# SUPREME COURT REPOR'rS [1953] D. N. BANERJI v. • P. !l. MUKHERJEE AND O'rHERS

- **Citation:** [1953] 1 S.C.R. 302
- **Court:** Supreme Court of India
- **Decided:** 1950-06-01
- **Case number:** Case No. 282 p, R. Mukherjee of 1951
- **Bench:** Patanjam 8Astri 0.J, Mukherjea, 0Handhasekhara Aiyar, Vivian Bose, Ghulam Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-repor-rs-1953-d-n-banerji-v-p-l-mukherjee-and-o-rhers-13
- **Pages:** 17

## Headnote

lnd,.strial Disp1ttes Act, 1947, s. 2 (j) and (k)-" Jnd,.stry ",
u Industrial disp~tte ", meaning of~Dispu,te between municipality
and its employees-Whether indi<strial disp!lte-Lr,gality of reference
./
to Tribm1al.
The expression
1
-
1 industrial dispute " in the Indfl.strial Disputes Act, 1947, includes disputes between municipalities and their
employees in branches of work that can be regarded as an&logous
to_ the carrYing on of a trade or business. '
1 Undertaking " in the
first part of the definition and'' industrial occupation or avocation"
in the second part obviously mean much more than what is ordinarily understood by trade or business. rrhe definition was apparently intended to include ¥1ithin its scope what might not strictly
be called a trade or business V~nture.
Where the chairman of a municipality_ dismissed two of its
employees, namely, the Sanitary Inspector and the Head Clerk,
and the Municipal Workers' Union, of which these two employees
were members questioned the propriety of the dismissal and
claimed that they should be re-instated and the matter was referred by the Government to the Industrial Tribunal for adjudication under the Industrial Disputes Act, and an objection was
raised by tbe municipality that the dispute was bot an industrial
dispute:
Held, that the definition of "industrial dispute" in the said
Act was wide enough to cover the dispute in question and the
matter could properly be referred to a Tribunal for adjudication
under the said Act.
Held also, that though the power of a Tribunal under the Industrial Disputes Act, 1947, to re-instate its employees trenches
on· the power to appoint and dismiss employees conferred on the
chairman of a municipality by ss. 66 and 67 of the Bengal Municipal Act and there is thus an invasion on the provincial field of
legislation, the Industrial Disputes Act is not inv3ilid on this
ground as it is in pith and substance a law in respect of industrial
and labour disputes, which is a central subject.
Profulla Kumar 1l:lookerjee v. Bank of Coni1nerce Ltd., Khulna
(L.R. 74 I.A. 23), Western India Azttomobile Association v. lndi<s·
t1'ial Tribunal, Bombay ([1949] P.C.R. 321), National Association
A
'
8.0.R.
SUPREME COURT REPORTS
303
of Local Government Officers v. Bolton Corporation ([1943) A.C. 166)
1952
and Federated Municipal and Shire Council Employees' Union of
Australia v. Melbourne Corporation (26 Com. L.B. 508) referred to.
D. N. Banerj•
v.

## Text

1952
Dec. 5.
302
SUPREME COURT REPOR'rS
[1953]
D. N. BANERJI
v.
•
P. !l. MUKHERJEE AND O'rHERS.
[PATANJAM 8ASTRI 0.J., MUKHERJEA, 0HANDHASEKHARA AIYAR, VIVIAN BOSE
and GHULAM HASAN JJ.]
lnd,.strial Disp1ttes Act, 1947, s. 2 (j) and (k)-" Jnd,.stry ",
u Industrial disp~tte ", meaning of~Dispu,te between municipality
and its employees-Whether indi<strial disp!lte-Lr,gality of reference
./
to Tribm1al.
The expression
1
-
1 industrial dispute " in the Indfl.strial Disputes Act, 1947, includes disputes between municipalities and their
employees in branches of work that can be regarded as an&logous
to_ the carrYing on of a trade or business. '
1 Undertaking " in the
first part of the definition and'' industrial occupation or avocation"
in the second part obviously mean much more than what is ordinarily understood by trade or business. rrhe definition was apparently intended to include ¥1ithin its scope what might not strictly
be called a trade or business V~nture.
