GUPTA, J - (1.) THE petitioner is a diploma-holder in civil Engineering and was appointed as an Engineering Subordinate in a temporary capacity in the Irrigation Deptt. of the State Government by an order dated 13-12-1966 issued by the Superintending Engineer, Irrigation, Udaipur. One of the terms of his appointment as mentioned in the aforesaid order dated 13-12-1966 was that the service of the petitioner was terminable on one month's notice on either side. It was also mentioned therein that the appointment of the petitioner was for a period of six months or till persons selected by the Rajasthan Public Service Commission or surplus hands would become available, whichever was earlier. THE petitioner joined as Engineering Subordinate in pursuance of the aforesaid order of appointment on December 27, 1966 and was posted in the Panchayat Samiti, Bhensroadgarh. THE petitioner has submitted that although he has worked for more than a year on the aforesaid post, his services were terminated by the order of the Chief Engineer, Irrigation dated January, 17, 1968 under sec. 23 A of the Rajasthan Service Rules. THE petitioner has further submitted that he was relieved from his post in the forenoon of February 1, 1968. THE petitioner's case is that he was a workman within the meaning of clause (s) of sec. 2 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act' ). His grievance is that he was not paid any retrenchment compensation as envisaged under sec. 25f of the Act. He has also made a grievance that persons junior to him in the category of Engineering Subordinates have been retained in service, while the services of the petitioner have been retrenched and as such the provisions of sec. 25g of the Act have been violated and the normal principle of 'last come first go' has not been followed. THE petitioner has therefore, prayed that the order of termination of his services Ex. 2 dated January 17, 1968 be quashed.
(2.) THE respondents have contested the writ petition and they have submitted that one month's notice pay has already been paid to the petitioner in accordance with the provisions of sec. 23 A of the Rajasthan Service Rules. THEy denied the claim of the petitioner that he was a workman within the meaning of sec. 2 (s) of the Act and have also joined issue on the question that the Irrigation Department of the State Government was an Industry. THE respondents have submitted that the provisions of the Act are not attracted to the case of the petitioner as he was not a workman and his services have been properly terminated in accordance with the Rajasthan Service Rules. THEy have also taken the stand that the petitioner submitted an application for re-appointment on the post of Engineering Subordinate and he was directed to get his name registered with the Man Power Cell in the General Administration Department of the State Government and to furnish his registration number, but he did not comply. THEy have further stated that the petitioner was appointed as a work-charged Supervisor on Famine Relief Works in Dungarpur district by the order dated May 30, 1969 but he did not join and as such the petitioner cannot maintain the present writ petition as he must be deemed to have waived his rights, if any. THE stand of the respondents is that the present case was one of simple termination in accordance with the terms and conditions of service and is not a case of retrenchment In the alternative the respondents have submitted that the petitioner should have taken recourse to the remedies available under the Act, if he at all considered that his services were retrenched and he was entitled to the benefit of the provisions of the Act. As regards the objection of the petitioner that persons junior to him have been retained in service, while his services were terminated by the order Ex. 2, the respondents have stated in their reply that the services of Surendra Kumar Mango and Dillaram, in respect of whom the petitioner has made a grievance in the writ petition were also terminated by the very order the Chief Engineer dated January 17, 1968 (Ex. 2) by which the petitioner's services were terminated and as such the petitioner can have no grievance on that account. As regards Nasib Ali Khan it has been submitted by the respondents that he joined the post of Engineering Subordinate on December 26, 1966 and was not junior to the petitioner who had joined the said post on December 27, 1966. THE respondents have, therefore, submitted that the petitioner has no case whatsoever and the writ petition should be dismissed. The first and the fore-most question which requires consideration in this case is as to whether the petitioner is a workman within the meaning of sec. 2 (s) of the Act and his services have been retrenched so as to entitle him to receive the benefits envisaged under sec. 25f of the Act. It would be useful at this stage to consider the relevant provisions of the Act. Sub-clause (s) of sec. 2 of the Act it as under: - "2 (s) "workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act. in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person - (i) who is subject to the Army Act, 1950 (46 of 1950), or the Air Force Act, 1950 (45 of 1950), or the Navy (Discipline) Act, 1934 (34 of 1934) ; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. " Thus to come within the ambit of 'workman' for the purposes of the Act, the person should be employed in any industry for hire or reward, but should not be emplo-yed mainly in a managerial or administrative capacity or if employed in a supervisory capacity he should not draw wages exceeding Rs. 500/- per month. There is no dispute between the parties that the petitioner was employed by the State Government for hire or reward and he was not working mainly in a managerial or administrative capacity but that he was employed in a supervisory capacity and did not draw wages exceeding Rs. 500/- per month. However, the main dispute between the parties is on the question as to whether the petitioner was employed in any industry. Learned counsel for the petitioner urged that the Irrigation Department of the State Government was an 'industry' within the meaning of clause (j) of sec. 2 of the Act while the learned Additional Advocate General, on behalf of the respondents, strenuously submitted that the said department was not an industry. 