1976 PLP 675 (PLC)

24. The guidance obtained from these Australian decisions has been acknowledged by the Supreme Court of India in the Madras Gymkhana's case (A I R 1968 S C 554) in the following words: "Decisions rendered on these definitions (and some others very similar) have naturally influenced opinion making in this Court. The Australian cases in particular have been sub-rose all the time."

25. From 1926 to 1968 the definition of industry had remained almost the same. There was a significant change in it by Ordinance No. XXIII of 1969 enforced on 3-11-69 when it was enlarged, not so much in its meaning and content, as in the specifications of the industries brought within its fold by the inclusive clause. Not even a year had elapsed when this definition was by an amendment (Ordinance XIX of 1970) under examination shorn of all its inclusive clauses and reduced to a size smaller than it ever had, retaining all the key-words that existed in it since long past but omitting a few important ones. Going by the rule of interpretation there are certain assumptions that can safely be made. The first is that in the ordinary circumstances the Legislature must be taken to have intended a change in law for otherwise its effort would be one of futility. An amending Act to this extent partakes of the characteristics of a curative act. Crawford has expressed this in the following words: "They may be defined as those statutes which make an addition to or operate to change the original law so as to effect an, improvement therein or to more effectively carry out the purposes for which the original was passed." Secondly, an amending provision is not ordinarily interpreted so as to alter completely the character of the Principal law, unless clear language is found indicating such an intention. In other words, in the absence of a contrary intention, an amendatory statute will not have a wider scope than the statute which has been amended, and should be construed to have the same sphere of operation. Thirdly, and this is important for these cases, the previous judicial construction becomes a part of the amended statute, where the terms construed are retained in a subsequent amendment. With these assumptions as starting points an attempt will be made to ascertain what was the state o law before the alteration was made, what was the mischief intended to be remedied and what was the nature of the remedy provided.

26. There are three reported decisions (to my knowledge) of the Courts of this country concerned with the definition of industry which stands today. The first is a Labour Tribunal's decision in F. I. M. C. Employees' Union v. Registrar, Trade Unions (P L J 1973 Tr. C. (Lab.) 113), in which after taking note of the amendment in the definition and its effect it was concluded that : "The result is that according to the present definition of industry without seeing whether a calling, service, employment or occupation is being run on business point of view or not, it would be industry."

27. The next is a well considered Division Bench judgment of the Sind & Baluchistan High Court in Ferguson & Co. v. The Sind Labour Court (1974 P L C 98), wherein the whole range of Labour legislation in this country in the recent past was covered and the following conclusions drawn "I have referred to these statutes to show that the Ordinance was one in the series of statutes which manifest the concern of the Legislature for the welfare of the workmen, In the legislative background, it is clear that the Legislature has altered the definition of industry deliberately., and it would be defeating its intention if we were to construe and restrict the meaning of new definition by reference to the old definition and the decisions on it."

28. The third case is of the Labour Appellate Tribunal, in Aisha Bawany Academy v. Madad Bakhsh (1975 P L C 354), in which educational institution was held to be not an industry following the University of Delhi's case (A I R 1963 S C 1873). The change in the definition of industry Was not noted in this case.

29. In passing I might as well Point out that tae latest definition of industry in the Ordinance is not so radically different from the oldest of which record is available. In New Zealand Act No. 14 of 1894 entitled "An Act to encourage the Formation of Industrial Unions and Associations, and to facilitate the Settlement of Industrial Disputes by Conciliation and Arbitra tion." Industry was defined to mean 'any business, trade, manufacture, undertaking, calling or employment of an industrial character'. In South Australian Conciliation Act. 1894, which came into force on 1st January 1895 industry, was defined to mean "any avocation, business, trade, undertaking, calling or employment." Western Australian Act on the subject was enforced in 1900 and it defined industry as "Any business, trade, manufacture, undertaking, calling or employment in which workers are employed."

30. The object of reproducing these definitions is to demonstrate that in the context of Industrial and Labour Laws the words Business, trade, manufacture, undertaking, avocation, employment (or service) have been used and they have presented some problem in interpretation.

