{"id":195431,"date":"1970-04-01T00:00:00","date_gmt":"1970-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/management-of-safdarjung-vs-kuldip-singh-sethi-with-on-1-april-1970"},"modified":"2018-09-23T04:20:24","modified_gmt":"2018-09-22T22:50:24","slug":"management-of-safdarjung-vs-kuldip-singh-sethi-with-on-1-april-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/management-of-safdarjung-vs-kuldip-singh-sethi-with-on-1-april-1970","title":{"rendered":"Management Of Safdarjung … vs Kuldip Singh Sethi (With … on 1 April, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Management Of Safdarjung … vs Kuldip Singh Sethi (With … on 1 April, 1970<\/div>\n
Equivalent citations: 1970 AIR 1407, \t\t 1971 SCR (1) 177<\/div>\n
Author: M Hidayatullah<\/div>\n
Bench: Hidayatullah, M. (Cj)<\/div>\n
           PETITIONER:\nMANAGEMENT OF SAFDARJUNG HOSPITAL, NEW DELHI\n\n\tVs.\n\nRESPONDENT:\nKULDIP SINGH SETHI (With Connected Appeals)\n\nDATE OF JUDGMENT:\n01\/04\/1970\n\nBENCH:\nHIDAYATULLAH, M. (CJ)\nBENCH:\nHIDAYATULLAH, M. (CJ)\nHEGDE, K.S.\nGROVER, A.N.\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n 1970 AIR 1407\t\t  1971 SCR  (1) 177\n 1970 SCC  (1) 735\n CITATOR INFO :\n F\t    1971 SC1259\t (2,3,4)\n RF\t    1971 SC2422\t (18,19,20,21)\n R\t    1972 SC 763\t (16,17,20,24)\n F\t    1974 SC1527\t (20)\n F\t    1975 SC2032\t (3,4,8)\n F\t    1976 SC 145\t (5,6,7,9,10,24,29)\n O\t    1978 SC 548\t (15,25,37,134,136,150,151,154,\n R\t    1988 SC1182\t (6)\n RF\t    1990 SC2047\t (7)\n\n\nACT:\nIndustrial Disputes Act (14 of 1947), s. 2(j), (k), n(s) and\nFirst  Schedule--Hospital  when\t an  industry--Inclusion  of\nhospitals in the Schedule--Effect of.\n\n\n\nHEADNOTE:\n(1) The definition of industry in s. 2(j) of the  Industrial\nDisputes Act, 1947 is in two parts.  But it must be read  as\na  whole.   So read it denotes a  collective  enterprise  in\nwhich  employers and employees are associated.\tIt does\t not\nexist either by employers alone or by employees, alone.\t  It\nexists\tonly when there is a relationship between  employers\nand  employees,\t the  former  engaged  in  business,  trade,\nundertaking,  manufacture  or calling of employers  and\t the\nlatter\t engaged   in  any  calling,   service,\t  employment\nhandicraft  or\tindustrial- occupation\tor  avocation.\t But\nevery case of employment is not necessarily productive of an\nindustry.  A workman is to be regarded as one employed in an\nindustry  only\tif  he is following  one  of  the  vocations\nmentioned  in conjunction with his employers engaged in\t the\nvocations  mentioned in relation to the\t employers,  namely,\nany  business, trade, undertaking manufacture or calling  of\nemployers.   In\t the  collocation of  the  terms  and  their\ndefinitions these terms have a definite economic content  of\na particular type and on the authorities of this Court\thave\nbeen  uniformly\t accepted as excluding professions  and\t are\nonly   concerned  with\tthe  production,  distribution\t and\nconsumption of wealth and the production and availability of\nmaterial services.  Industry has thus been accepted to\tmean\nonly   trade  and  business,  manufacture,  or\t undertaking\nanalogous  to  trade  or  business  for\t the  production  of\nmaterial  goods or wealth and material\tservices.   Material\nservices involve an activity carried on through co-operation\nbetween\t employers  and employees to provide  the  community\nwith  the  use of something such as electric  power,  water,\ntransportation, mail delivery, telephones and the like.\t  In\nproviding these services there may be employment of  trained\nmen  and even professional men, but the emphasis is  not  on\nwhat  they  do\tbut  upon  the\tproductivity  of  a  service\norganised  as  an  industry and\t commercially  valuable,  in\nwhich, something is brought into existence quite apart\tfrom\nthe  benefit  to  particular  individuals;  and\t it  is\t the\nproduction  of\tthis  something which is  described  as\t the\nproduction  of\tmaterial services.  Thus,  the\tservices  of\nprofessional men involving benefit to individuals  according\nto   their  needs,  such  as  doctors,\tteachers,   lawyers,\nsolicitors, etc. are easily distinguishable from an activity\nsuch as transport service.  They are not engaged in an occu-\npation\tin  which employers and employees cooperate  in\t the\nproduction  or\tsale of commodities or arrangement  for\t the\nproduction or sale or distribution and their services cannot\nbe described as material services and are outside the  ambit\nof   industry.\t It,  therefore,  follows  that\t before\t  an\nindustrial  dispute  can  be raised  between  employers\t and\nemployers  or  between employers and  employees\t or  between\nemployees  and\temployees in relation to the  employment  or\nnon-employment\tor  the\t terms of  employment  or  with\t the\nconditions of labour of any person, there must first\n178\nbe  established\t a relationship of employers  and  employees\nassociating   together,\t the  former  following\t  a   trade,\nbusiness,  manufacture, undertaking or calling of  employers\nin  the production of material goods and  material  services\nand  the attack following any calling, service,\t employment,\nhandicraft or industrial occupation or avocation of  workmen\nin  aid\t of the employers enterprise.  It is  not  necessary\nthat there must be profit motive, but the enterprise must be\nanalogous  to trade or business in a commercial sense.\t[183\nH; 184 G-H; 185 C, H; 186 H; 187 A-B, E-G; 188 F-H]\n(2)  The  decision in State of Bombay  v.  Hospital  Mazdoor\nSabha,<\/a>\t[1960]\t2  S.C.R.  866\tholding\t that  a  Government\nhospital was an industry took an extreme view of the  matter\nand  cannot be justified, because : (a) it  was\t erroneously\nheld  that the second part of the definition  of  'industry'\nwas  an extension of the first part, whereas, they are\tonly\nthe two aspects of the occupation of employers and employees\nin an industry; (b) it was assumed that economic activity is\nalways\trelated\t to capital or profit-making  and  since  an\nenterprise  could be an industry without capital or  profit-\nmaking\tit  was\t held that even economic  activity  was\t not\nnecessary;  and (c) it was held that since a hospital  could\nbe  run as a business proposition and for profit by  private\nindividuals  or\t groups\t of individuals a  hospital  run  by\nGovernment without profit must also bear the same character.\nThis  test  was\t wrongly evolved from  the  observations  in\nFederated Municipal and Shire Council Employees of Australia\nv. Melbourne Corporation, 26 C.L.R. 508, which only indicate\nthat  in  those\t activities  in\t which\tGovernment  take  to\nindustrial ventures the motive of profit-making and  absence\nof  capital  are  irrelevant.\tThe  observations,  on\t the\ncontrary,  show\t that  industrial  disputes  occur  only  in\noperations  in\twhich employers and employees  associate  to\nprovide\t what  people  want  and desire,  that\tis,  in\t the\nproduction  of\tmaterial  goods or  services,  and  not\t the\n'satisfaction  of  material  human  needs'.  If\t however   a\nhospital,  nursing home or dispensary is run as a  business,\nin  a  commercial  way there may be  found  elements  of  an\nindustry  there.   Then the hospital is more  than  a  place\nwhere  persons\tcan get treated for their  ailments  and  it\nbecomes a business. [189 D-H; 190 E-F]\nHospital Case [1960] 2 S.C.R. 866 over-ruled.\n(3)  Under s. 2(n)(vi) any industry specified in  the  First\nSchedule  to  the Act could be notified by  the\t appropriate\nGovernment  as a public utility service.  But what could  be\ndeclared  had  to be an industry in the\t first\tplace.\t The\noriginal  entries  in the Schedule were five  and  obviously\nonly general headings were given.  For example 'coal' is not\nan  industry but certain aspects of dealing with coal  would\nbe  'industry'\tand that is what is intended.\tThe  dealing\nmust  be  an  industry in which.  there\t arc  employers\t and\nemployees  cooperating in the production of  material  goods\nfor material services.\tSimilarly, cotton, textiles or\tfood\nstuffs\tor  iron and steel, as the entries  stand,  are\t not\nindustries.   Therefore, the heading of the  First  Schedule\nand  the  words of cl. (vi) presuppose the existence  of  an\nindustry which may be notified as a public utility  service,\nfor special protection under the Act. [191 F-H]\nWhen the list was expanded in the First Schedule and certain\nservices  were mentioned, the intention could not have\tbeen\notherwise.   It could not have been intended  by  Parliament\nthat  the entire concept of 'industry' in the Act  could  be\nignored and anything could be brought in as industry.\tMost\nof  the\t new entries are items in which an  industry  proper\ninvolving   trade,   business.\tmanufacture   or   something\nanalogous to business can be found% Therefore, to apply\t the\nnotification. the condition precedent of the existence of an\nindustry has to be satisfied.  If there is an industry\n179\nwhich  falls  within the item named in the  first  Schedule,\nthen  alone  can it be notified to be classed  as  a  public\nutility\t service.   To hold otherwise would  largely  render\nuseless\t all the definitions in the Act regarding  industry,\nindustrial  disputes  etc.,  in relation  to  the  scheduled\nitems..\t It is hardly to be thought that  notifications\t can\nissue in respect of enterprises which are not 'industry'  to\nstart with.  Parliament could not have attempted to  declare\nthat   notwithstanding\t the  definitions   of\t 'industry',\n'industrial dispute', workman' and 'employer' every hospital\nis  to be regarded as an industry, by including 'service  in\nhospitals and dispensaries' in the First Schedule. [192 B-C,\nF-H]\n(4)  The  activities  in  the  cases  of  Secretary   Madras\nGytmkhana Club Employees Union v. Management of the Gymkhana\nClub<\/a>  [1968] 1 S.C.R. 742, University of Delhi\tv.  Ramnath,\n[1964] 2 S.C.R. 703 and National\nUnion of Commercial Employees v. M. R. Meher,<\/a> [1962] Supp. 3\nS.C.R. 157 were rightly held not be industries, because,  in\nthe  first the management was a non-profit  making  members'\nclub  not employed in trade or industry, and the  other\t two\nwere  cases in which the services rendered by the  employees\nwere  in  aid  of professional men  and\t not  productive  of\nmaterial wealth or services. [188 C-F]\nHotel  and Catering Industry Training Board  and  Automobile\nProprietary  Ltd. (1969) 1 W.L.R. 697 H.L.; S.C.;  (1968)  1\nW.L.R. 1526 and [1968]3 All.  E.R. 399 C.A., referred to.\nTherefore,  the\t Safdarjung  Hospital  which  is  run  as  a\ndepartment  of\tthe Government,\t the  Tuberculosis  Hospital\nwhich is a charitable and research institute. and the  Kurji\nHoli  Family Hospital which is entirely charitable, are\t not\nindustries  within  the meaning of the\tIndustrial  Disputes\nAct. 1947. [193 C; 194 B-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1705 of1969.
\nAppeal\tby special leave from the order dated  February\t 21,
\n1959,  of  the\tCentral Government Labour  Court,  Delhi  in
\nI.C.A. No. 2 of 1968 and Civil Appeal No. 1781 of 1969.
\nAppeal\tby special leave from the order dated  February\t 24,
\n1969  of the Additional Industrial Tribunal, Delhi  in\tI.D.
\nNo. 73 of 1968 and Appeal from the judgment and order  dated
\nFebruary  21,  1969 of the Patna High Court  in\t Civil\tWrit
\nJurisdiction Case No. 730 of 1968.\n<\/p>\n
Niren  De,  Attorney-General  and  S.  P.  Nayar,  for\t the
\nappellant (in C. A. No. 1705 of 1969).\n<\/p>\n
M.  K. Ramamurthi, E. C. Agarwala, R. P. Agarwala and M.  V.
\nGoswami, for the respondent (in C. A. No. 1705 of 1969).
\nH. R. Gokhale, Jitendra Mahajan, for the appellant (in\tC.A.
\nNo. 1781 of 1969).\n<\/p>\n
M.  K.\tRamamurthi, J. Ramamurthy and Madan Mohan,  for\t the
\nrespondents (in C. A. No. 1781 of 1969).\n<\/p>\n
H. R. Gokhale, M. C. Bhandare, for the intervener.\n<\/p>\n
180<\/span><\/p>\n
A. K. Sen, Ranen Roy and A. K. Nag, for theappellant (in
\nC. A. No. 1777 of, 1969).\n<\/p>\n
D.  Goburdhun,\tfor respondent No. 1 (in C. A. No.  1777  of
\n1969).\n<\/p>\n
P. N. Tiwari and Shiva Pujan Singh, for respondent No. 3 (in
\nC. A. No. 1777 of 1969).\n<\/p>\n
The Judgment of the Court was delivered by
\nHidayatullah,  C.J.  This  judgment will  dispose  of  Civil
\nAppeals\t Nos. 1705 of 1969, 1781 of 1969 and 1777  of  1969.
\nThe  first  is\tan appeal by the  Management  of  Safdarjung
\nHospital, New Delhi.  The second by the Management of Tuber-
\nculosis Hospital, New Delhi and the third by the Kurji\tHoly
\nFamily Hospital, Patna.\t The first two are filed by  special
\nleave  and the third by certificate.  They call in  question
\nrespectively  the  order of the\t Central  Government  Labour
\nCourt,\tDelhi  dated 21st February, 1969 on  an\t application
\nunder  s. 33C(2) of the Industrial Disputes Act,  1949,\t the
\norder  of  the\tPresiding  Officer,  Additional\t  Industrial
\nTribunal,  Delhi dated 24th February, 1969 and the  judgment
\nand order dated 21st February, 1969 of the Patna High Court.
