FRASER AND ROSS Vs. SAMBASIVA IYER V

JUDGEMENT

(1.) A question of considerable interest and importance, in the domain of Industrial Law, arises in this proceeding, namely, whether a Firm of Chartered Accountants and Auditors, a registered partnership which is conducting this profession, will be an 'industry' within the scope of Section 2(j) of the Industrial Disputes Act. The matter arises for our determination, in the following context of facts. Messrs. Fraser and Ross (writ-petitioners) had employed the first respondent, (V. Sambasiva Ayvar) as a stenographer in the Firm, and, under the Rules relating to his service, he was to be retired in February, 1963, when he would have attained the age of superannuation. We need not now concern ourselves with the minute particulars, but it may be noted that the first respondent was permitted to avail himself of earned leave from 1-2-1963 to 31-5-1963, and that he finally retired on 1-6-1963. He made a claim that he ought to be continued in service till the completion of his 60th year, or at least for three years more, but this was rejected by the Firm, and he instituted a proceeding in the Labour Court, claiming a sum of Rs. 7,254/-, as retrenchment compensation and wages in lieu of one month's notice. The petitioner Firm raised a preliminary objection to the maintainability of the petition, claiming that the Firm did not constitute an 'industry', within the meaning of the Industrial Disputes Act. The Labour Court negatived this contention, and this has led to the present proceeding in certiorari.

(2.) THOUGH, at different stages of the arguments, several of the averments and counter-averments relating to the merits of the claims of the first respondent were particularised before us they need not be here gone into. Admittedly, it is only the general question which concerns us, and if Messrs. Fraser and Ross. a reputed Firm of Chartered Accountants and Auditors, do not come within the ambit of the statutory definition, the writ petition will necessarily have to be allowed. Nor can the matter be merely considered as res integra, though there is no previous judgment of this Court on the subject, or any judgment of the Supreme Court. There are two decisions of the Calcutta High Court. N. R. Mukherjee v. A. H. Just, and Rabindranath Sen v. First Industrial Tribunal, West Bengal, on this specific issue. In the first of these precedents, a contention was raised that the activities of that particular firm of Chartered Accountants were not confined to the business of a Chartered Accountant simpliciter, but extended to other activities, which might be viewed as commercial activities, and which were not strictly related to the business or profession of a Chartered Accountant. The learned Judge held that evidence was essential on two related questions of fact, and the decision really turned upon considerations of that character. But in the second precedent, , Banerjee, J., did hold that a Firm of Chartered Accountants and Auditors, like the petitioner Firm here, might be included within the definition of the expression 'industry' in Section 2(j) of the Act. These precedents were considered, and a decision was rendered by Mathew, J., on the very point, in T. K. Menon and Co. v. District Labour Officer (1966-2 Lab LJ 608 (Ker)). This judgment came up in appeal before Govinda Menon and Krishnamurthi Ayyar, JJ., In the High Court of Kerala, in T. K. Menon and Co. Calicut v. District Labour Officer Kozikode-2, 1966-2 Lab LJ 613= (AIR 1967 Ker 31), and, after a considered review of the case-law, the learned Judges allowed the appeal, and held that the work of a Chartered Accountant or of Chartered Accountants could not be included in the definition of the word 'Industry' in Section 2(j) of the Act. Subsequent to this judgment of this Division Bench, we have the judgment of the Supreme Court in the Secretary, Madras Gymkhana Club Employees' Union v. Management of the Gymkhana Club, Civil Appeal No. 572 of 1966 . That reviews the entire prior case-law on the subject, and formulates afresh the principles upon which the matter now before us will really have to be determined.

(3.) WE now come to the Hospital Mazdoor Case, , which constitutes a landmark. This precedent attempted to evolve a working test, and, perhaps, the best manner in which the decision could be explained would be the citation of a passage, not from this decision itself, but from a subsequent commentary furnished by the Supreme Court in National Union of Commercial Employees v. Meher Industrial Tribunal, Bombay, .