Where the chairman of a municipality_ dismissed two of its
employees, namely, the Sanitary Inspector and the Head Clerk,
and the Municipal Workers' Union, of which these two employees
were members questioned the propriety of the dismissal and
claimed that they should be re-instated and the matter was referred by the Government to the Industrial Tribunal for adjudication under the Industrial Disputes Act, and an objection was
raised by tbe municipality that the dispute was bot an industrial
dispute:
Held, that the definition of "industrial dispute" in the said
Act was wide enough to cover the dispute in question and the
matter could properly be referred to a Tribunal for adjudication
under the said Act.
Held also, that though the power of a Tribunal under the Industrial Disputes Act, 1947, to re-instate its employees trenches
on· the power to appoint and dismiss employees conferred on the
chairman of a municipality by ss. 66 and 67 of the Bengal Municipal Act and there is thus an invasion on the provincial field of
legislation, the Industrial Disputes Act is not inv3ilid on this
ground as it is in pith and substance a law in respect of industrial
and labour disputes, which is a central subject.
Profulla Kumar 1l:lookerjee v. Bank of Coni1nerce Ltd., Khulna
(L.R. 74 I.A. 23), Western India Azttomobile Association v. lndi<s·
t1'ial Tribunal, Bombay ([1949] P.C.R. 321), National Association
A
'
8.0.R.
SUPREME COURT REPORTS
303
of Local Government Officers v. Bolton Corporation ([1943) A.C. 166)
1952
and Federated Municipal and Shire Council Employees' Union of
Australia v. Melbourne Corporation (26 Com. L.B. 508) referred to.
D. N. Banerj•
v.
CIVIL APPELLATE JURISDICTION: Case No. 282 p, R. Mukherjee
of 1951.
and Others.
Appeal under Art. 132 (1) of the Constitution of
India from the Judgment and Order dated June 1,
1950, of the High Court of Judicature at Calcutta
(Harries C. J. and Banerjee J.) in Civil Rule No. 563
of 1950 and Original Side Matter No. 25 of 1950.
Panchanan Ghose (A. K. Dutt and R. L. Jarafdar,
with him) for the appellant.
B. Sen for respondents Nos. 1 and 2.
S. N. Mukherjee for respondent No. 3.
1952.
December 5.
The Judgment of the Court
was delivered by
CHANDRASEKHARA
ArYAR J.- Pratul
Chandra.
Mitra was the Head Clerk, and Pbanindra Nath
G hose, the Sanitary Inspector of tlre Budge Budge
Municipality, and they were also members of the
Municipal Workers' Union.
On receipt of complaints against them for negligence, insubordination
and indiscipline, the Chairman of the Municipality
su·spended them on 13th July, 1949, drew up separate
proceedings, and called for an explanation within a
specified date. After the explanations were received1
they were considered at a meeting of the Commissioners held on 6th August, 1949, and by a majority, the
Commissioners confirmed the order of suspension and
directed the dismissal of the two employees. At the
instance of the Municipal Workers' Union, who
questioned the propriety of the dismissal, the matter
was referred by the State of West Bengal on 24th
September, 1949, to the Industrial Tribunal for
adjudication under the Industrial Disputes Act. Tbe
Tribunal made its award on 13th February, 1950,
that the suspension and punishment of the two employees were cases of victimisation, and it directed
their reinstatement in their respective office~.
304
SUPREME COURT REPORTS
[1953]
1952
The Muuicipality took the matter to the High
Court at Calcutta by meaus of a petition for a writ of
D. N. Banerji certiorari under articles 226· and 227 of the Constitup R Mv, kh . tio11.
There were prayers in the petition for quash-
. · ' u " 3" ·
th
d'
b f
h
T 'b
l
f
""d Oth•"·
rng
e
procee mgs
e ore t e
n una ,
or
~ancellation of the award, and for an order restrainChandrasekhara ing the authorities from giving effect to the award
Aiyar J.
and from taking any steps in pursuance thereof.
At the instance of the High Court, a separate application was filed under article 227. Both the petitions
were heard by Harries C. J. and Sambhu Nath
.Banerjee J.
The points raised before them on behalf of the
petitioners were five in all: (a) that there was no
industrial dispute, and therefore there could be no
reference under the Industrial Disputes Act to any
'fribunal; (b) that the said Act was not applicable to
disputes with Municipalities; (c) that even if it did,
it was ultra vires; (d) that the 'l)ibnnal should not
have directed reinstatement of the dismissed employees; and (e) that the award was bad on the
merits.