31. One such problem has been whether these words should be given their plain dictionary meaning or their popular and conventional meaning, whether they should have the fullest sway or must be contained by the nature and object of the statute in which they are used. The very first word, Business always finding a place in the definition has the following dictionary (all references to dictionary are to the Oxford English Dictionary) meaning: "state or quality of being busy. In general sense action which occupies time, demands attention and labour; especially serious occupation; work as opposed to pleasure or recreation."

32. Similarly the expression, Trade has the following dictionary meaning "Anything practised for a livelihood; The practice of some occupation, business or profession habitually carried on especially when practised as a means of livelihood or gain." 33 . It is, therefore, clear that given' their plain ordinary dictionary meaning words used to define Industry, words which have been always, and are even row, a part of the definition, viz., Business, Trade, Manufacture, Calling, Service, Occupation are of the widest amplitude and include in their sweep every conceivable human activity which is not casual, recreational or a past time. Literal construction certainly leads to that end and to no other. However, one accepted principle of interpretation already reproduced used is that use in a statute, amending or otherwise, of a term which has received a judicial construction gives rise to the presumption that the term is used in that sense. The Privy Council adopted with approval this rule in Webb v. Outnim (1907 A C 81). It is expressed in the following words : "When a particular form of legislative enactment which has received authoritative interpretation whether by judicial decision or by long course of practice is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the Legislature to bear the meaning which had been so put on them."

34. Maxwell (Twelfth Edition, page 87) sets out another principle of interpretation relevant to the issue in the following words : "However wide in the abstract, general words, and phrases are more or less elastic, and admit of restriction or extension to suit the legislation in question. The object or policy of the legislation often affords the answer to problems arising from ambiguities which it contains, for it is a canon of interpretation that all words, if they be general and not precise, are to be restricted to the fitness of the matter that is to be construed as particular if the intention be particular."

35. In the Hospital Mazdoor Sabhas case (AIR 1960 S G 610), the meaning was sought to be given to these expressions in the following manner: "Business" is a wider term not synonymous with trade and practically "anything which is an occupation pleasure." The word calling again is very occupation, vocation, business or trade, so import. Prima facie, if the definition has deliberately used words of such wide import, it would be necessary to read these words in their wide denotation, and so read, Hospital cannot be excluded from the definition."

36. Apart from this fact others noted in that case were (i) the use of the word 'undertaking' in the definition which suggested that profit was no consideration and (ii) the inclusive character of the definition of industry prompting the Court to reject the application of rule of constraction noscuntur a sociis. But the exact scope of the meaning remained undetermined if one were to keep in view the conclusion reached by the Court and expressed in the following words : "It is clear, however, that though section 2(d) uses words of very wide denotation, a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter 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 howsoever rendered in whatever capacity and whatever reason. We must therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the wide words used in section 2(d) and that no doubt is a somewhat difficult problem to decide."

37. The history of judicial decisions thereafter shows how more and more tests were added to contain the generality of the definition as in Ahmadabad Textile Industry Research Association (A I R 1961 S C 484), in M. R. Mehr's case (A I R 1962 S C 1080) and in University of Delhi case. Then comes the Madras Gymkhana's case (A I R 1968 S C 534), where it was held that "It is, therefore, clear that before the work engaged in can be described as an industry, it must bear the definite character of trade or business or manufacture or calling or must be capable of being described as an undertaking in material goods or material services."

38. Next case of this category was Cricket Club of India (1969)1 L L J 775), where a Cric ket Club employing 397 persons owning and managing immovable property of the value of 67 lakhs, running canteen and refreshment, rooms, arranging big parties, charging fee for admission to matches in stadiums owned by it was held to be not falling in the definition of industry for the following reasons : "It is, in fact, an activity in the course of promotion of the game of Cricket and it is incidental that the club is able to make an income on these few occasions which income is later utilized for the purposes of fulfilling its other objects as incorporated in the memorandum of association: The holding of matches is primarily organized by the Club for the purpose of promoting the game of Cricket. This activity by the Club cannot, by itself, in our opinion, lead to the inference that the Club is carrying on an industry."

