JUDGMENT
Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. By means of this writ petition the petitioners have challenged the impugned award dated 11.8.1998 passed by the Labour Court, U.P., Gorakhpur. The Labour Court by the award held that the petitioner is an industry and directed the petitioner to reinstate respondent No. 2 with full salary/back wages and consequential benefits.
3. Sri Lalit Kumar Singh (respondent No. 2) was engaged in the office of the petitioner as Office Clerk w.e.f. 24.1.1989 to 1.9.1990 purely on temporary basis on consolidated wages of Rs. 850/- p.m. in pursuance of an order of the Adviser & Director dated 24.1.1989. His services were terminated vide order dated 1.1.1990. On failure of conciliation proceedings the State Government referred the dispute regarding termination of the services of the respondent-workman to the Labour Court, U.P., Gorakhpur where it was registered as Adjudication Case No. 349 of 1991.
4. The main submission of the petitioners is that petitioner No. 1 is a society engaged in research on cane and it is not an “industry” within the meaning of Section 2 (K) of the U.P. Industrial Disputes Act as such the Reference and consequential Award is void ab-initio.
5. The only issue for decision in this case is whether the petitioner institute is an industry as defined under the U.P. Industrial Disputes Act.
6. The Counsel for the petitioners submits that under Section 2 (K) the word “Industry” as used in the U.P. Industrial Disputes Act, 1947 has been defined as under:
” “Industry” means any business, trade, undertaking, manufacture or calling of employer and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.”
7. ‘Industry’ has been the subject matter of controversy from the very inception, but the matter was concluded by a 7 Judges decision of the Supreme Court in the case of Bangalore Water Supply v. A Rajappaes in which it has been laid down that the word “Industry” has a wide import where there is (i) systematic activity (ii) organized by co-operation between employer and employee (iii) for the production and/or distribution of goods and services calculated satisfy human wants and wishes (excluding spiritual and religious industry) prima facie there is an industry in that enterprise.
8. It is also laid down that absence of profit-motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector and the true focus is functional and the decisive test in the nature of the activity.
9. The Apex Court went to hold that on applying these guidelines even (i) Professions, (ii) Clubs (iii) Educational Institutions, Co-operatives (iv) Research Institutes (v) Charitable projects and (vi) other kindred adventures, if they fulfill the triple test listed above cannot be exempted from the scope of Section 2 (j). Further where a complex of activities, some of which qualify for exemption and others not, the predominant nature of the services and integrated nature of the work will be true test and the whole undertaking will be ‘Industry’ although those who are not “workmen:” by definition may not benefit by the status”.
10. Applying the aforesaid criteria to the facts of the case the Labour Court found that the petitioner-Board was predominantly a research institute and its objective is to develop ways and means of economizing in sugar production and also to design machines and machine parts so as to make the working of the sugar mills more efficient. It also helps the industry to solve their specific problems and to advise the industry to develop ways to make the whole industry more effective and viable. The defendant has admitted in its written statement that the Institute charges for advise to the Industries and also undertakes other jobs of research on payment by the Industries.
11. The Counsel for the contesting respondent submits that in view of findings recorded the petitioner-institute is an industry within the meaning of ‘Industry’ as defined in the U.P. Industrial Disputes Act and it is not a purely research institute concerning with agriculture uplift of sugarcane but also is engaged in selling of Sugarcane seeds to the farmers as well as to the factories. It is submitted that the petitioner has farms wherein sugarcane is produced and thereafter sold to the fanners and to the sugar factories and thus for all practical purposes the petitioner is carrying out business activities.
12. The Labour Court has dealt with the said issue and finding recorded by the Labour Court cannot be assailed and challenged by the petitioners in the present writ petition. The learned Counsel relied upon the decision rendered by the Apex Court in Bangalore Water Supply & the Sewerage Board v. A. Rajappa and Ors., 1978 (II) SCC 213. In para 113 of the said judgment it has been observed :
“113. Does research involve collaboration between employer and employee? It does. The employer is the institution, the employees are the scientists, Fara-scientists and other personnel. Is it scientific research service? Undoubtedly it is. Its discoveries are valuable contributions to the wealth of the nation. Such discoveries may be sold for a heavy price in the industrial and innovations may be patented and sold. In our scientific and technological age nothing has more cash value, as intangible goods and invaluable services, than discoveries. For instance, the discoveries of Thomas Alva Edison made him fabulously rich. It has been said that his brain had the highest cash value in history for he made the world vibrate within the miraculous discovery of recorded sound. Unlike most inventors, he did not have to wait to get his reward in heaven, he received it munificently on this gratified and grateful earth, thanks to conversion of his inventions into money aplenty. Research benefits industry. Even though a research institute may be a separate entity disconnected from the many industry which funded the institute itself, it can be regarded as an organization, propelled by systematic activity, modeled on co-operation between employer and employee and calculated to throw up discoveries and inventions and useful solutions which benefit individual industries and the nation in terms of goods and services and wealth. It follows that research institutions, albeit run without profit-motive, are industries.”
13. The learned Counsel for the respondent submits that the correctness of the Bangalore Water Supply and the Sewerage Board’s case was raised before a Division Bench of the Hon’ble Supreme Court in the case of Coir Board Arnakulam v. Indra Devi, 1998 (III) SCC 259, wherein the issue referred in Bangalore Water Supply and the Sewerage Board’s case was reconsidered. This reference made in the case of Coir Board Amakulam (supra) was repelled and turned down in the judgment and order dated 10.11.1998 in the case of Coir Board Arnakulam v. Indra Devi, 2000 (I) SCC 224. The Bench comprising three Hon’ble Judges of the Apex Court was pleased to hold that the judgment in Bangalore Water Supply and the Sewerage Board’s case (supra) does not require reconsideration.
14. This question was again considered in the case of Physical Research Laboratory v. K.G. Sharma, 1997 (4) SCC 257. It was a public trust. The Apex Court in paragraph No. 11 of the judgment referred to the case of Bangalore Water Supply and the Sewerage Board and held as under :–
“12. PRL is an institution under the Government of India’s Department of Space. It is engaged in pure research in space science. What is the nature of its research work is already stated earlier. The purpose of the research is to acquire knowledge about the formation and evolution of the universe but the knowledge thus acquired is not intended for sale. The Labour Court has recorded a categorical finding that the research work carried on by PRL is not connected with production, supply or distribution of material goods or services. The material on record further discloses that PRL is conducting research not for the benefit or use of others. Though the results of the research work done by it are occasionally published they have never been sold. There is no material to show that the knowledge so acquired by PRL is marketable or has any commercial value. It has not been pointed out how the knowledge acquired by PRL or the results of the research occasionally published by it will be useful to persons other than those engaged in such type of study. The material discloses that the object with which the research activity is undertaken by PRL is to obtain knowledge for the benefit of the Department of Space. Its object is not to render services to others nor in fact it does so except in an indirect manner.
13. It is nobody’s case that PRL is engaged in an activity which can be called business trade or manufacture. Neither from the nature of its organization nor from the nature and character of the activity carried on by it, can it be said to be an ‘undertaking’ analogous to business or trade. It is not engaged in a commercial industrial activity and it cannot be described as an economic venture or a commercial enterprise as it is not its object to produce and distribute services which would satisfy wants and needs of the consumer community. It is more an institution discharging governmental functions and a domestic enterprise than a commercial enterprise. We are, therefore, of the opinion that PRL is not an industry even though it is carrying on the activity of research in a systematic manner with the help of its employees as it lacks that element which would make it an organization carrying on an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services which are intended or meant for satisfying human wants and needs, as ordinarily understood.”
15. The Apex Court allowed the appeal and affirmed the judgment of the Labour Court holding that the Research Institute was not an industry.
16. In paras 112 and 113 of the Bangalore Water Supply and the Sewerage Board’s case (supra) the Hon’ble Supreme Court has clearly observed and laid down the proposition of law that the research institutions are industries within the meaning of Section 2 (J) of the Industrial Disputes Act as it involves collaboration between the employer and the employee for the advancement of the technology and technical innovation which are patented and sold but the Apex Court has itself explained the judgment of the Bangalore Water Supply and Sewerage Board in the case of Physical Laboratory which is directly on the point involved in this case. This judgment has not been overruled as yet and holds the field. The judgment of Bangalore Water Supply and the Sewerage Board is, therefore, distinguishable and stands explained. In view of the decision in Physical Research Laboratory v. K.G. Sharma (supra), I am of the view that a purely research establishment is not industry within the meaning of ‘industry’ as defined in the U.P. Industrial Disputes Act.
17. The next contention raised by the learned Counsel for the petitioner is that the respondent has failed to prove that he has rendered 240 days’ service in a year and his termination does not amount to retrenchment. According to record he was employed for 221 days between 24.1.1989 and 1.9.1990.
18. The case of the respondent No. 2 before the Labour Court was that he was employed as a clerk w.e.f. 1.1.1986 but he had not filed any proof of it. Neither appointment letter nor any other document is on record for showing his appointment before 24.1.1989. According to Annexure I to the writ petition he was appointed on temporary basis on a consolidated salary of Rs. 858/- p.m. and his services were liable to be terminated at any time without notice. The Labour Court in penultimate para of award has held that respondent No. 2 was not employed on any condition and there is no proof as to whether he was employed as casual worker or daily wager or for definite period, hence his termination without notice and compensation is illegal. This finding is against appointment letter contained in Annexure I to the writ petition. This finding is against record. The burden to prove that respondent No. 2 has rendered continuous service of 240 days in one year rests on respondent No. 2. Mere oral statement is not enough. He has to prove it conclusively. The Apex Court in the Range Forest Officer v. S. T. Hadimani, 2002 (94) FLR 622; Essen Denki v. State 2002 (95) FLR 949; and UP. Awas Vikas Parishad v. State, 2003 (96) FLR 492, has held that the burden of proving that an employee has worked for 240 days in a year lies on the claimant. Respondent No. 2 failed to prove this necessary condition of retrenchment in this case. The Labour Court thus committed illegality in ordering reinstatement of the worker with back wages only due to non-compliance of Section 6-N of the U.P. Industrial Disputes Act. The award is, therefore, liable to be set-aside even on this ground.
19. The writ petition is, therefore, allowed. The award of the Labour Court dated 11.8.1998 is quashed. No order as to costs.