{"id":65224,"date":"1997-07-09T00:00:00","date_gmt":"1997-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997"},"modified":"2018-01-14T10:29:11","modified_gmt":"2018-01-14T04:59:11","slug":"bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","title":{"rendered":"Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997<\/div>\n
Author: K Ramaswamyy.<\/div>\n
Bench: K. Ramaswamy, D. P. Wadhwa<\/div>\n
           PETITIONER:\nBOMBAY TELEPHONE CANTEEN EMPLOYEES' ASSOCIATION, PRABHADEVI\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ANR.\n\nDATE OF JUDGMENT:\t09\/07\/1997\n\nBENCH:\nK. RAMASWAMY, D. P. WADHWA\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nK. RAMASWAMYY. J.\n<\/p>\n
     This special  leave petition has come up directly, from
\nthe award  of the  Central  Government\tIndustrial  Tribunal
\nNo.2, Bombay,  made on\tAugust 9, 1996 in Reference No.CGIT-
\n2\/26\/91.\n<\/p>\n
     Delay condoned.\n<\/p>\n
     The  admitted   position\tis   that   the\t  petitioner
\nAssociation,  representing  five  dismissed  employees,\t had
\nsought reference  under\t Section  10(1)\t of  the  Industrial
\nDisputes Act,  1947 (for  short, the `Act’) to the Tribunal.
\nThe  dispute   arose  on   account  of\ttermination  by\t the
\nrespondent-Management of  the services\tof the\tsaid employe
\non April  28, 1989;  It was alleged that the termination was
\nwithout any  notice and payment of retrenchment compensation
\nunder Section  25-f. The  reference came to be made on April
\n19, 1991.  The Tribunal\t has held,  that the telephone Nigam
\nLimited, Bombay\t is not an ‘industry’. It, therefore, has no
\njurisdiction to\t adjudicate the dispute. Prabhadevi Exchange
\nhad  a\ttotal  strength\t of  3000  employees  of  the  Tele-
\ncommunication Department,  working in  three shifts.  As per
\nthe Administrative  Instructions issued\t by the\t Government,
\nfor the first shift there should be a ‘3A’ type canteen, for
\nthe second  shift ‘A’  type canteen  and for the third shift
\nthere should  be `C’  type canteen.  It was averred that for
\nType `3A’ canteen, there should be 57 employees, but only 24
\nemployees were\tworking on April 27.4.1989. The claim of the
\npetitioner is  that the\t dismissed employees  had joined the
\nservice\t in  1987.  They  are  claiming\t wages\tas  per\t the
\ndirections of  this Court,  i.e.,  as  per  the\t Fourth\t Pay
\nCommission’s recommendations. Since they were insisting upon
\npayment of  the wages,\tit is  alleged, the services of five
\nemployees were\tterminated  without  giving  any  notice  or
\ngiving any  retrenchment compensation as enjoined by Section
\n25-F of\t the Act.  Therefore, they sought reinstatement into
\nservice with full back wages and with continuity of service.
\nThe respondents,  on the  other\t hand.\tcontended  that\t the
\nemployees working  in the  canteen are\tnot ‘workmen’ within
\nthe definition\tof Section  2(s)  of  the  Act\tnor  is\t the
\nrespondent  an\t`industry’  under  Section  2(j).  They\t are
\n“treated as  holding civil posts in the Central Government”.
\nThey were  paid monthly\t salaries  devised  by\tthe  Canteen
\nCommittee depending upon the increases in the cost of living
\netc.  The   provisions\tof  Chapter  VI-B  of  the  Act\t are
\ninapplicable to\t them. The  Tribunal noted  the findings  as
\nunder:\n<\/p>\n
     Prabhadevi\t Telephone   Exchange  employed\t about\t4000
\nemployees  which   is  required\t  under\t the  provisions  of
\nAdministrative\tInstructions   to  have\t  one\tdepartmental
\ncanteen. In  `A’ type canteen, 19 employees are required per
\nshift. It works from 5 a.m. to 12 midnight. In three shifts,
\nthere at  the relevant\ttime are  24 employees including the
\nconcerned five workmen. In view of a judgment of this Court,
\nnon-statutory canteen employees are entitled to the benefits
\nof the\trecommendations of Third and Fourth Pay Commissions.
\nThe Director  of Canteen accordingly directed the Department
\nconcerned to  pay the  canteen employees  wages as  per\t the
\nrecommendations\t of   the  Pay\t Commission.\tDepartmental
\nCanteen, it  is contended  by  the  management,\t is  not  an
\n`industry’ as  per the\tMemorandum dated January 12, 1982 of
\nthe  Director\t(Welfare),  Indian   Posts  and\t  Telegraphs
\nDepartment.\n<\/p>\n
     Relying  upon  the\t judgment  of  this  Court  in\tSub-
\nDivisional Inspector  of Posts\tVaikkam &  Ors. vs.  Theyyam
\nJoseph<\/a> [(1996)\t2 SCC  293],  the  Tribunal  has  held\tthat
\ndepartmental canteen  is  not  an  `industry’.\tHowever,  on
\nmerits, it  has held that termination of the services of the
\nfive employees\tis bad\tin  law.  Calling  the\tdecision  in
\nquestion, the above special leave petition has been directly
\nfiled under  Article  136,  contending\tthat  the  ratio  in
\nTheyyam Joseph’s case contrary to the judgment of this Court
\nin Bangalore  water-supply &  Sewerage Board,  etc.  vs.  R.
\nRajappa &  Ors. [(1978) 3 SCR 207]. The judgment, therefore,
\nin Joseph’s case is not correct in law. When its correctness
\nwas questioned\tin another  case, notice  was issued. It is,
\ntherefore, contended  that the\tratio  of  the\tConstitution
\nBench judgment\tof seven  Judges in  Bangalore Water  Supply
\nCase applies  to the  facts herein. The judgement in Josph’s
\ncase, was  rendered   without reference\t to the\t former\t and
\nhence the  matter needs\t fresh examination.  The question is
\nwhether the   view  taken is  correct in  law? This Court is
\naware of  the decision\tin Bangalore  Water Supply  case  in
\nwhich this  Court had  held the test to determine whether an
\nestablishment is  an `industry’\t within the  meaning of\t the
\nAct. Therein,  the employees  of the  appellant\t Board\twere
\nfined for  misconduct and  the fine was recovered from them.
\nThey filed  an application under Section 33 C(2) of the Act?
