1. Heard Mr. A Narzery, learned counsel for the petitioner and Mr. S Dutta, learned Senior counsel representing respondent No. 1.
2. This is an application under Section 226 of the Constitution of India assailing the award dated 12.11.2013 passed in Reference Case No. 02/2011 by
the learned Presiding Officer, Industrial Tribunal, Dibrugarh. The said reference was initiated on the basis of a notification issued by the Government
of Assam being Notification No. GLR.70/2011/25 dated 28.05.2011 referring the dispute arose between the Management of Tea Research
Association, Tocklai Experimental Station, Jorhat (in short Station) and their workmen, Tocklai Employees Union. The reference so made by the said
notification was as under:
“1. Whether the Management of Tocklai Experimental Station, Jorhat are justified in not:-
a) Implementing the recommendations of 6th pay Commission’s fully including Special Duty allowance, children education allowance even after a
lapse of more than a year.
 b) Introducing suitable pension scheme in the line of CCS (GOI).
c) Implementing 380 scales thereby not giving relief to the persons discriminated.
d) Clearing the arrear dues.
e) Maintaining uniform P.F. deduction for all employees and proportionate contribution from the management.
f) If not, what relief the workers are entitled to.â€
3. On receipt of the above reference, the Reference Case No. 02/2011 was registered and the contesting parties were asked to file their written
statements along with their relevant documents.
4. The Employees Union, respondent No. 2 herein filed their written statement making their claims reference wise.
5. The Management filed one written statement and one additional written statement. The management raised the point of jurisdiction of the learned
Tribunal below, claiming that the Station is not an industry within the meaning Section 2(j) of the Industrial Dispute Act, 1947 (in short Act, 1947).
Contentions raised by the Management in the written statement are basically to the following:
“That the said tea research association is exclusively carrying on experimental and research of tea and other allied other agricultural
products in a systematic manner with the help of its employees as it lacks that the element which would make it an organization carrying on
an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services
which are intended or meant for satisfying human wants and need, as ordinarily understood.
That the said research association is an institution engaged purely on research and experiment of mainly tea crops. The purpose of the
research is to acquire knowledge about the development of tea and including manufacturing. The knowledge acquired is not intended for
sale.
That the research work carried on by TRA is not connected with production, supply or distribution of material goods or services. The
research works of TRA have never been sold though published. There is no material which shows that the knowledge so acquired by TRA is
marketable or has any commercial value though adopted by some of the tea planters for better production of tea. The object with which the
research activity is undertaken by TRA is to obtain knowledge for the benefit of the department of the tea industries. Its object is not to
render services to others as a trade or business for making profit. That the TRA is not engaged in activities which can be called as business,
trade or manufacture. Neither from the nature of its organization nor from the nature and character of the activity carried on by it, it can be
said to be an undertaking analogous to business or trade. It is not engaged in a commercial industrial activity and it cannot be described as
an economic venture or a commercial enterprise as it is not object to produce and distribute services which would satisfy wants and need of
the consumer community. It is more an institution discharging research on experimental work then a commercial enterprises. â€
6. The Management also filed an additional written statement reiterating their earlier stand as aforesaid, however bringing a new pleading to the
following effect:
“That, Tocklai Research Association receives varying fund from the Tea Board of India from time to time i.e.50% to 80% of its fund only.
The rest of the fund are provided from the member tea garden who takes advantage of the research work of the association.
That, the association to get a better service from its employee allows them to receive the pay recommended by the 6th Central Pay
Commission though it is not bound to do so. â€
7. As the Management has raised an issue to the effect that the institute will not come within the meaning of Section 2(j) of ID Act, 1947, the learned
Tribunal below also decided the said issue. The learned Tribunal relying on a decision of the Hon’ble Apex Court in Management of Tocklai
Experimental Station Vs. Workman and Others reported in AIR 1962 SC 1340 and the judgment of the Hon’ble Apex court passed in Ahmadabad
Textile Industries Research Association Vs State of Bombay reported in AIR 1961 SC 482, held that the Station comes within the purview of the
definition of Industries under Section 2(j) of the Act, 1947.
