ORDER
T.N. Singh, J.
1. A short legal question has assumed a large dimension and that too because of petitioner's belated and unworthy exercise. After having submitted to the jurisdiction of the Labour Court on the basis of a Reference made under Section 10, Industrial Disputes Act, for short, I.D. Act, an amended written statement was filed after evidence started, taking the plea that the Reference was in competent, as provisions not of I.D. Act but of M.P. Industrial Relations Act, 1960 for short, MIPR Act, will be applicable to the dispute. An issue in that regard was struck, but decided against the petitioner and eventually on merits the reference was answered in favour of the employee/respondent, holding her termination of services void.
2. The small preface became necessary as this petition could have been dealt with otherwise, reaching indeed the same result, but for strenuous and arduous argument pressed by Shri J.P. Gupta, appearing for the petitioner. He made a fervent plea that the legal question raised by him be answered for petitioner's future guidance to make clear to the parties rights and obligations in respect of employees serving in Sales Offices of the petitioner/employer in different parts of the State. That plea has appealed to us as the employer has several Branch Sales Offices in this State, besides Gwalior but also at Bhilai, Jabalpur and Indore. Indeed, the moot question in this case is, if the total number of employees in all the Branch Sales Offices of the employer in this State are to be regarded as an aggregate for the purpose of answering the legal question on interpretation of Notification issued under the MIPR Act. It may be noted here that petitioner's own evidence (given through Mrs. Mangala Chakravarti, Assistant Manager (Personnel)) at Labour Court has disclosed the position that in other Branch Sales Offices, situated in other parts of the country, I.D. Act is applied for governing relationship inter se between the petitioner-employer and employees of those offices.
3. Before we extract relevant portions from the said Notification, we consider it appropriate to extract first its source, namely, Sub-section (3) of Section 1 of the MIPR Act. That reads thus:
'(3) This section and Section 112 shall come into force at once and the State Government may, by notification, bring all or any of the remaining provisions of this Act into force in respect of -
(a) any or all industries; or
(b) undertakings in any industry wherein the number of employees, on any day, during twelve months preceding or on any day thereafter, was or is more than such number as may be specified in such notification on such date as may be specified therein.'
Now by Notification No. 9952-XVI dated December 31, 1960, the Government of M.P. declared that all the provisions of M.P Industrial Relations Act, 1960 other than Sections 11 and 112 thereof shall come into force on 31st December, 1960 in respect of the undertakings in the industries specified in the schedule below, wherein the number of employees on any day during 12 months proceeding or on the date of this notification or on any day thereafter was or is more than 110.
SCHEDULE
1.....
2. Iron and Steel.'
(Other entries, 3 to 32 omitted as not relevant). In this connection, reference has also to be made to Section 110, MIPR Act, of which relevant portion is also extracted:
'110. Saving of certain provisions of the Industrial Dispute Act. - Except Chapter V-A and V-D and the other provisions with respect to lay-off and retrenchment compensation, nothing in the Industrial Disputes Act, 1947 (No. XIV of 1947) shall apply to any industry to which this Act is applied ....'
4. On facts, the admitted position is that at Gwalior Branch Sales Office where respondent/ employee had been appointed on January 10, 1979 as an Office Assistant, the strength of the staff at the relevant time was 23. The admitted position also is that during that period, the total number of employees in the State working in other Branch Sales Offices of the employer was 104. Some other facts of petitioner's case, mentioned in the petition, may be also noticed. It is stated that the employer (petitioner) has two Divisions - Productions and Sales. There are six plants in different parts of the country, at Bhilai, Bokaro, Durgapur, Rourkela and Salem and 42 Branch Sales Offices in different parts of the country. As many as 2.5 lakhs persons are employed in the plants and in the Sales Divisions (in different Branch Offices) 2,500 persons are employed including those in this State. The Branch Sales offices, it is also stated, are controlled by Central Marketing Organisation. The Head Office of the petitioner/employer is at Delhi and the company is run by Board of Directors, headed by a Chairman.
5. To address ourselves, now, to the question as to whether the Notification aforesaid, applied to Gwalior Sales Office of the petitioner-employer, we have to refer necessarily also to the definition of the term 'Undertaking' in Section 2(33), MIPR Act. It says - 'Undertaking' means a concern in any industry'. As the word 'undertaking' has been statutorily defined, it is not possible evidently to import any general consideration to define the meaning of the term. It is necessary, however, to reiterate that the object of MIPR Act as a whole as also of the relevant parent provision and of the Notification issued thereunder must be accorded the place of pride even for the purpose of contextual interpretation of the Notification. This imperative, in similar circumstances, this Court had stressed in Samyukta Khadan Mazdoor Sangh's case (1973 MPLJ 269), observing that as the I.D. Act applies to all industries in the country, its replacement by State Act (MIPR Act) in relation to a particular industry has to be shown by clear specification of the industry concerned in the Notification issued under Section 1(3) of the said Act. In R.N. Mishra's case (1964-I-LLJ-622), it was similarly observed by this Court that as the Act does not apply to all industries or undertakings, but only to those which the Government may select, the industry that may be specified in the notification must be understood 'in a limited sense and not in a wider sense'. (p.625)
6. There is no doubt that this Court's decisions above-referred have done full justice to the legislative endeavour projected in the two Sub-clauses (a) and (b) of Section 1(3), MIPR Act. Though power is vested in the Government to make selection for the field of application of the Act, a clear-cut criterion is also provided statutorily either for wider coverage or covering the field narrowly and by steps and stages. It was open to the Government to apply at once the provisions of the Act generally to 'any or all industries' or selectively only to 'undertakings in any industry' and in that case even, to specify the class of undertakings meant to be brought under the umbrella of the Act with reference to the number of workers of that undertaking during the specified period. Although in clause (b) of Section 1(3), the word 'undertaking' is used, that has to be read to mean one or more 'concern' answering to the other requirements of that class, albeit, of the industry notified. There is obviously a sea of difference between notifications issued under Clause (a) and Clause (b) respectively of said Section 1(3) and in the instant case, the notification evidently has been issued under Clause (b).
7. This Court had an occasion to construe Section 2(33), MIPR Act, bearing on the interpretation of the term 'undertaking' in J.C. Mills v. Mazdoor Sangh (1986 JLJ 455) and a reference to that decision would be most appropriate in this context and also for another compelling reason. Indeed, their Lordships of the Apex Court were compelled to observe in Gopal v. M.P. Khadi and Village Industries Board, (19864-LLJ-58), that the words 'industry' and 'undertaking' defined in Section 2(19) and 2(33) respectively of MPIR Act do not make happy reading and the definition clauses are far from satisfactory (p.62). To that decision, we would advert soon, but we extract first a small passage from J.C. Mills case (supra):
'In the scheme of things envisaged under the Act, according to me, the true import of those three terms 'concern', 'undertaking' and 'industry', can be best understood by visualising three concentric circles of which the smallest and innermost circle would be 'concern' and the outermost or the largest circle would be 'industry'. Such a scheme is deliberately contemplated to effectively blunt the ingenuous device of the employers evolved to evade onerous statutory burdens.'
For that view, the dictionary meaning of the term 'Concern' was considered and it was observed that 'a 'concern in any industry' means, any integral concern or part of an industry which can even be a separate business establishment', (emphaiss added). In so far as the instant case is concerned, there is no dispute and no difficulty either in holding that the Branch Sales Office of petitioner/employer is an integral part of 'iron and steel' industry. It is a sales outlet for the products manufactured by petitioner/employer. It is also an admitted fact that Gwalior Branch Sales Office has a separate establishment with separate staff working under the supervision of Branch Manager. Indeed, as per Annexure 2, appointment of the respondent/employee was made by him. It has also come on record that since December 31, 1980, the said Branch Office is registered under the M.P. Shops and Establishments Act (as per Annexure P/XY, proved in Labour Court).
8. The brunt of the assault which the impugned order has to bear is unfortunately due to the improperly drafted issues on the question of jurisdiction. Labour Court addressed itself to the question as to whether the Branch Sales Office at Gwalior of Party No. 1 (petitioner) could be regarded as a 'part and parcel of iron and steel industry'. Unfortunately, little attention was paid to the definition of the term 'undertaking' in Section 2(33) and to the fact that the notification in question was one issued under Clause (b) of Section 1(3) and not under Clause (a) thereof in which case, the exercise undertaken would have been more appropriate. The enquiry into the question posed was a futile one as there could be no escape from the conclusion that the said Office was a part and parcel of the Steel industry. It is indeed the finding and conclusion of the Labour Court that there was absolutely no proof regarding functional integrality, inter-dependence, or community of manpower and its control, recruitment and discipline, the manner in which the employer has organised the different activities and that is seriously assailed by Shri Gupta. Reliance was placed by the Court below on Western India Match Co.'s case (1963-II-LLJ-459) and that fortunately was a fruitful venture as facts of that case had a striking resemblance to those of the instant case.
