VENKATARAMIAH, J. ( 1 ) THE Deputy Assistant Quarter-master-general, Bangalore, representing the Management of Station Canteen, Cubbon Road, Bangalore (hereinafter referred to as the management) has filed the above writ petition under Art. 226 of the Constitution of India, for and on behalf of the management, questioning the validily of the award passed by the Presiding officer. Labour Court, Bangalore, in Ref. No. 73 of 1968. ( 2 ) THE facts leading to the above writ petition are as follows: Pursuant to certain demands which were put forward on behalf of certain persons working in the canteen run by the management, conciliation proceedings were taken up bv the concerned Labour Officer, Bangalore sometime during the year 1966. The said proceedings having ended in failure, the matter was reported to the Government of Mysore. Thereafter, the government of Mysore made a reference under sub-sec. (1) of S. 10 of the Industrial Disputes Act (hereinafter referred to as the Act) to the labour Court at Bangalore, for adjudication of the points of dispute between the management and its workmen as per GO. No. FEL 162 LLD 68 dt. 4-11-1968. On receipt of the reference, the Labour Court issued notices to the parties to file their statement of claim and counter statement. ( 3 ) ACCORDINGLY, the workmen filed their statement of claim and the management filed its counter statement to the statement of claim. The workmen filed a reply to the counter statement filed by the management. Thereafter, the Labour Court framed number of issues as arising out of the pleadings in the case. During the pendency of the proceedings, before the Labour Court, on 23-3-1170 the Counsel for the workmen submitted before the Labour Court that the workmen would not press points of disputes Nos. 5 to 12 in view of a settlement which had been arrived between the workmen and the management. Hence issues 5 to 12 which related to points of disputes 1 to 7 did not fall to be decided by the Labour court. What however remained to be adjudicated upon bv the Labour court were issues 1 to 4 and 13. Issues 1 and 2 read as follows: " 1. Whether II party establishment is an industry within the purview of the Industrial Disputes Act ? 2. Whether there is no industrial dispute and therefore this court has no jurisdiction ? What however remained to be adjudicated upon bv the Labour court were issues 1 to 4 and 13. Issues 1 and 2 read as follows: " 1. Whether II party establishment is an industry within the purview of the Industrial Disputes Act ? 2. Whether there is no industrial dispute and therefore this court has no jurisdiction ? " issues 3 and 4 related to the question of termination of the services of one Sadagopan and issue 13 was a general issue regarding the relief the workmen were entitled to. At the conclusion of the enquiry the Labour court made an award holding that the management was an industry as defined under S 2 (j) of the Act and directed the management to reinstate sadagopan referred to above, in his former post with continuity of service and to pay him back wages at 25 per cent of his ordinary wages from the date of his termination till the date of his reinstatement. Aggrieved by the above award made on 11-5-1970, the management has filed this writ petition. ( 4 ) SRI M. C. Ranganna, the learned Counsel for the petitioner confined his argument only to one question namely, that the management in the instant case was not an industry within the meaning of S. 2 (j) of the act, and, therefore, the Labour Court had no jurisdiction to enquire into the matter. The relevant portion of the counter statement filed before the Labour Court dealing with the above question is as follows:" The II Party does not admit that the Head Quarters Mysore Sub-area canteen otherwise known as Station canteen is an institution of commercial nature. Head Quarters, Mysore Sub-area canteen is a regimental institution which provides canteen services to personnel paid from defence service estimate. It can only draw stores from canteen Stores Department (India) and sell it to entitled customers paid from defence service estimate. This restriction in its activities is for the reason that it is a regimental institute and not a commercial organisation. In this connection the II Party herewith produces a copy of the Army Order No. 709/1951 which lays down the procedure regarding Service Canteens. The employees are mainly ex-service men who are already in receipt of pension. This restriction in its activities is for the reason that it is a regimental institute and not a commercial organisation. In this connection the II Party herewith produces a copy of the Army Order No. 709/1951 which lays down the procedure regarding Service Canteens. The employees are mainly ex-service men who are already in receipt of pension. The sale rate of items that are sold in Station Canteen are fixed by Canteen Stores Department (India) and no deviation from the rates so fixed is permitted. It is not correct to state that there are no terms and conditions of service. The terms and conditions of service were in existence. On promulgation of new