D.N.SINHA, J. - (1.) THE petitioners in this case are husband and wife and practise the profession of Patent and Trade Mark Agents, in partnership with each other, under the name and style of 'De Penning and De Penning', at No. 10, Government place East, Calcutta. On 4 -1 -1958, the Government of West Bengal in purported exercise of powers conferred upon it by Section 10 of the Industrial Disputes Act. 1947 (herein referred to as 'the Act') made a reference of certain disputes, which are described as 'industrial disputes', said to exist between Messrs. De Penning and De Penning and their workmen represented by the Mercantile Employees' Union, Calcutta. This name has been corrected by a corrigendum dated 14 -2 -1958 and altered to 'Patent and Trade Mark Agencies Employees' Union, C/o. Federation of Mercantile Employees' Union, 23A. Netaji Subhas Road, Calcutta -1'. The issues that have been referred to for adjudication by the Third Industrial Tribunal, West Bengal are the following : '(1) Minimum pay and scales of pay, (2) Dearness Allowance. (3) Leave and holidays. (4) Retiring benefit. (5) Bonus for 1956 and 1957. (6) Free Medical Aid. (7) Tiffin Allowance. (8) Whether the members of sub -staff should be paid an extra allowance for extra work after working hours.'
(2.) THE petitioners first of all objected to Government about the reference order itself, stating that the petitioners did not carry on any industry and that there was no industrial dispute and that the Act had no application to the petitioners' work whatsoever. The Government, however have not withdrawn the order of reference and the matter is before the Tribunal which is proceeding to adjudicate on the dispute. The petitioners have come up to this Court for a writ in the nature of Certiorari quashing the order of reference, so that the Tribunal, which according to them has no jurisdiction, should not proceed with the reference and adjudicate upon the same. The short point made out on behalf of the petitioners is that the practice or the profession of Patent and Trade Mark Agents is essentially of a specialised legal and technical nature requiring a thorough knowledge of the law relating to Patents and Trade Marks, as well as technical knowledge in various branches of science and manufacture, and consists of the application of the petitioners' personal knowledge training and experience to the handling of the affairs of the petitioners' clients . Therefore, it is stated that the petitioners cannot be said to carry on an 'industry' within the meaning of the Act, and the employees of the petitioners, which consist of 22 permanent clerical staff and 7 subordinate staff, are not 'workmen' within the meaning of the said Act, and therefore any dispute between them cannot be called an industrial dispute, and the Government has no jurisdiction to refer the same to adjudication of an Industrial Tribunal under the provisions of the said Act. It has been argued that the matter is covered by two decisions of this Court - -one of mine Brij Mohan Bagaria v. N. C. Chatterjee : (1958)IILLJ190Cal , where I have held that a Solicitor practising in this Court cannot be said to be carrying on an 'industry' unless there were special facts showing that he was. The second decision relied upon is the decision of Mukharji, J., D. P. Dunderdale v. g. P. Mukharji, : (1958)IILLJ183Cal , in which the learned Judge approved of my decision and decided that a firm of Solicitors cannot be said to carry on an industry, and the Industrial Tribunal has no jurisdiction to settle a dispute between its employers and its employees. I shall presently advert to these decisions. In so far as the petitioners carry on their work as Patent and Trade Mark Agents in its legal side there is little controversy upon the point, and it is not seriously contended that such work would constitute an 'industry' within the meaning of the said Act. An affidavit has, however, been filed by one John Archibald Joseph on 6 -5 -1958 in which he describes himself as the Secretary of the Patent and Trade Mark Agencies Employees' Union. Upon enquiry I find that he has no qualification technical or otherwise in respect of Patent or Trade Marks. He is an I. Sc. (Intermediate in Science) of the Calcutta University and has some experiences in searching records. However, he has affirmed an affidavit and in paragraph 8 thereof, which he affirms true to his knowledge, he has set out a list of the activities of the petitioners by which he has sought to establish that the petitioners carry on an 'industry* within the meaning of the said Act. These headings may be briefly stated as follows : '(1) Preparing labels and supplying printing blocks. (2) Supplying trade mark journals and other publications. (3) Renewing subscriptions of Trade Mark Journals. (4) Effecting searches. (5) Renewing Trade Marks. (6) Preparation of drawings and tracings. (7) Manufacture of blue prints. (8) Supply of printed, photostat, and typed copies of Patent specifications. (9) Advertising in Newspapers inviting licences for the exploitation of inventions. (10) Directly approaching the Industry, offering licences for the exploitation of inventions. (11) Renewal of Patents and Designs. (12) Patent searches.'
(3.) IT is stated that many of the items do not require knowledge of law. but consist of work which can be done by anybody. It is, therefore, denied that the services rendered by the petitioners are dependent on their individual talent, knowledge and experience. Before proceeding further, I must say that in this case the material placed before the Court in the first instance by either party was quite insufficient and I have ordered from time to time supplementary affidavits to be filed, from which the relevant facts have now clearly emerged. It is certainly true that some of the works done by the petitioners are not by themselves dependent on a knowledge of law. It appears, however, that the way in which the matter has been approached by the Union cannot be held to be the right approach. Where a person carries on a profession, which is basically, or mainly, dependent on his or her personal skill or knowledge, then the fact that such work involves as incidental thereto certain matters of routine, or matters which are incidental and do not by themselves require individual skill, cannot render the entire professional work an industry. This may be illustrated by an example. Take the profession of a Solicitor, which by the two decisions above named, has been held to be a profession not coming within the expression 'industry' as used in the said Act. It has been held that the work of a Solicitor is an individual work dependent upon his own intellectual skill. But even such work requires incidental processes which by themselves cannot be said to be entirely dependent upon a Solicitor's intellectual skill. For example, in the course of the work of a Solicitor, he has to make searches in the Registration Office. These searches are carried out by clerks who do not necessarily possess a knowledge of law, because to search or make notes of searches in the Registration Office does not require any legal knowledge. Then again, clerks or Assistants may do a variety of work which by themselves do not draw upon the legal knowledge of the Solicitor. It cannot, however, be said that because such incidental works are carried out in the office of the Solicitor, the profession of a Solicitor constitutes an 'industry'. In the case of : (1958)IILLJ183Cal (Supra) Mu -kharji J. stated as follows ; 'An individual Solicitor can certainly employ a typist and a Book -keeping Accountant, but the money he earns is not by the book -keeping Accountant nor by the typist but by reason of the professional skill which he employs himself and which is personal and individual to him ..... The distinctive work of a Solicitor is not the work of book -keeping and actual typing. His skill is the skill of law. It is true that in communications and in keeping books of account, help is needed and for that purpose a staff is employed. But I cannot see how employment of typists and correspondence clerks or Accountants can convert a profession which remains by its nature the personal work dependent on the individual, corporate and professional skill of the Solicitor or Solicitors concerned, into an industry so long, of course, as the Solicitor and their firm carry on the work of Solicitors.' ;