# Hoshiar Singh v. Gurbachan Singh Raghr,bar Daya/_ J

- **Citation:** [1962] Supp. 3 S.C.R. 157
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hoshiar-singh-v-gurbachan-singh-raghr-bar-daya-j-2366
- **Pages:** 14

## Headnote

.Industrial Dispute-Solicitor's profession-Work of solicitor, if an industry-Dispute with employee-Reference to Tribunal-Oompetence-IndustrialDisputes Act, 1947 (14 of 1947),
•. 2 (j).
The respondents were a firm carrying on the work of
solicitors in Bombay.
For the years 1956 and 1957 a claim
for bonus was made against them by their employees.
Before
the Industrial Tribunal to .which the dispute was referred by
the State Government for adjudication under the provisions
of the Industrial Disputes Act, 1947, the respondents contended that the profession followed by them was not an industry
within the meaning of s. 2(j) of the Act, that the dispute
raised against them was not an industrial dispute· under the
Act, and that, therefore, the reference made by the Government was incompetent.
Held, that the work of solicitors is not an industry within
the meaning of s. 2(j) of the Industrial Disputes Act, T947
and that, therefore, any dispute raised by the employees of
1962
Hoshiar Singh
v.
Gurbachan Singh
Raghr,bar Daya/_ J,
1962
:l'ebruary 13.
1962
.ht v~e;onal Union
of Commncial
Employr1•
v.
.111.R. Mtiotr,
lntfusttial Tribunal
Bombay
158 ·suPRE:\[E COURT REPORTS (1962] SUPP.
t·llc solicitors against the1n cannot be n1adc the subject of
r.·ferfn•e to the Industrial Tribunal.
'I'he cliting-ui~hing fl':ature of an
in<lustr~·
is that for
the
produrtion of goods
or
for
the
rr.ndcring
of
sc:r\·icr,
ro·operation
bel\\'Ct-ll
capital
and labciur
or
between the ctnploycr and his t>mplo)CC rnu~t lie <lirrct.
A
prrson f.Jl!o~vi11~·:· a liberal profcs-;!on doe; not carry on his
profe~sion in any intclli!jihle sense \\'ith thr- aci ivr co-operation
of his emplc1y!·rs, and the princip;d, if not 1hc sole, capital
\\·hirh he hriI!~s into his pr0fcs~i1.n is his
~rrrial or peculiar
intr.ll<Ttttal ar,d educational
rquip111cnt.
(;ons~qucntly, a
liberal proft·s:-:on like that of a ~o!icitor is outs!clc th1: definition
of "indusrr~" unUcr s. 2(j) of the i\ct.
State ~f Bombay v. Tl.e liospit;1! Jfaz,J,1or Sab/1a, ( l 960)
2 S.C.R. 8~)G, rxplaincd and clistinguhhcd.
Brij Jfol.an Bagarirt v .• '\'/./. G'hrttterju:., 1\.l.H .. l9j8 Cal.
4GO and/). l'. /)un<lfrrltfP \'. G. J>. tlfu/,·lt~.rjt>.r., t\ l.R. l95a c:al.
465, approvrd.
•
Ohscrvations in 'f'r,U:ratr:d Jfuniriprzl nnrl ,'-,'/,irr. Council
En1p!oyees' (} 1tion (If .·l U.'i{ralia v . .\1 e /!Jou r11e Cor_JYJrat ion, { 19 J 0 J
2n C.L.R. 'il!I<, relied on.
Crn1. ArrELL.ll'E Ji:msnrCT!ON: Civil Appeal
~o. 24 of 1!)61.
Ap1,.·al fn>n1 the judgrn011t and ord"r dat~·l
:'{ovcmber 20, ltl:JS, of the 1.l:irnlny I fo:h Court in
C•
• I c. . , \
1 · t.
N
')~ '') f I'}~ .
• 1pec1a.
l\'I
.- pp 1r,a 1011 .. 0. -'~· o
,,)'.
A. S II. Cluiri and /(. R. Clwwlknri, for the
appellant,,.
S. '/'. !Jcwi, and V.J. Jlerclumt, for responcJ.,nts
-.
Nos. 2 and ·1
and the lntcn<mcr (l'hl' Bombay
Incorporat,.d Law Socidy).
