Judgment B.N. SRIKRISHNA, J.:---These three writ petitions under Articles 226 and 227 of the Constitution of India impugning the orders of the Labour Court under the provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the Act) raise identical issues of facts and law and, therefore, can be conveniently disposed of by a common judgment. 2. There are two important issues thrown up by these writ petitions and they are : (a) Whether a trade union registered under the Trade Unions Act is an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947 and, (b) even if it is, whether an office bearer of a trade union doing work of trade unionist, properly so-called, would be a workman within the meaning of section 2(s) of the Industrial Disputes Act, 1947. 3. Patanjali says in his Mahabhashya : "Dushtah Shabdah Swarato Varnato Vaa Mithyaa Prayukthah na tamarthammaaha". ("A word, wrong in accent or syllable, is falsely used and does not convey the (intended) meaning"). The facts of this case exemplify this apophthegm and the extent to which the ratio deC.I.D.endi of a case is distorted by a Printers Devil. 4. A brief survey of the relevant facts : The first respondent in these three writ petitions is a trade union registered under the Trade Unions Act and under section 13 of the Bombay Industrial Relations Act, 1946 as a representative union of the employees in the cotton textile industry in the local area of Greater Bombay. It is also entered in the approved list maintained by the Registrar under section 23 of the Bombay Industrial Relations Act, 1946. 5. The original writ petitioner in writ petition No. 3695 of 1987 and the writ petitioners in writ petition Nos. 3697 of 1987 and 3698 of 1987 were employed in the first respondent trade union as organising Secretaries/Assistant Secretaries. (The original writ petitioner in writ petition No. 3695 of 1987 having died during the pendency of the writ petition, the writ petition is being prosecuted by his legal heir and representative who has been brought on record). The petitioners, who were required to perform the duties of organising Secretaries/Assistant Secretaries, were paid certain remuneration therefor. (The original writ petitioner in writ petition No. 3695 of 1987 having died during the pendency of the writ petition, the writ petition is being prosecuted by his legal heir and representative who has been brought on record). The petitioners, who were required to perform the duties of organising Secretaries/Assistant Secretaries, were paid certain remuneration therefor. Some time in 1984, there was a serious dissension in the first respondent trade union which resulted in the group consisting of the three writ petitioners and certain others falling into disfavour. The direct consequence of this was that, although the three writ petitioners were candidates for election to the post of Secretaries, they had to hastily abandon their candidatures and withdraw their nominations in the face of mounting pressure. On 23rd July, 1984, the General Secretary of the first respondent addressed identical letters to the writ petitioners informing them that their services were no longer required by the first respondent union and that their services were terminated with effect from 28th July, 1984, upon payment of one month salary in lieu of notice. 6. The three writ petitioners, being aggrieved with their abrupt removal from employment, challenged the orders of termination of their services by filing complaints (ULP) Nos. 109 of 1984, 108 of 1984 and 110 of 1984 before the Labour Court at Bombay under section 28 of the Act. In these complaints the petitioners described the activities carried on by the first respondent and contended that those activities were carried on with the co-operation of the staff employed and, therefore, the first respondent was an industry amenable to the provisions of the Industrial Disputes Act, 1947. They also contended that the petitioners were workmen within the meaning of section 2(s) of the Industrial Disputes Act and, therefore, employees; within the meaning of section 3(5) of the Act. They alleged that their abrupt removal from employment amounted to unfair labour practices under Item 1(a) and (b) of Schedule IV of the Act, for which they claimed appropriate declaration and relief by way of reinstatement in service with continuity and full back wages. 7. The complaints of the writ petitioners were contested by the first respondent both on facts and law. The first respondent admitted that the complainants were permanent employees. 7. The complaints of the writ petitioners were contested by the first respondent both on facts and law. The first respondent admitted that the complainants were permanent employees. It put forward the plea that they were simultaneously office-bearers of the first respondent Trade Union as Secretaries, that the nature of the activities carried on by the first respondent did not render it an industry within the meaning of section 2(k) of the Industrial Disputes Act and, therefore, the provisions of the Industrial Disputes Act and, consequently, the provisions of the Act, were not applicable to the first respondent. A subsidiary contention was also advanced that, in any event, even if the Act was applicable to the first respondent, the petitioners were not workmen as defined under section 2(s) of the Industrial Disputes Act, 1947 and employees within the meaning of section 3(5) of the Act and therefore, the complaints were not maintainable. The Labour Court tried the three complaints and, after recording detailed evidence, upheld both objections as to maintainability put forward and dismissed the complaints. The petitioner being aggrieved by the orders of dismissal of their complaints are before this Court by the present writ petitions. 8. The contentions urged before this Court by the learned counsel on both sides are the same as urged before the Labour Court. Mr. Kochar, learned Advocate for the petitioners, contends that the Labour Court seriously erred in taking the view that the first respondent was not an industry and further that the petitioners were not workmen. Ms. Buch, learned Counsel for the first respondent, contends to the contrary and urges that the orders of the Court below are valid in law and need to be sustained. 9. Although the contention urged was somewhat broad in nature, namely, whether a Trade Union can be an industry within the meaning of section 2(j) of the Industrial Disputes Acts, for the purposes of the present writ petitions, it would suffice to consider whether, on the material on record, the first respondent Trade Union can be held to be an industry within the meaning of section 2(k) of the Industrial Disputes Act. This is the question requiring consideration and decision. 10. The complaints were filed under section 28 of the Act invoking the jurisdiction of the Labour Court constituted thereunder. This is the question requiring consideration and decision. 