These contentions were negatived by the
learned Judges, and the petitions were dismissed. But
leave was granted under article 132 (1) of the Constitution, and that is how the matter has now come
n p before us.
·
It is not necessary to dwell at any length on points
(c), (d) and (e).
If the Industrial Disputes Act
applies t.o Municipalities and their employees, the
power to reinstate dismissed employees, held in
West~rn India Automobile Association
Y. Industrial
Tribunal; Bombay and Others.(') to be within the
competence of a 'fribunal nuder the Act, will trench
no do11bt on the power to appoint and dismiss con·
ferred on the Chairman and Commissioners of Municipalities under sections 66 and 67 of the Bengal
Municipal Act. 'fhis invasion of the provincial field
of legislation does not however render the Industrial
Disputes Act of the central legislature invalid, as we
have to pay regard primarily to the pith and
(I) [•9<9] F. C.R. 321.
--
8.0.R.
SUPREME COURT REPORTS
305
.substance of the challenged Act in considering the
19511
question of conflict between the two jurisdictions. ·D N-; ..
Industrial and labour disputes are within the com-
· · v. anm·J•
petence of the central legislature, and the impugned P.R. Mukherjee
.Act deals with this· subject and not with
local
and Others.
government.
The point is covered by Profulla
-
Kumar Mookerjee
v. Bank
of
Commerce
Ltd., ~ha~dras~~iara
Kh·ulna (1).
·
•ya•
·
Whether on the facts of a particular case the
dismissal of an employee was wrongful or justified is
a question primarily for the Tribunal to decide, and
here the Tribunal held that the dismissals were clear
cases of victimisation and hence wrongful.
Unless
there was any grave miscarriage of justice or flagrant
violation of law calling for intervention, it is not for
the High Court under articles 226 and 227 of the
Constitution to interfere.
Points (a) and (b) are interlaced.
The dismissal of
the two employees was taken up by the Municipal
Workers' Union who challenged it as grossly improper.
'rhus it is clear .that there was a dispute
between the employer, viz., the Municipality on the
one side, and the workmen represented by the Union
on the other.
But what is urged by the Municipality
is that it was not an "industrial dispute" within the
meaning of the Act, and hence there was no jurisdiction. in the Government to refer the dispute to a
Tribunal. It is contended on their behalf that the
Municipality in discharging its normal duties connected with local self-government is not engaged in
any industry as defined in the Act. It is this
question that we have to consider, and for this purpose it becomes necessary to exa.mine rather closely
some of the provisions in the Act to ascertain their
true scope and meaning.
"Industry" and "industrial dispute" are defined
in the Act in section 2, clauses (j) and (k) as
follows:
"(i) ' industry' means any business, trade, undertaking, manufacture or calling of employers anq
\I) (1947) L. R. 74 I. A. 2~.
306
SUPREME COURT REPORTS
[1953)
1952
includes any calling, service, employment, handicraft,
D. N. Banerji or industrial occupation or avocation of workmen;
v.
(k) 'industi·ial dispute ' means any dispute or
P.R. MukherJ"difference
between employers and employers, or
""d Others.
between employers and workmen, or between workOhandrasekhMa men and workmen, which is connected with the emAiyar J.
· ployment or non-employment or the terms of employ-
. ment or with the conditions of
labour, of any
person."
As clause (k) refers to workmen, we must also look
at the definition of "workman " in clause (s) which
is in these terms :
"'workman' means any person employed (including
an apprentice) in any industry to do any skilled or
unskilled manual or clerical work for hire or reward
and includes, for the· purposes of any proceedings
under this Act in relation to an industrial dispute,
a workman discharged during that dispute, but does
• not include any person employed in the
naval,
military or air service of the Government."
Corresponding definitions of "trade 'dispute" and
"workman'' are found in section 8 of the Industrial
Courts Act, 1919 (9 and 10, Geo. V, c. 69), and they
run in these terms:
"The expression 'trade dispute' means any dispute
or difference between employers and workmen, or
bstween workmen and workmen connected with the
employment or non-employment, or the terms of the
employment or with the conditions of labour of any
person:
'.l'be expression 'workman' means any person who
has entered into or works under a contract with an
employer whether the contract be by way of manual
l_abour, clerical work, or. otherwise, be expressed or
implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract
personally to execute any work or labour."
