TYAGI, J. - (1.) THIS writ application filed by the State of Rajasthan raises an important question of law whether the Suryey & Investigation Division of the Irrigation Department of the State is covered by the definition of 'industry' as given in sec. 2 ( j ) of the Industrial Disputes Act, 1947 (hereinafter called the Act ).
(2.) ONE motor driver Manaram, who was employed in the Survey & Investigation Division of the Irrigation Department of the State was discharged from service on 2nd December, 1959, and therefore a dispute was raised by Ajmer Division Sinchai Vibhag Karamchari Sangh before the Conciliation Officer, Ajmer. The Conciliation Officer submitted his failure report. Thereupon, a reference was made by the State Government under sec. 10 (1) (d) of the Act to the Industrial Tribunal to adjudicate whether the termination of the services of Manaram was justified The learned Judge presiding over the Industrial Tribunal decided that the Survey & Investigation Division of the Irrigation Department falls within the definition of "industry" under section 2 (j) of the Act and that the termination of Manaram's services was not justified, and it was ordered that Manaram shall be reinstated in service without any break in the service. It is against this award given by the Tribunal on 8-4-1964 that this writ petition has been preferred by the State Government. Learned Deputy Government Advocate has challenged the award on the ground that the Survey & Investigation Division of the Irrigation Department does not fall within the definition of "industry" as defined in Sec. 2 (j) of the Act and, therefore, the Tribunal had no jurisdiction to determine the dispute. Arguments have been advanced by both the parties and reliance has been placed on various authorities of the Supreme Court in support of their arguments. There have been many decisions of the Supreme Court touching this question, but I need not discuss all of them as this question, in my opinion, stands concluded by the decision of the Supreme Court in D. N. Banerji v. P. R. Mukherjee and others (1) which has been followed and confirmed in every subsequent decision of the Supreme Court. The facts of D. N. Banerji's case (1) were that one Pratul Chandra Mitra was a Head Clerk and Phanindra Nath Ghose was a Sanitary Inspector of the Budge Budge Municipality. They were members of the Municipal Workers' Union. On charges of negligence, insubordination and indiscipline those two persons were dismissed by a majority of the Commissioners in the meeting of the Municipality. The Municipal Workers' Union raised an industrial dispute about the dismissal of the aforesaid two workers and the matter was referred by the Government of the State of West Bengal to the Industrial Tribunal for adjudication. The Tribunal came to the conclusion that the order of dismissal of the two employees was clearly passed due to victimisation and, therefore, it directed their re-instatement in their respective job. The Municipality challenged the Tribunal's award by invoking the jurisdiction of the High Court under Article 226 of the Constitution. The High Court dismissed the writ petition of the Municipality but leave under Art. 132 (1) of the Constitution was granted to it and it is how the matter went to the Supreme Court. The main question raised before the Supreme Court was that Municipality was not an industry and it was in that connection that the scope of the definition of the expressions 'industry' and 'industrial dispute' as defined by sec. 2 (j) and 2 (k) of the Act was discussed by their Lordships of the Supreme Court. It is true that the decision of that case relates to the Municipality which used to work under the statute passed by the legislature but the principle laid down by the Supreme Court can be attracted to determine whether the irrigation department which constructs dams and canals and supplies water to the public can fall within the expression 'industry, as defined by the Act. In order to properly appreciate the arguments of learned counsel for the parties it will be convenient to reproduce the definitions of the expression 'employer' in clause (g) of sec. 2 of the Act which defines the term in the following terms: "sec. 2 (g) 'employer' means (i) In relation to an industry carried on by or under the authority of any department of the Central Government or a State Government,the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii)xx xxx xx This definition of the term 'employer' suggests that the department of the Central Government or that of a State Government can also come within the definition of 'employer' as defined in sec. 2 (g) of the Act. It is also not disputed by learned Deputy Government Advocate that the Department of the Government in no case can come within the definition of an 'industry'. 'industry' has been defined in clause (j) of sec. 2 of the Act as follows: "sec. 2 (j ). '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;" " (k) 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person. " Both these definitions of 'industry' and 'industrial dispute' use the term 'workmen. ' Therefore, it will be relevant to refer to the definition of a workman as defined by clause (s) of sec. 2 of the Act which is as follows. "sec. 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 express 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 consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Army Act, 1950 (XLVI of 1950), or the Air Force Act, 1950 ( XLV of 1950 ) or the Navy ( Discipline ) Act, 1934 ( XXXIV of 1934); or (ii) x x x xx x x (iii) x x x x x x x (iv) xx x x x x x From this definition it is clear that the employees of the defence services are specifically excluded from this definition but it does not make exception in respect of the persons employed in other departments of the Government. Lord Atkinson in 'keats vs. Lewis Merthyr Consolidated Collieries Ltd. (1911 A. C. 641) has observed that 'in the construction of a statute it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils, which as appears from its provisions, it was designed to remedy. "