10. The complaints were filed under section 28 of the Act invoking the jurisdiction of the Labour Court constituted thereunder. A complaint under the Act would be maintainable only if the Act is applicable to a particular industry. The applicability of the Act is indicated in section 2 of the Act which makes the Act applicable to an industry to which the Bombay Industrial Relations Act, 1946 applies or to an industry as defined in Clause (j) of section 2 of the Industrial Disputes Act 1947. It is common ground that the first respondent is not an industry to which the provisions of the Bombay Industrial Relations Act apply. It needs to be considered whether it is an industry within the meaning of section 2(j) of the Industrial Disputes Act, 1947. 11. Section 2(j) of the Industrial Disputes Act defines an expression "industry" in the following terms: "Section 2 (j). "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or a vocation of workmen." Though the question as to whether different types of establishments would fall within the ambit of this definition has been discussed and decided by the Supreme Court from (D.M. Bannerjee v. P.R. Mukherjee)1, 1953(1) L.L.J .195 to (Bangalore Water and Sewerage Board v. A. Rajappa and others)2, A.I.R. 1978 S.C. 548, the law has been authoritatively and finally (1) settled by the decision of the Supreme Court in Rajappas case (supra), a decision of a Bench of seven Judges, a watershed in the law. Rajappas case undertook a survey and critique of all the extent decisions of the Supreme Court, attempted to reconcile the apparently irreconcilable views expressed in different judgments, and summarised the law authoritatively in five propositions which have been reproduced in the penultimate paragraph of the judgment. Rajappas case undertook a survey and critique of all the extent decisions of the Supreme Court, attempted to reconcile the apparently irreconcilable views expressed in different judgments, and summarised the law authoritatively in five propositions which have been reproduced in the penultimate paragraph of the judgment. Since there is some difficulty, on account of what is presumably a Printers Devil, as the texts of the relevant crucial portions of the Supreme Court judgment, reported in Bangalore Water Supply and Sewerage Board v. A. Rajappa and others, A.I.R. 1978 Supreme Court 548 and the one reported in Bangalore Water Supply Sewerage Board v. A. Rajappa and others, 1978(1) L.L.J. 349 , are different, I shall refer to the report in the Official Report of the judgment in 1978(3) Supreme Court Reports 207, from which I have culled out the observations on pages 282 to 283 from the majority judgment of Krishna Iyer J., which are as under : "I. Industry, as defined in section. 2(j) and explained in Banerji, has a wide import. (a) Where (i) systematic activity, (ii) organized by co-operation between employer and employee, (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale, prasad or food), prima facie, there is an industry in that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint private or other sector. (c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking. II. Although section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself. (a) Undertaking must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment, so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be industry provided the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be industry provided the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold of industry undertakings, callings and services adventure analogous to the carrying on of trade or business. All features, other than the methodology of carrying on the activity viz. in organizing the co-operation between employer and employee may be dissimilar. It does not matter, if on the employment terms there is analogy. III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or other sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more. (a) The consequences are (i) professions, (ii) Clubs, (iii) educational institutions, (iii) Co-operatives, (iv) research institutes, (v) charitable projects and (vi) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted from the scope of section. 2(j). (b) A restricted category of professions, clubs, co-operatives and even Gurukulas and little research labs, may qualify for exemption if in simple ventures substantially and going by the dominant nature criterion substantively, in single simple ventures, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit. (c) If in a pious or altruistic mission many employ themselves, free or for small honorarial or likely return mainly by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant, relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project. IV. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project. IV. The dominant nature test : (a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not workmen as in the University of Delhi Case or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur, will be true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, alone qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies. (c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section. 2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. We over-rule Safdarjung, Solicitors case, Gymkhana, Delhi University, Dhanrajgirji Hospital and other rulings whose ratio runs counter to the principles enunciated above, and Hospital Mazdoor Sabha is hereby rehabilitated. We conclude with diffidence because Parliament which has the commitment to the political nation to legislate promptly in vital areas lide industry and trade and articulate the welfare expectations in the conscience portion of the Constitution, has hardly intervened to restructure the rather clumsy, vaporous and tall-and-dwarf definition or tidy up the scheme although Judicial thesis and antithesis, disclosed in the two decades long decisions, should have produced a legislative synthesis becoming of a welfare State and Socialistic Society, in a word setting where I.L.O. norms are advancing and India needs updating. We feel confident, in another sense, since counsel stated at the bar that a bill on the subject is in the offing. The rule of law, we are sure, will run with the rule of life - Indian Life - at the threshold of the decade of new development in which Labour and Management, guided by the State, will constructively partner the better production and fair diffusion of national wealth. The rule of law, we are sure, will run with the rule of life - Indian Life - at the threshold of the decade of new development in which Labour and Management, guided by the State, will constructively partner the better production and fair diffusion of national wealth. We have stated that, save the Bangalore Water Supply and Sewerage, Board appeal, we are not disposing of the others on the merits. We dismiss that appeal with costs and direct that all the others be posted before a smaller bench for disposal on the merits in accordance with the principles of law herein laid down." 12. The Supreme Court in Rajappas case approved of the reasoning in D.N. Banerjees case (supra) and expanded on it. The learned Judge of the Labour Court rightly referred to and relied upon the above observations of the Supreme Court and the test of industry propounded therein. Unfortunately, he seems to have relied on the text of the judgment reported in 1978(I) L.L.J. 349 , where, in paragraph 131(a), the text of the first test is reported as : " Where (i) systematic activity, (ii) organized by