J 9fi:.'. February I :i,
Th" .J 11rlgm1in t of tho
Court was r.leli,·ered by
GA.JE~JJIUGAllKAlt, ,J.-Thi8 app~al arises out
of a di:;put" between the app1dliinh, the l\ationul
Union of Ctm11nrrcial Employc<'s & Anr., and tho
rcsponcle1.ts P<'reira, Fazalbhoy tmd lle,ai who
constitult• an At t.orncys' firm by name Jl/o. l'erPirn
Fazalbhoy & Co. It 1ippear~ that iu August, 1\)57
3 S.C.R.
SUPREME COURT REPORTS
159
the appellant wrote to the respondl"nt firm setting
forth certain demands on behalf of its employees.
These demands related to bonus for the years 195556 a!ld 1956-57 and to certain other mattel'f~ As
the parties could not agree, the dispute was taken
before tho Conciliation Officer.
Th'J Conciliation
Officer also failed to bring about a settlement and
so he su bmittod his failure report to the Gov, rnment of Bombay. Thereafter, the :State Government
referred the dispute in regard to the bonus for the
two years 1956 and 1937 for adjudication before
an Industrial Tribunal under section 12(5) of the
Industrial Di:;putcs Act (No. 14 of 1!1±7) (hereinafter called the Actl.
Before the Tribunal, the
respondents

## Text

'
\
}
I
3 S.C.R.
SUPREME COURT REPORTS .
157
the 19th could have and should have obtained
similar orders of the High Court for serving them.
If that precaution had been taken again on
May 19, 1958, probably what happened snbsequently
ou the spot and th'3r'3after, would not have taken
place.
I am therefore of opinion that the appellants
committed no contempt of Court, and would allow
their appeal.
BY COURT : In accordance with the opinion
of the majority, the appeal fails and is dismissed.
Appe,al dismissed.
THE NATIONAL UNION OF COMMERCIAL
EMPLOYEES AND ANOTHER
v.
M. R. MERER, INDUSTRIAL TRIBUNAL,
BOMBAY AND OTHERS
(P. B. GAJENDRAGADKAR, A. K. SARKAR and
K. N. WANCHOO, JJ.)
.Industrial Dispute-Solicitor's profession-Work of solicitor, if an industry-Dispute with employee-Reference to Tribunal-Oompetence-IndustrialDisputes Act, 1947 (14 of 1947),
•. 2 (j).
The respondents were a firm carrying on the work of
solicitors in Bombay.
For the years 1956 and 1957 a claim
for bonus was made against them by their employees.
Before
the Industrial Tribunal to .which the dispute was referred by
the State Government for adjudication under the provisions
of the Industrial Disputes Act, 1947, the respondents contended that the profession followed by them was not an industry
within the meaning of s. 2(j) of the Act, that the dispute
raised against them was not an industrial dispute· under the
Act, and that, therefore, the reference made by the Government was incompetent.
Held, that the work of solicitors is not an industry within
the meaning of s. 2(j) of the Industrial Disputes Act, T947
and that, therefore, any dispute raised by the employees of
1962
Hoshiar Singh
v.
Gurbachan Singh
Raghr,bar Daya/_ J,
1962
:l'ebruary 13.
1962
.ht v~e;onal Union
of Commncial
Employr1•
v.
.111.R. Mtiotr,
lntfusttial Tribunal
Bombay
158 ·suPRE:\[E COURT REPORTS (1962] SUPP.
t·llc solicitors against the1n cannot be n1adc the subject of
r.·ferfn•e to the Industrial Tribunal.
'I'he cliting-ui~hing fl':ature of an
in<lustr~·
is that for
the
produrtion of goods
or
for
the
rr.ndcring
of
sc:r\·icr,
ro·operation
bel\\'Ct-ll
capital
and labciur
or
between the ctnploycr and his t>mplo)CC rnu~t lie <lirrct.
A
prrson f.Jl!o~vi11~·:· a liberal profcs-;!on doe; not carry on his
profe~sion in any intclli!jihle sense \\'ith thr- aci ivr co-operation
of his emplc1y!·rs, and the princip;d, if not 1hc sole, capital
\\·hirh he hriI!~s into his pr0fcs~i1.n is his
~rrrial or peculiar
intr.ll<Ttttal ar,d educational
rquip111cnt.
(;ons~qucntly, a
liberal proft·s:-:on like that of a ~o!icitor is outs!clc th1: definition
of "indusrr~" unUcr s. 2(j) of the i\ct.
State ~f Bombay v. Tl.e liospit;1! Jfaz,J,1or Sab/1a, ( l 960)
2 S.C.R. 8~)G, rxplaincd and clistinguhhcd.
Brij Jfol.an Bagarirt v .• '\'/./. G'hrttterju:., 1\.l.H .. l9j8 Cal.