8. The learned Tribunal also discussed each of the reference separately. The reference Nos.1 (a), 1(b), 1(d), 1(e) and 1(f) were answered in favour
of the Workmen and reference No. 1(c) was answered in favour of the Management. In the present writ petition while assailing the Award of the
learned Tribunal, the Management has basically raised the issue of the jurisdiction of the Industrial Tribunal in determining the references as according
to the Management; the Station is not an industry within the definition of 2(j) of the Act, 1947.
9. The learned counsel for the petitioner submits that since the Management is not an industry within the meaning of Section 2(j) of the Act, 1947
therefore, the learned Tribunal below committed illegality while deciding the reference. So far relating to the other issues, the learned counsel has not
denied the entitlement of dues to the workmen.
10. The learned counsel for the petitioner further submits that the judgment of the Hon’ble Apex Court in Ahmadabad Textile (supra) relied by the
Tribunal is not applicable to the case of the petitioner as the Station is neither selling or manufacturing any tea and/or tea related products and even
they are not selling the research and therefore, the learned Tribunal below committed serious illegality while rejecting their claim of jurisdiction. The
learned counsel further submits that the Station in form of a Society came into existence subsequent to the judgment delivered in the case of
Management of Tocklai Experimental Station (supra) and therefore, the said judgment is not applicable so far relating to the present case in the view
of the change of form of the Station into “Societyâ€, submits, the learned counsel for the petitioner.
11. Countering the argument of the learned counsel for the petitioner, Mr. Dutta, learned Senior counsel submits that there is a clear finding relating to
the issue, whether the Station comes within the purview of the definition given under Section 2 (j) of the Act, 1947 by the Hon’ble Apex court and
thus said issue has already been laid to rest. Therefore, the said issue cannot be opened at this stage.
12. Mr. Dutta, learned Senior counsel submits that the issue of the jurisdiction of the learned Tribunal as has already been set to rest by the aforesaid
judgment of Management of Tocklai (supra), this court will have no further scope to take a decision on that issue.
13. So far relating to the other issues, Mr. Dutta submits that as the whole case of Management rests upon the issue of jurisdiction of the learned
Tribunal and said issue is already settled and as the petitioner has not urged any further issues, nor the petitioner had pleaded anything, on each of the
references in their written statement and therefore, in absence of any pleading by the petitioner, this court should not open up those issues, submits
Mr. Dutta, learned Senior counsel.
14. I have given anxious consideration to the submissions and arguments made by the learned Counsels for the parties.
15. The basic plea raised by the learned Counsel for the petitioner is lack of jurisdiction of the learned Tribunal to deal with the dispute raised by the
workmen, as according to the learned Counsel for the petitioner, the petitioner Station is a society registered under Societies Registration Act, 1860
and therefore, does not come within the definition of Industry as defined under the Act, 1947. His further contention is that in absence of any material
available on record, the Learned Tribunal below ought not to have taken judicial notice of the Memorandum of Association of the petitioner Station to
hold it to be an Industry within the meaning of Section 2(j) of the Act, 1947. However, on a pointed query of this court, learned counsel fairly submits
that it is the same institution but its form has been changed.
16. Sec.2 (j) of the Act, 1947 defines ‘industry’ as any business, trade, undertaking, manufacture, or calling of employees and includes any
calling, service, employment, handicraft or industrial occupation or avocation of workmenâ€.
17. The learned Tribunal on the basis of pleadings and evidence available on record categorically came to a conclusion that the petitioner’s
organisation has been receiving 45% to 50% of their fund from the Tea Board as subsidy and remaining 50% to 55% from their 450 member Gardens.
The organisation is providing resource output to the member tea gardens/industries.
