Judgment:
P.G. Agarwal, J.
1. Heard Mr. A. Uasgupta, learned counsel for the petitioner and Mr. B. C. Kalita, learned counsel for the respondents.
2. The case of the petitioner is that he was an employee of the Indian Red Cross Society (hereinafter referred to as the society). He was looking after the children home project of the society situated at Jalukbari. He was entrusted with the duties of day to day management of children home and he was paid monthly salary of Rs. 1600. The service of the petitioner was terminated with effect from 1.11.1998 Without any notice whereupon an industrial dispute was raised and referred to the Labour Court with the following terms :
'Whether the management of M/s Indian Red Cross Society is justified in dismissing Sri Ramen Baruah without any notice with effect from 1.11.1998?'
3. The Labour Court vide impugned judgment held that the Indian Red Cross Society does not come under the definition of 'industry' as defined in Section 2(j) of Industrial Dispute Act. Hence, the petitioner was non-suited.
4. The definition of 'industry' under Section 2(j) of the Industrial Dispute Act, was considered by a Seven Judges Bench of the Apex Court in the case of Bangalore Water Supply and Sewerage Board v. A Rajappa, 1978 2 SCC 213. The learned Labour Court had relied o the above decision to hold that the Children Home of the Indian Red Cross Society at Jalukbari is not an 'industry' and the petitioner is not a 'workman' as defined in the Act and hence no relief is available to him under the provisions of the same.
5. It may be mentioned at this stage that in the year 1982, the legislature decided to amend the definition of 'industry' in view of the decision of the Bangalore Water Supply and Sewerage Board (supra) case. However, the said amendment has not been notified and hence, it has not come into force. Further, in the case of Coir Board, Ernaculam v. Indira Devi, AIR 1998 SC 2801, a two Judges Bench of the Apex Court was of the view that the decision of the Bangalore Water Supply (supra) case needs re-consideration. However, the Apex Court in later decision reported in (2000) 1 SCC 224 held that no re-consideration is required. In view of the above, the decision of Bangalore Water Supply and Sewerage Board (supra) rules the matter.
6. In the present case, there is no dispute at the Bar that the society is a charitable institution. The society was established under the Red Cross Act of 1920 which was amended by an Act of 14 of 1992. The purpose for which the society was constituted reads as follows :
'WHEREAS it is expedient to provide for the future administration of the various monies and gifts received from the public for the purpose of medical and other aid to the sick and wounded, and other purpose of a like nature curing the late war, and more especially for the administration of the monies and property held by the Committee known as the Joint War Committee, Indian Branch of the Order of St. John of Jerusalem in England and British Red Cross Society;
AND WHEREAS it is expedient to constitute an Indian Red Cross Society with a view to the continuation in peace time, on a wider basis and with a wider purpose, of the work carried on by the said Committee during the war, and to provide for the affiliation therewith of other societies and bodies having similar objects.'