4GO and/). l'. /)un<lfrrltfP \'. G. J>. tlfu/,·lt~.rjt>.r., t\ l.R. l95a c:al.
465, approvrd.
•
Ohscrvations in 'f'r,U:ratr:d Jfuniriprzl nnrl ,'-,'/,irr. Council
En1p!oyees' (} 1tion (If .·l U.'i{ralia v . .\1 e /!Jou r11e Cor_JYJrat ion, { 19 J 0 J
2n C.L.R. 'il!I<, relied on.
Crn1. ArrELL.ll'E Ji:msnrCT!ON: Civil Appeal
~o. 24 of 1!)61.
Ap1,.·al fn>n1 the judgrn011t and ord"r dat~·l
:'{ovcmber 20, ltl:JS, of the 1.l:irnlny I fo:h Court in
C•
• I c. . , \
1 · t.
N
')~ '') f I'}~ .
• 1pec1a.
l\'I
.- pp 1r,a 1011 .. 0. -'~· o
,,)'.
A. S II. Cluiri and /(. R. Clwwlknri, for the
appellant,,.
S. '/'. !Jcwi, and V.J. Jlerclumt, for responcJ.,nts
-.
Nos. 2 and ·1
and the lntcn<mcr (l'hl' Bombay
Incorporat,.d Law Socidy).
J 9fi:.'. February I :i,
Th" .J 11rlgm1in t of tho
Court was r.leli,·ered by
GA.JE~JJIUGAllKAlt, ,J.-Thi8 app~al arises out
of a di:;put" between the app1dliinh, the l\ationul
Union of Ctm11nrrcial Employc<'s & Anr., and tho
rcsponcle1.ts P<'reira, Fazalbhoy tmd lle,ai who
constitult• an At t.orncys' firm by name Jl/o. l'erPirn
Fazalbhoy & Co. It 1ippear~ that iu August, 1\)57
3 S.C.R.
SUPREME COURT REPORTS
159
the appellant wrote to the respondl"nt firm setting
forth certain demands on behalf of its employees.
These demands related to bonus for the years 195556 a!ld 1956-57 and to certain other mattel'f~ As
the parties could not agree, the dispute was taken
before tho Conciliation Officer.
Th'J Conciliation
Officer also failed to bring about a settlement and
so he su bmittod his failure report to the Gov, rnment of Bombay. Thereafter, the :State Government
referred the dispute in regard to the bonus for the
two years 1956 and 1937 for adjudication before
an Industrial Tribunal under section 12(5) of the
Industrial Di:;putcs Act (No. 14 of 1!1±7) (hereinafter called the Actl.
Before the Tribunal, the
respondents raised a preliminary objection. They
urged tlrnt thJ profession followed by them was
not an indu,;try within the meaning of the Act,
and so .tho dispute raised against them by the
appellants was not an industrial dispute within the
meaning of the Act; the contention was that the
dispute not being an industrial di;pute under tho
Act, the reference made by the Government was
incompetent and so, the Tribunal had no jurisdiction to adjudicate upon this dispute.
The Tribunal
upheld the preliminary objection and recorded its
conclusion thn,t it httd no jurisdiction to n.djudicate
upon the dispute :is it was not an industrial dispute.
The order thus passed by the Tribunal was
challenged liy th0 n,ppellants before the High Court
at Bombay by specin.I Civil Application No. 2789
of 1958 filed under Articles 226 and 227 of the
Constitution.
Tho High Court considered the rival
contentions misecl before it by the appelln.nts and
the respondents and came to the conclusion that
the respondents' firm did not constitute an industry
and so tho dispute between the said firm and its
employees was not
an industrial dispute which
could validly form the subject-matter of a reference
under the Act. In that vkw of the matter, . the
High Court held thn,t tqe Industrial Tribunal Wl\S
The .Natiollfll Union
of Comme,cial
ErnpJoyets
Vo
M.R. M,lier,
fnd9strial T,ibunal,
Bombay
Gajenoragadkar J.
160 SUPREME COURT REPORTS (1962] SUPP.
1962
Tht ,Vatio11af Union
of CommtrciJl
Emp/o.,•tta
·
right in refusing to mako an order on the reference
and so the appellants' writ petition wa.s dismiBBed.
The appellants then applied for and obtained a
certificate from the High Court and it is with the
said certificate that the present appeal has come
to this c,mrt; and the short question which it
v.
.M.R . .\lt1'er,
Tndustrial- Tribunal,
Bombny
raises for our decision is whether the respondents'
firm · which carries on th<' work of Solicitors in
Born 'iay can be @aid to constitute an industry
under s. 2(j) of the Act..
