R.N. Misra, J.
1. This is an application for a writ of certiorari directed against the award given by the Industrial Tribunal Orissa, in industrial Dispute Case No. 22 of 1971.
2. The State Government referred the following three disputes for determination of the Tribunal:
(1) Whether the existing wage rate of the employees of the Cuttack Motor Association, Cuttack, needs any revision in the light of the recommendations of the Central Wage Board for road transport industry? If so, what should be the details?
(2) Whether the Management of the Cuttack Motor Association, Cuttack are liable to effect payment of bonus under the provisions of the payment of Bonus Act, 1965? If so, with what details ?
(3) Whether the employees including staff employed by Cuttack Motor Association, Cuttack, are entitled to any medical benefit. If so, what should be details?
2. On behalf of the employer, Cuttack Motor Association several pleas were raised. The first one was that the Motor Association was not an 'industry'. The next contention was that there was no dispute at all for adjudication and, there fore, no reference should have been made The third contention was that the re commendations of the Central Wage Board were not based on region-cum- industry basis and, therefore, the recommendations are not binding on the Association.
3. The Tribunal came to hold that the employer was an 'industry' and there were existing disputes justifying the reference. It also held that the recommendations of the Wage Board as regards pay scales, quantum of D.A., etc., provided a material oasis subject to variation in suitable cases. It found that the 'recommendations so far as the Transport Operators were, concerned were on the basis of a classification, namely, size of the fleet upto five vehicles was one category, from 6 to 25 vehicles was second category and above 25 vehicles was a third category, it adopted so tar as the employees in this case are concerned, the recommendation made for the third category. It also found that statutory bonus was payable to the employees and medical benefits were to be given to them.
4. Mr. Mohanty for petitioner re-agitates the following three contentions before us: (i) petitioner is not an 'industry', (ii) petitioner is not a juristic entity capable of being sued, and (iii) the Tribunal has not applied its mind appropriately to the first dispute and has merely adopted the recommendations of the Wage Board without examining its applicability in terms. Similarly, the third dispute is without examination of the respective cases of the parties.
5. 'Industry' has been defined in Section 2(j) of the Industrial Disputes Act of 1947 to mean--
any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workman.
In the instant case, the Tribunal accepted the evidence that the association was formed to run the buses, maintain them, realise the income and after meeting the expenses, to distribute the balance as dividends among the members. The Rules of the Association support such a conclusion. The Management took the stand that from 1969, a different method had been introduced. That, however, as a fact was not accepted and the Tribunal reached the following conclusion:
I am of the view that the activity of the association has been to run the business of transport.
On such a finding of fact there is hardly scope to take the view that petitioner is not an 'industry.'
6. Mr. Mohanty very much relied upon the decision of the Supreme Court in the case of Dock Labour Board v. Stevedores Association 1970-I L.L.J. p. 46, wherein the Court came to hold that the Vizagapatnam Dock Labour Board functioning under the Dock Workers (Regulation of Employment) Act, 1948 and the connected scheme was not an 'industry'. On the finding reached by the Tribunal, we do not think, this decision of the Supreme Court on its own facts would have any application.
7. On the other hand, Mr. Palit relied upon a decision of the Supreme Court in the case of Federation of Indian Chamber of Commerce and Industry v. R.K. Mittal : (1971)IILLJ630SC , which indicates that a wide meaning has to be given to the definition of industry. We would, therefore uphold the finding of the Tribunal that the employer is an 'industry' in this case.
8. The next is the question as to whether the employer in this case is a juristic entity capable of being sued. Under the Industrial Disputes Act 'employer' has a special status and whether a legal entity or not, if he is the employer, certainly in regard to statutory proceedings under the Act, can sue and be sued We are not prepared to entertain this point.
9. The next point for consideration is as to whether the Tribunal has applied its mind appropriately to the first and last disputes referred for arbitration. Undoubtedly, the Central Wage Award lays down the guideline. Whether it will be applicable in a given case keeping the special features of the industry in view is a matter which requires examination. To that effect is the decision of the Supreme Court in the case of Workmen of Shri Bajrang Jute Mills v. Employers 1970-II L.L.J. 6. The Court was examining the recommendations of the Wage Board so far as the jute industry was concerned. Referring with approval to its earlier decision in the Express Newspapers case (1959 S.C.R. page 12), the Court indicated what are the requirements to be considered when a rate of wages is to be determined. Admittedly the Wage Board had given broad guideline. The Tribunal had to apply its mind to find out whether all the recommendations as far as necessary were in terms applicable or required variation. We do not bring any application of mind on such score in this case. The Management witnesses: accepted the position that the recommendations of the Wage Board were being followed. Merely on such a statement, it was not appropriate for the Tribunal to jump to the conclusion that all the recommendations were to be enforced.
10. Similarly in regard to medical benefit, there is absolutely no discussion in the award as to what should be the extent of the benefit. The evidence of the Management witness is that medical treatment was being given, but on that admitted position, the conclusion of the Tribunal that the price must be re imbursed does not follow as a rule.
11. Therefore, while we hold that the reference was maintainable and the Tribunal was competent to decide the disputes, we must hold that the award is defective so far as determination of disputes 1 and 3 are concerned. The matter must be examined afresh so that injustice may not be done to the employer. So far as the second dispute is concerned statutory bonus is payable and the Tribunal has only recorded that fact. That question, therefore, does not require reexamination.
12. To the extent indicated above, we allow the application, quash the award so far as disputes 1 and 3 are concerned and require the Tribunal to re-dispose of those disputes after hearing parties and dealing with the material on record in an appropriate way. No costs.
K.B. Panda, J.
13. I agree.