co-operation between employer and employee the direct and substantial element is commercial, (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss, i.e., making, on a large scale, or Prasad or food), prima facie, there is an "industry" in that enterprise." (emphasis mine) In contrast, it may be noted that text of the judgment reported in the Supreme Court Reports, contains the words "the direct and substantial elements is chimerical" in parenthesis in sub-para (a) of paragraph 1. Naturally, the import of the judgment having been totally distorted by the misreporting, the learned Judge of the Lower Court persuaded himself to believe that the direct and substantial element was "commercial". With this impression he analysed the evidence on record and came to the conclusion (vide paragraph 9) : "Keeping in mind the above observations and the test laid down in Banerjis case, I find that in the Sangh there is a systematic activity. The question is whether it is organised by co-operation between employer-employee, the direct and substantial element in commercial. The question is whether it is organised by co-operation between employer-employee, the direct and substantial element in commercial. The Rashtriya Mill Mazdoor Sangh is of the Mill Mazdoors, for the Mill Mazdoors, and the activities are carried out by the Mill Mazdoors, they are self service, There is no employer-employee relationship. The Mill Mazdoors in the Sangh do not work for remuneration. All the members of the Sangh are the textile workers and they carry out their main activities and for some purpose they require Clerks, Peons, Motor Drivers, but the activities cannot be said to be commercial activities. The element of employing Clerks, Peons and Motor Drivers cannot transform the Sangh into an industry. It is true that the Sangh runs tailoring class, typing classes, library, but these activities of the Sangh are not predominant activities. By applying a dominant nature test, the predominant nature of the services and intergranted nature of departments as explained in Corporation of Nagpur is the true test. The Sangh can carry out its activities without the above stated activities. The Sangh does not exist for those activities. Predominant activities on the Sangh are as per objects of the Union and they not being of commercial nature, the Sangh cannot be held as an Industry." Thus, notwithstanding the somewhat inelegant turnout of phrases, it is clear that the learned Judge of the Labour Court held that the activities carried out by the first respondent did involve the operation of the employer-employee relationship, but since the activities could not be said to be commercial activities, the first respondent could not be held to be an Industry. If the test of the Supreme Court judgment contained words, " the direct and substantial element is commercial", then the learned Judge is right. Unfortunately, however, the official Reporter of the Supreme Court reproduces the words "the direct and substantial element is chimerical". I presume, by a mischief of Printers Devil, the words chimerical got transformed into commercial and led to the avoidable confusion. This conclusion is reached on a careful reading of the entire judgment in Rajappa. 13. Unfortunately, however, the official Reporter of the Supreme Court reproduces the words "the direct and substantial element is chimerical". I presume, by a mischief of Printers Devil, the words chimerical got transformed into commercial and led to the avoidable confusion. This conclusion is reached on a careful reading of the entire judgment in Rajappa. 13. After having analysed the judgment of Chandrashekhara Aiyer, J., (on pages 229 to 234), on page 235 of his judgment, Justice Krishna Iyer extracted a portion from the judgment of Justice Chandrasekhara Aiyer in which the learned Judge pointed out that, if a public utility service carried on by a private company or business corporation could amount to an industry, there was no reason for excluding the same from the sweep of the definition merely because it was carried out by local bodies like Municipalities, District Boards or Local Boards. The learned Judge rhetorically observed : "If the public utility service is carried on by a corporation like a Municipality which is the creature of a statute, and which functions under the limitations imposed by the statute, does it cease to be an industry for this reason? The only ground on which one could say that what would amount to the carrying on of an industry if it is done by a private person ceases to be so if the same work is carried on by a local body like a Municipality is that in the letter (sic) there is nothing like the investment of any capital or the existence of a profit earning motive as there generally is in a business. But neither the one nor the other seems a sine qua non or necessary element in the modern conception of industry?" In the judgment in Rajappa the extract from Banerji has been reproduced with emphasis added. It is this tenor of reading of Banerji which echoes throughout the judgment of Krishna Iyer, J. It is because of this reasoning that, while setting down the first postulate in paragraph 1, clause (a), on page 282, the learned Judge observed parenthetically that the direct and substantial element was chimerical, meaning thereby that it was only the result of a chimera or myth - emphasising that what was to be looked at was the organisation of the pattern and not the motive or the intention in establishing the organisation. Thus read, the first test formulated in Rajappas case clearly applies to the functions of the first respondent, as we shall see presently. 14. The first respondent is constituted under the Indian Trade Unions Act, 1926, which defines a Trade Union as any combination formed primarily for the purpose of regulating the relations between workmen and employers or between workmen and workmen, or between employers and employers or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more Trade Unions section. 2(h). Section 5 provides for the Registration of Trade Union on application made to the Registrar with a copy of the Rules of the Trade Union. Section 6 indicates that a Trade Union shall not be entitled to registration under this Act, unless the executive thereof is constituted in accordance with the provisions of this Act, and the rules thereof provide for the matters enumerated in Clauses (a) to (j) of section 6. Of interest to the present discussion are only Clauses (c) and (h) of section 6, which read as under : "Section 6(c) : the whole of the purposes for which the general funds of the Trade Union shall be applicable, all of which purposes shall; be purposes to which such funds are lawfully applicable under this Act; Section 6(h) : the manner in which the members of the executive and the other "office bearers" of the Trade Union shall be appointed and removed." Section 15 of the Trade Unions Act indicates the objects on which general funds may be spent. This section is negatively worded and says that the general funds of a registered Trade Union shall not be spent on any other objects than the ones enumerated in Clauses (a) to (k) of section 15. Of relevance to the present discussion, are Clauses (a), (b), (h), (i) and (j) of section 15, which read as under: Section 15 : (a) the payment of salaries, allowances and expenses to "office bearers" of the Trade Union. (b) the payments of expenses for the administration of the Trade Union, including audit of the accounts of the general funds of the Trade Union. (h) the provision of educational, social or religious benefits for members (including the payment of the expenses of funeral or religious ceremonies for deceased members) or for the dependents of members. (b) the payments of expenses for the administration of the Trade Union, including audit of the accounts of the general funds of the Trade Union. (h) the provision of educational, social or religious benefits for members (including the payment of the expenses of funeral or religious ceremonies for deceased members) or for the dependents of members. (i) the upkeep of a periodical published mainly for the purpose of discussing question affecting employers workmen as such. (j) the payment, in furtherance of any of the objects on which the general funds of the Trade Union may be spent, of contributions to any cause intended to benefit workmen in general, provided that the expenditure in respect of such contributions in any financial year shall not at any time during that year be in excess of one fourth of the combined total of the gross income which has up to that time accrued to the general funds of the Trade Union during that year and of the balance at the credit of those funds at the commencement of that year." In conformity with the provisions of the Trade Unions Act, the first respondent has drawn up its Constitution and Rules. It might be mentioned in passing that the Objects clause in Rule 2 is sufficiently wide and, in general, enables the first respondent Trade Union to carry out all activities which would enure to the benefit of the workmen to make them better citizens and more enlightened constituents of Society. It is of interest that in Rule 3 the first respondent has declared that the means to be adopted for the furtherance of the objects mentioned in Article No. 2 shall always be based on truth and non-violence. (what a refreshing contrast to the current ethos where violence is thought of as a necessary and legitimate ingredient of Trade Unionism !) Rule 12 provides that the management of the affairs of the Union shall be in the hands of the Executive Committee consisting of the office-bearers, honorary members and not less than 75 and not more than 100 members elected by the Members of the Joint Board of Representatives from among their own number, provided that, the number, of employees shall not be less than half. Rule 9 defines the Office Bearers. Rule 9 defines the Office Bearers. Clause (a), of Rule 9, deals with a particular category of the office bearers who can be elected by the General Board of Representatives, and, they are President, Vice President, General Secretary, one or more secretaries and treasurer and other acting appointments of the President, General Secretary, and Treasurer. Clause (b) provides that the President may appoint one or more Assistant, Secretaries who will carry on duties entrusted to them by the President provided that the number of Assistant Secretaries to be appointed shall not exceed the total number of Mills or Factories from which the workers have joined the Union. The reading of Rule 9 makes it clear that the constitution of the first respondent Union provides for some elected office bearers and some office bearers appointed by the President. Under Rule 12, both types of office bearers, inter alia, comprise the Executive Committee in which the management of the Union is vested. 15. Having dealt in extenso with the provisions of the Statute and the Constitutional Rules under which the first respondent is required to function, let us turn to the facts on record. During the trial of the complaints, material was placed on record to the effect that the petitioners were permanent employees and office bearers of the first respondent. Because of the peculiar situation which had arisen, the petitioners having lost the confidence of the workers, could not be elected as Honorary Members and, therefore, had lost usefulness to the organisation. It is not disputed that, because of the apparent loss of usefulness, the services of the petitioners were summarily dispensed with. 16. The first respondents evidence showed that it was carrying out its activities in conformity with the objects as set out in section 2(h) of the Trade Unions Act and its own Rules. That the first respondent was carrying out a Printing Press for publishing its receipt books and other registers, a Kamgar Weekly, hand bills, etc. was not disputed. It was contended by the first respondent that no work from outsiders was accepted in the Printing Press. About the running of the canteen, the stand of the first respondent was that it was only for the use of the workers, staff members and visitors of the office. was not disputed. It was contended by the first respondent that no work from outsiders was accepted in the Printing Press. About the running of the canteen, the stand of the first respondent was that it was only for the use of the workers, staff members and visitors of the office. It was emphasised that the rates of the food and drinks sold in the canteen were kept low, since the canteen was run on no profit basis. The first respondent admitted that it was running a typing class with an object of training workers, their children and family members. It was also admitted that a nominal fee of Rs. 5/- per month was charged for workers and their family members and that admission was restricted to them. Similar was the pattern of running of the tailoring class for the workers and their family members, who were charged a nominal fee of Rs. 15/- per month, the class not being open to members of public. Similarly, that the first respondent was running a library and a Co-operative society for the benefit of the workers was emphasised by the first respondent. It was emphasised that, all the above activities were undertaken as being incidental or ancillary to the main object of the Trade Union, namely the general upliftment of the workers and members so as to make them self-supporting, to improve their Character and Knowledge, so as to make them better citizens of the country. The first respondent also maintained that there was no trade, business or commercial element in conducting any of these activities and that its staff members, secretaries and other office bearers carried out their work as voluntary social service, at a salary and remuneration, which was much less compared to those payable to commercial service. 17. The Vice-President of the first respondent who filed his affidavit was cross-examined and under cross-examination he admitted that the typing and tailoring classes were not meant for members only and that outsiders also had access to both. Similarly, he admitted that the membership of the library was open to all members of public and not restricted to the members of the first respondent. Similarly, he admitted that the membership of the library was open to all members of public and not restricted to the members of the first respondent. He also admitted that the co-operative society selling grains and provisions run by the first respondent was also open to outsiders who were permitted to make purchases therein and that the said society even had an agency of selling cement and carried out its activities form its office situated within the premises of the first respondent. As to the guest house at Khandala, the witness of the first respondent stated that it was the property of the first respondent and the entire building situated in Bombay was also the property of the first respondent. He went on to say that the guest house was run by the first respondent and admitted that the said guest house was available to the officials of the first respondent at Rs. 5/- per day per room and also to outsiders on payment of Rs. 10/- per day per room, at higher charges. He also admitted that there is one Hall known as Mahatma Gandhi Hall, situated in Mazdoor Manzil, which was let out on rent for cultural activities and could accommodate 650 persons at a time. That the said Trust owned staff quarters in the compound of the first respondents premises and recovered rent from the occupants of quarters and that it had another building which housed existing and retired employees of the first respondent from whom service charges were recovered, was also admitted by him. He admitted that the first respondent, apart from collecting subscription from its members, was also collecting service charges of 3% to 5% from its members, who received their gratuity or retrenchment compensation, and ad hoc payment of Rs. 3/- to Rs. 5/-, from members who received their bonus amounts. That different types of employees had been placed in different grades and paid Dearness Allowance, Transport Bhatta and reimbursement of Travelling Concession, was also admitted by him. The learned Judge of the Labour Court seems to have misread the evidence, in so far as the admissions made by the Vice-President of the first respondent, about the different activities carried on, such as typing class, tailoring class, printing press, canteen, library, co-operative society, etc. The learned Judge of the Labour Court seems to have misread the evidence, in so far as the admissions made by the Vice-President of the first respondent, about the different activities carried on, such as typing class, tailoring class, printing press, canteen, library, co-operative society, etc. As I have already referred to, while reproducing and applying the test laid down by the Supreme Court in Rajappas case, the learned Judge of the Labour Court misdirected himself in assuming that, in order to be an "industry", the predominant activity must be of commercial nature with this misdirection, the learned Judge immediately came to the erroneous conclusion that inasmuch as all activities carried on by the first respondent were incidental or ancillary to the main activities of the Trade Union, there being no activity of commercial nature, the first respondent could not be held to be an industry within the meaning of section 2(j) of the Industrial Disputes Act. A careful and proper application of the true test in Rajappa would have shown otherwise. 18. What results are yielded by application of the true test of "industry" as postulated in Rajappa? The first respondent carries on systematic activities. Its activities are organised by co-operation of the first respondent and its employees. It is admitted that about 60 to 100 employees are employed by the first respondent on its different types of activities inclusive of its own administrative staff, apart from employing Trade Unionist, properly so-called. That the first respondent also employed non-Trade Unionist employees for administrative purpose such as Clerks, Accountants, Peons, Drivers and so on, is not disputed. Ms. Buch disputes that there is any production and/or distribution of goods and services calculated to satisfy human wants and wishes in the enterprise. She contends that, even assuming that all elements of the test in paragraph (1) of Clause (a) are fully satisfied in the first respondents case, element (3) of the test in Rajappa remained unsatisfied. In her submission, by carrying out the legitimate activities of a Trade Union, the Trade Union does not cater to human wants and wishes. On the other hand, it is contended that, what is catered to are the spiritual wants, inclusive of material things or services, needed by human beings to turn themselves into better citizens. In her submission, by carrying out the legitimate activities of a Trade Union, the Trade Union does not cater to human wants and wishes. On the other hand, it is contended that, what is catered to are the spiritual wants, inclusive of material things or services, needed by human beings to turn themselves into better citizens. The true aim of a Trade Union is to emancipate, educate and elevate a workman to become an ideal citizen of the country, fully aware of his rights and duties, as a responsible constituent of society. This does not entail rendering of services to satisfy human wants and wishes, as contemplated in element (iii) in paragraph I, Clause (a), of the test formulated in Rajappa, according to Ms. Buch. I must confess that the argument does have prima facie appeal. Looked at from a purely theoretical point of view, the argument may be plausible, but I cannot consider the argument in abstracto. The tenability of this argument must be tested against the backdrop of the facts in the first respondents case. That, at the ideal or ideological level, the first respondent caters to the inner cravings of the spirit of the human being for betterment, may be trues, but, at the objective level, the first Respondents primary objective is to organise the employees in the textile Mills in Bombay, to educate them as to their rights -and perhaps their responsibilities also- to ensure that they are better fitted for collective bargaining for their wages and other conditions of service. The primary emphasis is not really on the spiritual aspects, but on the material aspects. I find it difficult to persuade myself that the periodical strikes and exercises in collective bargaining, are intended more for satisfaction of the spirit than of material wants. It is not possible, therefore, to accept the contention that the first Respondents services are rendered only to satisfy the spiritual cravings of workers. The primary objective of the first respondent is really the material wants and, perhaps, after the material wants have been substantially satisfied, to cater to the workmens spiritual wants. After all, as Swami Vivekanand once said, one cannot teach philosophy to people with empty stomachs. The primary objective of the first respondent is really the material wants and, perhaps, after the material wants have been substantially satisfied, to cater to the workmens spiritual wants. After all, as Swami Vivekanand once said, one cannot teach philosophy to people with empty stomachs. At the current stage of evolution of Trade Unions in this country- the first respondent being no exception- it is difficult for me to accept that the role of the Trade Union is merely that of a spiritual mentor. In my considered view, the activities of the first respondent do positively answer the test in paragraph (I) a (iii) formulated in Rajappas case. Once the test in paragraph 1 is answered positively, as pointed out in Rajappas case, prima facie, there is an industry. The Supreme Court pointed out in Rajappa that absence of profit motive or gainful objective is irrelevant. That the true focus is functional and the decisive test is the nature of the activity, with special emphasis on the employer employee relationship, is the content of Clause (c) of paragraph I of the test in Rajappa. Applying this to the activities of the first respondent, I find is difficult to take the view that the nature of the activity, with special emphasis on the employee employer relationship between the first respondent and its employees, which would be inevitable for successful carrying out of its objects, could leave the first respondent out of the net of section 2(j). 