\nThe question was whether the Tribunal has jurisdiction under
\nSection 33-C(2) of the Act? The High Court had held it to be
\nan   industry\t and,\ttherefore,   the   application\t was
\nmaintainable. On  appeal, this\tCourt laid down the tests as
\nunder:\n<\/p>\n
     “The term\t“analogous to  the trade
\n     of business” could not cut down the
\n     scope of  the term\t “industry”. The
\n     said words can reasonably mean only
\n     activity  which  results  in  goods
\n     made and  manufactured  or\t service
\n     rendered which are capable of being
\n     converted into  saleable ones. They
\n     must be  capable  of  entering  the
\n     word of  “res commercium”, although
\n     they may  be kept out of the market
\n     for some  reason.\tIt  is\tnot  the
\n     motive of\tan  activity  in  making
\n     goods or  running a service but the
\n     possibility    of\t  making    them
\n     marketable if  one who  makes goods
\n     or renders service so desires, that
\n     should   determine\t   whether   the
\n     activity lies  within the domain or
\n     circle of\tindustry. But  even this
\n     may not  be always\t a  satisfactory
\n     test. By  this  test  the\ttype  of
\n     services which  are rendered purely
\n     for the  satisfaction of  spiritual
\n     or psychological  urges of\t persons
\n     rendering those  services would  be
\n     excluded.\tWhenever  an  industrial
\n     dispute would  arise between either
\n     employers\tand   their  workmen  or
\n     between  workmen  and  workmen,  it
\n     should be considered an area within
\n     the sphere\t of “industry’\tbut  not
\n     otherwise.\t In   other  words,  the
\n     nature  of\t the  activity\twill  be
\n     determined by  the conditions which
\n     give rise\tto the livelihood of the
\n     occurrence\t of  such  disputes  and
\n     their  actual   occurrence\t in  the
\n     sphere.\n<\/p><\/blockquote>\n
     The  term\t “sovereign  should   be
\n     reserved\ttechnically   and   more
\n     correctly\t for   the   sphere   of
\n     ultimate\tdecisions.   Sovereignty
\n     operates on  a sovereign  place  of
\n     its own.  Only those services which
\n     are governed  by separate rules and
\n     constitutional provisions\tsuch  as
\n     Articles  310   and   311\t should,
\n     strictly speaking\tbe excluded from
\n     the  sphere   of  industry\t  by   a
\n     necessary implication.\n<\/p><\/blockquote>\n
     The    special\texcludes     the
\n     applicability   of\t  the\tgeneral.
\n     Certain  public   utility\tservices
\n     which   are    carried    out    by
\n     governmental      agencies\t      or
\n     Corporations are treated by the Act
\n     itself  as\t within\t the  sphere  of
\n     industry. If  express  rules  under
\n     other   enactments\t   govern    the
\n     relationship between  the State  as
\n     an employer  and  its  servants  as
\n     employees, it  may be  contended on
\n     the  strength  of\tsuch  provisions
\n     that a  particular set of employees
\n     are  outside   the\t scope\t of  the
\n     Industrial Disputes Act.\n<\/p><\/blockquote>\n
     The   State    today   increasingly
\n     undertakes commercial functions and
\n     economic activities and services as
\n     part of  its duties  in  a\t welfare
\n     state.   Hence    to   artificially
\n     exclude state-run industry from the
\n     sphere  of\t  the  Act,  unless  the
\n     statutory provisions  expressly  or
\n     by necessary  implication have that
\n     effect, would not be correct.
\n     Section  2(j)   of\t the  Industrial
\n     Disputes Act  (1947) which\t defines
\n     “industry” contains  words of  wide
\n     import, as\t wide as the Legislature
\n     could have\t possibly made them. The
\n     problem of\t what limitations  could
\n     and should\t be reasonably\tread  in
\n     interpreting the wide words used in
\n     Section  2(j)  is\tfar  too  policy
\n     oriented\tto   be\t  satisfactorily
\n     settled by\t judicial decisions. The
\n     Parliament\t  must\t step\tin   the
\n     legislate in  a manner  which  will
\n     leave no doubt as to its intention.\n<\/p><\/blockquote>\n
     That    alone    can    afford    a
\n     satisfactory   solution\tto   the
\n     question  which  has  agitated  and
\n     perplexed\tthe   judiciary\t at  all
\n     levels.\n<\/p><\/blockquote>\n
     Hospital\t Mazdoor    Sabha    was
\n     correctly decided\tin so  far as it
\n     held that the JJ Group of hospitals
\n     was an industry but the same cannot
\n     be said  in regard\t to the\t view of
\n     the Court\tthat certain  activities
\n     ought  to\tbe  treated  as\t falling
\n     outside the definition clause.
\n     There  is\t no  justification   for
\n     excepting the  categories of public
\n     utility  activities  undertaken  by
\n     the Government  in the  exercise of
\n     its inalienable functions under the
\n     constitution,  call   it  regal  or
\n     sovereign or  by  any  other  name,
\n     from the  definition of “industry”.
\n     If it  be true  hat one  must  have
\n     regard  to\t  the  nature\tof   the
\n     activity and  not to who engages in
\n     it,  it  is  beside  the  point  to
\n     enquire  whether  the  activity  is
\n     undertaken\t by   the   State,   and
\n     further,  if   so,\t whether  it  is
\n     undertaken\t in  fulfilment\t of  the
\n     State’s constitutional  obligations
\n     or\t   in\t  discharge    of    its
\n     constitutional functions.\tIn fact,
\n     to\t concede   the\tbenefit\t  of  an
\n     exception to the State’s activities
\n     which  are\t  in   the   nature   of
\n     sovereign functions  is really   to
\n     have  regard  not\ts  much\t to  the
\n     nature of\tthe activity  as to  the
\n     consideration who\tengages in  that
\n     activity: for,   sovereign function
\n     can only be discharged by the State
\n     and not by a private person. If the
\n     State’s inalienable  functions  are
\n     excepted  from  the  sweep\t of  the
\n     definition\t contained   in\t section
\n     2(j), one\tshall, have  unwittingly
\n     rejected the  fundamental test that
\n     it is  the nature\tof the\tactivity
\n     which ought  to  determine\t whether
\n     the  activity   is\t  an   industry.
\n     Indeed, in\t this respect, it should
\n     make no  difference whether  on the
\n     one hand, an activity is undertaken
\n     by\t a   corporate\t body\tin   the
\n     discharge\t  of\tits    statutory
\n     functions or,  on the other. by the
\n     State itself in the exercise of its
\n     inalienable functions. If the water
\n     supply and sewerage schemes of fire
\n     fighting .\t establishments run by a
\n     Municipality can  be industries, so
\n     ought  to\tbe  the\t manufacture  of
\n     coins  and\t  currency,   arms   and
\n     ammunition and  the winning  of oil
\n     and uranium.  The fact  that  these
\n     latter kinds  of activities are, or
\n     Can  only\tbe,  undertaken\t by  the
\n     State does\t not furnish  any answer
\n     to\t the   question\t whether   these
\n     activities\t are   industries.  When
\n     undertaken by  a private individual
\n     they  are\t industries,  therefore,
\n     when undertaken  by the State, they
\n     are industries.  The nature  of the
\n     activity is  the determining factor
\n     and that  does not change according
\n     to who  undertakes it. Items 8, 11,
\n     12, 17 and 18 of the First Schedule
\n     read with\tSection, 2(n)(vi) of the
\n     Industrial\t Disputes   Act\t  render
\n     support   to   this   view.   These
\n     provisions which  were described in
\n     Hospital  Mazdoor\tSabha  as  ‘very
\n     significant, at  lease  show  that,
\n     conceivably,\ta\t Defence
\n     Establishment, Mint  or a\tSecurity
\n     Press  can\t  be  an  industry  even
\n     though these  activities are, ought
\n     to be and can only be undertaken by
\n     the State\tin the\tdischarge of its
\n     constitutional    obligations    or
\n     functions. The State does not trade
\n     when it  prints a\tcurrency note or
\n     strikes   a    coin.    And    yet,
\n     considering  the\tnature\tof   the
\n     activity,\tit   is\t engaged  in  an
\n     industry when it does so.
\n     A\tsystematic   activity  which  is
\n     organised or  arranged in\ta manner
\n     in which  the trade  or business is
\n     generally\torganised   or\tarranged
\n     would be  an industry  despite  the
\n     fact   that    it\t proceeds   from
\n     charitable motives.  It is\t in  the
\n     nature of the activity that one has
\n     o\tconsider  and  it  is  upon  the
\n     application of  that test\tthat the
\n     State’s inalienable  functions fall
\n     within the\t definition of industry.
\n     The very same principles must yield
\n     the  result   that\t just\tas   the
\n     consideration as  to  who\tconducts
\n     the  activity,  is\t irrelevant  for
\n     determining whether the activity is
\n     an industry so is the fact that the
\n     activity is charitable in nature or
\n     is\t undertaken  with  a  charitable
\n     motive.  The   status  or\tcapacity
\n     corporate or constitutional, of the
\n     employer would  have,  if\tat  all,
\n     closer nexus,  than his  motive  on
\n     the question  whether the\tactivity
\n     is an  industry. The  motive  which
\n     propels the activity is yet another
\n     step removed  and ex hypothesis can
\n     have no relevant on the question as
\n     to\t what\tis  the\t nature\t of  the
\n     activity. It  is never  true to say
\n     that the  nature of  the activities
\n     is\t  charitable.\tThe   subjective
\n     motive force  of an activity can be
\n     charity  but  for\tthe  purpose  of
\n     deciding whether  an activity is an
\n     industry one  has to  look\t at  the
\n     process involved  in the  activity,
\n     objectively. The  jural  foundation
\n     of any attempt to except charitable
\n     enterprises from  the scope  of the
\n     definition can  only be  that  such
\n     enterprises are  not undertaken for
\n     profit. out  then, that clearly, is
\n     to introduce  the profit concept by
\n     a side  wind, a  concept which  has
\n     been rejected consistently over the
\n     years. If any principle can be said
\n     to be  settled law\t in  this  vexed
\n     field  it\t is  this   ;  the  twin
\n     consideration of  profit motive and
\n     capital  investment  it  irrelevant
\n     for      determining   whether   an
\n     activity is  an industry. Therefore
\n     activities which  are dominated  by
\n     charitable motives\t either\t in  the
\n     sense that\t the profit,  which they
\n     yield are\tdiverted  to  charitable
\n     purposes are  not beyond the ; pale
\n     of the  definition of section 2(j).
\n     It is  much  beside  the  point  to
\n     inquire who  is the  employer as it
\n     to inquire,  why  is  the\tactivity
\n     undertaken and  what  the\temployer
\n     does with the profits, if any,
\n     By\t  this\t  test\t a   Solicitor’s
\n     establishment would be an industry.
\n     A Solicitor is undoubtedly does not
\n     carry on  a trade or  business when
\n     he acts  for his  client or advises
\n     him or pleads for him, If\tand when
\n     pleading is permissible  to him. He
\n     pursues  a\t  profession  which   is
\n     variously and justifiably described
\n     as learned,  liberal or  noble. But
\n     it is  difficult to  infer from the
\n     language  of  the\t  definition  in
\n     section 2(j)  that the  Legislature
\n     could not\thave intended\tto bring
\n     in a  liberal profession  like that
\n     of an  Attorney within the ambit of
\n     the definition of ‘industry ‘.
\n     In Hospital Mazdoor Sabha the Court
\n     while evolving  a working principle
\n     stated that an industrial activity.
\n     generally involved, inter alia, the
\n     cooperation of the employer and the
\n     employees, That  the production  of
\n     goods or  the rendering of material
\n     services to  the community\t must be
\n     the direct\t and +\tproximate result
\n     of such  cooperation is  a\t further
\n     extension of  that principle and it
\n     is\t broadly,   by\tthe  application
\n     thereof\tthat\t a    Solicitors
\n     establishment  is\t held\tnot   to
\n     attract  the  definition\t clause.\n<\/p><\/blockquote>\n
     These   refinements    are,    with
\n     respect not  warranted by the words
\n     of the  definition, apart\tfrom the
\n     consideration that in practice they
\n     make   the\t  application\tof   the
\n     definition\t  to\tConcrete   Case;
\n     dependent upon a factual assessment
\n     so highly subjective as to, lead to
\n     confusion and  uncertainty\t in  the
\n     understanding  of\tthe  true  legal
\n     position.\t Granting    that    the
\n     language of  the definition  is  so
\n     wide that\tsome limitation ought to
\n     be read into it, one must stop at a
\n     point beyond  which the  definition
\n     will  skid\t  into\ta   domain   too
\n     rarefied to  be realistic.\t Whether
\n     the   cooperation\t  between    the
\n     employer and  the employee\t is  the
\n     proximate\tcause  of  the\tultimate
\n     product and bears direct with it is
\n     a test  which is  almost impossible
\n     of application  with any  degree of
\n     assurance or certitude. It\t will be
\n     as\t much\ttrue  to  say  that  the
\n     solicitor’s   Assistant,\tManaging
\n     Clerk, Librarian  and the Typist do
\n     not  directly   contribute\t to  the
\n     intellectual and product which is a
\n     creation\t of\this\tpersonal
\n     professional   skill,    as   that,
\n     without their active assistance and
\n     cooperation it  will be  impossible
\n     for him  to  function  effectively.
\n     The unhappy  state\t of  affairs  in
\n     which  the\t law  is  marooned  will
\n     continue  to   baffle  the\t skilled
\n     professional  and\t his   employees
\n     alike as  also the Judge who has to
\n     perform  the   unenviable\ttask  of
\n     sitting  in   judgment   over   the
\n     directness\t  of   the   cooperation
\n     between  the   employer   and   the
\n     employee, until  such time\t as  the
\n     legislature decides to manifest its
\n     intention by  the use  of clear and
\n     indubious language. Beside the fact
\n     that this\tCourt  has  so\theld  in
\n     National\tUnion\t of   Commercial
\n     Employees the legislature will find
\n     a plausible  case for exempting the
\n     learned and  liberal professions of
\n     Lawyers,\t Solicitors,\tDoctors,
\n     Engineers,\t Chartered   Accountants
\n     and the  like from the operation of
\n     industrial\t laws.\tBut  until  that
\n     happens, in  the present  state  of
\n     the law  it difficult  by\tjudicial
\n     interpretation to create exemptions
\n     in favour of any particular class.
\n     The  case\t of  the  clubs\t on  the
\n     present\t definition  is\t  weaker
\n     still.  The   definition\tsquarely
\n     covers  them   and\t there\t is   no
\n     justification for\tamending the law
\n     so as  to\texclude\t them  from  the
\n     operation of  the industrial  laws.
\n     The fact  that the running of clubs
\n     is not a calling of the club or its
\n     managing committee,  that the  club
\n     has no  existence\tapart  from  its
\n     members  that  it\texists\tfor  its
\n     members\t though\t    occasionally
\n     strangers take  the benefit  of its
\n     services and  that even  after  the
\n     admission\tof   guests,  the   club
\n     remains  a\t  members’  self-serving
\n     institution does not touch the core
\n     of the problem.\n<\/p><\/blockquote>\n
     (1) `Industry’  as defined\t in Sec.
\n     2(j)  and\texplained  in  Banerji’s
\n     case has a wide import.\n<\/p><\/blockquote>\n
     1.(a)    Where    (i)    systematic\n     activity,\t (ii)\t organised    by\n<\/pre>\n
     cooperation  between  employer  and
\n     employee\t (the\t  direct     and
\n     substantial element is chimerical);\n<\/p><\/blockquote>\n
     (iii)  for\t the  production  and\/or
\n     distribution of  goods and services
\n     calculated to  satisfy human  wants
\n     and  wishes   (not\t  spiritual   or
\n     religious,\t  but\t inclusive    of
\n     material things  or services geared
\n     to celestial bliss e.g. making on a
\n     large scale  prasad or food), prima
\n     facie there  is  an  `industry’  in
\n     that enterprise.\n<\/p><\/blockquote>\n
     (b) Absence  of  profit  motive  or
\n     gainful objective is irrelevant, be
\n     the venture  in the  public, joint,
\n     private or other sector.\n<\/p><\/blockquote>\n
     (c) The  true focus  is  functional
\n     and the decisive test is the nature
\n     of\t the   activity\t  with\t special
\n     emphasis on  the  employer-employee
\n     relations.\n<\/p><\/blockquote>\n
     (d) If  the organisation is a trade
\n     or business it does not cease to be
\n     one   because    of    philanthropy
\n     animating the  undertaking.
\n     II.  Although   section  2(j)  uses
\n     words of  the widest  amplitude  in
\n     its two limbs, their meaning cannot
\n     be magnified to overreach itself.<\/p><\/blockquote>\n
     (a)  `Undertaking’\t must  suffer  a
\n     contextual\t   and\t   associational
\n     shrinkage as  explained in\t Banerji
\n     and in  this judgment;  so\t also  ,
\n     service, calling and the like. This
\n     yields the\t interference  that  all
\n     organised activity\t possessing  the
\n     triple  elements\tin  I\t(supra),
\n     although not trade or business, may
\n     still be  ‘industry’  provided  the
\n     nature’ of\t the activity,\tviz, the
\n     employer-\temployee   basis   bears
\n     resemblance  to  what  we\tfind  in
\n     trade or  business. This  take into
\n     the     fold      of     ‘industry’
\n     undertakings, calling and services,
\n     adventures’   analogous\tto   the
\n     carrying on  of trade or business’.
\n     All  features,   other   than   the
\n     methodology of  carrying\t on  the
\n     activity  viz.  in\t organizing  the
\n     cooperation between  employer and ;
\n     employee,\tmay  be\t dissimilar.  It
\n     does  not,\t  matter,  if\ton   the
\n     employment terms there is analogy.\n<\/p><\/blockquote>\n
     III.    Application     of\t   these
\n     guidelines should not stop short of
\n     their logical  reach by  invocation
\n     of creeds,\t cults or inner sense of
\n     incongruity  or   outer  sense   of
\n     motivation for  or resultant of the
\n     economic operations.  The\tideology
\n     of the  Act being industrial peace,
\n     regulation\t  and\t resolution   of
\n     industrial\t   disputes.\t between
\n     employer and  workmen, the range of
\n     this statutory ideology must inform
\n     the   reach    of\t the   statutory
\n     definition. Nothing  less,\t nothing
\n     more.<\/p><\/blockquote>\n
     (a)  The\tconsequences   are   (i)
\n     professions,   (ii)   clubs   (iii)
\n     educational    institutions    (iv)
\n     cooperatives,     (v)\tresearch
\n     institutes (vi) charitable projects
\n     and (vii) other kindred adventures,
\n     if they  fulfil  the  triple  tests
\n     listed  in\t  (supra),   cannot   be
\n     exempted from  the scope of section
\n     2(j)\n<\/p><\/blockquote>\n
     (b)  A   restricted   category   of
\n     professions,  clubs,   cooperatives
\n     and  even\t gurukulas   an\t  little
\n     research  labs.   may  qualify  for
\n     exemption if,  in simple  ventures,
\n     substantially  and\t  going\t by  the
\n     dominant\t  nature      criterion,
\n     substantively  no\t employees   are
\n     entertained but in minimal matters,
\n     marginal\temployees    are   hired
\n     without destroying the non employee
\n     character of the unit.\n<\/p><\/blockquote>\n
     (c) If,  in a  pious or  altruistic
\n     mission,  many  employ  themselves,
\n     free or for small honoraria or like
\n     return, mainly  drawn by sharing in
\n     the  purpose   or\tcause,\tsuch  as
\n     lawyers volunteering  to run a free
\n     legal services  clinic  or\t doctors
\n     serving in\t their spare  hours in a
\n     free medical  centre  on  asramites
\n     working  at   the\tbidding\t of  the
\n     holiness, divinity\t or like central
\n     personality, and  the services  are
\n     supplied free  or at  nominal  cost
\n     and those who serve are not engaged
\n     for remuneration or on the basis of
\n     master  and  servant  relationship,
\n     then  the\tinstitution  is\t not  an
\n     industry even  if\tstray  servants,
\n     manual  or\t technical,  are  hired.\n<\/p><\/blockquote>\n
     Such    eleemosynary     or    like
\n     undertakings alone\t are  exempt-not
\n     other    generosity,    compassion,
\n     developmental passion or project.
