Charity & Profession Can't Be Excluded From Definition Of 'Industry' Under ID Act : Indira Jaising Argues Before Supreme Court

The Supreme Court today(March 18) continued hearing a reference in regards to the expansive definition of "industry" given by the then Justice VK Krishna Iyer in Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978).Senior Advocate Indira Jaising(supporting the 1978 judgment) submitted that the now-repealed Industrial Disputes Act, 1947, was a beneficial legislation for the security of employment. She said that it was a pre-constitutional legislation which was drafted in the backdrop of the industrial development taking place in England, but it provided against the hire and fire rule, which was applicable in common law. A bench headed by Chief Justice of India Surya Kant and comprising Justices BV Nagarathna, PS Narasimha, Dipankar Datta, Ujjal Bhuyan, Satish Chandra Sharma, Joymalya Bagchi, Alok Aradhe and Vipul M Pancholi is hearing on the limited issue of whether the Bangalore Water Supply judgment was rightly decided. The Court has limited itself to this issue since it was informed that the 1947 Act has now been repealed, and there is a challenge pending to the 2020 Industrial Relations Code. Yesterday, and even today, some of the counsels seeking the 1978 judgment to be overruled had termed that the judgment was not unanimous. Senior Advocate Sanjay Hegde today continued from that argument. He stressed that the then Chief Justice Beg was to retire, and perhaps this may have been why the bench's thinking may not have been "fruitified". He added that in this regard, the reasoning offered by the Safdarjung Hospital, New Delhi v. Kuldip Singh Sethi (1971), which said the hospital was not an industry, offered better reasoning. His argument is that profit may not be the purpose of the activity, but the activity must bear an analogy to trade or business in character. Justice Datta had yesterday commented that there was no discussion by the five-judge bench, from which the reference arose, as to why it had felt that the seven-judge bench's judgment was not unanimous. He again reiterated today that it was a unanimous decision. "On 21 February, all seven judges spoke in one voice. What is the order recorded by J Chandrachud? He says we are in respectively in agreement, but we will give judgment later on the area of convergence and divergence. That means, there is consensus but in some respects there could be divergence of opinion. Later, if two judges takes a view that they don't agree, that doesn't erode the binding precedent," he said.Adding to this, CJI told Hegde that the issue of whether the judgment was unanimous or not has no "material bearing". On this point, Jaising remarked that she is surprised that Bangalore Water Supply is being called a judgment of five judges. She added that she was curious why a six-judge bench decided Safdargunj, and added that perhaps because there were not many judges available. She added that the reference is actually based on incorrect information that there is a conflict between the Chief Conservator of Forests v. Jagannath Maruti Kondhare(1996) of three judges and State of Gujarat v. Pratamsingh Narsinh Parmar,(2001) of two judges. It is on an assumption of conflict that the five judges in State of U.P vs Jai Bir Singh(2005) referred the matter to the Chief Justice to be referred to a larger bench.ID Act an example of beneficial legislationJaisingh explained that the 1947 Act was meant to give workmen security of tenure, which ordinary civil law could not give. Ordinary Civil Courts are meant to be bound by the law of Master and Servant, which prevails under the Common Law, and therefore they cannot exercise jurisdiction for the grant of reinstatement or proportional punishment etc. "When we want protection under the Industrial Disputes Act, we are asking for protection of security of tenure. It departs from the rule of hire and fire, which is a classical rule under common law. This is not a futile fight or fight for gratitutiy. Labour law has two components- one is security of employment, which is the most critical and the second is welfare benefits such as gratuity, maternity leave, provident fund, ESI, etc. But primary security of employment comes from the rule of hire and fire," she said.She added that the constitutional regime from Article 309 to Article 311 provides for the conditions of service for employees working for the Union or the State Governments. So, if the employees are covered here, she is not asking that they should be covered under the 1947 Act. But the issue is with respect to those who are not covered. This is where the 1947 Act gives access to judicial form. "It[Industrial Disputes Act] does not create any major substantive rights. It gives me access to justice in relation to unfair dismissals, in relation to victimisation, and in relation to mala fide dismissals. This is what this Court has said. And, I will place the judgment before you on how the law came to be challenged after S. 11A was introduced- Workman of Firestone v Management...

Charity & Profession Can't Be Excluded From Definition Of 'Industry' Under ID Act : Indira Jaising Argues Before Supreme Court

Gursimran Kaur Bakshi

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