7. As regards charitable enterprises, the Apex Court observed in the Bangalore Water Supply and Sewerage Board (supra) case as below :
'180. That lends to the consideration whether charitable enterprise can at all be industries. Viewing the problem from the angle from which one must, according to me, view the state's inalienable functions, it seems to me to follow logically that a systematic activity which is organised or arranged in a manner in which trade or business is generally organised or arranged would be an industry despite the fact that it proceeds from charitable motives. It is the nature of the activity that one has to consider and it is upon the application of that test that the State's inalienable functions fall within the definition of 'industry'. The very same principle must yield the result that just as the consideration as to who conducts an activity is irrelevant for determining whether the activity is an industry, so is the fact that the activity is charitable in nature or is undertaken with a charitable motive. The status or capacity, corporate or constitutional, of the employer would have, if at all, closer nexus, than his motive, with the question whether the activity is an industry. And yet that circumstance, according to me, cannot affect the decision of the question. The motive which propels an activity is yet another step removed and, exhypothesis, can have no relevance on the question as to what is the nature of the activity. It is never true to say that the nature of an activity is charitable. The subjective motive force of an activity can be charity but for the purpose of deciding whether an activity is an industry, one has to look at the process involved in the activity, objectively. The argument that he who does charity is not doing trade or business misses the point because the true test is whether the activity, considered objectively, is organised or arranged in a manner in which trade or business is normally organised or arranged. If so, the activity would be an industry no matter whether the employer is actuated by charitable motives in undertaking it. The jural foundation of any attempt to except charitable enterprises from the scope of the definition can only be that such enterprises are not undertaken for profit. But then that, clearly is to introduce the profit-concept by a side wind, a concept which, I suppose, has been rejected consistently over the years. If any principle can be said to be settled law in this vexed field it is this : the twin consideration of profit motive and capital investment is irrelevant for determining whether an activity is an industry. Therefore, activities which are dominated by charitable motives, either in the sense that they involve the rendering of free or near-free services or in the sense the profits which they yield are diverted to charitable purpose, are not beyond the pale of the definition in Section 2(j), It is as much beside the point to inquire who is the employer as it is to inquire why is the activity undertaken and what the employer does with his profits, if any.'
8. As regards the question of charitable enterprises, the Apex Court has held:
'102. Can charity be 'industry' This paradox can be unlocked only by examining the nature of the activity of the charity, for there are charities and charities. The grammar of labour law in a pluralist society tells us that the worker is concerned with wages and conditions of service, the employer with output and economics and the community with peace, production and stream of supply. This complex of work, wealth and happiness, firmly grasped, will dissolve the dilemma of the law bearing on charitable enterprises. Charity is free; industry is business. Then how? A lay look may scare; a legal look will see; a social look will see through a hiatus inevitable in a sophisticated society with organisational diversity and motivational dexterity.'
'104. The first is one where the enterprise, like any other, yields profits but they are siphoned off for altruistic objects. The second is one where the institution makes no profit but hires the services of employees as in other like business but the goods and serviced, which are the output, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is where the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third are not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry T'
9. The learned Labour Court relying on the above observation held that in the present case the society comes under the third category and as such it is not an 'industry'.
10. The learned counsel for the petitioner, on the other hand, has relied on a decision of the Punjab and Haryana High Court in the case of Indian Red Cross Society Haryana v. Additional Labour Court, reported in 1988 2 SLR 5354.
11. The fact in Indian Red Cross Society (supra) were altogether different. The petitioner in that case was working as sales man and finding of the Labour Court was to the following effect:
'The workman claimant has also mentioned that the respondent side has several stores, i.e. Relief store, Medical Store, Family Planning Store and cloth, canvas store and also has a lottery department. So looking to this fact, I am of the view that the respondent also worked for profits as well, as have activities and workman are, involved in that activity and the job of sale and purchase is conducted there and, therefore, I am of the considered view that the institution of the respondent amounts to an industry and is covered by the Industrial Disputes Act.'
12. Considering the facts of the present case, where the society was maintaining a Children Home only and in view of the claim of the respondents that the petitioner preferred to render his services to look-after the Children Home for which, the society gave him accommodation and a fixed salary of Rs. 1600 is to be paid as subsistence allowance. It was specifically pleaded by the respondents that the petitioner volunteered in service for the orphans out of passion.
13. We, therefore, hold that the decision of Hon'ble Punjab and Haryana High Court is not applicable or relevant for the present case.
14. In the Bangalore Water Supply and Sewerage Board (supra) case, the Apex Court further held that in Government department discharging their function, if there are units which are industries and they are substantially severable and they can be considered to come within the purview of industry. Likewise, if the Indian Red Cross Society associates itself with some organised commercial activities within certain States or places that may be brought in the purview of industry.
15. However, in the present case, in view of the findings of the Court below and the materials on record we hold that the Children Home managed by the society at Jalukbari is not an 'industry' and decision of the Labour Court needs no interference.
16. In the result, the writ petition stands dismissed.