\n     IV. The dominant nature test:\n<\/p><\/blockquote>\n
     (a) Where\ta complex of activities,
\n     some   of\t  which\t  qualify    for
\n     exemption,\t others\t  not,\tinvolves
\n     employees on the total undertaking,
\n     some of  whom are\tnot `workmen’ as
\n     in the  University of Delhi case or
\n     some departments are not productive
\n     of goods  and services if isolated,
\n     even then,\t the predominant  nature
\n     of the  services and the integrated
\n     nature  of\t  the\tdepartments   as
\n     explained\tin  the\t Corporation  of
\n     Nagpur, will  be the true test. The
\n     whole    undertaking     will    be
\n     ‘industry’ although ; those who are
\n     not ‘workmen’ by definition may not
\n     benefit by the status.\n<\/p><\/blockquote>\n
     (b)  Notwithstanding  the\tprevious
\n     clauses\tsovereign     functions,
\n     strictly\t understood,\t(alone),
\n     qualify  for   exemption,\tnot  the
\n     welfare  activities   of\teconomic
\n     adventures undertaken by Government
\n     or statutory bodies.\n<\/p><\/blockquote>\n
     (c) Even in departments discharging
\n     sovereign functions  if  there  are
\n     units which are industries and they
\n     are substantially\tseverable,  then
\n     they  can\tbe  considered\tto  come
\n     within sec. 2(j).\n<\/p><\/blockquote>\n
     (d)      Constitutionally\t     and
\n     competently   enacted   legislative
\n     provisions may well remove from the
\n     scope of  the Act\tcategories which
\n     otherwise may be covered thereby.”<\/p><\/blockquote>\n
     It\t is   not  necessary  to  refer\t to  the  dissenting
\njudgments Beg,\tC.J in his concurring judgment, at page 221,
\nplacitum E to G, has held thus:\n<\/p>\n
     “I would  also like  to make  a few
\n     observations about\t the  so  called
\n     “sovereign”  functions  which  have
\n     been placed  outside the  field  of
\n     industry. I do not feel happy about
\n     the use  of  the  term  “sovereign”
\n     here.  I\tthink  that   the   term
\n     `sovereign’  should   be  reserved,
\n     technically and more correctly, for
\n     the sphere\t of ultimate  decisions.
\n     Sovereignty operates on a sovereign
\n     plane of  its own as I suggested in
\n     Keshavananda     Bharati’s\t    case
\n     supported\tby   a\tquotation   from
\n     Ernest   Barker’s\t  “Social    and
\n     Political Theory”. Again the term a
\n     “Regal”,  from   which   the   term
\n     “sovereign”   functions appears  to
\n     be derived,  seems\t  to be a misfit
\n     in a  Republic  where  the\t citizen
\n     shares the political sovereignty in
\n     which he  has even\t a legal  share,
\n     however small  in\tas  much  as  he
\n     exercises the  right to  vote. What
\n     is meant  by the  use of  the  term
\n     “sovereign”,  in  relation\t to  the
\n     activities of  the State,\tis  more
\n     accurately brought out by using the
\n     term  “governmental”      functions
\n     although  there   are  difficulties
\n     here  also\t  in  as   much\t as  the
\n     Government has  entered largely now
\n     fields of industry. Therefore, only
\n     those services  which are\tgoverned
\n     by\t    separate\t  rules\t     and
\n     constitutional provisions,\t such as
\n     Article   310   and   311\t should,
\n     strictly speaking, be excluded from
\n     the sphere of industry by necessary
\n     implication.”<\/p><\/blockquote>\n
     In State  of Bombay  & ors,  vs. The  Hospital  Mazdoor
\nsabha &\t ors. [(1960) 2 SCR 866], this Court had given wider
\ninterpretation to  the\tword  “industry”,  with\t a  view  to
\nachieve the  scope and\tobject of the Act, so as to make the
\nremedy\tavailable   to\tthe   workmen.\tSimilarly,   in\t The
\nCorporation of\tthe city of Nagpur vs. Its Employees<\/a> [(1960)
\n2 SCR 942] this Court had pointed out that the definition of
\nthe word  `industry’ is\t very\tcomprehensive. It  is in two
\nparts.\tIt   is\t not  necessary\t that  an  activity  of\t the
\nCorporation must  share the  common  characteristics  of  an
\nindustry  before     it\t  can  come   within  the  statutory
\ndefinition. The words of Section 2(14) of the City of Nagpur
\nCorporation Act\t which is  equivalent to Section 2(j) of the
\nAct, are    clear  and\tunambiguous.  The  wide\t definition,
\nhowever,   cannot include the regal, primary and inalienable
\nfunctions of  the State,  though statutorily  delegated to a
\nCorporation and\t the  ambit  of\t such  functions  cannot  be
\nextended so as to include the welfare activities of a modern
\nState,\tand   must  be\t confined  to\tlegislative   power,
\nadministration of  law and judicial power. “The real test as
\nto whether  a service  undertaken by  a\t Corporation  is  an
\nindustry must  be whether  that service,  if performed by an
\nindividual or  a  private  person,  would  be  an  industry.
\nMonetary consideration cannot be an essential characteristic
\nof an  industry\t in  a\tmodern\tState.\tIt  was,  therefore,
\nincorrect to say that only such activities as were analogous
\nto trade  or business could come within Section 2(14) of the
\nAct”. “When  a service\trendered  by  a\t Corporation  as  an
\nindustry, the  employees of  the departments  connected with
\nthe service, whether financial, administrative or executive,
\nwould be entitled to the benefits of the Act”.\n<\/p>\n
     In 1960’s\tand 1970’s,  there was\tparallel  stream  of
\nthinking being developed by this Court to engulf the service
\nconditions  of\t the  employees\t  of  a\t Corporation  either
\nregistered under  the Companies\t Act or\t under the Societies
\nAct or\tunder a statute, vis-a-vis the Government employees.
\nIn Heavy Engineering Mazdoor Union vs. The State of Bihar  &
\nOrs.<\/a> [(1969) 3 SCR 995], this Court held that the Government
\nCompany is  distinct from  Government. In  Praga  vs.  Tools
\nCorporation<\/a>  vs.  C.V.\tImanual\t [(1969)  3  SCR  773],\t the
\nemployees were held not entitled to availed the remedy under
\nArticle 226 of the Constitution. In Sukhdev Singh & Ors. vs.
\nBhagatram Sardar  Singh Raghuvanshi  & Anr.<\/a>  [(1975)  3\t SCR
\n619], a\t break-through was  effected by a Constitution Bench
\nin considering\twhether the  Oil and Natural Commission, the
\nIndustrial  Financial  Corporation  or\tthe  Life  Insurance
\nCorporation is\tan `authority’ within the meaning of Article
\n12 of  the Constitution and whether the employees working in
\nthe Corporation\t are entitled  to the protection of judicial
\nreview under  Article 14.  It was  answered it favour of the
\nemployees. In  separate but  concurrent judgment, Mathew, J.
\nlaid the  foundation demolishing  the autonomous  status and
\nnon-amenability\t to   judicial\treview\tof  the\t actions  of
\ncorporate sector  and  held  that  when\t a  Corporation\t was
\ncreated by  a statute, its rules or instructions partake the
\nstatutory  character   like   a\t  subordinate\tlegislation.