9. The question which confronted their Lordships in that case was, however, a different one. It was the question whether under Section 2(1), U.P. Industrial Disputes Act, Inspectors, Salesmen and Retail Salesmen manufacturing matches at a particular factory of the employer could be regarded as 'workmen' under the Act. The employer's contention was that each of the Sales Office was independent of factories of their respective region to plead that employees in their Sales Office at Clutterbunkgunj in Bareilly were not entitled to production bonus.The contention was rejected because in that case position on facts was that with each of the four factories of the employer at different places throughout the country, they had a Sales Office attached. On facts, the main requirement of the tests envisaged by their Lordships was found negatively satisfied. In that case, they spoke of 'functional integrality, interdependence, community of man-power and control, recruitment and discipline, the manner in which the employer had organised the different activities...' as tests.
10. At this stage, reference may be made to Bangalore Water Supply's case (1978-I-LLJ-349) because expounding the definition of the term 'industry' in Section 2(j), I.D. Act, their Lordships pertinently observed therein that such terms like 'Undertaking', 'Service' must suffer a 'contextual' and associational shrinkage' and yield place to the 'true focus' which was 'functional', stating further that 'the decisive test is the nature of the activity with special emphasis on the employer-employee relations'. The relevance of both decisions above referred lies in its interpretative technique postulating that legislative provisions are to be viewed prismatically to match the variegated situational matrices of employer-employee relationship and that interpretation of the relevant provision must be informed by a pragmatic and non-pragmatic approach to achieve that end. To all dispute-situations, the same tests or each and everyone of the enumerated tests, need not apply. Shri Updhyaya's reliance, in this contest, on Godavari Sugar Mills' case (1960-II-LLJ-247) is more appropriate as that was a case in which a similar notification under Bombay Industrial Relations Act was construed. Their Lordships, construing the Notification with reference to its object in the context of parent statutory provisions, held that it had limited the scope of applicability of the said Act to the employees of a certain category of the 'Sugar Industry' and not to all employees of the same employer running that industry. Referring to the statutory provisions, in respect to the Notification, they observed'' the fact that the two items have been included specifically clearly indicates that the first part of the notification could not have applied to them' because the employees concerned were working in the Bombay Office of the employer/Company and the factory site was situated hundreds of miles away. The object of the notification was to confine its benefit to service or employment, it was held, which was connected with the manufacture of sugar and its by-products.
11. It is true that in Semvukte Khadan Mazdoor Sangh's case (supra), this Court had not addressed itself to the scope differential of Clauses (e) and (b) of Section 1(3), MPIR Act, but with respect to the same Notification, importance was attached to the construction of the term 'industry' and taking that view, it was held that for those persons who were working in the iron mines of the employer, who was running Ranchi and Bhilai Steel Plants, were excluded from the application of the Notification. It is also true that in R.N. Mishra (supra), the only question that was decided was that the notified industry 'Potteries' did not include 'Refractory' although the same employer owned both establishments or factories. However, the decisions to underline the necessity of limiting the application of MPIR Act within the bounds of the Notification and that those are to be constured strictly and not liberally. In Gopal's case (supra) also, the Apex Court similarly pronounced on the applicability of the Act having regard to the definition of 'Industry' although reaching a different conclusion on facts that the Act was applicable. In that case, the Khadi Board (employer) was engaged in different kinds of commercial and industrial activities and the 'Textile' industry was notified in the concerned Notification. On facts, their Lordships found that sale of textile goods which the Board procured from its affiliated societies at different Sale Centres tantamounted to the Board being engaged in textile industry in which more than 100 employees were engaged at its different sale centres. The question which we have addressed to ourselves was not apparently mooted before their Lordships.