G•fendra1odkar J.
In dealing with this question, it would be
necessarv to refer to the decision of this Court in
the Staie of Bombay
v. The Hospital Mazdoor
Srtbl11l ( 1 ).
Both
parties
a.greed
that
the
present dispute would have to be determined in the
light of the decision of this Court in that case. Let
us, therefore, indicate the effect of tho said deci~ion.
In the Ho,pital Ca8e (1), this Court had occasion to
consider whether the services of workmen cng1tged
as ward A<•rvants in the .J.J. Group of Hospitals,
Bombay, under State control were wol'kmcn a.nd
whether the Hospital Group itself constituted an
industry under the Act or not.
Both the questions
were answ<·rcd in the aflirmati\·e and in rendering
thoRe answern, the scope •Incl effect of the definition of the word 'industry' used in s. !!(j) of the
Act wa.s conHidered. This Court held that the words
used hv s. '.? (j) in rh-fining 'industry' in a.n inclu-
. sive manner WNO Of wide import and had to be
!<'ad in their wide dt·not.ation.
Ev<'n so, this Court
state<! "that though s. 2(j) useH W(irus of very wide
rlcnotation, n, line would havl' to be drawn in a
fair and just manner so as to exclude some callings,
servic<'s or undertakings from its purview. If all
the words used are given t.beir widest meaning all
son· ice~ and 'lll callings wou Id come within the
purviow of the rlefiniti<Jn; even s"rvice renden:cl by
a servant purely in a personal or domeet.ic matter
S.C.R.
SUPREME COURT HEPORTS
161
or even in a casual way would fall within the
definition. It is not and cannot be suggested that
in its wide sweep the word 'service' is intended
to include service h Jwsoever rendered in whatsower
capacity
and for whatsoever reason." (p. 876).
Th<tt is why this Com·t proceeded to consider where
the line should be drawn and what limitations can
and should be reasonably implied in interpreting
the wide words nsed in s. 2(j).
In
dealing with
the somewhat
difficult
question of drawing a line, this Court observed:
"as a working principle, it may be stated that an
activity systematically or habitu11lly undertaken
for the production or distribution of goods or for
the rendering of material services to the community
at. large or a part of such community with the help
of employees is an undertaking, Such an activity
generally involves the co-operation of the Pmployer
and the employees; and its object is the satisfaction
of material human needs. It must be organised
or arranged in a manner in which trade or business
is generally organised or arranged. It must not be
casual nor must it be for oneself nor for pleasure.
Thus, the manner in which the activity fo question
is organisel or arranged, the condition of the
co-operation between employer aml the employee
necessary for its success and its object to render
material service to the community can be regarded
as some of the features which are dis tine ti ve of
activities to which s. 2 (j) applies." (p. 879).
It was in the light of this working princi pie
that this Court came to the conclusion that the State
was carrving on an undertaking in running the
Group of Hospitals in question. In dealing with the
question of hospitals, this Court also r0ferred to a
material circumstance which supported the conclusion that running of hopitals is an inrlnetry under
the Act. Secthn 2 (n} of the Act' defin<'s "public
utility service" and under it fiv11 separate catogories
196t
The }lation1l Union
of Commercial
Employees
v.
M.R. Meher,
Industrial Tribun•l,
·
Bomb av
Gajendragadkar J.
TM NaliJnal Unio'I
a/ Comme1cial
Employ!t•
M.11. Meiiu,
I nd11 rfrial T1ibu11.,J,
Bombay
01Jjtn:l1a.~1JJkar J,
162 SUPREME COVRT REPORTS [1962) SUPP.
of public utility servic<> are rnum<'ratecl. Clause (vi)
of s. 2 (n) provides that .an,v industry spccifit•cl in
the ~chcdule us thnrein indic:;tccl woulrl alsri be a
puhlic utility service. In 1956, Entry :N"o. !) among>t
others, was a<lclccl in the First 8..Jwclnlc Apecifying
another public utility SPrvicc. This Entry refer~ to
service in hospitals and disp.0nsaries.
Thl'rnfore,
it was clear that since
the validity of this
entry was not clisputecl, aftor sPr'l'ice in hospitals
and disfl<'nsarics w~s included in the First ~chedule.
it was inarguable that the hoHpital would not be
an industry under the Act; unless a ho"pital was
an industry under the Act, service in the hospitals
could not. bl' regarded as p11 hlic utility sen· ice.
That is how this Court h"1d thnt in rnnning the
J .• T. Hospital Group in Bomhny, the Statl' Gov1·rnment wa.s c:nrying on an undertaking whic:h was an
indust1y undPr H. 2(j).