'industry 'has been defined in sub-clause (j) of sec. 2 of the Act as. "industry" means any business, trade, undertaking, manufature or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman. " Learned counsel for the petitioner also sought to derive support for his argument from the definition of 'public utility service' given in clause (n) of sec. 2 of the Act, which includes amongst others "any industry which supplies power, light or water to the public". He has also submitted that this Court in Viney Kumar Majoo vs. State (l) held that an Engineering Subordinate is a workman. However, the learned Additional Advocate General submits that in this case the question as to whether the Irrigation department of the State is an industry as defined in the Act requires examination. His grievance is that in the writ petition the petitioner has simply stated that he was a workman and was entitled to retrenchment compensation on account of the termination of his services but has not submitted that the Irrigation department of the State Government was an 'industry' and an Engineering Subordinate employed therein was a workman. The petitioner's learned counsel urged that it was not necessary to give details of the functions and duties performed by an Engineering Subordinate in the Irrigation department, in as much as the petitioner referred to the aforesaid decision in Viney Kumar Majoo's case (1) in para 7 of the writ petition and on the basis thereof he asserted that the petitioner was a 'workman' within the meaning of sec. 2 (s) of the Act. Learned counsel for the petitioner also relied upon the decision of this Court in State of Rajasthan vs. The Industrial Tribunal, Rajasthan (2), wherein it was held that the survey and Investigation Division of the Irrigation department of the State Government was an 'industry' within the meaning of the provisions of sec. 2 (j) of the Act. But it has been argued by the Additional Advocate General that the aforesaid decision relied upon a judgment of the Supreme Court in the State of Bombay vs. The Hospital Mazdoor Sabha (3), which was however not followed in subsequent cases by the Supreme Court and his submission is that in latter cases their Lordships of the Supreme Court have given a re-thinking to the matter. The earliest case on the point which requires to be noticed is D. N. Banerji vs. P. R. Mukherji (4 ). There the question raised was an to whether a Municipality was an 'industry'and a person employed as a Sanitary Inspector therein was a 'workman' within the meaning of the Act. Their Lordships of the Supreme Court observed in that case that in the ordinary or non-technical sense, industry means an undertaking where capital and labour cooperate with each other for the purpose of producing wealth in the shape of goods, machines, tools etc. , and for making profits. However, the Supreme Court pointed out that the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry. Legislation has to keep pace with the march of times and the new situations caused by the process of social evolution have to be provided for. However, it was observed that every activity in which the relationship of employer and employee exists or arises, does not result in an industry. But non-profit-making undertaking are included in the concept of industry, even if there is no private enterprise. Their Lordships also referred to the definition of 'public utility service' contained in sub clause (n) of sec. 2 of the Act and observed that it was very relevant and important in the interpretation of the word 'industry' as employed in the Act. Their Lordships held that if the public utility service such as railways, telephones and the supply of power, light or water to the public is carried on by a Corporation like the Municipality, instead of by private companies or business corporations, it does not cease to be an industry and the only fact that there is nothing like the investment of any capital or the existance of a profit earning motive does not constitute a necessary element in the modern concept of industry. Their Lordships further made the following significant observations: - "there is a necessary element of distinction between the supply of power and light to the inhabitants of a Municipality and the running of charitable hospitals and dispensaries for the aid of the poor. In ordinary parlance, the former might be regarded as an industry but not the latter. The very idea underlying the entrustment of such duties or functions, to local bodies is not to take them out of the sphere of industry but to secure the substitution of public authorities in the place of private employers and to eliminate the motive of profit-making as far as possible. The levy of taxes for the maintenance of the services of sanitation and conservancy or the supply of light and water is a method adopted and devised to make up for the absence of capital. The undertaking or the service will still remain within the' ambit of what we understand by an industry though it is carried on with the aid of taxation, and no immediate material gain by way of profit is envisaged. " In Baroda Borough Municipality vs. Its Workman (5), where the workman were employees of the Electricity Department of a Municipality, their Lordships of the Supreme Court re affirmed their earlier decision in D. N. Banerji's case (4) and observed as follows: - "it is now finally settled by the decision of Act, this Court in D. N. Baneijee vs. P. R. Mukerjee (A) (supra) that a municipal undertaking of the nature we have under consideration here is an 'industry' within the meaning of the definition of that word in sec. 2 (j) of the Industrial Disputes 1947 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. " However, in the case of the State of Bombay vs. Hospital Mazdoor Sabha (3) the Supreme Court applied the test as to whether an activity of like nature would be an undertaking if it is carried on by a private citizen or a group of private citizens. By applying the aforesaid test a hospital was also held to be an industry. In the Corporation of City of Nagpur vs. Its Employees (6) the Supreme Court while dealing with the case of employee of Nagpur Corporation distinguished between the regal functions and the municipal functions performed by the Corporation. It was observed that the regal functions decribed as primary and inalienable functions of State, though statutorily delegated to a corporation, are necessarily excluded from the purview of the definition of industry and that the service, which, if rendered by an individual or a