\nThey  raise a common question of law whether  these  several
\nhospitals  can be regarded as industries within the  meaning
\nof the term in the Industrial Disputes Act.  They also raise
\ndifferent  questions  on  merits which\twill  be  considered
\nseparately.   The  facts of the three cases may\t be  noticed
\nbriefly\t before we begin to examine the common\tquestion  of
\nlaw mentioned above.\n<\/p>\n
C.A. Nc.. 1705 of 1969.\n<\/p>\n
The  Management\t of Safdarjung Hospital, New Delhi  was\t the
\nrespondent  in a petition under s. 33C(2) of the  Industrial
\nDisputes  Act, 1947 in a petition by the present  respondent
\nKuldip Singh Sethi, a Lower Division Clerk in the  Hospital,
\nfor  computation of the amount of salary etc. due to him  in
\nthe  pay  scale of store keepers.  Kuldip  Singh  Sethi\t was
\nappointed  as a Store-keeper on October 26, 1956 in the\t pay
\nscale of Rs. 60-5-75.  This scale was revised to Rs. 110-180
\non  July 1, 1959 in accordance with the ,recommendations  of
\nthe  Second Pay Commission.  Two or three months  later\t the
\npay  was re-fixed and the time scale was Rs.   110-131\twith
\nusual  allowances.  On July 1, 1962 his basic pay was  fixed
\nat Rs. 131.  On November 26, 1962 the Government of India in
\nthe  Ministry of Health re-revised the pay scales of  Store-
\nkeepers\t to  Rs.  130-5-160-8-200-EB-8-280-10-300  with\t the
\nusual  allowances.   The order was to lake effect  from\t the
\ndate  of  issue.   Kuldip  Singh  Sethi\t complained  by\t his
\npetition  that the Management of the Hospital had failed  to
\ngive  him  pay\tin this scale and claimed Rs.  914  for\t the
\nperiod November 26, 1,962 to May 31, 1968.\n<\/p>\n
181<\/span><\/p>\n
In rely to his petition the Management contended that Kuldip
\np  Singh  Sethi was not a workman but a\t Government  servant
\ngoverned  by  the  Conditions  of  Service  for\t  Government
\nServants  and  hence  he could\tnot  invoke  the  Industrial
\nDisputes  Act  since  the Safdarjung  Hospital\twas  not  an
\nindustry.  The Tribunal following the decision of this Court
\nin  State  of Bombay v. Hospital Mazdoor Sabha<\/a>(1)  has\theld
\nthat the Hospital is an ‘industry’, that Kuldip Singh  Sethi
\nis a ‘workman’ and hence he is entitled to take recourse  to
\ns.  3 3C (2) of the Industrial Disputes Act.  On merits\t his
\nclaim is found sustainable and he is given an award for\t Rs.\n<\/p>\n
914.  We need not mention at this stage the grounds on which
\nthe merits of his claim are resisted.  The point of law that
\narises in the case is whether the Safdarjung Hospital can be
\nproperly  described  as\t an ‘industry’\tas  defined  in\t the
\nIndustrial Disputes Act.\n<\/p>\n
C.A. No. 1781 of 1969.\n<\/p>\n
In  this case there is a dispute between the  Management  of
\nthe  Tuberculosis  Hospital,  New  Delhi  and  its   workmen
\nrepresented  by the Aspatal Karamchari\tPanchayat  regarding
\npay  scales, and other facilities demanded by  the  workmen.
\nThe Management has taken the preliminary objection that\t the
\nIndustrial Disputes Act does not apply since the Hospital is
\nnot  an industry and is not run as such.   The\tManagement.,
\ntherefore, questions the reference to the Tribunal under  s.
\n10(1)  (d)  of the Industrial Disputes Act.   A\t preliminary
\nissue is raised :\n<\/p>\n
\t “Is T.B. Hospital an industry or not?”\n<\/p>\n
In support of the case that the Hospital is not an industry,
\nthe Management emphasises the functions of the Hospital.  It
\nis pointed out that the Hospital is run by the\tTuberculosis
\nAssociation of India as a research institute where  training
\nis given to Medical ,,graduates of the Delhi University\t for
\nthe  D.T.C.D.  and  D.C.H. Courses,  and  postgraduates\t and
\nundergraduates\tof  the\t All  India  Institute\tof   Medical
\nSciences  are  also provided training and  nurses  from\t the
\nDelhi-\tCollege of Nursing, Safdarjung, Lady  Hardinge,\t and
\nHoly Family Hospitals receive training.\t The Hospital, it is
\nadmitted, has paid and unpaid beds but it is submitted\tthat
\ntreatment of tuberculosis is a part of research and training
\nand education, and, therefore, the Hospital has affinity  to
\na  University  and,  not  to  a\t Hospital  proper.   It\t is,
\ntherefore, contended that this ,Hospital is not an industry.
\nThe Tribunal holds that neither the research carried on, nor
\nthe   training\t imparted,  nor\t the   existence   .of\t the
\nTuberculosis Association of India with which the Hospital is
\naffiliated  makes any difference and the case  falls  within
\nthe  ruling of this Court in the Hospital  Mazdoor  Sabha(1)
\ncase.  The
\n(1)  [1960] 2 S.C.R. 866.\n<\/p>\n
182<\/span><\/p>\n
Tribunal holds the Tuberculosis Hospital, New Delhi to be an
\nindustry.\n<\/p>\n
C.A. No. 1777 of 1969.\n<\/p>\n
The  appeal  arises from a writ petition filed in  the\tHigh
\nCourt  of  Patna.   The\t Kurji\tHoly  Family  Hospital\ttook
\ndisciplinary  action  against two of its employees  and\t the
\nmatter\twas  taken  up by the  Kurji  Holy  Family  Hospital
\nEmployees  Association\tand  the  State\t of  Bihar  made   a
\nreference  to  the Labour Court, Patna under S.\t 10  of\t the
\nIndustrial   Disputes\tAct.   Before  the   Tribunal,\t the
\nManagement  of\tthe Hospital took the objection\t inter\talia
\nthat  a hospital was neither a trade nor a business, nor  an
\nindustry  as defined in the Industrial Disputes Act  and  as
\nsuch the provisions of the Industrial Disputes Act were\t not
\napplicable  and\t the reference was  incompetent.   The\tHigh
\nCourt holds this point against the Management, following the
\nHospital  Mazdoor  Sabha(1) case.  The later  case  of\tthis
\nCourt reported in Secretary, Madras Gymkhana Club  Employees
\nUnion  v. Management of the Gymkhana Club<\/a>(2) is held not  to
\nhave weakened the effect of the decision in the case  relied
\nupon.\n<\/p>\n
It  is\tthus that the three cases came before  us  and\twere
\nheard  together.  Counsel  in these cases  submit  that\t the
\nruling in the HospitalMazdoor Sabha(1) case has now  been
\nconsiderably  shaken  by  the pronouncement  in\t the  Madras
\nGymkhana  Club\t(2) case where it was I\t observed  that\t the
\nHospital  Mazdoor Sabha(‘) case was one which might be\tsaid
\nto be on the verge and that there were reasons to think that
\nit  took  an extreme view of an industry.  Relying  on\tthis
\nobservation,  counsel  in  the three  appeals  asked  for  a
\nreconsideration\t of  the  Hospital  Mazdoor  Sabha(1)\tcase
\nalthough  they conceded that it was not yet  overruled.\t  We
\naccordingly heard arguments on the general question  whether
\na hospital can be said to be an industry falling within\t the
\nIndustrial  Disputes Act and under what\t circumstances.\t  We
\nalso  heard  arguments\ton  the merits\tof  the\t appeals  to
\ndetermine  whether the decisions rendered therein  could  be
\nupheld\teven if the Hospital Mazdoor Sabha(1) case was\theld
\napplicable.  We shall follow the same course here.  We shall
\nfirst  consider the general proposition whether\t a  hospital
\ncan be considered to fall within the concept of industry  in
\nthe  Industrial\t Disputes Act and whether all  hospitals  of
\nwhatever  description can be covered by the concept or\tonly
\nsome  hospitals\t under special conditions.   We\t shall\tthen
\nconsider the merits of the individual cases in so far as may
\nbe necessary.\n<\/p>\n
The  Industrial\t Disputes Act was construed in the  past  on
\nmore   than   one  occasion  by\t this\tCourt.\t  A   fairly
\ncomprehensive summary of the various cases with the rationes
\ndecidendi of those
\n(1) [1960] 2 S.C.R. 866.\n<\/p>\n
(2) [1968] 1 S.C.R. 742.\n<\/p>\n
183<\/span><\/p>\n
cases  is  to be found in the Gymkhana\tClub(1)\t case.,\t The
\ntests applied to find out whether a particular establishment
\nfalls  within the definition of ‘industry’ or not  were\t not
\nfound  to be uniform and disclosed a pragmatic\tapproach  to
\nthe  problem.  This Court, ,therefore, in  Gymkhana  Club(1)
\ncase  fell back upon the statute for guidance  pointing\t out
\nthat  they were not concerned with a popular phrase but\t one
\nwhich  the  statute, had with ‘great  particularity  defined
\nitself.\t Examining the content of the definitions this Court
\ncame  to certain conclusions and held in their light that  a
\nnon-proprietary members’ club was not an industry.
