workers' Union of the Budge Budge Municipality, on
behalf of the Sanitary Inspector and Head Clerk of the said Municipality on the ground
that the dismissal of the said two Municipal employees was unjustified and illegal, and
that they were entitled to an order of reinstatement. The dispute thus referred to the
Industrial Tribunal was decided in favour of the Union and an award was made
directing the Municipality to reinstate the said two employees. The Municipality then
took the matter to the High Court at Calcutta by means of a petition for a writ of
certiorari under Articles 226 and 227 of the Constitution. It was urged in support of
the petition that the Act was inapplicable to the dispute in question and that there was
really no industrial dispute which could be validly referred to the Industrial Tribunal.
Other contentions were also raised but it is unnecessary to refer to them. The High
Court rejected all the pleas raised by the Municipality and dismissed the application for
a writ. The Municipality then brought the dispute to this Court under Article 132(1) of
the Constitution. This Court dismissed the appeal preferred by the Municipality and
confirmed the order of the High Court. In dealing with the appeal this Court laid down
certain propositions which are relevant for our purpose in the present appeal. It was
observed that “in determining the meaning of the word ‘industry’ and ‘industrial
dispute’ it was necessary to leave aside the original meaning attributed to the words in
a simpler state of society; then the contention of the Municipality that its activities in
question did not amount to an industry were dealt with in these words: “The only
ground on which one 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 like the Municipality is that in the latter there is nothing like the
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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”. It is because of this positive decision
that the appellant has fairly conceded in the course of the argument before us that the
absence of the profit motive or of investment of capital would not make a material
difference in determining the character of any activity. This Court has also examined
the other relevant factors pertaining to the construction of the word “industry” and
“industrial dispute” and has declared its decision thus: “Having regard to the
definitions found in our Act the aim or objective that the legislature had in view and
the nature, variety and range of disputes that occur between employers and
employees, we are forced to the conclusion that the definitions in our Act include also
disputes that might arise between municipalities and their employees in branches of
work that can be said to be analogous to the carrying out of a trade or business”. In
the present appeal we have to decide the question as to what attributes or features
can be said to make an activity in question analogous to trade or business.
Incidentally we may add that quite apart from the relevant considerations which we
have already discussed it would be difficult to suggest that though the sanitary
department of a local body is an undertaking under Section 2(j) a hospital run by a
Government is not.
21. This decision has been referred to by this Court in Baroda Borough Municipality
v. Workmen4 and it has been observed that it is now finally settled that a municipal
undertaking of the nature with which the court was then concerned is an industry
within the meaning of the definition of that word in Section 2(j) of the Act, and that
the expression “industrial dispute” in that Act includes disputes between
municipalities and their employees in branches of work that can be regarded as
analogous to the carrying on of a trade or business. In that case this Court was
concerned with the claim for bonus made by the workmen of the Baroda Borough
Municipality and it was rejected; comment has been made by learned counsel on some
of the grounds accepted by this Court in support of its final decision, but in the
present appeal we are not concerned with the claim for bonus and it is not necessary
for us to refer to the said comment or to deal with it.
22. So far as the decisions of the Industrial Tribunals are concerned it appears that
the Labour Appellate Tribunal has held as early as 1952 that a hospital is an
undertaking within the meaning of Section 2(j). In Sri Vishuddhananda Saraswathi
Marwari Hospital v. Workmen5 the Labour Appellate Tribunal considered at length the
policy and object of the Act, several judgments cited before it and came to the
conclusion that the definition of industry in Section 2(j) was of wide amplitude and
that there was no good reason for cutting down its natural meaning so as to limit its
operation to profit-making enterprises only. It has not been suggested before us that
this view has ever been doubted or dissented from in any subsequent industrial
adjudication.