12. Keeping in view the position that I.D. Act and MPIR Act are cognate laws of the same genre, we consider it appropriate to refer to Clause (ka) of Section 2 of I.D. Act and we extract relevant portions therefrom:
'(ka) 'industrial establishment or undertaking' means an establishment or undertaking in which any industry is carried on: Provided that where several activities are carried on in an establishment or undertaking and only one or some of such activities is or are an industry or industries, then, -
(a) if any unit of such establishment or undertaking carrying on any activity, being an industry, is severable from the other unit or units of such establishment or undertaking, such unit shall be deemed to be a separate industrial establishment or undertaking....'
We propose to juxtapose, in this context, Section 2(19), MPIR Act and extract that:
'(19) 'Industry' means -
(a) any business, trade, manufacture or undertaking or calling of employers.
(b) any calling, service, employment, handicraft, or industrial occupation or avocation of employees and includes -
(i) agriculture and agriculture operations;
(ii) any branch of an industry or group of industries which the State Government may, by notification, declare to be an industry for the purpose of this Act.'
13. Legislature's laboured effort made, whether in I.D. Act or in MPIR Act, manifests evidently its anxiety to give effect, as far as possible, to judicial interpretation of the term 'industry' and its different manifestations and ramifications. The importance of Clause (b) (ii) of Section 2(1) (a), MPIR Act in the interpretation of Section 1(3) (b) of the Act cannot be overlooked. An 'industry' may have a 'branch' in which the nature of the activity of the employee may be industrial occupation or vocation, while any business or trade carried on by any employer may be also 'industry'. A 'concern' in an industry to which MPIR Act is made applicable thereunder can be a concern carrying on activities of the nature of trade or business, by maintaining separately sales- outlet and engaging employees therein, who may be deemed to be carrying on activities of the nature of industrial occupation or vocation. Under Section 2(ka), I.D. Act more clearly the existence of such a concern is contemplated as a 'separate industrial establishment or undertaking'. That even speaks of different 'units' the severability of which may be determined decisively with reference to the judicial test of functional disunity as respects nature of activity and employer-employee relations maintained at such units. However, to legitimize this endeavour, we would state that high judicial authority exists to support our view for the guidance from statute (Pari materia is permissible) See State of Madras v. Vaidyanatha Iyer AIR 1959 SC 61; State of Assam v. D.P. Barua (AIR) 1969 SC 331; J.K. Steel v. Union of India (AIR) 1970 SC 1173.
14. It appears to us that the Legislature had in view problems like one confronting us in this matter. It had in contemplation cases of industrial establishments with countrywide network of branch offices and of variety of activities of such a national institution. It is for this reason, perhaps, that in Section 1(3), MPIR Act, care was taken to make provision for application of that Act selectively to pre-empt conflicts in employer-employee relations on the question of applicability of the appropriate statute by prescribing the number of employees serving in the concern as guidance in that regard. By fixing as large a number as 100, in relation to the large number of notified industries, the State Government made its intention clear that only larger concerns or units were to be covered. It acted reasonably in presuming that such units or concerns would be independent units of the concerned industry and not offices or branches only of that industry, irrespective of activities of such industry being compartmentalised or not. The case of a local unit or a branch office of a large industrial concern with cross-country activities was meant to be excluded, in our view, under the Notification in question.
15. If counsel's criticism of Labour Court's finding is appreciated in the context of our conclusion aforementioned, we must reject that on admitted facts. The petitioner/employer's own case is that the Iron and Steel industry is organised by them in two clear-cut divisions of production and Sales. They have admittedly set up Sales Units in different States under the Sales Division and sale is made independently in each unit of iron and steel products manufactured by them. Thus, if the Labour Court has taken the view that there is no evidence of functional integrality or interdependence, it cannot be faulted for that finding. That finding, according to us, is unimpeachable factually; though on writ side, that cannot be challenged otherwise even as it is not perverse finding, based on no evidence. Each Branch Sales Office of the petitioner/employer is a separate 'concern' for the purpose of Section 1(3) (b) read with Section 2(33), MPIR Act. For the purpose of carrying on the activity of sales in any Branch Sales Office the employees in that Sales Office act independently and functional focus of such sales vis a vis the employees can be only local and not tans-local.