19 Then we turn to paragraph II of the test, where the Supreme Court pointed out that all organised activities possessing the triple elements in paragraph I (supra), although not trade or business, may still be industry provided the nature of the activity, viz. the employer employee relationship, bears resemblance to what we find in trade or business. The Court then pointed out that all features, other than the methodology of carrying on the activity, namely ,in organising the co-operation between the employer and employee, may be dissimilar, and that it does not matter, if on the employment terms there is analogy. For a clerk, driver, liftman, person and accountant or any other employee, the work that is done is work which fetches his livelihood. For a clerk, driver, liftman, person and accountant or any other employee, the work that is done is work which fetches his livelihood. That he does the work in the office of the registered Trade Union, or in the factory of a trading company, is irrelevant in so far as co-operation between capital and labour and the employer-employee relationship is concerned. The pattern is identical and it is this structural parallelism which the Supreme Court was at pains to emphasize from B.M Bannerjee to Rajappa. Perceived from the perspective of methodology, there is hardly any difference between the work in first Respondents employment or elsewhere in a business house. 20. Then come the observations of the Supreme Court in paragraph 111, where the Supreme Court administers a stern caveat : "Application of these guidelines should not stop short of their logical, reach by invocation of creeds, cults or inner sense of incongruity or other sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more" It is trite to say that the Trade Union striving for the ideal of social justice to its member-workmen, should render social justice to its own workmen. That all charity must begin at home is an adage that is conveniently forgotten. I see no reason why a Trade Union must be excluded from the definition of "Industry" in section 2(j), merely because its objects are ideal or ideological. The reasons adumbrated by the Supreme Court in Rajappas case for roping in charitable and religious establishments into the net of the definition in section 2(j) of the Industrial Disputes Act, are equally applicable to the case of Trade Unions and it is unnecessary to repeat them. Conceptually, to think of a Trade Union as an industry is not only foreign, but may even appear incongruous. It was equally so in the case of charities academia and religious institutions. That there can be occasions of break-down of industrial relations and industrial peace, that there can be utter chaos in industrial relations and that there can be recurring industrial disputes within the set up of a Trade Union itself, are hard facts of life which need recognition. It was equally so in the case of charities academia and religious institutions. That there can be occasions of break-down of industrial relations and industrial peace, that there can be utter chaos in industrial relations and that there can be recurring industrial disputes within the set up of a Trade Union itself, are hard facts of life which need recognition. Being mindful of the stern caveat administered by the Supreme Court in paragraph 111 of the test in Rajappa. I am of the view that these considerations require the Court to ensure that the range of the statutory ideology must inform the reach of the statutory definition, nothing less, nor nothing more ought to be done by the Court. Ergo in my judgment, the first respondent clearly answers the definition of industry as laid down in section 2(j) of the Industrial Disputes Act as expounded in Rajappa. I am not inclined to accept the argument of Ms. Buch that all the persons employed by the first respondent are motivated by a spirit of self-sacrifice. True, they may be accepting employment on terms far below those obtainable elsewhere in open market, but that is not necessarily indicative of a lack of employer-employee relationship. That is a necessary ingredient of the market forces of Labour Economics Apart from ideal or ideological considerations, several other forces operate and prevail upon a person to accept employment on terms lesser than what he might have bargained for in an open market. Per se, that does not militate against there being an employer-employee relationship. Court is also not inclined to accept the argument of Ms. Buch that the test indicated in paragraph IV by the Supreme Court in Rajappas case should override and result in holding that a Trade Union can never be an industry. True, the Supreme Court emphasises the dominant nature test and points out that, where an entity carries on a complex of activities, some of which qualify for exemption from the ambit of industry and some do not, it is the nature of dominant activity which must decide the issue. In the case of the first respondent, however, as I see from its Constitution, apart from employing employees on ancillary objects such as administrative work, the Constitution empowers the President or Vice-President to appoint Assistant Secretaries to carry out functions of Trade Unionists, properly so called. In the case of the first respondent, however, as I see from its Constitution, apart from employing employees on ancillary objects such as administrative work, the Constitution empowers the President or Vice-President to appoint Assistant Secretaries to carry out functions of Trade Unionists, properly so called. That this power has been exercised and the three petitioners were employed as Assistant Secretaries, is an admitted fact. That their services were no longer required is evident from the letters dated 23rd July, 1984 terminating their services. It is, therefore, difficult to agree with Ms. Buch when she says that there is some other dominant activity which should dominate the colour or character of the first respondent as a whole. As far as I can read from the Constitution of the first respondent it appears to be empowered to employ persons on both types of activities. In any event, even if I consider the running of a Trade Union as the dominant activity and the employment of workmen was for administrative and other peripheral purposes even then, view that the dominant activity itself falls within the ambit of the term, industry of section 2(j) of the Industrial Disputes Act. Whichever way I look at it, there seems to be no escape for the first respondent from the net of section 2(j). I am, therefore, of the view that the learned Judge of the Labour Court erred in law in holding that the first respondent is not an industry within the meaning of section 2(j) of the Industrial Disputes Act. Differing therefrom, I am inclined to take the view that the first respondent clearly falls within the meaning of the term industry as defined in section 2(j) of the Industrial Disputes Act, 1947. 