39. Finally,, in the case of Safdar Jang Hospital (1970) 11 L L J 266) decided in April 1970 more specific decision was given on certain controversial expressions. These are summarized as follows (i) "The word `trade' includes persons in a line of business in which persons are employed as workmen." (ii) " `Business' too is a word of wide import. In one sense it includes all occupations and professions. But in the collocation of the terms and their definition these terms have a definite economic content of a particular type and on the authorities of this Court have been uniformly accepted as excluding professions and are only concerned' with the production, distribution and consumption of wealth and the production and availability of material services." (iii) "Industry has thus been accepted to mean only trade and business, manufacture or undertaking analogous to trade or business for the production of material goods or wealth and material services." (iv) "Material services involve an activity carried on through cooperation between employers and employees to provide the community with the use of something . . . . . . . organized as an industry and commer cially valuable." (v) "If a hospital, nursing home or dispensary is run as a business in a commercial way there may be found elements of an industry there. Then the hospital is more than a place where persons get treated for their ailment."

40. The amendment, which has come up for consideration in these cases, was made by Ordinance XIX of 1970 introduced on 14th October, 1970. Its following characteristics have to be noted for ascertaining the intention of the Legislature : (i) It retains most of the key-words used in the definition viz., Business, Trade, Manufacture, calling, service, employment or occupation. (ii) It omits from the definition a few key-words, most important being undertaking. (iii) The extended inclusive definition is given up. (iv) Simultaneous amendment was made in the definition of establishment.

41. A review of the Australian and Indian cases makes it clear that in the sphere of Industrial and Labour law the terms Business, Trade and manufacture were without exception given not their plain dictionary meaning but their popular and conventional meaning. Their retention in the definition would clearly suggest that it was not intended by the Legislature to either enlarge their meaning or to further limit it. The expressions, calling, service, employment or occupation have also never been understood or interpreted in their plain dictionary meaning. Instead they have been held to be con trolled by and taking their colour from opening words, Business, Trade and Manufacture.

42. It is an interesting study to examine the difficulty presented by the word `undertaking' in the company of Business, trade and manufacture, in the earlier definition A comprehensive resume is found in the case of Madas Gymkhana Club and the reason for its omission is readily ascer tainable. In the case of D. N. Banerji v. P. R. Mukkerji (A I R 1953 S C 58) the suggestion that the word undertaking takes its colour from the words business, trade, manufacture was not accepted on the ground that this interpretation renders the word undertaking superfluous and the latter part of the definition unnecessary. In State of Bombay v. Hospital Mazdoor Sabha (AIR 1960 S G 610) the expression undertaking was allowed to take its colour from the other expressions. On the earlier reasoning such a view made the word undertaking superfluous and the latter portion of the definition unnecessary. In the Madras Gymkhana case following observations were made with regard to the expression under taking : "'Of these categories' undertaking is the most elastic . . . . . . It is this category which has figured in the cases of this Court . . . . . . The word undertaking must be defined as "any business or any work or project which are engaged in or attempts as an enterprise analogous to business or trade."

43. The omission of the word undertaking was, apparently, with the set purpose of giving full effect to the control of the opening words business, trade and manufacture. It had taken the Indian Supreme Court a period of over ten years, and a number of cases to submit finally the word under taking to the effective control of the opening expression business, trade and manufacture.

44. I have already referred to the case of D. N. Banerji where one reason for not placing the word undertaking under the control of the governing expressions was that it would make the word undertaking superfluous and the latter part of the definition unnecessary. When finally the expression undertaking was brought within the same fold (Madras Gymkhana) the inclusive character of lire definition was abandoned and it was taken to be a definition having one part only, the opening words governing the rest of the definition. The definition was by such a pruning shorn of its superfluity and vagueness. It became more precise. There was s o question now of extending its meaning and scope by reference to expressions like undertaking or its inclusive character.