Th" qnc~t inn which calls
for our decisi011 in the prest'nt appe:d is : wbnt
would be the result uf the application of th•• working
. test Jait.l down hy this Court. in the llospita.l cos~ (1 )
in relation to the controvPrsy bct.we!'n thP part i('s in
the pn·sent appeal ?
i\Ir .. Chari for t.he appellants contends that in
dl'aling with t~l' question as to wlu·thrr the respond1·nts carried on an i11d11Rtry m1drr s. !2(j), it is
necessary to distinguish
between
profession'.tl
aervir·e n·nderrd by an indiYidirnl acting by hims..Jf
and similar sen·ice i·rnclererl by a firm consisting of
several partners, because h" >u~irrsts that proft'H·
sional · servire inrlivicluallv rci1derecl st>Lnds on a
cliffon·nt footi11g from profes,iona I sen· ice which is
rendered in
an organioetl an<l instit11ti.,nali;;1,d
manner. Th" organisation of profossiunal H<'l'\'ir·p
which kads to it.s institutionali"ation att.raets the
provisions of s. 2(j) inasmuch as in such organised
sr·rvic:e thf're is bound to he co-orwration b"twef•n
the l'lllploycrs and the cmployr·f·S c11gagecl by the
firm
for
doing diffcrP11t
cat<'guries 1.1f
work,
Accor<ling to l\Ir. Chari,
the employml'nt of
(l I [1960] 2 S.C.R. 866.
.. -
3 S.C.R.
SUPREME COURT REPORTS
163
different
categorit:s
of
staff
facilitates the
work of the solicitors and it enables them to
dispose of more work more quickly and more efficiently and he suggests that the presence of . such
co-operation between the employees and their
employers in the organisation of the solicitors' firm
satisfies the working test laid down by this Court
in the Hospital case(1 ).
In our opinion, the distinction sought to be
drawn bv Mr. Chari between professional service
rendered by an individual actini:r bv himself and
that rendered bv a firm is not logical for the purpose of the application of the test in question.
What is true about a firm of solicitors would be
equally true about an individual solicitor working
bv himself. As the firm engages different categories
of employees. a single solicitor also eng•.ges different
categories of emnloyees to carry out different tvpes
of work and so the presence of co-oper•tion .between
the employees working in a solicitor's office and
their emplover, the solicitor, could be attributR-d to
-the work of a single solicitor as much as to the
work of the firm; _and, therefore, if Mr. Chari is
right and if the firm of solicitors is held t.o be an
industry under the Act, the office of au individual
solicitor cannot escape the appliration of the definition of s. 2(j), That is why we think it would not
be reasonable to deal with the matter on the narrow
grounrl suggester! by Mr. Chari by confining our
attention to the organisational or . imtitutionalise<l
aspect of a solicitor's firm.
When in the Hospital case (1) this Court referred to the organisation of the undert1tking involving
the co-operntion of ca pit1tl and Jabour or the
employer and his employees. it obviously meant
the co-operation essential and necessary for the
purpose of rendering nrnterial Rervice or for the
purpose of produ,ition. It would be realised th1tt
the concept of industry postula~es pMtnership
(!) [1960) 2 S.C.R. R66 •
Tk National Union
. oj lommercial
Emp/o)'ees
v.
M.R.Meher,
lndustrifll Tribunal,
Bombay
Gajendragadkar J.
•
19G2
711t Jlah'onnl L'nfott
of Commr~rial .
/;"mp/o)'ttS
v.
J.f.ll. !ifth1r,
/nt'ttslrlal 11ilun:d,
Bwnbo;·
•
164 SUPREl\IE COURT REPORTS [19t>2] SCPP.
bctwcPn capital anrl labour or hetwecn the employer
ancl his employee~.
It is unde1· this partncr:;hip
thn.fthc employer contributes hiA capit:l nnrl the
emplo;veP8 their labour a11rl the jnint •.l••ntrihution
of capital anrl Jabour leads dirlldly to tho produe·
tion which the industry h<IA in view.
fn other
word~. th" co.operatinn ·betw<'An c.ipitill an•! hhour
or h< tween the emplo~•cr ancl hi< employc<'s w}iich is
treated :is a working t•,st in determinin'..( whcth•lr
any activity amounts to an industry,
0
iS tho C<l·
operation which is directly involved in th" prorluc.
tion of goods or in the rendering of sen-ice.
It.
cannot be suggested that every form or ll.Bfl•!Ct of
human activity in which capital and lahnur cooperate or l\mploycr and <'mplnyees
assi~t !'a1.·h
other i~ an ind•istry.