"Trade, dispute" as defined in the English Act
and "industrial dispute" as defined in our Act mean
~Ile same thing practically.
·
..
•'
•
• ' I i"
S.C.R.
SUPREME COURT REPORTS
307
It has to be concede(\, even at the outset, that an
1952
industry can be carried on by or under the authority D. N.~n•r"i
of the Central, or State Government, or by or on
v.
J
behalf of a local authority.
This is made clear aotp, B. Mukherjed
only by the provision in sub-clause (i) of clause (a)
ani Others.
of section 2. but also by the definition of "employer"
-
in clause ( ) to the following effect:
Ohandra.ekhara
" ··
g
A•yar J.
'employer' means-
(i) in relation to an industry carried on by or
under the authority of any departme.nt of the Central Government or a State Government, the authority prescribed in this behalf, or where no authority
is prescribed, the head of the department;
(ii) in relation to an industry carried on by or on
behalf of a local authority, the chief executive offi9er
of that authority;".
Where a dispute arises in such an industry between
the employees on the one side and the Central
Government or the State or the local body on the
other, it would be an industrial dispute undoubtedly.
But where a dispute arises in connection with the
discharge of the·normal activities of Government or
· of a local body, it is argued for the appellant that the
dispute cannot be regarded as an industrial dispute.
The soundness of this contention falls to be examined.
In the ordinary o:r;. non-technical sense, according
to what is understood by the man in the street, industry or business means an undertaking where capital
and labour co-operate with each other for the purpose
of producing wealth in the shape of goods, machines,
tools etc., and for making profits .. The concept of
industry in this ordinary sense applies even to agriculture, horticulture, pisciculture and so on and so
forth. It is also clear that every aspect of activity
in which the relationship of employer and employee
exists or arises does not thereby become an industry
as commonly understood. We hardly think in terms
of an industry, when we have regard, for instance, to
the Tights and duties of master and servant, or of a.
Government and its secretariat, or the members of
308
SUPREME COURT REPORTS
[1953)
19
~
8
the medical profession woril;ing in a hospital. It
D. N. Ba·nerji would be regarded as absurd to think so; at any rate
v.
the layman unacquainted with advancing legal conP, R. Mukherjee ce"pts of what is meant by industry would rule out
and Others.
such a connotation as impossible. There is nothing
Ch
d
kh
however to prevent a statute from giving the word
an rase
ara " . d t
"
d h
d " . d
, 1 d.
'
Aiyar J.
m us ry
an
t e wor s
m ustna
tspute ' a
wider and more comprehensive import in order to
meet the requirements of rapid industrial progress
and to bring about in the interests of industrial peace
and economy, a fair and satisfactory adjustment of
relations between employers and workmen in a variety
of fields of activity. It is obvious that the limited
concept of what an industry meant in early times
must now yield place to an enormously wider concept
so as to take in various and varied forms of industry,
so that disputes arising in connection with them
might be settled quickly without much dislocation
and disorganisation of the needs of society and in a
manner more adapted to conciliation and settlement
than a determination of the respective rights and
liabilities according to strict legal procedure and
principles. The conflicts between capital and labour
have now to be determined more from the standpoint
of status than of contract. Without such an approach,
the numerous problems that now arise for solution in
the shape of industrial disputes cannot be tackled
satisfactorily, and this is why every civilised government has thought of the machinery of conciliation
officers, Boards and Tribunals for the effective settlement of disputes.
It is therefore. incumbent on us to ascertain what
the statute means by " industry" and "industrial dispute'', leaving aside the original meaning attributed
to the words in a simpler state of society, when we
had only one employer perhaps, doing a particular
trade or carrying on a particular business with the
help of his own tools, material and skill and employing a few workmen in the process of production or
manufacture, and when such disputes that qccurred
. did not go behind individual levels into acute fight&
. .
S.C.R.
SUPREME COURT REPORTS
309
between rival organisations of workmen and employwt.2
. ers, and when large scale strikes and lock-outs D N
.
throwing society into chaos and confusion were
· · :anarJ•
practically unknown.
Legislation had to keep p~ce P.R. M~lcherjee
with the march of times and to provide for new situaand Othera .
tions.
Social evoiution is a process of constant
-.
growth and the State cannot afford to stand still Ohandraselchara
without taking adequate measures by m~ans of legisAiyar J.
lation to solve large and momentous problems that
arise is the industria.l field from day to day almost.