45. I consider that most positive manifestation of legislative intent has taken place in the simultaneous amendment of the definition of establishment in Industrial Relations Ordinance. Immediately before the amendment it was defined to mean : " Establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service."

46. While amending the definition of industry in terms already reprodu ced, there was a simultaneous amendment in the definition of establishment which after such amendment stood as follows : "Establishment means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry."

47. An argument was advanced in the case of Fergusan & Co. that the expression "in which workmen are employed for the purpose of earryii;g on any industry" qualified not merely the preceding word "premises" but all the preceding words in the definition of establishment. The Division Bench rejected it on the ground that it will make tire expression industrial unit redundant and further and the word industry used herein could not be given a different meaning than the one contained in the definition. With greatest respect I find it difficult to agree to this view. It is a recognized rule of that where several words are followed by a general expression which is as much applicable to the last but applies to all It is this rule of construction which was sought to be pressed into service. Further the use of the word unit with Industrial is very significant. Unit has the following dictionary meaning : "A single individual or thing, regarded as a member of a group or member of things or individuals, or discriminated from these as having separate existence, one of the separate parts or members of which a complex whole or aggregate is composed or into which it may be analysed."

48. The moment the expression "industrial unit" comes up for interpretation we are reminded of the aggregate or the group or the genre of which it is a part. It is not sufficient that there should be an industrial unit. What is required in addition is that it should exist for industry and not for any other no industrial purpose. Thus a scheme for rehabltation of destitute women, or disabled and infirm men, or the blind may have as its integral part workshops, or industrial units but as its existence would not be for industry it would not fall within the definition of industry. There is a whole range of case-law on this. The sale of milk and manure was held to be not industry [Madras Pinjara Pole v. Labour Court (1961 P IL C 414)] where the main object and purpose of the undertaking was to afford shelter, food and medical treatment to unserviceable cows, including dry cows till the end of their lives. Such sales being incidental to the main object, notwithstanding having a business tinge about them.

49. In the case of Assam Rashtra Bhasha Prachar Samuti v. Workmen Union maintenance of a printing press was held to be subsidiary to the main cultural activities of the organization keeping it out of the definition of Industry.

50. In Brahmo Samaj Educational Society v. West Bengal College Employees' Associations the colleges were found running canteens, selling refreshments to students, maintaining workshop for laboratory equipment. All the same, these being incidental and ancillary to the main purpose of the establishment, viz education were held to be not industry.

51. It is, therefore, not sufficient that there be an industrial unit. What is required is that such industrial unit, office, firm, shop must be for industry and for no other purpose. Here the word industry will have the same meaning as in the definition. Such a construction imputes no redundancy or surplusage to the Legislature. On the contrary it explains the fullest significance of the expression industrial unit and industry.

52. The upshot of the entire discussion is that the use of the expressions "Business, Trade, Manufacture, Calling, Service, Employment or Occupation" in the definition of Industrial Relation Ordinance is not in, its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organized and is systematic depending substantially, if set entirely, on the cooperation between labour and capital, and having as its object production, distribution and consumption of wealth, off, the production or provision of material services. The enterprise as a whole has to be looked at to find out its raison d'etre, and any part of it which is incidental; ancillary or an adjunct cannot determine the character of the whole.

53. Applying these tests to the individual cases we find that Christian Technical Training Centre is an educational and training establishment. If it is maintaining an industrial unit (a workshop) rendering services on payment, advertising its product, it is as an incidence of vocational education and of training programme designed to ensure job opportunities to the trainees. Therefore, what is incidental to the main purpose cannot detract in any ` manner, from its being an educational institution.

