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CASE NO.: Appeal (civil) 513 2000

PETITIONER: RUTH SOREN

       Vs.

RESPONDENT: MANAGING COMMITTEE, EAST I.S.S.D.A.  & ORS.

DATE OF JUDGMENT:       30/11/2000

BENCH: S R Babu, S N Variava

JUDGMENT:

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     J U D G M E N T

     RAJENDRA BABU, J.  :

     The   services  of  the   appellant  employed  in  the establishment   of  respondent  No.1   were  terminated   on 25.8.1980.   She made an application under Section 26(2)  of the  Bihar  Shops  & Establishments Act,  1953  [hereinafter referred  to  as the Act] before the Labour Court,  Ranchi questioning  the correctness of the same.  The Labour  Court allowed  the same by directing her reinstatement in  service with  full back wages and continuity in service.  This order made  by  the Labour Court was called in question in a  writ petition,  which on dismissal by a learned Single Judge, was carried  in further appeal to the Division Bench of the High Court.   Two contentions were put forth before the appellate court,  firstly that respondent No.1 is not an establishment for  the purposes of the Act and, therefore, the application filed  by  the  appellant is incompetent and  secondly  that respondent  No.1 terminated her services after giving salary for  a  period of three months as provided in  the  relevant rules  and, therefore, was not liable to be interfered  with by  the  Labour  Court  even  if it were  to  be  held  that respondent  No.1 is an establishment.  The High Court, after adverting  to  several  decisions,  in  particular  to  Unni Krishnan, J.P.  & Ors.  vs.  State of Andhra Pradesh & Ors., 1993  (1)  SCC  645,  took the view  that  an  establishment running  an  educational institution or imparting  education and  does  not carry on a business, trade or profession  and came to the conclusion that the Labour Court, therefore, had no  jurisdiction  to interfere with the order of  respondent No.1  and  allowed the appeal on the first contention  after noticing  that it was not necessary to deal with the  second submission.   For the conclusion the High Court reached, the High  Court wholly depended on the observations made by this Court  in  Unni Krishnans case (supra).  In that  case,  at para 66, Mohan, J., while concurring with the majority view, started  the discussion by stating that in the cases  before them,  depending  upon the statute, either  occupation  or

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business has come to be defined and it cannot be contended that  establishment  of an educational institution could  be business.   Nor again, could that be called trade since no trading  activities  are  carried on.  Equally it is  not  a profession  and  it is one thing to say that teaching  is  a profession but, it is a totally different thing to urge that establishment  of  the  category of occupation  provided  no recognition is sought from the State or affiliation from the University  is  asked on the basis that it is a  fundamental right.   However, while analyzing the decision in  Bangalore Water  Supply & Sewerage Board vs.  A.  Rajappa & Ors., 1978 (2)  SCC  213,  the  learned   Judge  concluded  that  while considering  as  to what would constitute an industry  under the  Industrial Disputes Act, the observations made  therein is  that  an  educational  institution is  an  industry  and nothing  could  stand  in  the way of  that  conclusion  and certainly that is very different from claiming a fundamental right  under  Article  19(1)(g)  of  the  Constitution.   To similar  effect  B.P.Jeevan Reddy, J.  also stated that  the context  in  which the observations were made  in  Bangalore Water  Supply & Sewerage Board vs A.  Rajappa (supra)  would have no application in the present case.  A Bench of 7-Judge of  this Court examined this question and held that we  have to  look at educational activity from the angle of the  Act, and  so viewed the ingredients of industry are fulfilled and education  is,  therefore, an industry and  nothing  could stand  in the way of that conclusion.  The basis upon  which this   conclusion   is  reached  is  that   an   educational institution renders service and, therefore, falls within the concept  of  industry, as was noticed by Isaacs, J.   in  an Australian  case,  Federated  Municipal &  Shire  Employees Union  of  Australia v.  Melbourne Corporation, 26 CLR  508. An  establishment  for  the purposes of the Act  means  an establishment  which  carries  on any a business,  trade  or profession  or any work in connection with, or incidental or ancillary  thereto.   Concept of industry, as defined  under the  Industrial  Disputes Act, would include  any  business, trade,  undertaking, manufacture or calling of employers and includes  any  calling service, employment,  handicraft,  or industrial  occupation or avocation of workmen.  There is an organised activity between employers and employees to impart education.   Such  an activity, though may be industry  will not  be a profession, trade or business for the purposes  of Article  19(1)(g)  of  the Constitution, would  not  be  one falling  within the scope of establishment under the  Act. Therefore,  the view taken by the Division Bench of the High Court  is  unexceptionable.  The High Court  did  appreciate that  Unni Krishnans case (supra) itself made a distinction between what was stated in Bangalore Water Supply & Sewerage Board vs.  A.  Rajappa (supra).

     In  Corporation of City of Nagpur vs.  Its  Employees, [1960]  1  LLJ  523 (540), this Court  held  that  Education Department of the Corporation to be an industry.  The reason given is that imparting education amounts to service and can be  done  by a private person also.  In University of  Delhi vs.   Ramnath  (1963)  2  LLJ  335,  this  Court  held  that imparting  education  is  not industry as the  work  of  the University  cannot be assimilated to the position of  trade, calling,  business or service and hence cannot be  industry. The majority view in Bangalore Water Supply & Sewerage Board vs.  A.  Rajappa (supra) a decision of seven-Judge Bench, is that  in the case of an educational institution, the  nature of  activity is exhypothesi and imparting education  being service   to  community  is  an  industry.   Various   other

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activities  of  the  institution  such  as  printing  press, transport  department,  clerical, etc.  can be severed  from teaching activities and these operations either cumulatively or  separately form an industry.  Even so, the question  for consideration  is  whether   educational  institution  falls within  the definition of establishment carrying business, trade  or  profession  or   incidental  activities  thereto. Establishment, as defined under the Act, is not as wide as industry  as  defined under the Industrial  Disputes  Act. Hence  reliance  on Bangalore Water Supply & Sewerage  Board vs.   A.   Rajappa [supra] for the appellant is not  of  any help.

     Thus  the order made by the High Court is correct  and calls for no interference and hence the appeal is dismissed. No costs.