These remarks are necessary for a proper understanding of the meaning of the terms employed by
the statute. It is no doubt true that the meaning
should be ascertained only from the words employ- ·
ed in the definitions, but the set-up and context
are also relevant for ascertaining what -exactly
was meaut to be conveyed by the terminology
employed. As observed by Lord Atkinson in Keates
v. Lewis Merthyr Consolidated Collieries (1),
".In
the construction of a· statute it is, of course, at all
times and under all circumstances permissible to
have regard to the state of things existing at the time
the statute was passed, and to the evils which, as
appears from it provisions, it was designed to remedy." If the words are capable of one meaning
alone, then it must be adopted, but if they are suscepti_ble of wider import, we have to pay regard to what
the statute or the particular piece, of legislation had
in view.
Though the definition may be more or less
the same in two different statutes, still the objects to be
achieved not only as set out in the preamble but also
as gatherable from the antecedent history of the
legislation may be widely different. The same words
may mean one thing in one context and another in a
different context. This' is the reason why decisions
on the meaning of particular words or collection of
words found in other statutes are scarcely of much
value when we have to deal with a specific statute of
our own; they may be helpful, but cannot be taken
as guiaes or precedents.
(I) (t9II) A.C. 641 at 642.
310
SUPREME COURT REPORTS
(i953]
I95•
'rbe words" industrial dispute" convey the meaning to the ordinary mind that the dispute· must be
D. N. Banerji such as would affect large groups of workmen and emP. R. ;;;klrnriee ployers ranged on opposite sides on some general
and Others:
questions on which each group is bound together by
-
a community of interests-such as wages, bonuses,
Ghandrasekhara allowances pensions provident fund
number of
Aiyar J
'
'
'
·
working bour,s per week, holidays and so on.
Even
with reference to a business that is carried on, we
would hardly think of saying that there is an industrial dispute where the employee is dismissed by bis
employer and the dismissal is questioned as wrongful.
But at .the same time, having regard to the modern
conditions of society where capital and labour have
organised tbemselv·es·into groups for the purpose of
fighting their disputes and settling them on the basis
of the theory that in union is strength, and collective
bargaining bas come to stay, a single employee's case
might develop into an industrial dispute, when as
often happens, it is taken up by the trade union of
which he is a member and there is a concerted
demand by the employees for redress.
Such trouble
may arise in a single establishment ·or a factory. It
may well arise also in such a manner as to cover the
industry as a whole in a case where the grievance, if
any, passes from the region of individual complaint
into a general complaint on behalf of all the worke~s
in the industry. Suph widespread extension of labour
unrest is not a rare phenomenon but is of frequent
occurrence. In such a case, even an industrial dispute in a particular business becomes a large scale
industrial dispute, which the Government cannot
afford to ignore as a minor trouble to be settled between the particular employer and workman.
When our Act came to be passed, labour disputes
bad already assumed big proportions, and there were
clashes between workmen and employers ·in several
instances.
We can assume therefore that it was to
·meet such a situation that the Act was enacted, and
it is consequently nece3sary to give the terms employed in the Act referring to such disputes as wide fin
•
I
•
..
s.c.R.
SUPREME COURT REPORTS
311
import as reasonably possible. Do the definitions of
i95z
" industry '', _:_• industrial dispute " and "workman "
..
k
.
h
d d
.
. fi
1 d . t ? D. N. BanerJ•
ta e m. t e ex ten e
s1gm cance, or exc u e i
.
v
Though the word "undertaking." in the definitioll of P.R. Mukherje•
"industry " rs wedged in between business and trade
and Oth•rs.
on the one hand and manufacture on the other, and
-
though therefore it might mean only a business or Ohandraiekhai·a
trade undertaking, still it must be remembered that if
Aiyar J.
that were so, there was no need to use the word
separately from business or trade. The wider import
is attracted even more clearly when we look at the
latter part of the definition which refers to "calling,
service, <?mployment, or industrial occupation or
avocation of workmen." "Undertaking'' in the first
part of the definition and "industrial occupation or
avocation" in the second part obviously mean much
more than what is ordinarily understood by trade or
business. · The definition was apparently intended to
include within its scope what might not strictly be
called a trade or business venture.