21. This takes me to the second issue, namely, whether the petitioners could be said to be workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947. Unfortunately the material on record is somewhat sketchy. Mr. Kochar, learned Counsel for the petitioners, pointed out that the objection as to the petitioners not being workmen had not been raised initially in the written statement filed be the first respondent and was raised only by way of an amendment moved on 11th January, 1985. Perhaps, this explains the lack of emphasis on the factual aspects of the work done by the petitioners. Perhaps, this explains the lack of emphasis on the factual aspects of the work done by the petitioners. The parties are, however, agreed that the petitioners were appointed as Assistant Secretaries and were carrying on functions of pure Trade Unionists. As to any other activities carried out by them, there is singular lack of evidence. 22. Mr. Kochar referred to the provisions of the Bombay Industrial Relations Act and pointed out that the legitimate Trade Union activities which can be carried out by a representative and approved Union under the Act is indicated in the Act itself under the umbrella on which the first respondent functions. He drew my attention to section 25 of the Bombay Industrial Relation Act, 1946 and Rules 29, 30, 31, 32, 33 and 34 of the Bombay Industrial Relations Rules, 1947. He contends that these provisions show that, even if the petitioners were employed as Assistant/Organising Secretaries, their work consisted of activities like (a) collecting sums payable by members to the Union on the premises where wages are paid to them, (b) putting up notice boards on the premises of the Undertaking for the information of their members, (c) holding discussions with the employees who are members of the Union on the premises of the Undertaking, (d) holding discussions with the employer for ventilating the grievances of the members and (e) to carry out inspection of such work done. He also pointed out that, under the Model Standing Orders, a Representative Union has the right to defend its members in domestic enquiries and this right is exercised on behalf of members by the Assistant/Organising Secretaries. 23. Even the duties required to be carried out and actually carried out by the Assistant Secretaries, as Trade Unionists, do not appear to be in dispute. But the questions that has been seriously debated is, whether these duties turn them into workmen within the meaning of section 2(s) of the Industrial Disputes Act. Mr. Kochar contends that section 2(s) of the Industrial Disputes was thoroughly revamped by an amendment made with effect from 21st August, 1984, by the Industrial Disputes Amendment Act, 1982, (Act 46 of 1982) and that, much of the law as laid down by the Highest Court while interpreting this section as it stood prior to the amendment, is not good law any longer. To understand the argument of Mr. To understand the argument of Mr. Kochar, in proper perspective, it is necessary to reproduce the text of section 2(s) as it stood before 1984 and as it stood on the date of the cause of action. Prior to 21st, August, 1984, section 2(s) read as under: "2(s) "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal discharge, or retrenchment has led to that dispute, but does not include any such person. (i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in his functions mainly of managerial nature." After 21st August, 1984, section 2(s) as amended by Act 46 of 1982, now reads as under: "2(s) "workman" any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." According to Mr. Kochar, the re-arrangement and re-juxtapositioning of the words in this section indicates that words describing the different types of jobs, manual, unskilled, skilled, technical, operational, clerical or supervisory, are independent of each other and are not necessarily controlled by each other. He also pointed out that the word operational has been deliberately added in order to widen the scope of the definition in section 2(s). He then contends that Organising/Assistant Secretaries would be persons employed to do skilled, technical or operational work. He also pointed out that the word operational has been deliberately added in order to widen the scope of the definition in section 2(s). He then contends that Organising/Assistant Secretaries would be persons employed to do skilled, technical or operational work. Since these words have been the subject matter of judicial interpretation, Mr. Kochar attempted to persuade me to his view point, by relying on a number of decisions. 24. Mr. Kochar cited the judgment of this Court in (Waman Ganpat Raut v. Cadbury-Fry (India) Pvt. Ltd.)3, 1980(41) F.L.R. 156 and relying on this judgment, he contends that this judgment lays down the law that, if the employer admits the relationship of employer-employee and yet contends that such a person is not a workman within the meaning of section 2(s) of the Industrial Disputes Act because he falls into one of excepted categories, then the burden of proving the said exception clearly lies upon the employer. In the instant case, since the first respondent Trade Union, which is the employer, adduced no evidence to show any exclusionary facts, the case of the petitioners must be considered only on the basis of the main body of definition, without applying the exclusionary part. There are two difficulties in the way of accepting this contention. Firstly, as I read the judgment, the learned Judges of the Division Bench in terms say that they had decided the controversy between the parties in the facts and circumstances of the particular case "without attempting to lay down any general proposition of law". Assuming, however, that a proposition of law, as stated by the learned Counsel, has been laid down by the Division Bench, the question of burden of proof is not very material since the parties led evidence and were pressing their respective contentions on the basis of the evidence led by them. I would, therefore, prefer not to be influenced by the so-called onus of proof and decide the case on the basis of the evidence adduced before the trial Court and the facts found by the trial Court, subject to the statutory provisions applicable. 25. Mr. Kochar then contended that the expression skill is generic in nature and would apply to all cases where a certain amount of skill has to be brought to bear on the subject matter for accomplishing a desired result. 