18. While dealing with the issue, the learned Tribunal below came to a conclusion that as in the case of the Management of Toklai Research Institute
(supra) the Honourable Apex Court held that the petitioner to be an industry within the meaning of section 2(j). Therefore the petitioner organisation is
an industry as defined under the Act, 1947.
19. The Management of Tocklai experimental Station (supra) was a litigation, wherein a dispute regarding non-payment of Puja bonus was the subject
matter. Such dispute was referred to the Tribunal by the Assam Government, which was finally answered in favour of the Workmen by the Tribunal
and other part of the dispute regarding payment of pension was answered against the workmen. While adjudicating the claim, the Honourable Apex
court came to a conclusion that the Research institution was established by the Indian tea Association to make research for the purpose of improving
the quality of tea and its production and the institution is managed by the parent Association and is maintained by means of voluntary subscription from
members of the said Association.
20. At paragraph 4 of the said judgement, the Honourable Apex Court came to a conclusion that “the tribunal has held that the station is an industry
within the meaning of the Industrial Dispute Act, 1947 and so it could not resist the demand made by its workmen on the ground that it is an academic
body devoted to research and as such outside the purview of the act.†According to the Honourable Apex Court such position was not disputed
before the Honourable Apex court by the Station because it is concluded by a decision of the Honourable Apex court in Ahmadabad Textile Industries
Research Association (supra)
21. Though it is not disputed that the entity involved the aforesaid case of Toklai (supra) and the present petitioner are the same entity, the learned
counsel for the petitioner is trying to project that now it is a society registered under the Societies Registration Act, 1860. And therefore, the said
judgement of the honourable Apex Court is not applicable in the present case. However no such pleading was made before the learned tribunal and no
material was brought on, either before the learned tribunal or before this court.
22. It is also not disputed either in the written statement or before this court that they are functioning in a similar way so far relating to their object and
doing research in the same manner and the present petitioner is the same organisation but now registered under the Societies Registration Act.
23. Since the petitioner has raised the issue, let this court answer the same. In Ahmadabad Textile Industries Research Association’s case
(Supra) hereinafter called as Ahmadabad Textile Case, the question was whether Ahmadabad Textile Industries Research Association was an
undertaking within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 and its activities satisfies the tests laid down in State of Bombay v.
Hospital Mazdoor Sabha reported in AIR 1960 SC 610 ?
24. In the Hospital Mazdoor Sabha (supra), the question was whether a Hospital run by Government was an undertaking within the meaning of
Section 2(j). It was held that those sovereign activities of government were outside the scope of Section 2(j), as they were functions which, a
constitutional government could and must undertake for governance and which no private citizen could undertake. Amongst others, It was further held
that to make an activity an undertaking under Section 2(j) of the Act, 1947 on the ground that it was analogous to trade or business, the attributes are
exhaustive but the principle is that an activity systematically or habitually 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 would be an industry within the meaning of
Section 2(j) of the Act, 1947, provided it was carried on in an organised manner like trade or business.