Another provision in the Act defining " public
utility setvice" and contained in sub-clause (n) of
section 2 is very relevant and important in the interpretation of " industry " and " industrial dispute "and
it is to the following effect :
" 'public utility service' means-
(i) any railway service;
(ii) any section of an industrial establishment,
on the working of which th~ safety of the establishment or the workmen employed therein depends;
(iii) any postal, telegraph or telephone service;
(iY) any industry which supplies power, light, or
water to the public;
(v) any
system of
public
conservancy
or
sanitation;
(vi). any industry specified in the Schedule which
the appropriate Government may, if satisfied that
public emergency or public interest so requires by
notification in the official Gazette declare to b'e a
public
utility service for the purposes of
this
312
SUPREME COURT REPORTS
[1953)
1953
Act, for such period as may be specified m
the
D "
B
.. notification ;
• .1.1.
aner1i
v.
Provided that the period so specified shall not, iu
P.R. Mukherj" the first instance, exceed six months but may, by a
and Othm.
like notification, be extended from time to time, by
Chandrasekhara any period not exceeding six months, at any one time
Aiyar J.
if in the opinion of the appropriate Government
public emergency or public interest requires such
extension."
A public utility service such as railways, telephones
and the supply of power, light or water to the public
may be carried on by private companies or business
corporations, Even conservancy 'or sanitation may
be so carried on, though after the introduction of
local self-government this work has in almost every
country been assigned as a duty to local bodies like
our Municipalities or District Boards or Local Boards.
A dispute in these services between employers and
workmen is an industrial dispute, and the proviso to
section 10 lays down that where such a dispute arises
and a notice under section 22 has been given, the
appropriate Government shall make a reference under
the sub-section. If the publi·c utility service is carried
on by a corporation like a Municipality which is
the creature of a statute, and which functions under
the limitations imposed by the statute, does it cease
to be an industry for this reason? The only ground
on which one could say that what would amount to
the carrying on of an industry if it is done by a
private person ceases to be so if the same work is
carried on by a local body like a Municipality is.that
.in the latter there is nothing like the investment of
l
,. any capital or the existence of a profit earning motive
as there generally is in a business.
But neither the
one nor the other seems a sine qua non or necessary
element in the modern conception of industry.
In specifying the purpose to which the municipal
fund is applicable, section 108 of the Bengal Municipal Act (XV of 1932) enumerates under 36 separate
Leads several things such as the construction and
S.C.R.
SUPREME COURT REPORTS
313
maintenance of streets, lighting, water supply, conservancy, maintenance of dairy farms and milk depots,
1953
D. N. Banerji
the taking of markets on lease etc. They may be desv.
cribed as the normal functions or ordinary activities P.R. Mukhsrjee
of the Municipality.
Some of these functions may
andOthera.
appertain to and partake of the nature of au industry,
-
while others may not.
For instance, there is a Ghand.rasekhara
necessary element of distinction between the supply
A•yar J.
of power and light to the inhabitants of a M unicipality and the running of charitable hospitals and
dispensaries for the aid of the poor.
In ordinary
parlance, the former might be regarded as an industry
but not the latter. The very idea underlying the
eutrustment of such duties or functions to local bodies
is not to take them out of the sphere of industry but
to secure the substitution of public authorities in the
place of private employers and to eliminate the
motive of profit-making as far as possible. The levy
of taxes for the maintenance of the services of
sanitation and conservancy or the supply of light and
water is ru method adopted and devisea to make up
for the absence of capital. The undertaking or the
service will still remain within the ambit of what we
understand by an industry though it is carried on
with the aid of taxation, and no immediate material
gain by way of profit is envisaged.
In National A-ssociation of Local Government Offece,.s
v. Bolton Corporation (1), after referring to the definitions of "trade dispute" and "workman" contained
in the order of reference to the National Arbitration
Tribunal and pointing out that they are identical
with and have the same meaning as trhe definitions
contained in the Industrial Courts Act, 1919, Lord
Wright observed as follows at page 184 of the
Report:
" The appellant contended that they include the
members of the appellant trade union. The respondents disputed this because, they said, the definitions
do not include employees of a public odocal authority
like
the respondents, and, in
particular, sucq
(1) (1943] A, C. 166,
314
SUPREME COURT REPORTS
(1953]
19;2
employees who are engaged in professional, technical
or administrative services. In my opinion, the resD. N. Banerji
v.
pondents' contention would unduly narrow and limit
P.R. M~khsrjee the wide connotation which should here be given to
and Others.