\nTherefore, they\t are to\t act consistently  with the Rules or
\nRegulations  made   under  the\t Act  or  by  the  statutory
\nauthority.\n<\/p>\n
     The power\tof statutory  authority\t is  controlled\t and
\nrestricted by the statute which created r them and the rules
\nand regulations framed thereunder. Any action of such bodies
\nin excess  of their  power or  in violation  of restrictions
\nplaced on  that power  is ultra\t vires. Thus,  the corporate
\nveil given  in Praga  Tools case  was torn  apart and  their
\nactions were made amenable to judicial review. In Ajay Hasia
\netc. vs.  Khalid Mujib\tSehravardi & Ors. etc. [(1981) 2 SCR
\n79], another  Constitution Bench had held that having regard
\nto the\tMemorandum of  Association  and\t the  Rules  of\t the
\nSociety, the  respondent-College  was  a  State\t within\t the
\nmeaning of  Article 12.\t The composition  of the  Society is
\ndominated by  the representatives  appointed by\t the Central
\nGovernment and the Governments of Jammu and Kashmir, Punjab,
\nRajasthan and Uttar Pradesh with the approval of the Central
\nGovernment.   Accordingly,    it   was\t held\tto   be\t  an
\ninstrumentality\t of  the  State.  In  R.D.  Shetty  vs.\t The
\nInternational Airport  Authority of  India &  Ors.<\/a> [(1979) 1
\nSCR 1042] and U.P. Warehousing Corporation & Anr. vs. Narain
\nVajpayee [(1980)  3 SCC\t 459] this  Court laid\tthe test  to
\ndetermine as  to when  a  Corporation  can  be\tsaid  to  be
\ninstrumentality or  agency of  the Government.\tThe test  of
\ndeep and permissive control was laid down thereunder. It was
\nheld that  the statutory  authorities are  amenable to\twrit
\njurisdiction being  an instrumentality or an authority under
\nthe  State   within  the   meaning  or\tArticle\t 12  of\t the
\nConstitution. It  was further  held that the Corporation may
\nbe an  authority and,  therefore, a State within the meaning
\nof Article  12. Yet,  it may not be elevated to the position
\nof State  for the purpose of Articles 309, 310 and 311 which
\nfind place  in Part  XIV. For the purpose of Part III it has
\nseparate jurisdictional\t entity, though\t it would  not be so
\nfor the\t purpose of  Part XIV  or another  provisions of the
\nConstitution. In  U.P.\tWarehousing  corporation  case,\t the
\nrespondent, on the basis of the complaints after preliminary
\nenquiry,  was  charged\twith  certain  allegations  and\t his
\nexplanation was sought and to indicate his evidence, if any.
\nHe had\texpressed his  intention  to  cross-examine  certain
\nwitnesses as also to examine some others in defence. Without
\ntaking any action on the respondent’s request, the appellant
\npassed an  order dismissing him from service w.e.f. the date
\nof his\tsuspension. In\tthe writ  petition filed  by him the
\nHigh Court  quashed the order and directed his reinstatement
\nwith full  back-wages. This  Court, on these facts, had held
\nthat  “in   cases  where  there\t is  an\t element  of  public
\nemployment and service or support by statute or something in
\nthe nature  of an  office or  a\t status, which is capable of
\nprotection, then  irrespective of  the terminology used, and
\neven though  in some  inter parties aspects the relationship
\nmay be\tcalled that  of master\tand servant,  there  may  be
\nessential procedural  requirement to  be observed on grounds
\nof natural justice”. The Warehousing Corporation was held to
\nbe an  authority and  the dismissal,  without conducting  an
\nenquiry and without an opportunity to lead evidences for the
\nproposed punishment given to the respondent, was bad in law.
\nTherefore, the\tappeal was dismissed and the judgment of the
\nHigh Court  was upheld. Chinappa Reddy, J. in his concurring
\njudgment had  held that\t there is hardly any distinction, on
\nthe  principle,\t  between  a   person  directly\t  under\t the
\nemployment  of\tthe  Government\t and  a\t person\t under\tthe.
\nemployment of an agency or instrumentality of the Government
\nor a  Corporation set up under a statute or incorporated but
\nwholly owned  by the Government. Therefore, there is no good
\nreason, why,  if Government is bound to observe the equality
\nclauses of  the Constitution in the matter of employment and
\nin its\tdealings with the employees, the Corporations should
\nnot be\tequally bound. Some elements of public employment is
\nall that is necessary. to take the employee beyond the reach
\nof the\trule which denies him access to a court to enforce a
\ncontract of  employment and  denies him\t the  protection  of
\nArticles 14  and 16  of the  Constitution.  Rajasthan  State
\nElectricity Jaipur  vs. Mohan  Lal & Ors.<\/a> [(1967) 3 SCR 377]
\nis also\t a case\t of the\t Rajasthan State  Electricity  Board
\nquestioning whether  it is  an authority under Article 12 of
\nthe Constitution.  It was  held by a Constitution Bench that
\nit is  an authority  under Article  12 or instrumentality of
\nthe State.  In D.T.C.  vs. D.T.C.  Mazdoor Congress  &\tOrs.
\n[1991 Supp.(l) 600], the question arose whether D.T.C. is an
\ninstrumentality under  the State  and whether it is entitled
\nto dismiss  the employee  by issuing one month notice or pay
\nin lieu thereof in terms of Regulation 9 of the Regulations.
\nA Constitution\tBench, per  majority had  held that  it is a
\nState within  the meaning of article 12 of the Constitution.
\nIt has\tno power  to dismiss  an employee  with one  month’s
\nnotice or  salary in  lieu thereof,  In Moti  Ram  Deka\t vs.
\nGeneral\t Manager,   NEF\t [(1964)   5   SCC   683],   another
\nConstitution Bench  had held that the service of an employee
\nof the Railway establishment cannot be dispensed with except
\nin  accordance with the procedures established and unless
\nthe essential steps of procedural fairness are adhered
\nto. Central  Inland  Water Transport Corporation Ltd, & Anr.
\nvs. Brojonath  Ganguli & Anr. [(1986) 3 SCR 156], a Bench of
\ntwo Judges  of this  Court reiterated  the same\t view giving
\nextended   interpretation    and   making    available\t the
\nconstitutional remedy under Article 226 of the Constitution.
\nIn Air\tIndia\tStatutory Corporation etc. vs. United Labour
\nUnion  &  Ors.\tetc.[1996  (9)\tSCALE  70],  the  Air  India
\nstatutory  Corporation, on abolition of the contract labour,
\nhad not absorbed employees working on contract labour basis
\nafter contract\tlabour system  was abolished. They filed the
\nwrit petition  in the  High Court.  The High  Court gave the
\ndirections to  absorb them on regular basis. On appeal, this
\nCourt considered  the entire  case law\tand  laid  down\t the
\nfollowing principles in para 26 thus:\n<\/p>\n
     “(1)  The\t constitution\tof   the
\n     Corporation or  instrumentality  or
\n     agency or\tCorporation aggregate or
\n     Corporation sole  is  not\tof  sole
\n     material\trelevance    to\t  decide
\n     whether  it  is  by  or  under  the
\n     control\tof    the    appropriate
\n     Government under the Act.<\/p><\/blockquote>\n
     (2)   If\t it   is   a   statutory
\n     Corporation,     it      is      an
\n     instrumentality or\t agency\t of  the
\n     State. If\tit is  a  company  owned
\n     wholly  or\t partially  by\ta  share
\n     capital.\tfloated\t   from\t  public
\n     exchequer, it gives indicia that it
\n     is\t controlled   by  or  under  the
\n     authority\t of    the   appropriate
\n     Government.\n<\/p><\/blockquote>\n
     (3)   In\t commercial   activities
\n     carried   on   by\t a   Corporation
\n     established by or under the control
\n     of\t  the\tappropriate   Government
\n     having protection under Articles 14
\n     and 19(2), it is an instrumentality
\n     or agency of the State.\n<\/p><\/blockquote>\n
     (4)  The\tState\tis   a\t service
\n     Corporation. It  acts  through  its
\n     instrumentalities,\t  agencies    or
\n     persons – natural or judicial.
\n     (5) The  governing power,\twherever
\n     located, must  be\tsubject\t to  the
\n     fundamental\t  constitutional
\n     limitations  and\tabide\tby   the
\n     principles laid  in  the  Directive
\n     Principles.<\/p><\/blockquote>\n
     (6)  The\tframework   of\t service
\n     regulations     made     in     the
\n     appropriate  rules\t of  regulations
\n     should  be\t  consistent  with   and
\n     subject  to  the  same  public  law
\n     principles and limitations.
\n     (7)  Though   the\tinstrumentality,
\n     agency    or     person\tconducts
\n     commercial activities  according to
\n     business\tprinciples    and    are
\n     separately accountable  under their
\n     appropriate bye-laws  or Memorandum
\n     of Association, they become the arm
\n     of the Government.\n<\/p><\/blockquote>\n
     (8)  The\texistence  of  deep  and
\n     pervasive\tState\tcontrol\t depends
\n     upon the facts and circumstances in
\n     a given situation and circumstances
\n     in a  given situation  and\t in  the
\n     altered situation\tit  is\tnot  the
\n     sole criterion  to\t decide\t whether
\n     the agency\t or  instrumentality  or
\n     persons is, by or under the control
\n     of the appropriate Government.\n<\/p><\/blockquote>\n
     (9)      Functions\t      of      an
\n     instrumentality, agency  or persons
\n     are of public  importance following
\n     public interest element.
\n     (10) The instrumentality, agency or
\n     person  must  have\t an  element  of
\n     authority or  ability to effect the
\n     relations\twith  its  employees  or
\n     public by virtue of power vested in
\n     it\t  by\tlaw,\tmemorandum    of
\n     association or bye-laws or articles
\n     of association.\n<\/p><\/blockquote>\n
     (11) The instrumentality, agency or
\n     person renders an element of public
\n     service  and   is\taccountable   to
\n     health and strength of the workers,
\n     men and  women, adequate  means  of
\n     livelihood,   the\t  security   for
\n     payment of living wages, reasonable
\n     conditions of work, decent standard
\n     of life  and opportunity  to  enjoy
\n     full   leisure   and   social   and
\n     cultural activities to the workmen.<\/p><\/blockquote>\n
     (12) Every\t action\t of  the  public
\n     authority,\t       agency\t      or
\n     instrumentality   or   the\t  person
\n     acting in\tpublic interest\t or  any
\n     act  that\t gives\trise  to  public
\n     element should  be guided by public
\n     interest  in   exercise  of  public
\n     power or  action hedged with public
\n     element and  is open  to challenge.<\/p><\/blockquote>\n
     It\t  must\t  meet\t the   test   of
\n     reasonableness,\tfairness     and
\n     justness.\n<\/p><\/blockquote>\n
     (13) If  the exercise  of the power
\n     is arbitrary,  unjust  and\t unfair,
\n     the\tpublic\t      authority,
\n     instrumentality,  agency\tor   the
\n     person acting  in public  interest,
\n     though in the field of private law,
\n     is\t not   free  to\t  prescribe  any
\n     unconstitutional\tconditions    or
\n     limitations in their actions.<\/p><\/blockquote>\n
     It was directed that since the workman were employed by
\nthe contractor,\t on abolition of the contract labour system,
\nthe appellant-Corporation  being an  instrumentality even in
\nthe private  field of  contract, was  bound by the essential
\nprinciples  justice, equity and fair procedure and equality.
\nIn Bangalore  Water Supply Board case, the Board was held to
\nbe an  `industry and the action was amenable to adjudication
\nunder the Contract Labour (Regulation & Abolition) Act.\n<\/p>\n
     It is, therefore clear that there have been two streams
\nof thinking  simultaneously in the process of development to
\ngive protection\t to the\t employees of  the Corporation.\t Its
\nactions are  controlled as  an instrumentality\tof the State
\nand the\t rules are  made amenable  to judicial review. Where
\nthere exists  no statutory  or analogous rules\/instructions,
\nthe provisions\tof the\tAct get attracted. The employees are
\nentitle to  avail constitutional remedy under Article 226 or
\n32 or 136, as the case may be. The remedy of judicial review
\nto every citizen or every person has expressly been provided
\nin the\tConstitution. It  is a\tfundamental right  of  every
\ncitizen.  In   the   absence   of   statutory\/administrative
\ninstruction in\toperation, the\tremedy\tof  reference  under
\nSection 10  of the Act is available. Therefore, two streams,
\nnamely, remedy\tunder the Act by way of reference and remedy
\nof judicial  redressal by  way of  proceedings under Article
\n226 or\ta petition  filed before the Administrative Tribunal
\nto the\taggrieved persons  are co-existing.  If the doctrine
\nlaid in\t Bangalore  Water  Supply  Board  case\tis  strictly
\napplied, the  consequence is  catastrophic and\twould give a
\ncarte blanche  power with  laissez fair legitimacy which was
\nburried fathom\tdeep under  the lethal blow of Article 14 of
\nthe Constitution  which assures\t to every  person just, fair
\nand reasonable\tprocedure before  terminating the service of
\nan employee.  Instead, it  gives the management\/employer the
\npower to  dismiss  the\temployee\/workman  with\tone  month’s
\nnotice\tor   pay  in   lieu  thereof,\tand\/or\tpayment\t  of
\nretrenchment compensation  under the  Act. The\tsecurity  of
\ntenure would  be in great jeopardy. The employee would be at
\nthe beck  and call  of the employer always keeping his order
\nof employment  in a  grave uncertainty\tand in a fluid state
\nlike demorcus’s sword hangs over the neck. On the other hand
\nif the\tinterpretation of providing efficacious remedy under
\nArticle 226  gives protection  to the  workmen\/employee\t the
\nspeedy\tremedy\t under\tArticle\t  226\/Section  19   of\t the
\nAdministrative\tTribunal   Act.\t They\twould  protect\t the
\nemployee\/workman  from\tarbitrary  action  of  the  employer
\nsubserving the constitutional scheme and philosophy.