25. Mr. Kochar then contended that the expression skill is generic in nature and would apply to all cases where a certain amount of skill has to be brought to bear on the subject matter for accomplishing a desired result. He illustrated that there could be skill of a mechanic, a turner, a singer, a lawyer or even as a Trade Unionist. It cannot be gainsaid that a Trade Unionist also must be skilled in the sense that, with training and practice, he honours his ability to carry on the activities to sharpness, urges Mr. Kochar. Mr. Kochar relied on the judgment of the Division Bench of this Court in (The Bombay Dyeing Manufacturing Co. Ltd. v. R.A. Bidoo ors.)4, 1989(1) C.L.R. 248 in support. He points out that this was a case where the Division Bench was required to consider whether the employee in question was a skilled person or a technical person and that after a survey of the relevant authorities, the High Court has laid down the two tests for deciding as to who would be a skilled employee. He particularly emphasises the observations in paragraphs 12, 13, and 17 of the judgment . Bidoos case was a case arising under the provisions of the Bombay Industrial Relations Act which defines the term employee in section 3(13) as : "Employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes- (a) ........ (b) ........ but does not include - (i) a person employed primarily in a managerial, administrative, supervisory or technical capacity drawing basis pay (excluding allowances) exceeding one thousand rupees per month......" Construing this definition, the Division Bench was of the view that the collocation of words used in the term employee indicated that, a person employed in any of the four categories mentioned in the exclusion clause must necessarily be held to be included in either an unskilled category or in a skilled category of employees. The Division Bench then considered that, for obvious reasons, they were inclined to take the view that a person employed in a technical capacity must be deemed to be included in the larger class of skilled employed. The Division Bench then considered that, for obvious reasons, they were inclined to take the view that a person employed in a technical capacity must be deemed to be included in the larger class of skilled employed. This discussion, per se, does not assist me as I am required to interpret the nuances of the expressions used in section 2(s) of the Industrial Disputes Act which is not pari materia with section 3(13) of the Bombay Industrial Relations Act. It is true that (in paragraph 14) the Division Bench does say; "From these meanings given in the Shorter Oxford English Dictionary, it can be said that skilled work is some work which requires expertise or special knowledge about the work which is to be performed. Technical work requires a training or knowledge or expertise of a particular art or science to which that work pertains............... The word technical embraces within itself not only the expertise and competence of a person, but also knowledge and experience relating to the particular work which may be said to be technical work." The Division Bench thereafter proceeded to consider the law laid down by the Supreme Court in (Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. Management Staff Association)5, A.I.R. 1971 S.C. 922, wherein a useful discussion as to the meaning of the word technical is to be found. At this stage, I need not make any reference to the Burmah Shell case as it has been referred and considered in a recent judgment of the Supreme Court in (H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc)6, 1994(II) C.L.R. 552, on which Mr. Kochar heavily relies. In paragraph 20, the Division Bench of our High Court in Bidoo summed up the discussion and observed, "In our opinion, what has been examined by us so far should be sufficient for the purpose of understanding the meaning of "employment in technical capacity". A person can be said to be employed in a technical capacity if he is, in the first place, a skilled person. He must have enough dexterity to discharge the work assigned to him with speed and accuracy. He must also have a skill, but that skill is not a general skill like that of a weaver who is in charge of several looms in a textile unit. He must have enough dexterity to discharge the work assigned to him with speed and accuracy. He must also have a skill, but that skill is not a general skill like that of a weaver who is in charge of several looms in a textile unit. Such a weaver is skilful enough to look after several looms at one time and if something goes wrong he is able to attend to and mend the same. But he is not employing any particular knowledge or art in which he has been trained or in which he had some education, formal or otherwise. In the case of a person employed in a technical capacity, the application of a knowledge of a particular craft or work is the distinguishing feature. With the assistance of the knowledge he possesses, a person employed in a technical capacity is able to bring about a result which could not be brought about by a person, howsoever skilled, who is to perform routine, repetitive work. A person employed in a technical capacity has to use his judgment and has to find out whether a particular work can be done in one manner or another and then he does that work in the manner in which he thinks it is better done. The work which results from the labours of such a person necessarily bears, at least in some small measure, the imprint of his personality and the knowledge of the person who does that work. It is necessary that the work that such a person does must be inventive, but it must necessarily be a work the contours of which are no pre-determined before that work is actually performed by the person employed in a technical capacity. Indication of this is available from the fact of Marshal Braganzas case. That case, in our opinion, very vividly describes the work of a person employed in a technical capacity." 26. Since the Division Bench has relied upon the judgment of the Supreme Court in Burmah Shell, (supra) for the formulation of the test of employment in technical capacity, it would be better to deal with the judgment in Burmah Shell while discussing Adyanthayas case. Since the Division Bench has relied upon the judgment of the Supreme Court in Burmah Shell, (supra) for the formulation of the test of employment in technical capacity, it would be better to deal with the judgment in Burmah Shell while discussing Adyanthayas case. As far as the judgment in Bidoos case is concerned, though the Division Bench has formulated the test with regard to employment in skilled capacity, I am of the view that the skill contemplated by the definition of workman in section 2(j) of the Industrial Disputes Act calls more for attributes of manual dexterity than intellectual dexterity. For, otherwise, it would mean that whatever the avocation, a person would necessarily be skilled. In order to be successful in any avocation, it would be necessary that the person must have a certain amount of skill - be he a craftsman, mechanic, driver, teacher or preacher. If the expression skill were to be given an extended meaning, as suggested by Mr. Kochar, then even a teacher or a preacher, who is extremely good at his vocation, would also be a workman within the meaning of this definition running counter to the interpretation of this section and the law laid down by the Supreme Court in (Miss. A. Sundarambal v. Government of Goa, Daman Diu and others)7, A.I.R. 1988 Supreme Court 1700. 27. The Supreme Court