\nThe reasoning in the Gymkhana Club(1) case formed the  basis
\nof  an attack on the former ruling in the, Hospital  Mazdoor
\nSabha(2)  case\tby the Managements of  the  three  Hospitals
\nwhich are appellants here.  The other side relied. upon\t the
\nruling\tand the amendment of the Industrial Disputes Act  by
\nwhich  ‘Service in hospitals and dispensaries’ has now\tbeen
\nadded  as  item No. 9 in the First Schedule, as one  of\t the
\nindustries  which  may\tbe declared  to\t be  public  utility
\nservices under sub-cl . (vi) of cl. (n) of s. 2 of the\tAct.
\nIt  is claimed that this is a legislative  determination  of
\nthe  question  whether hospital is an industry or  not.\t  It
\nhas, therefore, become necessary to cover some of the ground
\ncovered,in the Gymkhana Club(1) case.  To begin with we\t may
\nonce  again refer to the relevant definitions  contained  in
\nthe Act for they must necessarily control our discussion.
\nThe  Industrial\t Disputes Act, as its title and\t indeed\t its
\nwhole  tenor disclose, was passed to make provision for\t the
\ninvestigation and settlement of industrial disputes and\t for
\ncertain\t other\tpurposes  appearing in the  Act.   The\tterm
\n‘industrial dispute’ is defined by S. 2(k) in the  following
\nwords
\n\t      ”\t ‘industrial dispute’ means any\t dispute  or
\n\t      difference between employers and employers  or
\n\t      between  employers  and  workmen,\t or  between
\n\t      workmen  and workmen, which is connected\twith
\n\t      the employment or non-employment or the  terms
\n\t      of  employment  or  with\tthe  conditions\t  of
\n\t      labour, of any person.”\n<\/p>\n
The  definition discloses that disputes of particular  kinds
\nalone  are  regarded  as industrial  disputes.\t It  may  be
\nnoticed that this definition does not refer to an  industry.
\nBut  the dispute, on the grammar of the\t expression  itself,
\nmeans a dispute in an industry and we must, therefore,\tturn
\nto  the\t definition of ‘industry’ in the Act.  The  word  is
\ndefined in cl. (j) and reads :\n<\/p>\n
\t      ”\t  ‘industry’  means  any  business,   trade,
\n\t      undertaking,   manufacture   or\tcalling\t  of
\n\t      employers and includes any
\n(1) [1968] 1 S.C.R. 742.\n<\/p><\/blockquote>\n
(2) [1960] 2 S.C.R. 866.\n<\/p>\n
184<\/span><\/p>\n
calling,  services,  employment, handicraft,  or  industrial
\noccupation or avocation of workman.”\n<\/p>\n
This  definition is in two parts.  The first part says\tthat
\nit  means any business, trade, undertaking,  manufacture  or
\ncalling\t of  ,employers\t and then goes on  to  say  that  it
\nincludes  any  calling, service,  employment  handicraft  or
\nindustrial occupation or avocation of workmen.
\nIn  dealing with this definition this Court in the  Gymkhana
\n,Club  case(1) attempted to keep the two notions  concerning
\nemployers and employees apart and gave the opinion that\t the
\ndenotation  of\tthe term ‘industry’ is to be  found  in\t the
\nfirst  part relating to ,employers and the full\t connotation
\nof the term is intended to include the second part  relating
\nto workmen.  It was, therefore, concluded:\n<\/p>\n
\t      “If  the\tactivity  can  be  described  as  an
\n\t      industry\twith reference to the occupation  of
\n\t      the  employers,  the ambit  of  the  industry,
\n\t      under  the force of the second part, takes  in
\n\t      the   different  kinds  of  activity  of\t the
\n\t      employees\t mentioned in the second  part,\t But
\n\t      the  second part standing alone cannot  define
\n\t      ‘industry………  By the inclusive  part  of
\n\t      the definition the labour force employed in an
\n\t      industry\tis  made  an integral  part  of\t the
\n\t      industry\tfor purposes of industrial  disputes
\n\t      although\tindustry  is  ordinarily   something
\n\t      which employers create or undertake.”\n<\/p><\/blockquote>\n
These observations need to be somewhat qualified.  It is  to
\nbe  noticed  that  this\t definition  modifies  somewhat\t the
\ndefinition,  of\t “industry’  in s.  4  of  the\tCommonwealth
\nConciliation and Arbitration Act 1909-1970) (Acts Nos. 13 of
\n1904 and 7 of 1910) of Australia where the definition reads
\n\t      “‘industry’     means\tbusiness,     trade,
\n\t      manufacture, undertaking, calling, service  or
\n\t      employment, on land or water, in which persons
\n\t      are  employed  for  pay,\thire,  advantage  or
\n\t      reward,  excepting  only\tpersons\t engaged  in
\n\t      agricultural, viticultural, horticultural,  or
\n\t      dairying pursuits.”\n<\/p>\n
Although  the  two definitions are  worded  differently\t the
\npurport\t of both is the same.  It is not necessary  to\tview
\nour definition in two parts.  The definition read as a whole
\ndenotes\t a  collective\tenterprise in  which  employers\t and
\nemployees  are\tassociated.   It does not  exist  either  by
\nemployers alone or by employees alone.\tIt exists only when-
\nthere is a relationship between employers and employees, the
\nformer engaged in business, trade, undertaking,\t manufacture
\nor  calling  of\t employers and the  latter  engaged  in\t any
\ncalling, service,
\n(1) [1968] 1 S.C.R. 742.\n<\/p>\n
 185<\/span><\/p>\n
employment,   handicraft   or\tindustrial   occupation\t  or
\navocation.  There must, therefore, be an enterprise in which
\nthe  employers\tfollow their avocations as detailed  in\t the
\ndefinition  and\t employ\t workmen  who  follow  one  of\t‘the
\navocations  detailed for workmen.  The definition  no  doubt
\nseeks  to  define ‘industry’ with  reference  to  employers’
\noccupation  but includes the employees, for without the\t two
\nthere  can be no industry.  An industry is only to be  found
\nwhen  there are employers and employees, the former  relying
\nupon  the  services  of\t the  latter  to  fulfil  their\t own
\noccupations.\n<\/p>\n
But  every case of employment is not necessarily  productive
\nof   an\t industry.   Domestic\temployment,   administrative
\nservices of public officials, service in aid of\t occupations
\nof professional men, also disclose relationship of employers
\nand  employees but they cannot be regarded as in the  course
\nof industry.  This follows from the definition of  ‘workman’
\nin the Act defined in cl.(s) which reads
\n\t      “workman’\t means any person (including an\t ap-
\n\t      prentice)\t employed in any industry to do\t any
\n\t      skilled  or  unskilled  manual,\tsupervisory,
\n\t      technical or clerical work for hire or reward,
\n\t      whether the terms of employment be express  or
\n\t      implied, and for the purposes of any  proceed-
\n\t      ing   under  this\t Act  in  relation   to\t  an
\n\t      industrial  dispute, includes any such  person
\n\t      who   has\t  been\tdismissed,   discharged\t  or
\n\t      retrenched in connection with, or as a  conse-
\n\t      quence  of, that dispute, or whose  dismissal,
\n\t      discharge\t or  retrenchment has  led  to\tthat
\n\t      dispute, but does not include any such person-\n<\/p>\n
\t      (i)  who is subject to the Army Act, 1950,  or
\n\t      the   Air\t  Force\t Act,  1950  or\t  the\tNavy
\n\t      (Discipline) Act, 1934; or\n<\/p>\n
\t      (ii) who is employed in the police service, or
\n\t      as  an officer or other employee of a  prison;
\n\t      or\n<\/p>\n
\t      (iii)  who is employed mainly in a  managerial
\n\t      or administrative capacity; or\n<\/p>\n
\t      (iv)who,\tbeing  employed in  a  supervisory
\n\t      capacity,draws  wages exceeding  five  hundred
\n\t      rupees per mensem or exercises, either by\t the
\n\t      nature of the duties attached to the office or
\n\t      by  reason  of  the  powers  vested  in\thim,
\n\t      functions mainly of a managerial nature.”