The <listi11ir11iHhing feature of
an industry iH that for the prnduction of goods or
for the renrlering nf RCrYice, C(1·opPration bdwc"n
1.·apital ancl labour or between the i:mploycr and
his em1iloyc<'A must be direct anrl must be ~ssential.
Tak<', for instance, a textile· mill.
The cm·
ployP1' cont.ributPR capital and insla lls thf' rna<'hilll·ry
r«gui"it,. for the millsanrl tho cm,plo~·1.'<'S cnntribntl'
th!'ir lahflur and by their co-opemtion ns;;ist the
<'mplPyer in produ1.·ing the tt'xt.ilc goods.
Whc·n \\"('
refor to tPxtilc labour in r<'latjon to industrial
disputes under t.he Ad, we refer to workmen who
<U'tl engagl)d in the wo1k of producing textile l!Onds.
Tt is obvious that in l'Pf!anl to textile mills, a largr'
majority of workmen conc·ernerl in carrying out the
acti\•iti«' of most of the departm<'nts nf tlw l•.'Xtilc
mill• contribute clircetlv in 01w Lmn or another
to the procl11cti"11 nf t .. x.tifo goccls.
It me,v he that
'"·en in a t<'xtile mill a very rniall minoril y of
wnrknwn may not be clircf't.]y C<>IH'<'rned wit Ii the
production of tPxtilP goorlR; !mt.
<-Y~ll sn, their
1n·rk iA so
int.cirrall~· conncct<'d with tlw \\'Ork
carriNI <>I\ by the majoritv ·of wnrkmPn
«mplo~·"d
thn.t they are tn·al<'d as forming pall. (lf th~ same
la hour forC'~.
Thu~, there cmi hll no clou lit
t I.at
3 S.C.R.
SUPREME COURT REPORTS
165
when a textile mill is regarded as an industry, it is
because capital and labour jointly contribute to the
production of goods which is the object of thA
mill.
Let us consider the case of the hospitals.
In
the hospitals, the service to the patients begins with
proper diagnosis followed by treatment, either
medical or surgical, according to the requirements
of the case. In the case of medical treatment, the
patients receive medical treatment according to the
prescription and are kept in the hospital for further
treatment. In surgical cases, the patients receive
surgical treatment by way of operation and then
are kept in the hospital for further treatment until
they are discharged.
During the period of such
treatment, all their needs have to be attended to,
food has to be supplied to them, nursing assistance
has to be given to them, medical help from time to
time has to be rendered and all incidental services
required for their recovery have also to be rendered.
Now, in the c<>se of the activities of an organised
hospital, the co· operation of the employees is thus
directly involved in rendering one kind of service or
another which it is the duty of the hospital to
render. It is true that the patients are drawn to
the hospitals primarily because of. the doctors or
surgeons associated with them. But there can be
no doubt that the work of the hospital and its
purpose are not achieved merely when a surgical
operation is
performed or medical prescription
provided. After medical treatment is determined
or a surgical operation is performed, the patient
coming to a hospital as an indoor patient needs all
kinds of medical assistance until he is discharged
and the services rendered to him both initially and
thereafter until his discharge are all services which
the hospital has been ecltablished to render and it is
in the rendering of the said services that the
employees of the hospital co-operate and play their
part. That is how the test of co-operation between
1962
The National [Tnion
of Commercial
Employeer
v.
M.R. Me!ier,
lnduJtrial 1Tibunal,
Bomhay
Gajendragadkar J.
1962
Tl.t N a•'ional Union
of Commt1cial
Empto)'tt"'
v.
Jf.R. Jlfehtr,
ln.i1utrial Tritwiol,
BcmWay
Gqjt11dragadku J.
166 SUPREME COCRT REPORT.S [19b2] SCPP.
tho employer a11d his employees is satisfied in
rcg'.lrd to hospitafa which are properly organibed
aml maintained. It is, of ·course, trne that the
quality, the importance and the nature ot the service
rendered by different categories of !'mployecs ill a
hos pi ta! would not be the same, but nc\·erthclesH,
all the categories of service rendered by re,;per:tive
classes of employees in a hospital are eHsential for
tho purpose of giving service to the pati!'nls which
is the objective of the hospital. That is how tho
hospitals satisfy the test of co-operation between
the employer and his employees.
Does a solicitorn' firm satisfy that test ?
Superficially onnsidercd, the solicitors' firm is 110
doubt organiHcd as an industrial concern would be
organisNI. There are different cat~go1 i!•s of sen-a11ts
employed by a firm, each category being assigned
separatB duties and functions.