terms and conditions the old terms and conditions were destroyed. The II Pasty herewith produces. latest terms and conditions duly accepted and signed by the employees. The disposal of the canteen profits are regulated by orders received from higher authorities and used for the welfare of the troops. The II Party herewith produces a copy of the policy regarding canteen profits. " ( 5 ) IT is to be noticed that the management have stated in the course of their counter statement that a copy of the Army Order No. 709/1951 which laid down the procedure regarding Service Canteen, and a copy of the document containing the policy regarding Canteen profits had been produced along with the counter statement. In the course of the reply filed by the workmen to the counter statement, the workmen, have traversed the aforesaid contentions raised by the management as follows:"the first party reiterates that the second party establishment is an industry coming within the purview of the Industrial Disputes Act. The second party establishment not only furnishes its material service from Defence Service but also to other officers. The copy of the order No. 709/1951 regarding the procedure has no bearing on the question at issue between parties in the present dispute. The fixation of selling price and employment of ex-army personnel do not militate against the activities of the second party being one of commercial in nature. The first party submits that the terms and conditions of service cannot be unilaterally altered and the first party is entitled to the benefits claimed which can be made out of the profits and any order which imposes limitation in this behalf will have no legal force. The first party submits that the terms and conditions of service cannot be unilaterally altered and the first party is entitled to the benefits claimed which can be made out of the profits and any order which imposes limitation in this behalf will have no legal force. The policy regarding canteen profits is likewise not relevant for the adjudication of the reference. " ( 6 ) ON a reading of paragraphs 1 and 2 in the counter statement and paragraphs 1 and 2 in the reply which are extracted above, it is clear that the two documents, namely, Army Order No. 709/1951 and the document containing the policy regarding canteen profits, must have been produced into Court by the management along with the counter statement in the reply filed by the workmen we find that the genuineness of the said two documents has not been denied. What has however been stated in the reply is that the copy of the Army Order No. 709/1951 had no bearing on the question at issue between the parties and likewise, the policy regarding canteen profits was not relevant for the adjudication of the reference. The parties, therefore, appeared to proceed on the basis that the two documents referred to above were before the Labour Court, but there was a divergence on the meaning to be given to those documents and what inference should be drawn from them. It is to be gathered from the record of the Labour Court that on behalf of the workmen, one witness, namely. Sadagopan was examined as W. W. 1. On the side of the management, no oral evidence was adduced. In the course of the deposition of W. W. 1, we find the following statement"it is true that all purchases needed for II Party are made from the Canteen Stores. The articles in the canteen are sold only to the defence Service Employees. Sales are made at the rates fixed by the canteen Stores. Per month IT Party used to make profits of Rs. 2,000 to Rs. 3,000. I served the It Party "for 3 years. I do not know if the profits are used for the welfare of the troops. Sales are made at the rates fixed by the canteen Stores. Per month IT Party used to make profits of Rs. 2,000 to Rs. 3,000. I served the It Party "for 3 years. I do not know if the profits are used for the welfare of the troops. "there is no other material which requires to be referred to in order to decide the contentions raised on behalf of the petitioner herein regarding the question whether the management is an industry within the meaning of S. 2 (j) of the Act. ( 7 ) THE Labour Court in the course of Us award dealt with the. above question arising out of issue Nos. 1 and 2 in paragraph 7 of the award. The portion of the award dealing with the above question is set out below:"it would be convenient to deal with issue Nos. 1 and 2 together the points for consideration at the first instance are whether the second party is an "industry" within the purview of the Industrial disputes Act and therefore this Court has jurisdiction. In this case it is admitted that the second party is running a canteen and selling various commodities for the defence personnel and also civilian employees working in the defence department at concessional rates. It is also earning profits. It is also admitted that the goods are sold at the rates fixed by the Canteen Stores Department (India) which also supplies the goods. In the rejoinder it is stated that the disposal of the canteen profits arc regulated by the orders received for the welfare