private person would be an industry, would equally be an industry if performed by a corporation. However, one of the tests applied in that case also was as to whether the service could be performed by an individual or firm for remuneration. All the aforesaid cases were considered by the Supreme Court again in The Secretary, Madras Gymkhana Club Employees' Union vs. The Management of the Gymkhana Club (7) and the decisions given in the cases of D. N. Banerjee (4) and Baroda Borough Municipality (5) were approved and it was observed that those two cases laid down that for an activity to be an industry it is not necessary that it must be carried on by private enterprise or must be commercial or result in profit. It is sufficient if the activity is analogous to the carrying on of a trade or business and involves co-operation between employers and employees. This result is reached by extending the meaning of 'undertaking' to cover adventures which may not be strictly trade or business but are very similar to term. The activity of the Municipality was considered to be covered by the term 'undertaking' in the definition of 'industry' in sec. 2 (j) of the Act, but the test laid down in the case of the Corporation of City of Nagpur (6) was not accepted. The Supreme Court made the following observations: - "the expansion of Governmental or municipal activity in fields of productive industry is a feature of all developing welfare states. considered necessary because it leads to welfare without exploitation of workmen and makes the production of material goods and services cheaper by eliminating profits. Government and Local authorities act as individuals do and the policy of the Act is to put Government and local authorities on a par with private individuals. But Government cannot be regarded as an employer within the Act if the operations are governmental or administrative in character. The local authorities also cannot be regarded as industry unless they produce material goods or render material services and do not share by delegation in governmental functions or functions incidental thereto. This is There is no essential difference between educational institutions run by municipalities and those run by universities. And yet a distinction is sought to be made on the dichotomy or regal and municipal functions. Therefore, the word 'undertaking' must be defined as "any business or any work or project which one engages in or attempts as an enterprise analogous to business or trade. " This is the test laid down in Banerji's case, and followed in the Baroda Borough Municipality case. Its extension in the Corporation case was unfortunate and contradicted the earlier case. "
(3.) HIDAYATULLAH J. , as he then was, in the aforesaid case recounted the principles so far settled as under: - "every human activity in which enters the relationship of employers and employees, is not necessarily creative of an industry. Personal services rendered by domestic and other servants, administrative services of public officials, service in aid of occupations of professional men such as doctors and lawyers, etc. , employment of teachers and so on may result in relationship in which there are employers on the one side and employees on the other but they must be excluded because they do not come within the denotation of the term 'industry'. Primarily, therefore, industrial disputes occur when the operation undertaken rests upon co-operation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co-operation is to produce material services. " In Cricket Club of India vs. Bombay Labour Union (8) the question whether the Cricket Club of India, Bombay was an 'industry' within the meaning of sec. 2 (j) of the Act, their Lordships of the Supreme Court accepted the tests laid down in the case of Madras Gymkhana Club Employees' Union (7) and held that the Cricket Club of India was not an 'industry' and it was a self-service club of its members. In the Management of Safdar Jung Hospital; New Delhi vs. Kuldip Singh Sethi (9) the question which arose for consideration before the Supreme Court was as to whether the Safdar Jung Hospital, New Delhi was an 'industry' and in this case their Lordships clearly laid down what was meant by 'material services'. It was held in the aforesaid case that material services are not services which depend wholly or largely upon the contribution of professional knowledge, skill or dexterity for the production of a result. Such services being given individually and by individuals are services no doubt but are not material services. Even an establishment where many such persons operate cannot be said to convert their professional services into material services. Material services involve an activity carried on through co-operation between employers and employees to provide the community with the use of something such as electric power, water, transportation, mail delivery' telephones and the like. In providing these services there may be employment of trained men and even professional men, but the emphasis is not on what these men do but upon the productivity of a service organised as an industry and commercially valuable. Thus the services of professional men involving benefit to individuals, according to their needs, such as doctors, teachers, lawyers, solicitors etc, are easily distinguishable from an activity such as transport service. The latter is of a commercial character in which something is brought into existence, quite apart from the benefit to particular individuals. It is the production of this something which is described as the production of material services. The Supreme Court in this case over-ruled its earlier decision in the State of Bombay vs. The Hospital Mazdoor Sabha (3) and it was observed that the test as to whether such activity could be carried on by private individuals or groups of individuals could not be considered as the right test to be applied for determining as to whether a particular activity was an 'industry' or not within the meaning of the Act. While referring to the definition of 'public utility service' in sec. 2 (a) of the Act it was observed that the named services in that definition answered the test of industries run on commercial lines to produce something which the community can use and that such services were brought into existence in a commercial way and were analogous to business in which material goods are produced and distributed for consumption. ;