JUDGMENT : M.M. Das, J. - The Petitioner-management i.e., the Co-operative Urban Bank Ltd., Parallakhemundi has sought for quashing the award dated 28.6.2002 passed by the Presiding Officer, Labour Court, Jeypore in Industrial Dispute Case No. 23 of 2000. By the said award, the Labour Court directed reinstatement of opp.party N.4, who was working as Accountant of the Bank with 50% back wages. 2. A reference was made by the Government of Orissa in its Labour and Employment Department to the Labour Court, which is as follows : Whether the dismissal of service of Sri J.V.R. Krishna Rao, Ex-Accountant by the management of M/s. Co-operative Urban bank Ltd., Parlakhemundi with effect from 7.11.1997 is legal and/or justified ? If not, to what relief the workman Sri Rao is entitled to. 3. The above reference was made on a dispute being raised by the opp.party No. 4 with regard to his termination from service in a domestic enquiry where he was found guilty of having embezzled Rs.1, 99, 800/-. Challenge to the award has been made on the following grounds : (1) The Petitioner is not an "Industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 as it has only 9 (nine) staffs. (2) Finding of the Presiding Officer, Labour Court that the principles of natural justice have not been followed, is not correct. (3) The Presiding Officer having held that the principles of natural justice have not been followed, at best could have directed for re-enquiry but could not have directed reinstatement of opp.party No. 4. 4. Mr. S. Mohanty, learned Counsel for the Petitioner urged that at the time of dismissal of opp.party No. 4, the number of employees of the Bank were 9', as stated in the writ petition and it has never exceeded the said number. He further submitted that as the opp.party No. 4 was working in supervisory capacity, he does not come under the definition of 'Workman'. According to Mr. Mohanty, the Bank is not an "Industry" as defined in Section 2(j) of the Industrial Disputes Act (in short 'the I.D. Act') and in that event, the dispute is not an "Industrial Dispute" as defined in Section 2(k) of the I.D. Act. According to Mr. Mohanty, the Bank is not an "Industry" as defined in Section 2(j) of the Industrial Disputes Act (in short 'the I.D. Act') and in that event, the dispute is not an "Industrial Dispute" as defined in Section 2(k) of the I.D. Act. He has drawn the attention of this Court to the seriousness of the charges leveled against the opp.party No. 4 in the domestic enquiry and submitted that the materials were placed in support of such charges in presence of opp.party No. 4 during the enquiry, which were denied by him and the opp.party NO.4 has never complained of violation of principles of natural justice during the enquiry. 5. Mr. Mishra, learned Counsel appearing for the workman-opp.party No. 4, on the contrary, submitted that the writ petition is not maintainable and is liable to be dismissed on the sole ground that even though this Court by order dated 17.12.2003 directed for compliance of the provisions of Section 17-B of the I.D. Act, which was refused to be modified by order dated 15.1.2004, the Petitioner-management has not complied with the said direction and only has deposited the arrear dues before this Court till the month of December, 2003. In support of the above contention, Mr. Mishra relied upon the decision in the case of Chief Engineer, P.W.D., Nagpur and Ors. v. P.W.D., S.C. S.T., O.B.C. Employees' Council and Anr., AIR 1995 Lab.I.C. 143. He further contended that the amount to be paid u/s 17-B of the I.D. Act is in the nature of a subsistence allowance, which was required to be paid to the workman for his survival and meeting the expenses of litigation. He, therefore, submitted that where subsistence allowance is not paid, the entire proceeding is vitiated in law as the delinquent will not be in a position to attend the proceeding and defend the same properly. In the case of Chief Engineer, P.W.D. (supra), the Supreme Court has held that the provisions of Section 17-B of the I.D. Act are mandatory in nature during pendency of the proceeding in the High Court or the Supreme Court and therefore, non-compliance of the mandatory provisions of Section 17-B of the I.D. Act entails in dismissal of the petition/proceeding. In the case of Chief Engineer, P.W.D. (supra), the Supreme Court has held that the provisions of Section 17-B of the I.D. Act are mandatory in nature during pendency of the proceeding in the High Court or the Supreme Court and therefore, non-compliance of the mandatory provisions of Section 17-B of the I.D. Act entails in dismissal of the petition/proceeding. In the case of Dena Bank v. Klrtikumar T. Patel, 1998 (I) LLJ (SC) 1, the Supreme Court held as follows : As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when is services were terminated and therefore used the words 'full wages last drawn'.... 6. Now addressing the questions raised by the Petitioner, this Court finds that the Petitioner-management has not brought any material before the Labour Court in support of this contention that it was running with 9 (nine) employees and therefore, it comes within the exception clause. The management has not supplied the details of its staffing pattern nor has produced any material to sustain its contention. Rather it appears from the impugned award that such a contention was never raised before the Labour Court and is being raised before this Court for the first time inasmuch as the said aspect being a question of fact, this Court while exercising its jurisdiction under Article 226 of the Constitution is not inclined to interfere with the same. Rather it appears from the impugned award that such a contention was never raised before the Labour Court and is being raised before this Court for the first time inasmuch as the said aspect being a question of fact, this Court while exercising its jurisdiction under Article 226 of the Constitution is not inclined to interfere with the same. From the enquiry report and audit report, which were produced before the Labour Court, as it appears from the award, it is revealed that the opp.party No. 4 was subjected to supervision by the Secretary-cum-Chief Executive of the Bank. No other material has been produced before the Labour Court to show that the opp.party No. 4 does not come under the definition of "Workman". 