(3.) IN view of the aforesaid observations of Lord Atkinson, the Court in order to interpret the term 'industry' as defined in the Act shall have to take into consideration the circumstances which the legislature kept in view when enacting the INdustrial Disputes Act, namely, how to keep pace with the march of time and provide for the new situations in the social evolution which is a process of constant growth of particular nation and the growing menace which was to be remedied in the field of labour troubles. It is in this background that the Supreme Court observed in D. N. Banerji's case that "if the words are capable of one meaning alone, then it must be adopted, but if they are susceptible of wider import, we have to pay regard to what the statute or the particular piece of legislation had in view. Though the definition may be more or less the same in two different statutes, still the objects to be achieved not only as set out in the preamble but also as gather able from the antecedent history of the legislation may be widely different. The same words may mean one thing in one context and another in a different context. This is the reason why decisions on the meaning of particular words or collection of words found in other statutes are scarcely of much value when we have to deal with a specific statute of our own. " Their Lordships also took in to consideration the conditions then prevalent in the country when the Industrial Disputes Act, 1947 was passed by the Parliament, the labour disputes which had already assumed big proportions and there were clashes between workmen and employers in several instances. They, therefore, said; "we can assume, therefore, that it was to meet such a situation that the Act was enacted, and it is consequently necessary to give the terms employed in the Act referring to such disputes as wide an import as reasonably possible. " Their Lordships further observed: "the wider import is attracted even more clearly when we look at the latter part of the definition which refer to 'calling service, employment, or industrial occupation or avocation of workmen. ' 'undertaking' in the first part of the definition and 'industrial occupation or avocation' in the second part obviously mean much more than what is ordinarily understood by trade or business. . . . . . . . " The learned Judges of the Supreme Court then considered the definition of the "public utility service" in sub-clause (u) of section 2. According to this definition, any industry which supplies power, light or water to the public is included in the "public utility service. " The public utility service of supplying power, light or water to the public may be carried on by any private companies or business corporations A dispute in these services between the employers and the workmen definitely falls within the ambit of proviso to section 10 of the Act which lays down that where such dispute arose and a notice under sec. 22 has been given, the appropriate Government shall make a reference under the sub-section. According to the Supreme Court, if the public utility service is carried out by a corporation like a municipality, which is the creature of a statute and which functions under the limitations imposed by the statute, it does not cease to be an industry for this reason. Their Lordships said: "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. Municipality in that in the latter there is nothing like the investment of any capital or the existence of a profit-earning motive as there generally is a business. But neither the one nor the other seems a 'sine qua non' or necessary element in the modern conception of industry. " This argument which applies to the Municipality is equally applicable to the Government department. The Supreme Court thinks that the very idea underlying the entrustment of such duties like supplying of water to the public by the Government or the Municipal Boards does not take such public services out of the sphere of 'industry' but it simply substitutes the public authorities in the place of private employers and to eliminate the motive of profit making as far as possible. This fact is not is dispute that the Survey and Investigation Division of the Irrigation Department of the State of Rajasthan first of all surveys the areas where the dam and the canals can and are to be constructed by the Irrigation Department and it is then that the department undertakes to construct the canals and the dams and then supplies water to the public for irrigation as well as for drinking purposes. It is also not disputed that the Government while supplying water through the Irrigation Department realises from the consumers of water irrigation charges. It is, therefore, to be seen whether the Government while carrying on the operations in the Irrigation Department of Survey & Investigation Division through its employees is an industry or not. If these operations had been carried out by some private person, then definitely such an operation would fall within the definition of 'industry' when read with the expressions 'undertaking' and 'public utility service'. Simply because the survey and investigation operations are carried on by the Government through its separate division in the Irrigation Department, it cannot be said that it was taken out of the sphere of the definition of 'industry'. As observed by the Supreme Court, the absence of profit-motive does not take away the operation of this nature out of the sphere of an industry, nor can it be said that such an operation will not be covered by the definition of an 'industry' because they are carried on by the Government. ;