\nThe word ‘industry’ in this definition must take its  colour
\nfrom  the definition and discloses that a workman is  to  be
\nregarded  as one employed in an industry if he is  following
\none  of\t the  vocations mentioned in  conjunction  with\t his
\nemployers engaged in the vocations mentioned in relation  to
\nthe employers.\n<\/p>\n
Sup.Cl\/70-13
\n186<\/span>
\n Therefore an industry is to be found when the employers are
\ncarrying on any business, trade, undertaking, manufacture or
\ncalling of employers.  If they are not, there is no industry
\nas  such.  What is meant by these expressions was  discussed
\nin  a  large  number of cases  which  have  been  considered
\nelaborately in the Gymkhana Club(1) case.  The conclusion in
\nthat case may be stated :\n<\/p>\n
\t      “Primarily,  therefore,  industrial   disputes
\n\t      occur when the operation undertaken rests upon
\n\t      cooperation  between employers  and  employees
\n\t      with a view to production and distribution  of
\n\t      material\tgoods, in other words,\twealth,\t but
\n\t      they  may\t arise also in cases where  the\t co-
\n\t      operation\t is  to produce\t material  services.
\n\t      The  normal  cases  are  those  in  which\t the
\n\t      production  or  distribution  is\tof  material
\n\t      goods or wealth and they will fall within\t the
\n\t      expressions trade, business and manufacture.”\n<\/p><\/blockquote>\n
The  words ‘trade’, ‘business’, ‘manufacture’ and  ‘calling’
\nwere next explained thus :\n<\/p>\n
\t      “The  word ‘trade’ in this context  bears\t the
\n\tX\tX
\nmeaning\t which\tmay be taken  from  Halsbury’s
\n\t      Laws of England, Third Edn.  Vol. 38 p. 8-\n<\/p>\n
\t      (a)  exchange of goods for goods or goods\t for
\n\t      money;\n<\/p>\n
\t      (b)  any\tbusiness carried on with a  view  to
\n\t      profit,  whether\tmanual,\t or  mercantile,  as
\n\t      distinguished from the liberal arts or learned
\n\t      professions and from agriculture; and business
\n\t      means an enterprise which is an occupation  as
\n\t      distinguished from pleasure.  Manufacture is a
\n\t      kind  of\tproductive  industry  in  which\t the
\n\t      making  of  articles or material (often  on  a
\n\t      large   scale)  is  by  physical\t labour\t  or
\n\t      mechanical   power.    Calling   denotes\t the
\n\t      following of a profession or trade.”\n<\/p>\n
It  may be added here that in National Association of  Local
\nGovernment Officers v. Bolton Corporations(2) at page 183 et
\nseq  Lord  Wright  observes that ‘trade’ is a  term  of\t the
\nwidest scope.  This is true.  We speak of the occupation  of
\nmen in buying and selling, barter or commerce as trade.\t  We
\neven  speak of work, especially of skilled work\t as,  trade,
\ne.g.  the trade of goldsmiths.\tBut the word as used in\t the
\nstatute must be distinguished from professions although even
\nprofessions have ‘trade unions’.  The word ‘trade’  includes
\npersons in a line of business in which persons are  employed
\nas workmen.  Business too is a word of wide import.  In\t one
\nsense  it includes all occupations and professions.  But  in
\nthe  collocation of the terms. and their  definitions  these
\nterms have a definite economic content of a particular\ttype
\nand on the
\n(1) [1968] 1 S.C.R. 742.\n<\/p>\n
(2) [1943] A.C. 166, 183.\n<\/p>\n
187<\/span><\/p>\n
authorities  of this Court have been uniformly\taccepted  as
\nexcluding  professions\tand  are  only\tconcerned  with\t the
\nproduction,  distribution and consumption of wealth and\t the
\nproduction and availability of material services.   Industry
\nhas  thus  been accepted to mean only  trade  and  business,
\nmanufacture,  or undertaking analogous to trade or  business
\nfor the production of material goods or wealth and  material
\nservices.\n<\/p>\n
Why  professions must be held outside the ambit of  industry
\nmay be explained.  A profession ordinarily is an  occupation
\nrequiring  intellectual\t skill, often  coupled\twith  manual
\nskill.\tThus a teacher uses purely intellectual skill  while
\na painter uses both.  In any event, they are not engaged  in
\nan occupation in which employers and employees co-operate in
\nthe  production\t or sale of commodities or  arrangement\t for
\ntheir production or sale or distribution and their  services
\ncannot be described as material services.
\nWhat is meant by ‘material services’ needs some\t explanation
\ntoo.  Material services are not services which depend wholly
\nor largely upon the contribution of professional  knowledge,
\nskill  or  dexterity for the production of a  result.\tSuch
\nservices  being\t given individually and by  individuals\t are
\nservices  no  doubt  but not  material\tservices.   Even  an
\nestablishment  where  many such operate cannot\tbe  said  to
\nconvert their professional services into material  services.
\nMaterial services involve an activity carried on through co-
\noperation  between  employers and employees to\tprovide\t the
\ncommunity with the use of something such as electric  power,
\nwater,\ttransportation,\t mail delivery, telephones  and\t the
\nlike.\tIn providing these services there may be  employment
\nof  trained men and even professional men, but the  emphasis
\nis  not on what these men do but upon the productivity of  a
\nservice organised as an industry and commercially  valuable.