25. In the backdrop of the aforesaid ratio, the Hon’ble Apex Court in Ahmadabad Textile case considered whether the said Ahmadabad Textile
Research Institute was an industry within the meaning of Section 2(j) of the Act, 1947. It came to the factual finding that the said Research Institution
was an institution which was established for the purpose of carrying on research and other scientific work in connection with the textile trade or
industry and other trade and industry allied therewith or necessary thereto and the cost of maintaining the Institution was met partly by members and
partly by grants from the Government and other sources. Finally it was held that though the object of the association was research, the research was
directed with the idea of helping the member mills to improve methods of production in order to secure greater efficiency, rationalization and reduction
of costs. It was also a conclusion that on the basis of the research carried on by the Institution was to help the textile industry and particularly the
member mills in making larger profits and this was to be done primarily by the employment of technical personnel on payment of remuneration. The
Hon’ble Apex Court also came to a conclusion that “the cost of maintaining the association is met partly by members and partly by grants from
government and other sources. It will thus be clear that in effect the association has been established to carry on research with respect to textile
industry jointly for the benefit of its membersâ€. Finally The Hon’ble Apex held that as follows:
“........The activities of this association therefore have in our opinion little in common with the activities of what may be called a purely
educational institution. It is true that the employees who have raised the present industrial dispute do not actually contribute to the research,
which is carried on under the appellant-association; but the manner in which the association is organised and the fact that the technical
personnel who carry on the research are also employees who have no rights in the results of their research, clearly show that the
undertaking as a whole is in the nature of business and trade organised with the object of discovering ways and means by which the
member-mills may obtain larger profits in connection with their industries. In these circumstances we have no hesitation in coming to the
conclusion that the appellant-association is carrying on an activity which clearly comes within the definition of the word ""industry"" in s. 2(j)
and which cannot be assimilated to a purely educational institution. In this view of the matter, when a dispute arose between the appellant
and some of its employees, it was an industrial dispute and could be properly referred for adjudication under the Act. The appeal fails and
is hereby dismissed with one set of costs.â€
26. On the basis of the aforesaid finding and on the basis of the admission of the learned counsel representing Management of Tokalai Experiential
Station, issue was set at rest by the Hon’ble Apex Court in Toklai Experimentation Station case (supra). Therefore, this Court Cannot find fault
with the Learned Tribunal while holding that the petitioner in the present case comes under the definition of Section 2(j) of the Industrial Disputes Act,
1947.
27. A contrary view to that of Ahmadabad Textile (supra) was expressed by the Hon’ble Apex Court in Management of Safdarjung Hospitals vs.
Kuldeep Singh reported in (1970) 1 SCC 735. In another case i.e. in Bangalor Water Supply & Sewerage Board vs Rajappa reported in (1978) 2 SCC
213 the Hon’ble Apex Court considered both the decisions i.e. Safdarjung (Supra) and Ahmadabad Textile (Supra) and the Hon’ble Apex
Court in Bangalore Water Supply (Supra) widened the scope of the definition of Industry and held as under:
“112. We may proceed to consider the applicability of Sec. 2(j) to institutions whose objectives and activities cover the research field in a
significant way. This has been the bone of contention in a few cases in the past and in one of the appeals argued at considerable length and
with considerable force by Shri Tarkunde who has presented a panoramic view of the entire subject in his detailed submissions. An earlier
decision of this Court, The Ahmadabad Textile Industries Research Association(1)case has taken the view that even research institutes are
roped in by the definition but later judicial thinking at the High Court and Supreme Court levels has leaned more in favour of exemption
where profit-motive has been absent. The Kurji Holy Family Hospital was held not to be an industry because it was a non-profit-making
body and its work was in the nature of training, research and treatment. Likewise in Dhanrajgirji Hospital v. Workmen a bench of this
Court held that the charitable trust which ran a hospital and served research purposes and training of nurses was not an industry. The
High Courts of Madras and Kerala have also held that research institutes such as the Pasteur Institute, the C.S.I.R. and the Central
Plantation Crops Research Institute are not industries. The basic decision which has gone against the Ahmedabad Textile case is the
Safdarjung case. 'We may briefly examine the rival view- points, although in substance we have already stated the correct principle. The
view that commends itself to us is plainly in reversal of the ratio of Safdarjung which has been wrongly decided, if we may say so with great
respect.
113. Does research involve collaboration between employer and employee? It does. The employer is the institution, the employees are the
scientists, para-scientists and other personnel. Is scientific research service? Undoubtedly it is. Its discoveries are valuable contributions to
the wealth of the nation. Such discoveries may be sold for a heavy price in the industrial or other markets. Technology has to be plate for
and technological inventions and innovations may be patented and sold. In our scientific and technological age nothing has more cash
value, as intangible goods and invaluable services, than discoveries. For instance, the discoveries of Thomas Alva Edison made him
fabulously rich. It has been said that his brain had the highest cash value in history for he made the world vibrate with the miraculous
discovery of recorded, sound. Unlike most inventors, he did not have to wait to get his reward in heaven; he received, it munificently on this
gratified and grateful earth, thanks to conversion of his inventions into, money a plenty. Research benefits industry.