But it must bo
remembered that the service rendered by :\ Rolicitor
functioning either individually or working together
with partners is service which is essentially individual ; it depends upon tho professional equipment,
knowledge 'lnd efficiency of the soliritor concerned.
~ubsidiary \vork which is purely of an i11cidc·ntal
type and which is intended to assist the solicitor in
.doing his job has no direct relation to the professional service ultimately rendered by the solicitor.
For his own convenience, a solicitor may employ a
clerk because a clerk would typB his opinion ; for
his conve11ienc<', a solicitor may employ menial
servant to keep his chamber clean and in order ;
and it is likely that the number of clerks may ho
large if the concern is prosperous and so would be
tho number of menial servants.
But the work
done either by the typist or the stenographer or by
the menial servant or other employees in a solicitor's
firm is not directly concerned with the sorvico
which
the
solicitor
rend ors
to
his
client
and cannot,
therefore,
be said to
..
-
3 S.C.R.
SUPREME COURT REPORTS
167
satisfy the test of co-operation between the employer and the employees which is relevant to the
purpose. There can be no doubt that for carrying
on the work of a solicitor efficiently, accounts have
to be kept and correspondence carried on and this
work would need the employment of clerks and
accountants. But has the work of the clerk who
types correspondence or that of the accountant
who keeps accounts any direct or essential nexus
or connection with the advice which it is the duty
of the solicitor to give to his client?
The answer
to this question must, in our opinion, be in the
negative. There is, no doubt, a kind of co-operation between the solicitor and his .employees, but
that co-operation has no direct or ·immediate relation to the professional service which the solicitor
renders to his client. Therefore, in our opinion, it
is difficult to accept the plea that .a solicitor's firm
carrying on the work of au Attorney is an industry
within the moaning of s. 2(j).
There is no doubt
that the words used in s. 2(j) are very wide, but as
has been held by this Court in the case of Hospitals,(') it is necessary to draw a line in a fair and
just manner putting some limitation upon the width
of the said words and a working test has been
enunciated in that behalf. The application of the
said test to the facts in the preRent appeal leads
to the conclusion that the work of solicitors which
the respondents are carrying on as a firm is not au
industry under s. 2(j} of the Act. That is the view
taken by the Bombay High Court and we think,
that view is rightIt may be added that the same
view has been taken by the Calcutta. High Court in
the case of Brij Mohan Bagaria v. N. 0. Ohaterjee(')
and D. P. Dund,erdele v. G. P. Mukherjee(').
Looking at this question in a broad and ·general way, it is not easy to conceive that a liberal
profession like that of an attorney could have been
(!) [1960] 2 s.c.R. 668.
(2)
A.LR. 1958 Cal. 460.
(3) A.LR. 1958, Cal. 465.
1962
The National Union
of Commercial
Employees
·~.
M.R.'Meher,
Industrial Tribunal,
Bombay
Gajendragadkar J.
1962
17i1 ,Vtltirmal .'Jnini
of Commerciol
Empl<J'Jtti
v,
&l.R. ,\1ehtr,
In-.liutriul ·r, ibun11/,
lJoonbay
·
GojttulragadJ;4T J.
168
SGPREME COURT REPORTS (19621 SUPP.
intendecl. by tho Legislature to fall within the defi ·
nition of "industry" under s. 2(j).
The very conce·
pt of the liberal professions has its own spechl
and di8tinctive features which do not readily permit tho inclusion of tho liberal professions into the
four corners of industri<~l l:~w. The essential basis
of an industrial dispute is thH.t it is a dispute arising
between capital and labour in enterprises whortJ
capital and labour combino to produco commodities
or to render sorvice.
This essential basis would be
absent in the case of liberal professions.
A person
following a liberal profe::1sion does uot carry on his
professio11 i11 any intelligiblo tionRo with the activo
co-operation of his employees and tho principal, if
not thti solti, capital which he brings into his profession is his special or peculiar intollcctual and educational equipment. That is why on broad and
general con;;ideratiollB which cannot be ignored, a
liberal profession like that of an attorney must, wo
think, be deemed to be outside the definition of
"industry'' undor section 2(j).
In this connection, it would be useful to refer
to the observation made by Isaccs and Rich JJ.,
in tho Ferleruted Jlun·icipal and Shire Cauncil Employees' Union of A·u.stralia v . .Melbourne Corporatimi (1).