' trade' and to 'workman'. Section II of the Act of
-
1919 shows that 'trade' is
used as including
Oha"d.'·asekha~a ' industry' because it refers to a trade dispute in the
A,yar J.
· d
f
'
I'
Th
· f
m ustry o agncu oure.
e same m ereuce appears
from the short title. It is described as an Act to
provide for the establishment of an industrial court
in connexion with trade dispuues. Trade and industry
are thus treated as interchangeable terms. Indeed
'trade' is not only in the etymological or dictionary
sense, but in the legal usage, a term of the widest
scope. It is connected originally with the word
'tread' and indicates a way of life or an occupation.
In ordinary usage it may mean the occupation of a
small shopkeeper equally with that of a commercial
magnate. It may also mean a skilled craft. It is true
that it is often used in contrast with a profession.
A
professional ·worker would not ordinarily be called a
tradesman, 'but the word 'trade' is used in the widest
application to the appellation 'trade unions'. Professions have their trade unions. It is also used in
the Trade Boards Act to include industrial undertakings.
I see no reason to exclude from the operation of the Industrial Courts Act the activities of local
authorities, even without taking into account the
fact that these .authorities now carry on in most cases
important industrial undertakings.
The order expressly states in its definition section that 'trade ' or
'industry' includes the performance of its functions
by a ' public local authority'. It is true that these
words are used iu Part Ill, which deals with ' recognized terms and conditions of employment', and in
Part IV, which deals with 'departures from trade
practices ' in 'any industry or undertaking,' and not
in Part I, which deals with ' national arbitration '
and is the part material in this case, but I take
them
as
illustrating
what modern
conditions
involve-the idea that
~he functions of
local •
S.C.R.
SUPREME OOURT REPORTS
315
authorities may come under the expression 'trade or
195JJ
industry.' I think the same may be said of the
-
Industrial Courts Act and of Reg. 58-AA, in both of D. N. ;ianerji
which the word 'trade' is used in the very wide con- P.R. M~khe•·jee
notation which it bears in the modern legislation
and Others.
dealing with conditions of employment, particularly
-
in relation to matters of collective bargaining and the Chandrasekhara
l'k "
Aiyar J.
i e.
The justification for this rather long quotation is
that it deals with the specific point now in issue before us.
The same question as the one now before us came
up for decision in an Australian case reported in
Federated Municipal and Shire Council Employees'
Union of Australia v. Melbourne Corporation (1), and
the judgments of some of the learned Judges are
instructive.
There was a Union called the Federated
Municipal and Shire Council Employees' Union of
Australia, ·which was registered as an organisation
under the Commonwealth Conciliation and Arbitration Act, 1914-1915, as having been constituted in
connection with municipal and shire
councils,
municipal trusts and similar industries. The organisation made claims in respect of work done by its
members employed by certain municipal corporations
iu respect of the making, maintenance, control and
lighting of public streets.
The original reference
stated the dispute as one which "relates to such
operations of the said municipal corporations as do
not consist of municipal trading," but it was subsequently amended during argument by substituting for
the words "as do not consist of municipal trading"
the words " as consist of the making, maintenance,
control and lighting of public streets or any of them."
Two points were argued before the High Court. The
first one raised the question of the existence and
extent of the immunity of municipalities as instrumentalities of Government of the States, but it has
no relevance here.
The second . point which i1:1
(1) 26 Com. L.R. 508.
'I'
•"
316
SUPREME COURT REPORTS
[1953]
1952
material was whether the employees of municipalities
D n-;; .. could be said to be engaged in an industrial dispute
· · ·v. anerJ• within the meaning of section 51, sub-section 35, of
P. B. Mukherjee the Constitution.
'l'he corporations ·contended t.hat
a,.d Others.
they were not carrying on any industry but only the
-
normal functions assigned to them under the statute,
Chandrastkhara
d h
h
h
f
· d
· l d ·
Aiyar ;r
an t at t ere was t ere ore no rn ustria
ispute
'
that could be referred to the arbitration court.
The
meaning of the words "industrial disputes " used in
the said sub-section had therefore to be ascertained
aud adjudged.
'fhe majority of the learned Judgesfour against two-decided in favour of the Union.