54. At the relevant time the West Pakistan (University of the Punjab) Ordinance, 1961 determined the character of the Punjab University and the sphere of its activities. The preamble sets out the purpose of the Ordinance in the following words "Whereas it is expedient to reconstitute and reorganize the University of the Punjab for the purposes of improving teaching and research provided thereby and the administration thereof." Section 5 of the Ordinance specifies the powers of the University which actually determine and circumscribe the sphere of its operational field. There are 14 specific items all dealing with teaching, instructions, research, conduct of examination, conferment of degrees etc, and control and supervision over such matters, There is no power possessed by the University to embark enterprise or to establish any industry alien to these purpose of the ordinance. The residuary clause (xv) of section 5 empowers the University to do such otheracts and things whether incidential to the powers aforesaid or not as maybe requisits In order to further tire objects of the University as an examining, t-aching and research body specially regarding dessemination and advancement of knowledge and cultivate and promote art, science and other branches of learning. The assumption of the industrial Court that the University has opted to have the printing press as an industrial enterprise in a situation where it was free to embark on any other industrial enterprise is open to serious question in view of statutory provisions.

55. University of the Punjab Act, 1973 while specifying the powers of the University in section 4 by its clause (v) authorizes it to "receive and~ manage property transferred and grants bequest, trusts, gifts, donation, endowments and other contributions made to the University and to invest any fund representing such property, grants, bequests, trusts, gifts, donations and endowments or contributions in such manner as it may deem fit." Even where such .a power in general terms has been conferred on the University to invest its funds it does not follow that the University is free to set up an industry not connected with purposes for which it has been established as a part of the investment of its funds.

56. An effort has been made by the employees of the University Printing Press to demonstrate that books are being printed at the Press and they are sold to the public at prices which are their normal market prices and this gives the entire printing press a commercial and industrial complexion irrespective of the educational purpose for which the University exists. In support of this claim a list of books published by the printing press showing, of also their prices was filed during the course of the hearing of the writ petition. A perusal of the list could convince any one that by setting up a printing press which is printing such books the University is in no manner eroding its own character as an educational institution. The list of books contains the following heads of subject on which the books have been printed (i) Text Books. (ii) Miscellancous Books. (iii) Urdu Encyclopaedia of Islam., (iv) Oriental Publications. (v) Shahanshah of Iran ; Grant Publication. (vi) Books published on the centenary of Ghalib.

57. A further examination of the books listed under each head shows that these are not the ordinary commercial publications, with an eye on the :a market, but these are publications directed to promote the advancement of learning and research by preserving and ensuring the availability of rare books and manuscripts to students and researchers.

58. The balance-sheet of the University Printing Press was submitted with a view to establish that its activities are more business like and commercial than educational. The balance-sheet shows that its liabilities to University were to the tune of Rs. 2,16,086.65 in 1971-72 and Rs. 2,81,176.89 in 1972-73 and the printing charges realized during 1971-72 from all sources were Rs. 1,7,249.97 and Rs. 1,04,270.59 in 1972-73. The loss in 1971-72 is shown to be Rs. 26,198.12 and in 1972-73 it is Rs. 1,62,067.66. The balance-sheet does not bear out the contention of the workers.

59. A solitary marriage invitation card without any print line was put in to prove that private printing work is also undertaken by this press. It is said to have been printed on 3-11-1975. Even if it were true it does not alter the character of the Printing Press which is an industrial unit designed for and owing its existence in that set up to a larger and bigger purpose, viz. the educational process. It remains incidental and ancillary to that purpose.

60. A similar reference to and study of the Ordinance setting up the Sargodha Board of Intermediate and Secondary Education (Ordinance VII of 1968) would show that its power and sphere of activity has been deliated in section 11 and none of them concerns any matter which is alien or is not incidental to education, its standardization, control, supervision or advance ment. The same result will therefore follow.

61. All these petitions are, therefore, allowed, the orders impugned therein, in so far as they treat the petitioner not to be a part of the educa tional process, or education to be an industry for the purposes of Industrial Relations Ordinance and all the consequential orders are declared to be without lawful authority and of no legal effect. This adjudication does not in any manner, affect or deal with their status, legal rights and obligations under laws other than Industrial Relations Ordinance.

62. In view of the nature of controversy no order is made as to costs. Petitions allowed.