of the troops. Though it is stated that a copy of the said policy is also produced along with the rejoinder, no such copy is produced as stated. No evidence is also let in before this court to show how the profits are disposed of. From the admitted facts it is clear that the second party is carrying on trade in selling goods to the defence personnel and the civilian employees in the defence department at concessional rates. From what is stated above it is clear that the second party is rendering service to the defence personnel and the civilian employees of defence department. In this case as stated above the object of the second party canteen is not established. From what is stated above it is clear that the second party is rendering service to the defence personnel and the civilian employees of defence department. In this case as stated above the object of the second party canteen is not established. From the nature of the business carried on by the second party it is clear that it is an 'industry' as denned in S. 2 (j) of the Industrial Disputes act and that the first party workman who was working in the second party is a 'workman' under S. 2 (s) of the said Act and therefore this court has jurisdiction. " ( 8 ) WHILE dealing with the above question in paiagraph 7 cf the award extracted above, the Labour Court has observed with regard to the nonavailability of the document containing the statement of policy regarding the profits as follows: "though it is stated that a copy of the said policy is also produced along with the rejoinder, no such copy is produced as stated. " ( 9 ) IT may however be relevant to observe at this stage that the Labour court has, in the course oi the award, not stated that Army Order 709/1951 referred to in the counter statement had not been produced along with the counter statement. It is no doubt true that the Labour Court proceeded to observe that no evidence was adduced by the management. But we are of the opinion that it was not necessary for the management to prove the documents which were not disputed by the opposite party. In this case the only point raised by the workmen in their reply was that the two documents relied on by the management in the course of paragraphs 1 and 2 of their counter statement either were not relevant or did not militate against the contentions of the workmen that the management was an 'industry' within the meaning of the Act, even though the management was governed by these two documents. These two documents were however not referred to by the Labour Court while passing the award. ( 10 ) AS already mentioned, it stated that the latter of the two documents had not been produced by the management. These two documents were however not referred to by the Labour Court while passing the award. ( 10 ) AS already mentioned, it stated that the latter of the two documents had not been produced by the management. It had not given any reason as to why it did not deal with the first document namely, Army Order 709/1951 which had been relied upon by the management, the existence of which had not been disputed by the workmen. Along with the writ petition, the management has produced true copies of both the documents relied on by it and they are marked as Exts. 'e' and 'f'. We deem it necessary to set out the relevant portions of Army Order 709/1951 and the document containing the policy regarding the disposal of canteen profits i. e, copy if Mysore Sub-area order 79/1963:-"a C 709 51. Policy Canteens. As a general policy, the retail sales of stores undertaken by approved contractors will gradually be conducted as under: (a) Units themselves with run their own canteens and replace unit contractors: (b) Station contracts will be taken over: (i) in small stations by a major (static) unit. (ii) in big stations by local formation or station HQ. " ( 11 ) THIS policy has been initiated with a view to: (a) avoiding the middleman's profit and providing canteen goods at cheaper prices; (b) ensuring more efficient canteen services to the troops and (c) providing additional amenities to the troops from the increased profits that would thus accrue. ( 12 ) IN implementing this policy, we will NOT employ the services of a contractor in any way whatsoever, NOR will free Government transport be used in' the running of these canteens. IN Jammu and Kashmir, however, the use of free Government transport is permissible. ( 13 ) FOR overall sopervision of these canteens units will detail an officer and also ensure that the accounts are audited quarterly by the Regimental Audit Board. ( 14 ) UNIT run canteens are authorised to obtain canteen stores including liquor/beer, at wholesale rates, when stores are drawn direct from CSD (I) Depots. If, however, they are drawn through a station contractor, they will be available at wholesale rates plus one percent commission in addition to actual handling charges and octroi duty where levied. ( 14 ) UNIT run canteens are authorised to obtain canteen stores including liquor/beer, at wholesale rates, when stores are drawn direct from CSD (I) Depots. If, however, they are drawn through a