\nThus  the services of professional men involving benefit  to
\nindividuals  according\tto  their needs,  such\tas  doctors,
\nteachers,    lawyers,\t solicitors    etc.    are    easily
\ndistinguishable from an activity such as transport  service.
\nThe  latter is of a commercial character in which  something
\nis  brought into existence quite apart from the\t benefit  to
\nparticular  individuals.   It  is  the\tproduction  of\tthis
\nsomething  which is described as the production of  material
\nservices.\n<\/p>\n
Mr. Ramamurti arguing against the Hospitals drew our  atten-
\ntion  to Citrine’s book ‘Trade Union Law’ (3rd edn. p.\t609)
\nwhere the author observes :\n<\/p>\n
\t      “However,\t  whilst  the  words   ‘trade’\t and
\n\t      ‘industry’  are separately capable of  a\twide
\n\t      interpretation, when they occur in conjunction
\n\t      the  tendency of the courts is to give them  a
\n\t      narrow one.”\n<\/p><\/blockquote>\n
188<\/span><\/p>\n
He  cites the House of Lords case to which we have  referred
\nand  criticises\t the  tendency of the court  to\t narrow\t the
\nmeaning\t of  the expressions ‘industry’ and  ‘workman’.\t  He
\nsays that this narrow interpretation unnecessarily  excludes
\nfrom  workmen  ‘teachers  employed  by\tlocal\tauthorities,
\nuniversity  employees, nurses and others employed under\t the
\nNational Health Service, the domestic staff of the Houses of
\nParliament  and\t Civil\tServants who  are  not\temployed  in
\n‘trading’  or  ‘industrial undertaking’.   He  includes\t all
\nthese  in  the definitions because a person doing  the\tsame
\ntype  of  work for a commercial undertaking  is\t within\t the
\ndefinition.  According to him any person gainfully  employed
\nmust  be  within the definition.  On the  strength  of\tthis
\ndefinition  Mr.\t Ramamurthi  also  contends  that  not\t the
\nHospital  Mazdoor  Sabha(1) case but the earlier  cases\t off
\nthis  Court  such  as  University  of  Delhi  and  Anr.\t  v.
\nRamnath(2) and National Union of Commercial Employees v.
\nM.   R. Meher<\/a>(3) must be reconsidered and overruled.
\nThe  reason  for these cases, as also the  Gymkhana  Club(4)
\ncase  lies  in the kind of establishment with which  we\t are
\nconcerned.    The  Gymkhana  Club(4)  case  of\tthis   Court
\n(followed and applied in Cricket Club v. Labour Union<\/a>(5) has
\nheld that non-profit making members’ clubs are not  employed
\nin trade or industry and their employees are not entitled to
\nengage\tin trade disputes with the clubs.  This\t view  finds
\nsupport from Hotel and Catering Industry ‘Training Board and
\nAutomobile  Proprietary Ltd (6).  The Solicitors case  cited
\nby  Mr. Ramamurti was so decided because there the  services
\nrendered  by the employees were in aid of  professional\t men
\nand  not productive of material goods or wealth or  material
\nservices.  The other case of University was also decided, as
\nit was, for the same reason.\n<\/p>\n
It, therefore, follows that before an industrial dispute can
\nbe  raised between employers and their employees or  between
\nemployers  and employers or between employees and  employees
\nin relation to the employment or non-employment or the terms
\nof  employment\tor  with the conditions\t of  labour  of\t any
\nperson,\t there must be first established a  relationship  of
\nemployers  and\temployees associating together,\t the  former
\nfollowing  a  trade, business, manufacture,  undertaking  or
\ncalling of employers in the production of material goods and
\nmaterial  services  and the latter  following  any  calling,
\nservice, employment, handicraft, or industrial occupation or
\navocation  of workmen in aid of the  employers’\t enterprise.
\nIt  is not necessary that there must be a profit motive\t but
\nthe  enterprise must be analogous to trade or business in  a
\ncommercial sense.\n<\/p>\n
(1) [1960] 2 S.C.R. 866.\t(2) [1964] 2 S.C.R. 703.
\n(3) [1962] Supp. 3 S.C.R. 157.\t(4) [1968] 1 S.C.R. 742.
\n(5) A.I.R. 1969 S.C.R. 276.\n<\/p>\n
(6) (1969) 1 W.L.R. 697 H.L.  S.C.; (1968) 1 W.L.R. 1526 and
\n[1968] 3 All. E.R 399 C.A.\n<\/p>\n
189<\/span><\/p>\n
We do not find it necessary to refer to the earlier cases of
\nthis  Court from which these propositions have been  deduced
\nbecause\t they  are  all\t considered  in\t the  Gymkhana\tClub
\ncase(1).  We accept the conclusion in that case that :\n<\/p>\n
\t      “……..\t before the work engaged in  can  be
\n\t      described\t as  an industry, it must  bear\t the
\n\t      definite\tcharacter of ‘trade.’ or  ‘business’
\n\t      or  ‘manufacture’\t or  ‘calling’\tor  must  be
\n\t      capable  of being described as an\t undertaking
\n\t      resulting\t  in  material\tgoods  or   material
\n\t      services.”\n<\/p><\/blockquote>\n
We  may now consider closely the Hospital  Mazdoor  Sabha(2)
\ncase and the reasons for which it was held that the  workmen
\nemployed in a hospital were entitled to raise an  industrial
\ndispute.   We  may say at once that if a  hospital,  nursing
\nhome or dispensary is run as a business in a commercial\t way
\nthere may be found elements of an industry there.  Then\t the
\nhospital is more than a place where persons can get  treated
\nfor their ailment.  It becomes a business.
\nIn the Hospital Mazdoor Sabha(2) case, hospitals run by Gov-
\nernment and even by a private association, not on commercial
\nlines but on charitable lines or as part of the functions of
\nGovernment  Department of Health were held included  in\t the
\ndefinition  of\tindustry.   The reason given  was  that\t the
\nsecond\tpart  of  the definition of  industry  contained  an
\nextension  of  the first part by including  other  items  of
\nindustry.   As we have pointed out the first and the  second
\nparts  of the definition are not to be read in isolation  as
\nif they were different industries but only as aspects of the
\noccupation of employers and employees in an industry.\tThey
\nare two counterparts in one industry.  The case proceeds  on
\nthe  assumption that there need not be an economic  activity
\nsince\temployment  of\tcapital\t and  profit   motive\twere
\nconsidered unessential.\t It is an erroneous assumption\tthat
\nan economic activity must be related to capital and  profit-
\nmaking\talone.\tAn economic activity can exist\twithout\t the
\npresence of both.  Having rejected the true test applied  in
\nother cases before, the test applied was ‘can such  activity
\nbe  carried  on by private individuals or group\t of  indivi-
\nduals’?\t Holding that a hospital could be run as a  business
\nproposition and for profit, it was held that a hospital\t run
\nby  Government without profit must bear the same  character.
\nWith respect, we do not consider this to be the right  test.
