Decided on April 28,1965



Broome, J. - (1.)THIS reference arises out of a writ petition filed by the owner of a petrol pump employing one Munim and two salesmen or pump attendants to sell petrol and diesel oil to customers on a retail basis. The petitioner challenges an award given by the Assistant Labour Commissioner on 31-1-1961 under the provisions of the U. P. Industrial Disputes Act in respect of a dispute between the petitioner and his employees over the termination of the services of one Jamuna Prasad, who had been working for the petitioner as a pump-attendant. One of the contentions raised by the petitioner was that the Industrial Disputes Act did not apply to his business, which was a mere retail shop and not an industry, as defined in the Act.
(2.)THE following issue has been referred to us for decision: "Is a retail shop an industry as defined in Section 2(k) of the U. P. Industrial Disputes Act?"
The definition of 'industry' given in Section 2(k) of the Act is extremely wide and comprehensive. It runs: "'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."

Judicial interpretation, however, has succeeded in narrowing down this definition and giving it greater precision. In State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 the Supreme Court, discussing the ambit of Section 2(j) of the Central Act (corresponding word for word with Section 2(k) of the U. P. Act), remarked:-- "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 of 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 co-operation 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 onself nor for pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation 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."

(3.)AND in National Union of Commercial Employees v. M. R. Mehar, Industrial Tribunal, Bombay, AIR 1962 SC 1080, the following observations were made:-- "It would be realised that the concept of industry postulates partnership between capital and labour or between the employer and his employees. It is under this partnership that the employer contributes his capital and the employees their labour and the joint contribution of capital and labour leads directly to the production which the industry has in view. In other words, the co-operation between capital and labour or between the employer and his employees which is treated as a working test in determining whether any activity amounts to an industry, is the co-operation which is directly involved in the production of goods or in the rendering of service. It cannot be suggested that every form or aspect of human activity in which capital and labour co-operate or employer and employees assist each other is an industry. The distinguishing feature of an industry is that for the production of goods or for the rendering of service, co-operation between capital and labour or between the employer and his employees must be direct and must be essential.
Applying these criteria, we see no rea son why a retail shop in which salesmen are em ployed should not be held to be an 'industry' for the purposes of the Industrial Disputes Act. Such a shop is undoubtedly "an activity syste matically..... undertaken for the......... distribution of goods", involving co- operation between an employer and his employees; and this co-operation is directly and essentially related to the basic activity of the undertaking, which is the distribution of goods by the process of selling them to customers.


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