"Tho concept of an industrial dispt;te", said the
learned Judges, may thus be formulated: Indu8trial
disputes occur when, in relation to operations in
which capital and labour are contributed in cooperation for the tiatisfaction of human wants
or desire8, those t>ngaged in co-operation dispute
as to tho basis to bB observed, by the parties engaged, respecting either a sharo of the product or any
other terms and conditions of their co-operation.
This formula exclurlos the two extreme contontione of the claimant and the respondents respectively. It excludes, for instance, the legal and tho
medical profeSBions, because they are not carried
on in any intelligible sense by tho cooperation of
(I) (1919) 26 C.L.R. 508, S54.
.. '
3S.C.R .
SUPREME COURr REPORTS
169
capital and labour and do not come within the sphere
of indaatrialism. It includes, where the necessary
co-operation exists, disputes between employers and
employees, employees and employees, and employers and employurs. It implies that "industry"
to lead to an industrial dispute, is not, as the
claimant contends, merely industry in the abstract
sense, as if it alone effected the result, but it must
be acting and be considered in association with its
co-operator "capital" in some form so that the
result is, in a sense, the outcome of their combined
efforts". Those obaervations support the view which
we h we taken about the character of co-operation
between the employer and employees which affords
a relevant test in determining whether the enterprise in question is an indubtry or not. Co-operation
to which the test refers must be co-operation between the employer and his employees which is
essential for carrying out the purpose of the enterprise and the service to bo rendered by the enterprfae should be the direct outcome of the combined
efforts of the employer and the employees.
There is one more minor point which still
remains to be considered.
Mr. Chari argued that it
would be idle for the respondents to contend that
the work of their firm is not an industry under
s. (2j) because they have themselves described their
work as the work of carrying on business of solicitors. It appears that the document of partnership
executed between the different partners of the firm
provided, inter alia, that all expenses o! the business of the partnership or losses incurred in carrying
on the business of the partnership shall be borne
out of the profits or capital of the partnership. It
is on the use of the word "bu8iness" in this clause
that Mr. Ch~ri relies. In support of his argument,
he referred us to a decision of .Farwell, J., in Dickson
v. J <Y11R,S ( l ). In that case, the Court was ,concerned
to examine the validity of an agreement between
the plaintiff, solicitor, and his junior clerk, who
(1)
[1939) 3 All. E.R. 182.
1962
The tVationJl Uniori
of 0 ommercial
Employees
v,
111.R. Meher,
lr11115lr1·at Trih•111al,
Bombay
, Gaj~ndragadkar J.
1"h1 Nat1'.unol Union
ofCammtrcial
Employtts
v.
.,l.ll. Mther,
lndu11trial Trib1m2l,
llomhll}
Gaje11dragadlar J.
liO
SUPBE)IE corRT REPORTS [Jf.(i2: SUl'P.
was sub8cqucntly u1ticlcd to him.
This agrermcnt
provided that the latter would 11ot "at any time
hercaft.er practise as a solicitor within a radious of
15 miles from the Town Hall, Hanley, aforesaid, or
solicit unv client of the solicitor".
Farwell J., held
that "the· com binat.ion of a rcHtrictinn over an area
so great as a.. ra<liot1s 15 mile~ an<l one extending to
the whole life of the defendant, articled clerk, was, in
the circumsta11ccs, wider than mi.s necessary for the
protec;tion of the
plaintiff and was, therefnre,
unenforceable as being iu undue restraint of trade".
The argument is that the validity of an agreemtnt between a solicitor and his articled derk was tested on
the ground that it was an agre0~11e11t in rci;traint of
trade and so tho solicitor's work must be hrld to
be a "trade" under s. :!(j). There is obviously 110
force in this argument. If in tlwir deed of partnership the respondents described th1, work of partner"
ship as the bu8iness of solicitorn, that can hardly
assist the apprllants in contending that the work
carried on by the firm is industry under s. 2(j). The
work of a solicitor i;, in a loose sense, of course, of
business, a11d so if tho solicitors f!nterrd into an
agreement in restraint of trade, it.s validity would
have to be judged on tho basis that their work in
the nature of business.
Thut, however, is hurdly
relevant in determining the quc8tion as to whether
the said work is an industry under section 2(j); as
we have already made it clear, the definition of
thn word "industry" is couched in words of very
wide denotation. llut that precisely is the reason
why a line has to bo drawn in a just and fair manner to domarcate the limitations of their scope and
that necessarily leads to the adoption of somo
working test.
Therefore, in our opinion, the argument that the respondeuts themselves have eallcd
their work as "business" is of no assistance.
The result is, the appeal fails; there would be
no order as to costs.
Appeal dismissed.