\nThat   test   was  employed  to\t distinguish   between\t the
\nadministrative functions of Government and local authorities
\nand  their functions analogous to business but it cannot  be
\nused  in this context.\tWhen it was emphasised in  the\tsame
\ncase  that  the activity must be analogous to  business\t and
\ntrade  and  that  it must be productive of  goods  or  their
\ndistribution  or  for  producing material  services  to\t the
\ncommunity at large
\n(1) [1968] 1 S.C.R. 742.\n<\/p>\n
(2) [1960] 2 S.C.R. 866.\n<\/p>\n
190<\/span><\/p>\n
or a part of it, there was no room for the other proposition
\nthat privately run hospitals may in certain circumstances be
\nregarded as industries.\t The expression ‘satisfying material
\nhuman  needs’  was evolved which bore a\t different  meaning.
\nThese observations were apparently based on the observations
\nof,  Isaacs  and Rich JJ. in Federated Municipal  and  Shire
\nCouncil Employees of Australia v.  Melbourne Corporation(1),
\nbut they were :\n<\/p>\n
\t      “Industrial  disputes occur when, in  relation
\n\t      to operations in which capital and labour\t are
\n\t      contributed    in\t  cooperation\t for\tthe-
\n\t      satisfaction of human wants and desires, those
\n\t      engaged  in  co-operation dispute\t as  to\t the
\n\t      basis to be observed, by the parties  engaged,
\n\t      respecting  either a share of the\t produce  or
\n\t      any  other terms and conditions of  their\t co-
\n\t      operation. . . . The question of profit making
\n\t      may  be important from an income-tax point  of
\n\t      view,  as in many municipal cases in  England;
\n\t      but, from an industrial dispute point of\tview
\n\t      it  cannot matter whether the  expenditure  is
\n\t      met by fares from passengers or from rates.”\n<\/p><\/blockquote>\n
The  observations in the Australian case only indicate\tthat
\nin those activities in which government takes to  industrial
\nventures,  the\tnotion of profit-making and the\t absence  of
\ncapital\t in the true sense of the word are irrelevant.\t The
\npassage\t itself\t shows\tthat industrial\t disputes  occur  in
\noperation  in  which employers and  employees  associate  to
\nprovide\t what  people want and desire in other\twords  where
\nthere is production of material goods or material  services.
\nIn our judgment the Hospital Mazdoor Sabha (2) case took  an
\nextreme view of the matter which was not justified.
\nIt is argued that after the amendment of the Industrial Dis-
\nputes  Act by which ‘service in hospitals and  dispensaries’
\nis  included in public utility services, there is  no  scope
\nfor  saying that hospitals are not industries.\tIt  is\tsaid
\nthat  Parliament has accepted that the definition is  suited
\nto  include  a\thospital.  This\t contention  requires  close
\nattention  in  view of the fact that it was noticed  in\t the
\nHospital  Mazdoor Sabha(2) case although that  arose  before
\nthe amendment.\n<\/p>\n
A  public  utility service is defined in the Act  by  merely
\nnaming\tcertain\t services.  It will be\tnoticed\t that  these
\nservices are\n<\/p>\n
(i)  any  railway service or any transport service  for\t the
\n‘Carriage of passengers or goods by air;\n<\/p>\n
(1) 26 C.L.R. 508.\n<\/p>\n
(2) [1960] 2 S.C.R. 866.\n<\/p>\n
191<\/span><\/p>\n
\t      (ii)    any   section   of   any\t  industrial
\n\t      establishment  on\t the working  of  which\t the
\n\t      safety  of  the establishment or\tthe  workmen
\n\t      employed therein depends;\n<\/p>\n
\t      (iii)  any  postal,  telegraph  or   telephone
\n\t      service;\n<\/p>\n
\t      (iv)  any industry which supplies power, light
\n\t      or water to the public;\n<\/p>\n
\t      (v)  any\tsystem\tof  public  conservancy\t  or
\n\t      sanitation; After namingthese  services  the
\n\t      definition adds :\n<\/p>\n
\t      (vi)  any\t industry  specified  in  the  First
\n\t      Schedule which the appropriate Government may,
\n\t      if  satisfied that public emergency or  public
\n\t      interest\tso requires, by notification in\t the
\n\t      official gazette, declare to be a public\tuti-
\n\t      lity service for the purposes of this Act, for
\n\t      such  period  as\tmay  be\t specified  in\t the
\n\t      notification.\n<\/p>\n
\t      Provided\tthat the period so  specified  shall
\n\t      not, in the first instance, exceed six  months
\n\t      but  may, by a like notification, be  exceeded
\n\t      from time to time, by any period not exceeding
\n\t      six months, at any one time if in the  opinion
\n\t      of the appropriate Government public emergency
\n\t      or public interest requires such extension.
\nThe intention behind this provision is obviously to  cassify
\ncertain\t services  as public utility services  with  special
\nprotection for the continuance of those services.  The named
\nservices  in the definition answer the test of\tan  industry
\nrun  on\t commercial  lines to produce  something  which\t the
\ncommunity  can use.  These are brought into existence  in  a
\ncommercial  way\t and  are analogous  to\t business  in  which
\nmaterial goods are produced and distributed for consumption.
\nWhen  Parliament  added the sixth clause under\twhich  other
\nservices could be brought within the protection afforded  by
\nthe  Act to public utility services, it did not intend\tthat
\nthe entire concept of industry in the Act, could be  ignored
\nand anything brought in. Therefore it said that an  industry
\ncould be declared to be a public utility service.  But\twhat
\ncould  be  so declared had to be an industry  in  the  first
\nplace.\t We  are  concerned  with the  addition\t of  item  9
\n‘service in hospitals and dispensaries.\t The heading of, the
\nFirst  Schedule speaks again of industries which may be\t de-
\nclared to be public utility services.  The original  entries
\nwere five and they read:\n<\/p>\n
\t      1.  Transport  (other than railways)  for\t the
\n\t      carriage\tof  passengers or  goods,  by  land,
\n\t      water or air (now air is omitted).\n<\/p><\/blockquote>\n
\t      2. Coal
\n192<\/span>\n<\/p><\/blockquote>\n
3.   Cotton textiles.\n<\/p>\n
4.   Food stuffs\n<\/p>\n
5.   Iron and steel.\n<\/p>\n
It is obvious that general headings are given here.  Coal is
\nnot an industry but certain aspects of dealing with coal  is
\nan industry and that is what is intended.  That dealing must
\nbe in an industry in which there are employers and employees
\ncooperating in the production of material goods or  material
\nservices.   Similarly,\tcotton, textiles or food  stuffs  or
\niron  and steel, as the entries stand, are  not\t industries.
\nTherefore the heading of the First Schedule and the words of
\nclause\t(vi) presuppose the existence of an  industry  which
\nmay  be\t notified as a public utility service,\tfor  special
\nprotection under the Act.\n<\/p>\n
Therefore  when the list was expanded in the First  Schedule
\nand certain services were mentioned, the intention could not
\nbe  otherwise.\t The  list  was\t extended  to  10  items  by
\namendment  of  the Act by Act 36 of 1956  with\teffect\tfrom
\nMarch 10, 1957.\t The new items are (a) Banking, (b)  Cement,\n<\/p>\n
(c)  Defence  Establishments, (d) Service in  hospitals\t and
\ndispensaries,  and,  (e)  Fire Brigade\tService.   Later  by
\nnotifications issued under s. 40 of the Act nine more  items
\nwere  added.  Section 40 gives to governments the  power  to
\nadd to the Schedule.  They are (a) Indian Government  Mints,\n<\/p>\n
(b)  India  Security  Press, (c)  Copper  Mining,  (d)\tLead
\nMining, (e) Zinc Mining, (f) Iron ore mining, (g) Service in
\nany  oil field, (h) Any service in, or in  connection  with,
\nthe working of any major port or dock and (i) Service in the
\nUranium\t Industry.  It is easy to see that most of them\t are
\nitems in which an industry proper involving trade, business,
\nmanufacture or something analogous to business can be found.
