BRIJ MOHAN BAGARIA Vs. N C CHATTERJEE

JUDGEMENT

(1.) The petitioner Brij Mohan Bagaria is an attorney practising in this court. He has been practising as such for the last 18 years and at the present moment has a large establishment at his office situate at No. 6, Old Post Office Street, consisting of 6 qualified assistants, 2 articled clerks, about 42 ordinary clerks and 14 other described as 'subordinate staff'. I mention this because in a reference made by Government of West Bengal, to which I shall presently refer, it has been stated that an industrial dispute, exists between 'Messrs. B. M. Bagaria, 6, Old Post Office Street, Calcutta and their employees as represented by B. M. Bagaria's Employees' Union, 45, Bow Bazar Street, Calcutta", and in an order made, by the First Labour Court the learned Judge has described the petitioner as a 'company'. In this application, the petitioner has alleged that he is an attorney practising in this Court and the employees are his employees which fact is not denied. It appears, however, that the employees of the petitioner have grouped themselves into an Union known as 'B. M. Bagaria Employees Union' and have been conducting themselves as if the calling of a solicitor is an 'industry' as defined in the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). In or about November, 1956 the Union submitted a Charter of Demand, demanding increment of basic salary, dearness allowance etc. The only affidavit-in-opposition filed herein is by the Secretary of the Union and it is stated therein that the Charter of Demand was issued because, while the business of the petitioner was a flourishing one, the basic salary paid to the clerical and subordinate staff fell far below the middle class and working class living index respectively and did not even reach the bare subsistence level. The petitioner alleges that the employees, by their concerted action tried to create a deadlock in the office and employed pressure tactics and even resorted to threats of assault. This, of course, is not admitted) on behalf of the Union. It is, however, a fact that on 18-3-1957 the employees resorted to a pen-down strike. Thereupon, the petitioner served charge-sheets on some of the employees and after enquiry terminated the services of some of them. According to the Secretary of the Union, this was an instance of victimisation for participating in a lawful pen-down strike which was conducted in a manner permitted by law. The Union approached the Labour Department of the Government of West Bengal and conciliation proceedings were started. It is alleged that the attempts to settle the matter by conciliation failed. On 10-7-1957 an order was made by the Government of West Bengal under Section 10 of the Act, referring the alleged industrial dispute for adjudication by a Labour Court constituted under Section 7 of the said Act. The relevant part of the order of reference is set out below:

(2.) The petitioner thereupon made an application sometime in August 1957 before the First Labour Court for its decision on the preliminary point as to whether the petitioner was carrying on an 'industry' and, therefore, whether his employees were workmen as defined in the Act, and whether the alleged dispute between the petitioner and his employees constituted an industrial dispute within the meaning of that Act, which could be referred to adjudication under Section 10 of the Act. The said court took it up as a preliminary point and by its judgment dated 10-9-1957 has decided against the petitioner and has held that the instant dispute is an industrial dispute and that the order of reference was valid. This Rule was issued on 28-11-1957 upon the respondents to show cause why the order of reference and proceedings taken thereunder should not be quashed by a writ in the nature of certiorari and why the First Labour Court, respondent No. 1, should not be restrained by a writ of prohibition from proceeding to entertain the reference or decide the same.

(3.) It is obvious that the point that is involved in this case is as to whether the calling of a solicitor can be characterised as an 'industry' within the meaning of the Industrial Disputes Act and whether the employees of the petitioner can be described as 'workmen' within the meaning of the said Act, and whether the alleged dispute between the petitioner and his employees can be said to be an industrial dispute, such as can be the subject-matter of a reference under Section 10 of the Act. It does appear that the parties have been proceeding to a certain extent upon the footing that the Industrial Disputes Act applies, otherwise I do not see the basis for some of the happenings enumerated above. However, the question has now come to a focus and must be decided. Section 2 (j) of the said Act defines the word 'industry' and means: any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen. The word 'industrial dispute' has also been defined in Section 2(k) of the Act, but, of course, it is based upon the definition of 'industry' because there must exist an industry before there can arise in it an industrial dispute which inter alia includes any dispute or difference between the employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. It thus appears that the definition of the word 'industry' in the Act is very wide. It includes any business or calling. If we are to decide the matter literally there can be no doubt that the profession or business of a solicitor is a calling. Similarly, the profession of a doctor or a barrister or a pleader would be a 'calling' and indeed no profession or business could be said to be outside its scope. The question is how are we to construe the provisions of this Act? A similar problem arose in a case in which Section 2 (oo) of the Act was involved. In the case of Hari Prosad v. A.D. Divelkar, (S) AIR 1957 SC 121 (A) the question arose as to what meaning was to be given to the word 'retrenchment'. That word has been defined in the Act to mean the termination by the employer of the services of a workman for 'any reason whatsoever', otherwise than as a punishment inflicted by way of disciplinary action, with certain exceptions. The question was whether if a business had been bona fide closed, then could there arise any question of retrenchment of the staff? It was argued that the words "for any reason whatsoever' would include such a state of affairs. Indeed, if literally construed, it would. S.K. Das, J., said as follows: