Judgement

UNTWALIA, J.:- An industrial dispute was raised by the Medical College and Sholapur Hospital Staff Union on behalf of the employees of the Dhanrajgirji Hospital - the appellant in this appeal by special leave. It was referred for adjudication by the Government of Maharashtra to the Industrial Tribunal, Bombay. A preliminary objection was taken on behalf of the appellant as respects the maintainability of the reference on the ground that the dispute raised did not pertain to any industry and hence was not an industrial dispute which could be made the subject matter of the reference. The Tribunal by its impugned order dated the 18th February, 1969 decided the preliminary issue against the appellant and directed the reference to be heard on merits. The appellant Hospital assails that order in this appeal .

2. The Tribunal did not consider the materials placed before it fully in support of its finding that the appellant is engaged in an industry within the meaning of the Industrial Disputes Act, 1947. Even so, the finding recorded by it is that the activities of the appellant are not mainly educational but the Hospital was established in 1930 for the benefit of the public of Sholapur and its main function is to look after the patients availing of the facilities afforded by the Hospital. This finding is chiefly based upon the terms of the Trust Deed by which the creator of the Trust had established the Hospital. The finding recorded by the Tribunal is in these words:

"It is thus clear that the primary object of creating the Trust is to provide -medical relief to the public of Sholapur and that the educational activities undertaken by it later are ancillary. The , hospital, no doubt, imparts some training and education during the course of its usual activities of giving medical relief to the public of Sholapur but these additional activities cannot turn it into a purely educational institution not doing any industrial activity."

Distinguishing the decision of this Court in Secretary, Madras Gymkhana Club Employees Union v, Management of the Gymkhana Club, (1968) 1 SCR 742 it has held that the activities carried on by the Hospital amount to an industry and attract the provisions of the Industrial Disputes Act.

3. Although the hearing of this appeal proceeded ex parte as the workmen were not represented, we examined the matter with care with the assistance of the learned counsel for the appellant. In our judgment even on the findings of primary facts recorded by the Tribunal the ratio of the decision of this Court in Management of Safdar Jung Hospital, New Delhi v, Kuldip Singh Sethi, (1971) 1 SCR 177 squarely applies to this case. Following the said decision the appeal has got to be al1owed. We shall, however, point out some more materials from the records of this case to further fortify our conclusions.

4. In the Safdar Jung Hospital case (supra) the decision of this Court in the case of State of Bombay v, Hospital Mazdoor Sabha, (1960) 2 SCR 866 was dissented from and held to be not laying down the law correctly. The Madras Gymkhana Club case (supra) was also considered and approved; but some observations quoted at page 184 from that decision were somewhat qualified. The two parts of the definition of the word "industry" given in clause (j) of Section 2 of the Industrial Disputes Act were read as a whole to denote a collective enterprise in which employers and employees are associated and it was further said at page 184 (of SCR) :

"It does not exist either by employers alone or by employees alone. It exists only when there is a relationship between employers and employees, the former engaged in business, trade, undertaking, manufacture or calling of employers and the latter engaged in any calling, service, employment, handicraft or industrial occupation or avocation. There must, therefore, be an enterprise in which the employers follow their avocation as detailed in the definition and employ workmen who follow one of the avoc