23. In judicial discussions about the scope and character of the concept of industry
as it has developed in a modern democratic State the decision of the High Court of
Australia in Federated State School Teachers' Association of Australia And State of
Victoria6 is generally cited. In that case, according to the majority decision it was held
that the educational activities of the State carried on under the appropriate statutes
and statutory regulations of each State relating to education did not constitute an
industry with the meaning of Section 4 of the Commonwealth Conciliation and
Arbitration Act, 1904-1928; that the occupation of teachers so employed was not an
industrial occupation; and that the dispute which existed between the State and the
teachers employed by them was therefore, not an industrial dispute within Section 51
(xxxv) of the Constitution. Isaacs, J., however, struck an emphatic note of dissent,
and the principles enunciated in this note of dissent have received approval from
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Industrial Tribunals in this country, and they have been rightly accepted by the
Bombay High Court as affording valuable assistance in deciding the question in the
present proceedings. Isaacs, J. has uttered a note of caution that in dealing with
industrial disputes, industrial adjudicators must be conversant with the current
knowledge on the subject and they should not ignore the constant currents of life
around them for otherwise it would introduce a serious infirmity in their approach.
Dealing with the general characteristics of industrial enterprises the learned Judge
observed that they contribute more or less to the general welfare of the community;
and he has reiterated his earlier observations on the point in these words: “Industrial
disputes occur when in relation to operations in which capital and labour are
contributed in cooperation for the satisfaction of human wants or desires, those
engaged in cooperation dispute as to the basis to be observed by the parties engaged,
respecting either a share of the product or any other terms or conditions of their
cooperation”. According to the learned Judge, the question must always be decided by
determining the true character of the activity in question. It is these tests which the
High Court has applied in deciding the present dispute and we are in general
agreement with the decision of the High Court. We ought to make it clear that in the
present appeal we are not expressing any opinion on the question as to whether
running an educational institution would be an industry under the Act; that question
does not arise in the present proceedings.
24. There are two more decisions to which reference may be made before we part
with this appeal. In Brij Mohan Bagaria And Chatterjee (N.C.)7 the Calcutta High Court
was dealing with a dispute between an attorney of the court and some of his
employees who had been dismissed by him; and it was held that the said dispute was
outside the purview of the Act. Sinha, J., who heard the petition filed by the attorney,
observed that “however extended the meaning be given to the word industry or to
industrial dispute or to undertaking or calling we cannot include within their concept
the case of an individual who carries on a profession dependent upon his own
intellectual skill”. The learned Judge has then added that “every case must be decided
upon its own facts”. It appears that, according to the learned Judge, if an attorney or a
doctor or a lawyer who follows a liberal profession, the pursuit of which depends upon
his own education, intellectual attainments and special equipment, engages
employees, that would not mean that the employer is engaging in an industry under
Section 2(j); but, with the question of the attorney or doctor or the lawyer we are not
directly concerned in the present appeal. We have, however, referred to this decision
because, in the course of discussion, the learned Judge has expressed his dissent from
the view taken by the Bombay High Court in regard to hospitals, and we wish to make
it clear that, in our opinion, the criticism made by the learned Judge against the
inclusion of hospitals within Section 2(j) is not well founded. Dealing with a similar
case of an attorney, the Bombay High Court has taken the same view in National Union
of Commercial Employees And Meher (M.R.)(Pereira Fazalbhoy & Co.)8 .
25. We would accordingly hold that the High Court was right in holding that the
dispute between the appellant and the respondents was an industrial dispute to which
Section 25-F of the Act applied. The order passed by the High Court on the writ
petition filed by the respondents is confirmed and the appeal is dismissed with costs.
———
* Appeal from the Judgment and Order dated 18-4-1956, of the Bombay High Court in Appeal No. 65 of 1955,
arising out of the Judgment and Order dated 28-7-1955, of the said High Court in Misc. Petition No. 113 of 1955
1 (1898) AC 631 at p. 634
2 9 AC 61
3 (1953) SCR 302
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4 (1957) SCR 33
5 (1952) II LLJ 327
6
41 CLR 569
7 (1958) II LLJ 190
8 (1959) II LLJ 38

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