Each side put forward an extreme contention. For
the claimant it was urged that "industrial " meant
simply "relating to industry in the abstrnct," whether
it be in the exercise of trade, commerce, science or
learned professions. 'l'he corporations contended that
"industrial· dispute" meant a " trade dispute," and
that "trade dispute " meant "a dispute in trade
carried on by the employer for profit." A formula
midway between these two extremes was postulated
in these terms by Isaacs and Rich JJ. who were two
out of the four who constituted the majority:
"Industrial disputes occur when, in relation to
operations iu which capital and labour are contributed in co-operation for the satisfaction of human
wants and desires, those engaged in co-operation dispute as to the basis to be observed, by the parties
engaged, respecting either a sh:i,re of the product or
any other terms and conditions of their co-operation;"
After giving copious extracts from the report of
the Royal Commission appointed in 1890 in England
to deal with labour problems, they summed up their
final conclusion in these words at page 564:
"The question of profit-making may be important
from an income tax point of view, as in many munici-
. pal cases in England; but, from an industrial dispute point of view, it cannot matter whether the
expenditure is met by fares from passengers or from
ra. tes."
I
•
}-
-
,
S.C.R.
SUPREME COURT REPORTS
317
Dealing with the insistence by the corporations of
1952
the need for the profit-making motive as an assen- D N---;; ..
tial element before one can say that a trade dispute
· · v.aner;•
or industrial dispute has arisen, Powers J. who wasp. R. Mukherjee
also the Deputy President of the Arbitration Tribua"d Others.
nal observed :
" So far as the question in this case is concerned, Oha"J:rase~hara·
as the argument proceeded the ground mostly relied
'Yar ·
upon (after the Councils were held not to be exempt
as State instrumentalities) was that the work was not
carried on by the municipal corporations for profit
in the ordinary sense of the term, although it would
generally speaking be carried on by the Councils themselves to save contractors' profits. If that argument
were sufficient, then a philanthropist who acquired a
clothing factory and employed the same employees
as the previous owner had employed would not be
engaged in an occupation about which an industrial
dispute could arise, if he distributed the clothes made
to the poor free of charge or even if he distributed
them to the poor at the bare .cost of production. If
the contention of the respondents is correct, a private
company carrying on a ferry would be engaged in an
industrial occupation. If a municipal corporation
carried it on, it would not be industrial.
'l'he same
argument would apply to baths, bridge-building, quarries, sanitary contracts, gas-making for lighting
streets and public halls, municipal building of houses
or halls, and many other similar industrial undertakings.
Even coal-mining for use on municipal
railways or tramways would not be industrial work if
the contention of the respondents is correct. If the
works in question are carried out by contractors or by
pii.i.vate individuals it is said to b'e industrial, but not
industrial within the meaning of the Arbitration Act
or Constitution if carried out by municipal corporations.
I cannot accept that view."
Having regard to the definitions found in our Act,
the aim or objective·that the Legislature had in view
ana the nature, variety and range of disputes that
occur between employers and employees, we are forced
.,.
318
SUPREME COUR.T REPOR'fS
(1958j
1902
to the conclusion that the definitions· in our Act
include also disputes that might arise between municiD. N. BancrJi
v.
palities and their employees in branc~es of work that
P. n. M"kherju ca:i, be said to be analogous to the carrying out of a
ana Others.
trade or business.
It is unnecessary to decide
-
whether disputes arising in relation to-purely aP,minisCMnd.rasekhara trative work fall within their ambit.
After all,
Aiyar J,
h h
h
·
· d
· 1 d'
11 . f
h
w et er t ere 1s an m ustna
rnpute at a
1s or t e.
Governmenu primarily to find out, for it is only then
it has jurisdiction to refer.
Moreover, it is not eve1·y
case of an industrial dispute that the Government is
bound to refer.
They may refer some, but may not
also. It is a question of expediency.
There was no ground urged before- us or before the
High Court that the Sanitary Inspector and the Head
Clerk of the Municipality were officers and not "workmen" within the 'meaning of the Act.
The dispute
raised on their behalf by the Workers' Union of which
they we·re members is, in our view, an "industrial dispute" within the meaning of the Act.
The order of the High Court is affirmed, ·and this
appeal is dismissed with costs, only one set to be
shared between respondent 2 and respondent 3.
·Appeal dismissed.
Agent for the appellant: Sukumar Ghose.
Agent for respondents Nos. 1 and 2 : P. K. Bose.
Agent f?r respondent No. 3: P. K. Chatterjee.
)