H K MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The only question which requires determination in this reference to the Full Bench is whether the relief undertakings carried out by the State Government to provide sustenance to the persons affected by famine, flood, earthquake or scarcity is an 'industry'. Common parlance reply would be : it is not an 'industry'. Still, the question is a vexed one as it is required to be dealt with after considering the definition of the word 'industry' under Sec. 2(j) of the Industrial Disputes Act, 1947, as interpreted by various Courts.

(2.) The Division Bench consisting of A. H. Ahmadi, J. (as he then was) and R. J. Shah, J., in the case of J. J. Shrimali v. District Development Officer, 1989 (2) GLH 12 : (1989 (1) GLR 396), held that when a State Government during famine and drought undertakes relief works intended to provide the much needed relief to scarcity affected people living in the affected areas, it is not embarking upon any industrial or commercial enterprise but is merely trying to fulfil its obligation towards its people who are hit by nature's wrath. There is no desire or intention to launch a durable industrial or commercial enterprise but the paramount idea or consideration is to provide relief to the scarcity affected people who have been deprived of livelihood because of the failure of the monsoon. In such cases the State Government is merely fulfilling its governmental duly towards the scarcity affected people and is not operating in the field of commerce or industry for the production or distribution of goods or services. The Court, therefore, held that such activity is not an industry within the meaning of Sec. 2(j) of the Industrial Disputes Act, 1947 as the State was merely performing its sovereign function as distinguished from a commercial adventure.

(3.) The Division Bench consisting of S. B. Majmudar, J. (as he then was) and I. C. Bhatt, J., for the elaborate reasons stated in the referring judgment and order dated 29/09/1988 arrived at the conclusion that prima facie the aforesaid decision in the case of Shrimall requires reconsideration. Hence, referred the following questions to a Larger Bench :