16. We propose to examine now the propositions canvassed by Shri Gupta to press applicability of the Notification in question to Gwalior Sales Office and for that matter to other Branch Sales Offices in this State of the petitioner/ employer. He contended firstly that industrial disputes of Bhilai Steel Plant are decided under the MPIR Act and secondly, otherwise also, it will be unconstitutional not to apply that Act to all Branch Sales Offices of the petitioner/ employer in this State. Evidently, Article 14 of the Constitution has provided inspiration for the proposition. As such, it has to be answered accordingly. Firstly, there is no challenge to the vires of Section 1(3) itself under which the Notification is issued. Therefore, vesting of power in State Government to apply the Act, at its option, either to 'any or all industries' or to 'undertakings in any industry' in the State of the specified category must be deemed valid. Secondly, the Act being a piece of conditional legislation, power in that regard is neither arbitrary nor exercise of that power manifested in the Notification is arbitrary. Indeed, the two alternatives in Section 1(3) manifests Legislature's anxiety to ensure that power is not exercised thereunder in a manner that may be extra or contra-constitutional. It was necessary to ensure that exercise of power under the Act did not result in exercise of extra- territorial jurisdiction by the State Government in the teeth of I.D. Act. By providing necessary guidelines for exercise of the power under Clause (b) of Section 1(3) in the form of the reasonable nexus (number of employees, during specified period) the provision was insulated against constitutional challenge based on Article 14.
17. Factually also, Shri Gupta's contention has no basis. Number of employees in Bhilai Steel Plant are many times more than 100 while not even in a Single Branch Sales Office set up in the State, the number of employees exceeded 30 on the relevant date and it is also not petitioner's case that there is likelihood of that number exceeding 100 at any time. On the other hand, petitioner's own case being that in all other States of the country the provisions of I.D. Act apply to Branch Sales Offices set up there, there may be valid ground for complaint of discrimination between two groups of employees of the Sales Division as all of them, according to the petitioner, are subject to the ultimate control of one and the same Central Marketing Organisation. For the same reason, therefore, if each of the Branch Sales Offices is not regarded as a separate 'concern' for the limited purpose of the Notification, there is likelihood of extra-territorial effect of the notification appearing to destroy the purpose, force and effect of Section 1(3), MPIR Act. On what basis indeed, can it be said that employees only of Branch Sales Offices of this State be regarded as an aggregate for the purpose of Section 1(3) (b) excluding employees serving in the Branch Sales Offices in other parts of the country? Shri Gupta's own contention, indeed, is that the concept of 'local area' cannot be imported into Section 1(3) as that has deliberately excluded reference to the concept.
18. We do not think if it is at all necessary to refer to Section 2(23), MPIR Act which defines the term 'Local area' to which Shri Upadhyaya has drawn our attention. Shri Gupta has submitted in that regard that the concept of 'local area' cannot be read into Section 1(3). He has drawn our attention to certain other provisions of the Act to submit that for the purpose of those specified provisions only that concept is relevant. However, we may still observe that Shri Upadhyaya had relied on the decision of their Lordships of the Supreme Court in the case of Dhari Gram Panchayat ((1988-I-LLJ-468) rendered on September 3, 1987) to submit that even if we take the view that the impugned order passed by the Labour Court was without jurisdiction, no interference with that order is warranted in our hands. He submitted that if the respondent/employee had approached this Court straightway under Article 226 of the Constitution, we would have reached the same result by giving the respondent the same relief as she got in the Labour Court.
19. What survives now is to sum up by stating that on merits, the petitioner/employer has no case as he had none in the Court below. The fact that the respondent/employee has suffered an illegal retrenchment is beyond dispute. She has admittedly served for more than 240 days in the relevant year, but her services were terminated without following the procedure in that regard in Section 25F, I.D. Act. Shri Gupta has contended that the action of the petitioner/employer was not malafide as the respondent had not passed typing test and she had not been sponsored either by the Employment Exchange for the regular post. These objections must fail as Section 25F is mandatory and admits of no exception of the like pressed by Shri Gupta.
20. For the reasons aforesaid, we hold that petitioner's Gwalior Branch Sales Office where the respondent employee was serving was, and is, outside the scope of application of MPIR Act contemplated under the concerned Notification dated December 31, 1960. Because, in that office neither today nor during the relevant period, the number of employees exceeded 100. The impugned award passed by the Labour Court does not suffer any jurisdictional intimity in that regard. However, the award otherwise also, as on merits, does not call for any interference in our hands.
21. In the result, the petition is dismissed and the award passed by the Labour Court is confirmed. Outstanding amount of security be refunded to the petitioner.