\nIt  is hardly to be thought that notifications can issue  in
\nrespect\t of  enterprises which are not industries  to  start
\nwith.\tIt  is only industries which may be declared  to  be
\npublic utility services.\n<\/p>\n
Therefore to apply the notification, the condition precedent
\nof  the\t existence of an industry has to be  satisfied.\t  If
\nthere  is an industry which falls within the items named  in
\nthe  First  Schedule, then alone can it be  notified  to  be
\nclassed as a public utility service.  The law does not\twork
\nthe other way round that every activity connected with\tcoal
\nbecomes\t an  industry  and therefore  on  notification\tthat
\nactivity becomes a public utility service.  The same is true
\nof  all\t items including all the services  mentioned.\tThey
\nmust  first  be demonstrated to be industries and  then\t the
\nnotification  will apply, to them.  To hold otherwise  would
\nlargely\t render\t useless  all the  definitions\tin  the\t Act
\nregarding industry, industrial disputes etc., in relation to
\nthe  scheduled\titems.\t Parliament  has  not  attempted  to
\ndeclare that notwithstanding the definitions of
\n193<\/span>
\n‘industry’, ‘industrial disputes, ‘workman’ and\t ’employer’,
\nevery  hospital is to be regarded as an industry.  All\tthat
\nhas been provided is that an ‘industry’ may be notified as a
\npublic\tutility\t service.  That is insufficient\t to  convert
\nnon-industries under the Act to industries.
\nWe now take up the individual cases.\n<\/p>\n
C.A. No. 1705 of 1969.\n<\/p>\n
It is obvious that Safdarjung Hospital is not embarked on an
\neconomic activity which can be said to be analogous to trade
\nor  business.  There is no evidence that it is more  than  a
\nplace  were persons can get treated.  This is a part of\t the
\nfunctions  of  Government  and\tthe Hospital  is  run  as  a
\nDepartment of Government.  It cannot, therefore, be said  to
\nbe an industry.\n<\/p>\n
In  this  case the petitioner chose to be a  Lower  Division
\nClerk.\t The amount of security which he had to\t furnish  in
\nthe job of a Store-keeper was also refunded to him.  He\t had
\napplied\t for the post on May 31, 1962.\tOn July 14, 1962  he
\nagain  drew attention to his application.   His\t application
\nwas  recommended  on  August 9, 1962.\tIt  was\t only  after
\nNovember 26, 1962 when the scale of Store-keepers was raised
\nto  Rs. 130-300 that he changed his views.  On December\t 12,
\n1962  he  made\ta representation but in\t forwarding  it\t the
\nMedical Superintendent said that the incumbents of the posts
\nof  Store-keepers could not be given the upgraded  scale  of
\nRs. 130-300.  In addition there were certain matters pending
\nagainst\t him which precluded his appointment in that  scale.
\nOn August 11, 1966 the Director General wrote:\n<\/p>\n
\t      “With  reference to your letter  No.  1-20\/62-
\n\t      Estt., dated the 4th Jan, 1966 and  subsequent
\n\t      reminder\tof even number dated the  24th\tMay,
\n\t      1966 on the subject noted above, I am directed
\n\t      to  say  that  a reference  was  made  to\t the
\n\t      Government of India in the Ministry of  Health
\n\t      and Family Planning, New Delhi who have stated
\n\t      that  it\twas not intended  that\tthe  revised
\n\t      scale  of Rs. 110-131 (previous scale  of\t Rs.
\n\t      60-75)  should be further revised to Rs.\t130-
\n\t      300  as all incumbents of the  posts  carrying
\n\t      the  pay\tscale of Rs. 110-131  were  promoted
\n\t      from   Class  IV\tand  did  not  possess\t the
\n\t      requisite qualifications prescribed for posts,
\n\t      carrying pay scale of Rs. 130-300.
\n\t      In  view of the position stated above  further
\n\t      action  in the matter may kindly be  taken  in
\n\t      the   light   of\t the   above   remarks\t and
\n\t      storekeepers concerned informed accordingly.\n<\/p><\/blockquote>\n
In  view of these facts it is hardly necessary to  refer  to
\nthe  reports about the work of Kuldip Singh Sethi and  other
\nmatters which
\n194<\/span>
\ncame  in his way of promotion.\tBoth on the question of\t law
\ndecided\t by us and on the merits of his case,  Kuldip  Singh
\nSethi was not entitled to the pay scale of store-keepers and
\nthe award of Rs. 914\/- in his favour was wrong.\t The  appeal
\nis  allowed.   The order is set aside but there will  be  no
\norder about costs.\n<\/p>\n
C.A. No. 1781 of 1969.\n<\/p>\n
The Tuberculosis Hospital is not an independent institution.
\nIt is a part of the Tuberculosis Association of India.\t The
\nhospital  is wholly charitable and is a research  institute.
\nThe  dominant  purpose\tof  the\t Hospital  is  research\t and
\ntraining,  but\tas  research and training  cannot  be  given
\nwithout beds. in a hospital, the hospital is run.  Treatment
\nis  thus  a  part  of  research\t and  training.\t  In   these
\ncircumstances, the Tuberculosis Hospital cannot be described
\nas  an\tindustry.  The order of\t the  Additional  Industrial
\nTribunal,  Delhi on the preliminary point must be  reversed.
\nThe  reference\tto  the Tribunal under S.  10(1)(d)  of\t the
\nIndustrial  Disputes  Act was incompetent.   The  appeal  is
\nallowed but we make no order about costs.\n<\/p>\n
C.A  .\tNo. 1777 of 1969.\n<\/p>\n
The  objects of the Kurji Holy Family Hospital are  entirely
\ncharitable.   It carries on work of training,  research\t and
\ntreatment.    Its  income  is  mostly  from  donations\t and
\ndistribution  of  surplus as profit is prohibited.   It\t is,
\ntherefore, clear that it is not an industry as-laid down  in
\nthe Act.  The reference made by the State Government,  Bihar
\nwas  thus incompetent.\tThe appeal will be  allowed.   There
\nwill be no order about costs, except in the first case (C.A.
\n1705 of 1967) in which the earlier order of this Court shall
\nbe given effect to.\n<\/p>\n
V.P.S.\t\t      Appeals allowed.\n195<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Management Of Safdarjung … vs Kuldip Singh Sethi (With … on 1 April, 1970 Equivalent citations: 1970 AIR 1407, 1971 SCR (1) 177 Author: M Hidayatullah Bench: Hidayatullah, M. (Cj) PETITIONER: MANAGEMENT OF SAFDARJUNG HOSPITAL, NEW DELHI Vs. RESPONDENT: KULDIP SINGH SETHI (With Connected Appeals) DATE OF JUDGMENT: 01\/04\/1970 BENCH: HIDAYATULLAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-195431","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManagement Of Safdarjung ... vs Kuldip Singh Sethi (With ... on 1 April, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/management-of-safdarjung-vs-kuldip-singh-sethi-with-on-1-april-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Management Of Safdarjung ... vs Kuldip Singh Sethi (With ... on 1 April, 1970 - 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