Even though a research institute may be a separate entity disconnected from the many industries which funded the institute itself, it can be
regarded as an Organisation, propelled by systematic activity, modelled on co-operation between employer and employee and calculated to
throw up discoveries and inventions and useful solutions which benefit individual industries and the nation in terms of goods and services
and wealth. It follows that research institutes, albeit run without profit-motive, are industries. True Shri Tarkunde is right if Safdarjung is
rightly decided. The concluding portions of that decision proceed on the tooting that research and training have an exclusionary effect.
That reasoning, as we have already expounded, hardly has our approval.â€
(Emphasis supplied).
28. The pleading and argument of the petitioner reveals the followings:
(I). It is exclusively carrying on experimentation and research of tea and other allied agricultural products in a systematic manner with the help of its
employees.
(II). It is not producing and distributing services which are intended or meant for satisfying human wants and need.
(III). There is no element, which would make it an organization carrying on an activity which can be analogous to the carrying on of a trade or
business as it is a research institute
(IV). Tea Board of India from time to time grants funds from 50% to 80%.
(V). The rest of the fund is provided by the Member tea Gardens who take advantage of the research work of the institution.
29. Thus from the Statement made in the written statement it is clear that the output of scientific research is having a value and it is a service to the
member Tea Garden, which in turn are financing the same.
30. Therefore, the pleadings in the shape of the written statement and additional written statement, the arguments made before the Learned Tribunal
as well as before this Court on behalf of the Petitioner, it is clear that the present case is squarely covered by the decision of the Hon’ble Apex
Court in Ahmedabad Textile case (Supra) and Bangalor Water Supply (supra).
31. The decision of Bangalor Water Supply (supra) was referred to a Larger Bench by a five Judges Constitution Bench of the Hon’ble Apex
Court for reconsideration on the ground that majority judgment in Bangalor Water supply (supra) was not unanimous decision and had been subject to
varying interpretation by the judiciary. Subsequently, a seven Judges Bench of the Hon’ble Apex Court passed an order dated 02.01.2007 in the
case of State of Uttar Pradesh vs. Jaibir Singh expressing its opinion that the matter need to be placed before a Bench comprising with 9 Judges to be
constituted by the Hon’ble Chief Justice of India. The same is pending for consideration. Therefore, as at present the Bangalor Water Supply
(supra) decided by a Constitution Bench of Hon’ble Apex Court consisting of seven Hon’ble Judges is binding upon this court as the law
declared under Article 141 of the Constitution of India.
32. The points of reference were not contested by the petitioner in their Written Statement, except raising the point of Jurisdiction of the Learned
Tribunal. The Learned Counsel for the petitioner has only urged the point of want of jurisdiction of the Learned Tribunal qua the definition under
Section2 (J), therefore, this Court has not gone into those aspects.
33. Though by filling additional affidavit in the present proceeding the Management has expressed some financial difficulties in honouring the award,
which is also reflected in the order dated 10.09.2019 passed by this court, this court is not inclined to go into those aspect inasmuch as this Court is
only dealing with the jurisdiction of the learned Tribunal in dealing with the reference. However, the petitioner is at liberty avail appropriate remedy
available in law to it to agitate those grievances, including negotiation, conciliation with the Workmen.
34. In view of the aforesaid discussions, reasons and decision, it is held that petitioner Station comes under the definition of Section 2(j) of the
Industrial Disputes Act, 1947. Accordingly, the present writ petition is dismissed, however no order as to cost.