station contractor, they will be available at wholesale rates plus one percent commission in addition to actual handling charges and octroi duty where levied. These goods are retailable strictly at the retail rates laid down from time to time in the CSD (I) 's Retail Price Lists. The margin of profit between the wholesale and retail price is enough to enable these canteens to make a reasonable net profit, after meeting their over-heads. ( 15 ) UNITS will try to engage as many of the present personnel employed by the contractors, if they are displaced persons. This is to avoid hardship to a large number of displaced personnel now employed by canteen contractors. In making new appointments, units will employ ex-servicemen. ( 16 ) THERE are now 120 units canteens, of which about 250 are run by units themselves. It is hoped that, in another three months, a good proportion of these will be taken over by units themselves. ( 17 ) IT is appreciated that many small units will NOT be able to take over their canteens as they will NOT have sufficient funds to do so. The Canteen Stores Department (India) is NOT in a position to advance them funds and it is suggested that units borrow the money required through their own resources. ( 18 ) AS an experimental measure, the Canteen Stores Department (India) will arrange to take over canteen in one or two selected stations, where they are able to supervise them. The aim is to gradually extend this policy so that eventually the Canteen Stores department (India) take over all station canteens which are NOT taken over by formation or station headquarters. This will result in a large number of personnel being trained in canteen work, who will be employees of the Canteen Stores Department (India), and so available, in time of war, to form canteen teams to run and organise canteens in forward areas. All such personnel will, as far as possible, be ex-DSD (1) employees or ex-servicemen, and all personnel employed either by units, formation headquarters or the CSD (I) will be required to give an undertaking to serve 'in operational areaa, if and when necessary. All such personnel will, as far as possible, be ex-DSD (1) employees or ex-servicemen, and all personnel employed either by units, formation headquarters or the CSD (I) will be required to give an undertaking to serve 'in operational areaa, if and when necessary. " Copy of Mysore Sub-Area Order No. 79 of 1963. 79. Disposal of Canteen Profits in respect of canteens run by units and also canteen stores department (India) Profits. (1) With regard to the disposal of canteen profits in respect of canteens run by Units, Army HQ have agreed that distribution of profits earned by units run canteens should be at the discretion of the oc Unit concerned. It has, however, been noticed that quite a number of COs do not know whether they can help JCOs/ncos messes out of the canteen profits. It is confirmed that one way of helping these messes is to give them proportionate percentage of profit accrued to unit run canteens. (2 ). As regards the disposal of Canteen Stores Department (India) profits the Board of Control, Canteen Services have ruled that not more than 1|3 of the Canteen Stores Department (India) profits when received would be spent on amenities for officers which represents approximately their total purchases from the Canteen stores Department (India)". ( 19 ) THE expressions 'industry' and 'industrial dispute' are defined by ss. 2 (j) and 2 (k) of the Act as follows:" 2 (j) 'industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. 2 (k) 'industrial dispute' means any dispute or difference between employers and employers or between employers and workmen, or between workmen 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. " ( 20 ) THE above two definitions disclose that only particular kinds of disputes can be regarded as industrial disputes. The disputes should relate to the topics mentioned in the expression "industrial dispute" and they should have arisen between employers and workmen connected with an industry as defined in 8. 2 (j) of the Act. " ( 20 ) THE above two definitions disclose that only particular kinds of disputes can be regarded as industrial disputes. The disputes should relate to the topics mentioned in the expression "industrial dispute" and they should have arisen between employers and workmen connected with an industry as defined in 8. 2 (j) of the Act. It is, therefore, clear that every dispute beween an employer and workmen irrespecive of the fact whether the employer and workmen are engaged in any industry or not, cannot be converted into an industrial dispute within the meaning of the Act. The employer concerned in an industrial dispute must be one engaged in business, trade, undertaking, manufacture or calling, which in the ordinary parlance would be called an industry. The definition of the expression "industry" appears in the Act in two parts, the first part relates to the business, trade, undertaking, manufacture or calling of employers and the latter part refers to the calling, service, employment, handicraft or industrial occupation or avocation of workmen. But one thing is however clear that the activity in which the employer is engaged must be a business, trade, undertaking, manufacture or calling of employers. The expressions trade', 'business', 'manufacture' and 'calling' used in S. 2 (j) of the Act are not defined in the Act. They will, therefore, have to be understood in the sense in which those expressions are used ordinarily The exprestion trade and 'business' would include exchange of goods or goods for money or business carried on with a view making profits. The expression manufacture invoives the making of articles or materials either by physical labour or with the aid of mechanical power. The expression 'calling' means the following of a profession or trade. At this stage, it may be mentioned that it is not every profession that can be called an industry. Profession like the legal profession or medical profession or teaching -profession, are generally excluded from the ambit of the meaning of that expression as the activity carried on by them is not of commercial character. What is therefore, important to notice is whether the activity in which the employer is engaged is one which partakes the character of commercial activity in the general sense of them. What is therefore, important to notice is whether the activity in which the employer is engaged is one which partakes the character of commercial activity in the general sense of them. It may also be mentioned that some profit is earned by the carrying on of an activity by an employer by itself may not be a conclusive test to determine whether the activity in which the employer is engaged is a trade, business, manufacture or calling. Often times, even though the said activity may not be a trade, business, manufacture or calling, still some profit may be earned by the employer, being incidental to the carrying on of that activity. The test to be applied in order to determine whether an activity in which the employer is engaged is an industry or not, is whether the dominant motive on the part of the employer is to carry on a commercial activity or not. The question whether a particular activity of an employer can be considered as an industry or not within the meaning of the Act was considered by the Supreme Court in Madras Gymkhana. Club Employees' Union v. The Management of the gymkhana Club, AIR. 1968 SC. 554. . After considering the several cases decided by the supreme Court earlier including the case of State of Bombay v. Hospital masdoor Sabha, AIR. 1960 SC. 610. the Supreme Court observed as follows in the above case:"the principles so far settled come to this. Every human activity in which enters the relationship of employers and employees is not necessarily creative of an industry. Personal services rendered by domestic and other servants, administrative services or public officials, service in aid of occupations of professional men, such as doctors and lawyers, etc. , employment of teachers and so on may result in relationship in which there are employees on the other but they must be excluded because they do not come within the denotation of the term industry. Primarily, therefore, industrial disputes occur when the operation undertaken rests upon co-operation between employers and employees with a view to production and distribution of material goods, in other words, wealth, but they may arise also in cases where the co-operation is to produce material services. The normal disrtibution is of material goods or wealth and they will fall within the Expression trade, business and manufacture. The normal disrtibution is of material goods or wealth and they will fall within the Expression trade, business and manufacture. The word 'trade' in this context bears the meaning which may be taken from halsbury's Laws of England, Third Edn. , Vol. 38, p. 8 (a) exchange goods for goods or goods for money; (b) any business carried on with a view to profit, whether manual, or mercantile, as distinguished from the liberal arts of learned professions and from agriculture; and business means an enterprise which is an occupation as distinguished from pleasure. Manufacture is a kind of production in which the making of articles or material (often on a large scale) is by physical labour or mechanical power. Calling denotes the following of a profession or trade. It is, therefore, clear that before the work engaged in can be described as an industry, it must bear the definite character of 'trade' or business' or 'manufacture' or 'calling' or must be capable of being described as an undertaking in material goods or material services. Now in the application of the Act, the undertaking may be an enterprise of a private individual or individuals. On the other hand it may not. It is not necessary that the employer must always be a private individual who carries on the operation with his own capital and with a view to his own profit. The Act in terms contemplates cases of industrial disputes where the Government or a local authority or a public utility service may be the employer. " ( 21 ) IN view of the above, the Supreme Court came to the conclusion that the madras Gymkhana Club which was a members' club was not engaged in any work which could be described as an industry even though it was established that the club was providing food and refreshments to its members in its catering department in which 194 employees had been engaged. The reasons given by the Supreme Court in support of the view were as follows:" We cannot go by the size of the club or the largeness of its membership or the number or extent of these activities. We have to consider the essential charerter of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. We have to consider the essential charerter of the Club activity in relation to the definition of industry. As we said before the definition is in two parts. The first part which we called the denotation or the meaning of the word shows what an industry really is and the second part contains the extended connotation to indicate who will be considered an integral part of the industry on the side of employees. Beginning with the second part, it may at once be conceded that the activity of the club is conducted with the aid of employees who follow callings or avocations. Therefore, if the activity of the employers is within the realm of industry, the answer must be in favour of the Union. But taking the first part of the definition it may also be said that the club does not follow a trade or business. Its activity cannot be described as manufacture and the running of clubs is not the calling of the members or its managing committee. The only question is, is it an undertaking. " ( 22 ) HERE the appearances are somewhat against the club. It is not of any consequence that there is no profit motive because that is considered immaterial. It is also true that the affairs of the club are organised in the way business is organised, and that there is production of material goods mainly in the catering department. But these circumstances are not truly representative in the case of the club because the services are to the members themselves for their own pleasure and amusement and the material goods are for their consumption in other words the club exists for its members. No doubt occasionally strangers may take benefit from its services but they can only do so on invitation of members. No one outside the list of members has the advantage of these services as of right. Nor can these privileges be bought. In fact they are available only to members or through members. ( 23 ) IF today the club were to stop entry of outsiders, no essential change in its character vis-a-vis the members would take place. In other words, the circumstance that guests are admitted is irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say a member's self-serving institution. In other words, the circumstance that guests are admitted is irrelevant to determine if the club is an industry. Even with the admission of guests being open the club remains the same, that is to say a member's self-serving institution. No doubt the material needs or wants of a section of the community is catered for but that is not enough. This must be done as part of trade or business or as an undertaking analogous to trade or business. This element is completely missing in a members' club. ( 24 ) THE view expressed by the Supreme Court in Madras Gymkhana club case (1) was followed by the Supreme Court in a later case, Safdar tung Hospital v. Kuldip Singh Sethi, AIR. 1970 SC. 1407. In the above case the Supreme court after distinguishing the decisions in Hospital Mazdoor Sabha's case (2) held that the appellant hospital was not an industry within the meaning of that expression as denned in the Act. ( 25 ) THE above two decisions of the Supreme Court were followed by the kerala High Court in Indian Naval Canteen Control Board v. Industrial tribunal, Calicut, (1971) 39 FJR. 269 which was a case almost similar to the one before us. The question for consideration in that case was whether a canteen run by the Indian Naval Canteen Service was an industry within the meaning of the expression as defined in the Act. Negativing the contention that the said canteen was as industry, M. U. Issac, J. who decided the said ease observed as followes" I shall now examine the character of the constitution and the activities of the canteen service. It is an establishment set up by the government of India with the object to provide recreational facilities and amenities and to promoote comforts and well-being of the members of the Naval Service and Defence Service Personnel. It is managed by a Board with headquarters at New Delhi known as the indian Naval Canteen Central Board with the Chief of Staff, Indian navy, as its Chairman. The Staff Officer (Canteens) is the Secretary. " ( 26 ) IT hag no profit earning motive; and profits, if any, earned out of its activities are utilised for the welfare -of the Naval Personnel. The Staff Officer (Canteens) is the Secretary. " ( 26 ) IT hag no profit earning motive; and profits, if any, earned out of its activities are utilised for the welfare -of the Naval Personnel. The petitioners state as follows regarding the nature of the activities of the canteen service:" The activities of the Indian Naval Canteen Service do not bring together capital and labour with a view to earn any profit. The Indian naval Caneen Service was running a dry canteen and a wet canteen till September, 1964. From October, 1964, only the dry canteen is being run. In the dry canteen cigaretees, liquor, tinned provisions and grocery items like tooth paste, tooth brush, powder, soap etc. are distributed. In the wet canteen tea, coffee and snacks were being prepared and served. Rum was also issued to sailors on days specified by the Naval Authorities. In the dry canteen they (Indian Naval canteen Service) get the necessary stores for running the canteen from the Canteen Stores Department (India) bangalore, which is a Government of India organisation under the Ministry of Defence. Stores are distributed to the members of Naval Service and Defence Service personnel at the prices fixed from time to time by the Canteen Stores Department of India. Members of the public have no right to purchase stores from the canteen. No sales tax is charged for the stores distributed. Similarly for the refreshments which were served in the wet canteen no sales tax is charged. The above activities of the Indian Naval Canteen Service are only meant for the pleasure, social entertainment and amenities of the service personnel. The work done by the employees is only incidental to the primary object for which the Indian Naval Canteen service has been constituted. " ( 27 ) THE above averments are not disputed. This is, therefore, a clear case falling wihtin the principles laid down in the statement which i have quoted from the decision of the Supreme Court in the Safdarjung hostel Case (1970) 38 FJR. 246 ). In the case before us the management have produced, as already observed, Army Order 70911951 (Ext. E') and copy of the Mysore Sub-Area order 79/63 (Exhibit. 'f') in which we find the necessary material to decide the question whether the management is carrying on an industry or not. 246 ). In the case before us the management have produced, as already observed, Army Order 70911951 (Ext. E') and copy of the Mysore Sub-Area order 79/63 (Exhibit. 'f') in which we find the necessary material to decide the question whether the management is carrying on an industry or not. Sri V. P. Ananthakrishnan, the learned counsel for respondent-2, urged that Exts 'e' and 'f' having not been marked as exhibits in the court below, should not be acted upon. We have already dealt with the above matter earlier in the course of this order. We have come to the conclusion that the workers did not dispute the genuineness of the two documents which were referred to in the counter statement filed on behalf of the management, but only disputed about their relevanc to the facts of the case We find that the two documents form part of the official records of the Defence Department and duly authenticated by an officer of the Defence Department. It should, therefore, be taken that there can be no doubt about the genuineness of the two documents and that the Labour Court should have taken them into account while passing the award. It is no doubt true that in the course of the award, the labour Court states that Ext. 'f' was not to be found in the file, but it does not say anything with regard to Ext. 'e'. Sri Ananthakrishnan, however was justified in submitting to the court that the management in this case was negligent in prosecuting its defence before the Labour Court. ( 28 ) WE find from the order sheet of the Labour Court that the petitioner's counsel was absent on 21-3-1970 and 23-3-1970 when the case was posted for hearing the counsel for the petitioner. But the question still remains whether it is necessary in the above circumstances to remit the case again to the Labour Court for adducing any further evidence on the points raised by the parties. Sri Ranganna, the learned counsel for the petitioner, stated that apart from the two documents Exts. 'e' and 'f' there was no other material on which the petitioner wanted to rely in support of its case. In those circumstances, we felt that we could decide the case on the basis of the two documents Exts. 'e' and 'f' ourselves instead of remitting the matter again to the Labour Court. 'e' and 'f' there was no other material on which the petitioner wanted to rely in support of its case. In those circumstances, we felt that we could decide the case on the basis of the two documents Exts. 'e' and 'f' ourselves instead of remitting the matter again to the Labour Court. We, therefore, propose to deal with the matter ourselves and give a finding on the question whether the management is an industry or not on the basis of the available material including Exts. 'e' and 'f'. Since the question raised is one relating to a jurisdictional fact, namely, whether the management is an industry or not, which alone would confer jurisdiction on the Labour Court to adjudicate upon the dispute referred to it, we feel there is no impediment for our enquiring into that question of tact in this petition under Art. 226 of the Constitution. ( 29 ) A reading of Army Order 709/1951 which lays down the policy regarding canteens (Ext. 'e'; and the copy of the Mysore Sub-area Order 79|63 (Ext. 'f'), would show that the canteen which was being run by the management was not an industry. Clause (2) of Ext. 'e' deals with the policy behind the canteen in question, namely, (a) avoiding the middlemans profit and providing can goods at cheaper price; (b) ensuring more efficient canteen service to the troops; and (c) providing additional amenities to the troops from the increased profits that would thus accrue. The canteen is placed under the overall supervision of an officer and the accounts of the canteen are to be audited by the Regimental Audit Board. ( 30 ) THE management had to purchase all the goods from the Canteen Stores department (India) and the goods had to be sold strictly at the retail rates fixed from time to time in the Canteen Stores Department (India) retail Price List. It was also the policy of the management to employ the personnel in the canteen for being trained in canteen work and who would in time of war form canteen teams to run and organise canteens in forward areas and it is not disputed that all such personnel had undertaken to serve in operational area if and when necessary. The Mysore Sub-Area order 79/63 (Ext. The Mysore Sub-Area order 79/63 (Ext. 'f') refers to the manner in which the profits realised by running canteens should be distributed to which the Army headquarters had given its concurrence. It is stated in Ext. 'f' that one way of utilising such canteen profits is to give assistance to JCOs'ncos messes. There is one more factor to which reference is to be made. The canteen in question can supply goods and render service only to defence personnel and not to other members of the public. Even the workmen have admitted in paragraph 1 of the statement of claim that the canteen had been opened to cater to the needs of the defence personnel and the goods are sold at the canteen to the officers of Defence Services at concessional rates. A reading of Exts. 'e' and 'f' along with the evidence of w. W. 1 extracted above, would show that the canteen run by the management is not one which is run on commercial basis. The dominant object in running the canteen, appears to be one of rendering assistance or aid to defence personnel who alone are entitled to buy goods from the canteen. ( 31 ) IT was however argued by Sri V. P. Ananthakrishnan that since there was evidence to show that some profit was being earned by the management, this case was distinguishable from Safdar Jung Hospital case (3) We do not think so. A similar contention was rejected by the supremd Court in Management of Hospitals, Orissat v. Their Workers air 1971 SC. 1259 ' by the following observations:"learned counsel appearing for the respondent-workmen, however , urged two aspect", before us is support of his submission that the Safdar Jung Hospital case (3) should not be held to be applicable to those appeals before us. One aspect WPS that there was a finding by the Tribunal that some of those hospitals have paid beds where patients coming for treatment have to make payment for occupying the beds. On this account it should be held that those hospitals were being run in a commercial way. The mere fact that payment is accepted in respect of some beds cannot lead to the infer ence that the hospitals are run as a business in a commercial way. Primarily, the hospitals are meant as free service by the Government to the patients without any profit motive. The mere fact that payment is accepted in respect of some beds cannot lead to the infer ence that the hospitals are run as a business in a commercial way. Primarily, the hospitals are meant as free service by the Government to the patients without any profit motive. It may be mentioned that, connected with the case of Safdar Jung Hospital, was the case of the Tuberculosis Hospital which was a part of the Tuberculosis association of India. In that Hospital, there were beds for which payment was adopted, as well as beds which could be occupied without any payment. The Court still held that that Hospital could not be held to be an industry. The existence of a few paid beds, thus, does not make any difference. " ( 32 ) WE are, therefore, of the opinion that the canteen run by the management is not an industry within the meaning of S. 2 (j) of the Act, and therefore, the dispute between the management and the workmen cannot be an industrial dispute. It, therefore, follows that the reference of the dispute between the management and the workmen in question for adjudication to the Labour Court was without jurisdiction and the award possed by the Labour Court on such a reference is also, therefore, one without jurisdiction. In 1he view we have taken it is not necessary to deal with the merits of the case relating to the termination of service of respondent-2. In the result, we allow the writ petition and set aside the award passed in reference No. 73 of 1968 by the Labour Court, Bangalore. There will, however, be no order as to costs. --- *** --- .