7. Section 2(j) defines the word "Industry" and takes in its fold a systematic activity organized by co-operation between the employer and the workman for the production, supply and/or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes, which are merely spiritual or religious in industry). In the case of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others the Supreme Court has held that "Industry" as defined in Section 2(j) has a wide import. In the said decision, the Supreme Court held as follows : 161 (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 i.e. 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 organization 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 'imbs, their meaning cannot be magnified to overreach itself. (d) If the organization 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 'imbs, 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 takes into the fold 'industry' undertakings, callings and services, adventures '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 the 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 outer 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 (iv) co-operatives, (v) research institutes (vi) charitable projects and (vii) other kindred adventures, if they fulfill the triple tests listed in 1 (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, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employe'e character of the unit. (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, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employe'e character of the unit. (c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn 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, development passion or project. IV. The dominant nature test : (a) Where a complex of activities, some of which qualify for exemption, Ors. not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi and Another Vs. Ram Nath, ) 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 The Corporation of the City of Nagpur Vs. Its Employees, ) will be the 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 bygovernment 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 S. 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. 8. Thus, the Petitioner tested in the above guidelines cannot be excluded from the definition of 'Industry' and no error can be found with the impugned award in that regard. 9. (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. 8. Thus, the Petitioner tested in the above guidelines cannot be excluded from the definition of 'Industry' and no error can be found with the impugned award in that regard. 9. The Labour Court upon appreciating the evidence adduced before it has come to a finding that there was violation of principles of natural justice in the domestic enquiry and this Court does not feel it appropriate to re-appreciate the evidence in that regard as a Court of appeal. The Labour Court in support of the above finding has assigned good reasons, such as, the details and essential of the charges framed have not been mentioned in the memo of charges, as a consequence the workman was not in a position to submit his detailed explanation on each charge. No witness was examined by the Management nor the workman has been given opportunity to cross-examine the Management witnesses. The workman was not given any opportunity to examine his witnesses in the departmental enquiry and documents revealing mis-appropriation have not bee proved by the Management but the Inquiring Officer and the Disciplinary Authority have straight away come to the conclusion that the workman has mis-appropriated the Bank money. With regard to the question as to whether the Labour Court on finding that there was violation of principles of natural justice should have directed an enquiry by the management again, this Court finds that the Labour Court apart from giving a finding with regard to violation of principles of natural justice has also found that the Inquiring Officer without any material came to the conclusion that the workman was guilty of mis-appropriation and embezzlement of bank money. Even though there was no such material proved in the domestic enquiry, the Inquiring Officer straight away concluded by simply taking note of the allegations made by the management that the charges have been proved. Further, the Labour Court on appreciating the evidence has specifically came to a finding that in respect of the self-same charges, the workman has been proceeded twice. Further, the Labour Court on appreciating the evidence has specifically came to a finding that in respect of the self-same charges, the workman has been proceeded twice. Finding of the Labour Court to the above effect is as follows : xxx xxx xxx Law is well settled that a person can not be tried twice for the same charges, when the workman was found guilty as per the first enquiry report (Ext.B) and punishment was inflicted on him, he cannot be punished again on the same charges. Such act of the management imposing punishment for the second time amounts to violation of the principles of natural justice. xxx xxx xxx 10. In view of the above, this Court finds no illegality or perversity in the impugned award so as to be interfered with. The writ petition, therefore, stands dismissed being devoid of merit. 11. The amount deposited before this Court towards the wages of opp.party No. 4 amounting to Rs.52, 920/- pursuant to the order dated 15.1.2004 passed in Misc. Case No. 13103 of 2003 shall be disbursed in favour of opp.party No. 4 along with accrued interest, if any, by the registry of this Court. Consequently all the pending misc. cases also stand disposed of.