\nThe Court  would, therefore,  strike a\tbalance between\t the
\ncompeting rights  of the  individual and the state\/agency or
\ninstrumentality and  decide the\t validity of action taken by
\nthe Management. Necessarily, if the service conditions stand
\nattracted, all\tthe conditions\tlaid  therein  would  become
\napplicable to  the employees  with a  fixity of\t tenure\t and
\nguarantee of  service, subject\tto disciplinary\t action. His
\nremoval should\tbe in  accordance with\tthe  just  and\tfair
\nprocedure envisaged  under the\tRules or  application of the
\nprinciples of  natural justice, as the case may be, in which
\nevent the  security of the tenure of the employee is assured
\nand the\t whim and  fancy and vagory of the employer would be
\ndetered and if unfair and unjust action is found established
\nit would  be declared  as an  arbitrary,  unjust  or  unfair
\nprocedure. On  the other  hand, if the finding is that there
\nexist no  statutory rules or certified standing orders exist
\nor they\t are not either made or are inapplicable, the remedy
\nof reference  under section  10 of  the Act  would always be
\navailable and  availed of  as it  is an industry and indicia
\nlaid in Bangalore Water Supply Board case gets attracted.\n<\/p>\n
     From this\tperspective, this  Court had  approached the
\nproblem in  T. Joseph’s\t case. T  Joseph’s case\t was a\tcase
\nrelating to  the departmental  employee whose  services\t was
\ndispensed with.\t Considering the  rules in operation in that
\nbehalf, it  was held that the telephone department is not an
\nindustry. The appointment orders were given under the rules.
\nIn that\t behalf, it  was held  that India  is  a  Sovereign,
\nSocialist, Secular  Democratic Republic. It has to establish
\nan egalitarian\tsocial order  under the\t rule  of  law.\t The
\nwelfare\t measures   partake  the   character  of   sovereign
\nfunctions and the traditional duty to maintain law and order
\nis no  longer the concept of the State, Directive Principles
\nof the\tState Policy  enjoin the  State to undertake diverse
\nduties envisaged  under Part  IV of the Constitution. One of
\nthe duties  of the  State is  to provide  tale-communication
\nservices to  the general  public an  amenity; so,  it is  an
\nessential part\tof the sovereign functions of the State as a
\nwelfare States\tIn Physical  Research  Laboratory  vs.\tK.G.
\nSharma<\/a> [CA  No. 2663\/97]  decided  on  April  8,  1997,\t the
\nquestion was whether the appellant who conducted research in
\na scientific  laboratory was a ‘workman’ and the institution
\nan  `industry’,\t  Since\t the   service\tconditions  regulate
\nconditions  of\t employment,  the  Tribunal  was  devoid  of
\njurisdiction to\t entertain the application under the Act for
\ndeciding the  dispute. following the judgment in T. Joseph’s
\ncase and  distinguishing a judgment of three Judge bench, it
\nwas held  that research\t institute was\ta State\t within\t the
\nmeaning of  Article 12. It is not an industry attracting the
\nprovisions of the Act. So, in Chief Conservator of Forests &
\nAnr. vs. Jagannath Maruti Kandhara<\/a> [(1996) 2 SCC 293],\tthis
\nCourt referred\twith approval  the  Bangalore  Water  Supply
\nBoard case.  In K.G.  Sharma’s case, the industrial Tribunal
\nhad observed  that the\tPhysical Research  Laboratory is  an
\nindustry but  this Court  reversed lt. The Telecommunication
\nDepartment is  not an  industry and  the Rules governing the
\nconditions of  service of  the employees stand attracted and
\nthere by the remedy under Article 226 would be available. To
\nthat area, the Act does not stand attracted. The respondents
\nadmit that  the dismissed  workmen who\twere  holding  civil
\npost, by  necessary implication,  were excluded\t as  workmen
\nunder Section  2(s).  Even  though  the\t activities  of\t the
\nCorporation partake  the character  of a private enterprise,
\nsince the  workmen engage  themselves in rendering services,
\nIt is  not an  industry. If  there exists no statutory rules
\nbinding standing  orders, necessarily,\tthe reference  under
\nSection\t 10(1)\t would\tbe   valid  and\t  the  Tribunal\t has
\njurisdiction to\t go  into  or  the  employee  may  avail  of
\njudicial review or common law review.\n<\/p>\n
     On an  overall view, we hold that the employees working
\nin the\tstatutory canteen,  in view of the admission made in
\nthe counter-affidavit  that they are holding civil posts and
\nare  being  paid  monthly  salary  and\tare  employees,\t the
\nnecessary conclusion  would be\tthat  the  Tribunal  has  no
\njurisdiction to\t adjudicate the dispute on a reference under
\nSection 10(1)  of the  Act. On the other hand, the remedy to
\napproach the  constitutional  court  under  Article  226  is
\navailable. Equally,  the remedy\t under\tSection\t 19  of\t the
\nAdministrative Tribunal\t Act is\t available. But,  generally,
\nthe practice  which has\t grown is  to direct  the citizen to
\navail, in  the first  instance, the remedy under Article 226
\nor under  Section 19  of the Administrative Tribunal Act and
\nthen avail  the right  under Article 136 of the Constitution
\nby special  leave to  this court  etc. Thus,  in view of the
\nadmission made by the respondents in their counter-affidavit
\nthat the  workmen of  the appellant-Association\t are holding
\ncivil posts  and are  being paid  monthly wages and benefits
\nand are\t considered to be employees, the jurisdiction of the
\nIndustrial Tribunal  stands excluded.  It  is  open  to\t the
\naggrieved  party   to  approach\t  appropriate  authority  in
\naccordance with\t law. In  that\tview,  the  finding  of\t the
\nTribunal in  the impugned  judgment is legal and warrants no
\ninterference. It is open to the respondents to avail of such
\nremedy as  is available\t to a regular employee including the
\nright to approach the Central Administrative Tribunal or the
\nHigh Court  or this  Court thereafter for redressal of legal
\ninjury.\n<\/p>\n
     The Special Leave Petition is accordingly dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997 Author: K Ramaswamyy. Bench: K. Ramaswamy, D. P. Wadhwa PETITIONER: BOMBAY TELEPHONE CANTEEN EMPLOYEES’ ASSOCIATION, PRABHADEVI Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT: 09\/07\/1997 BENCH: K. RAMASWAMY, D. P. WADHWA ACT: HEADNOTE: JUDGMENT: J […]<\/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-65224","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - 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\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"1997-07-08T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-01-14T04:59:11+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"36 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997\",\"datePublished\":\"1997-07-08T18:30:00+00:00\",\"dateModified\":\"2018-01-14T04:59:11+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\"},\"wordCount\":7103,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\",\"name\":\"Bombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"1997-07-08T18:30:00+00:00\",\"dateModified\":\"2018-01-14T04:59:11+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Bombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","og_locale":"en_US","og_type":"article","og_title":"Bombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"1997-07-08T18:30:00+00:00","article_modified_time":"2018-01-14T04:59:11+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"36 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997","datePublished":"1997-07-08T18:30:00+00:00","dateModified":"2018-01-14T04:59:11+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997"},"wordCount":7103,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","url":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997","name":"Bombay Telephone Canteen ... vs Union Of India & Anr on 9 July, 1997 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"1997-07-08T18:30:00+00:00","dateModified":"2018-01-14T04:59:11+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/bombay-telephone-canteen-vs-union-of-india-anr-on-9-july-1997#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Bombay Telephone Canteen … vs Union Of India & Anr on 9 July, 1997"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/65224","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=65224"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/65224\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=65224"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=65224"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=65224"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}