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HIGH COURT OF CALCUTTA
B. N. Banerjee
RABINDRA NATH SEN - Appellant
Versus
FIRST INDUSTRIAL TRIBUNAL, WEST BENGAL - Respondent
Matter 288 Of 1961
Decided On : NOVEMBER 21, 1962
INDUSTRIAL DISPUTES ACT, 1947 - Ss. 2(j), 2(k) - CHARTERED ACCOUNTANTS ACT, 1949 - Ss. 2(b), 2(e), 4, 6, 8, 15, 20, 78, 79 - COMPANIES ACT, 1956 - S. 227 - CONSTITUTION OF INDIA, 1950 - Art. 226 - Whether the business of a Chartered Accountant is an 'industry' within the meaning of the Industrial Disputes Act, 1947 - Whether the services rendered by a Chartered Accountant or a firm of Chartered Accountants constitute an 'industry' - Whether the dispute between the petitioners and their employees is an 'industrial dispute' - Whether the discharge of an employee was justified - Whether the Tribunal was justified in holding that the employer was guilty of a basic error in dismissing the employee for absence.
Fact of the Case:
The petitioners, a firm of Chartered Accountants, were served with a notice of reference by the State Government under Section 10 of the Industrial Disputes Act, 1947, referring to the First Industrial Tribunal for adjudication the issues of deduction of bonus and discharge of an employee. The petitioners challenged the jurisdiction of the Tribunal on the ground that as persons practising as Chartered Accountants they did not carry on any industry within the meaning of the Act and that employees under Chartered Accountants were not workmen within the meaning of the said Act. The Tribunal overruled the preliminary objection by an interim award, which was upheld by the Appellate Court. The petitioners then moved the Supreme Court for leave to appeal, which was refused. The Tribunal, after taking evidence, came to the conclusion that the activities of the firm of Chartered Accountants constituted an industry within the meaning of Section 2(j) of the Industrial Disputes Act, that the non-payment of bonus to two employees was justified, and that the discharge of another employee was not justified. The petitioners filed a petition under Article 226 of the Constitution challenging the award of the Tribunal.
Finding of the Court:
The Court held that the business of a Chartered Accountant is an 'industry' within the meaning of the Industrial Disputes Act, 1947, and that the dispute between the petitioners and their employees is an 'industrial dispute'. The Court further held that the discharge of the employee was justified and that the Tribunal was not justified in holding that the employer was guilty of a basic error in dismissing the employee for absence.
Issues: 1. Whether the business of a Chartered Accountant is an 'industry' within the meaning of the Industrial Disputes Act, 1947? 2. Whether the services rendered by a Chartered Accountant or a firm of Chartered Accountants constitute an 'industry'? 3. Whether the dispute between the petitioners and their employees is an 'industrial dispute'? 4. Whether the discharge of an employee was justified? 5. Whether the Tribunal was justified in holding that the employer was guilty of a basic error in dismissing the employee for absence?
Ratio Decidendi: 1. The definition of 'industry' in Section 2(j) of the Industrial Disputes Act, 1947, is very wide and includes any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. 2. The services rendered by a Chartered Accountant or a firm of Chartered Accountants constitute an 'industry' within the meaning of the Industrial Disputes Act, 1947, as they involve the co-operation of labour and capital, and the product of such services is the result of the combined efforts of labour and capital. 3. A dispute between a Chartered Accountant or a firm of Chartered Accountants and their employees is an 'industrial dispute' within the meaning of the Industrial Disputes Act, 1947, as it is a dispute or difference between employers and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of employment of any person. 4. The discharge of an employee is justified if the employee has been absent from work without leave for a prolonged period of time and has failed to produce a satisfactory medical certificate in support of his absence.
Final Decision: The Court quashed the award of the Tribunal on the issue of discharge of the employee and upheld the rest of the award. There was no order as to costs.
( 1 ) THE three petitioners and respondents Nos. 7 to 14 are Chartered Accountants and carry on business in partnership under the name and style of Price Waterhouse Peat and Co. , inter alia, at No. B/4, Gillander House, in the town of Calcutta, Respondents Nos. 3 and 4, N. R. Mookherjee and S. Kanungo and respondent No. 5, Prantosh Bakshi, are employees under the partnership Price Waterhouse Peat and Co.
( 2 ) THERE arose a dispute between the partnership and the respondents Nos. 3 to 5 represented by their trade union, firstly, over the offer of payment of bonus at reduced rate (which is referred to in the petition as an offer o ex gratia payment to respondent NOS. 3 and 4) and, secondly, over the discharge of respondent "no. 5 on the ground of absence from office without leave. The dispute was ultimately referred by the respondent State Government to the First Industrial Tribunal for adjudication. The issues referred to the Tribunal were: (1) Whether deduction of bonus granted to Sri N. R. Mookerjee and S. Kanungo is justified? To what relief are they entitled? (2) Is the discharge of Sri Prantosh Bakshi justified? What relief is he entitled to?
( 3 ) THE petitioners took a preliminary objection before the Tribunal to the effect that as persons practising as Chartered Accountants they did not carry on any industry within the meaning of the Industrial Disputes Act and that employees under Chartered Accountants were not workmen within the meaning of the said Act. As such it was contended that the Industrial Disputes Act had no application to the dispute and that the reference was incompetent.
( 4 ) THE preliminary objection was overruled by the Tribunal by an interim award, dated May 9, 1956. The petitioners moved against the interim award before the Court, under Article 226 of the Constitution, and obtained a Rule, which was numbered as Matter No. 93 of 1956. In disposing of the Rule, which came up for hearing before Sinha, J. , his Lordship held that the activities of a Chartered Accountant did not in themselves as such constitute an industry within the meaning of the Industrial Disputes Act; but that if a firm of Chartered Accountants indulged in other business or businesses it might be held to constitute an industry. His Lordship accordingly directed the Tribunal to determine, upon evidence, whether the firm, of which the petitioners were some of the partners, carried on any other business.
( 5 ) RESPONDENTS Nos. 4 and 5 appealed against the judgment and order of Sinha, J. , which was numbered as appeal from Original Order No. 196 of 1958 (N. R. Mukherji v. Arnold Hartman Just ). The Court of appeal, consisting of Lahiri, C. J. , and Bachawat, J. , reversed the judgment of Sinha, J. with the observation that the Tribunal and Sinha, J. were both wrong in deciding, without evidence, the question whether the activities of a Chartered Accountant simpliciter constituted an industry within the meaning of the Industrial Disputes Act. The Court of Appeal set aside the judgment of Sinha, J. , and quashed the interim award by the Tribunal and further directed the Tribunal to determine, on evidence, whether the activities of a firm of Chartered Accountants constituted an industry, within the meaning of the Industrial Disputes Act. The Appellate Court further directed the Tribunal to decide the preliminary objection and also the issues referred to it by one and the same award. The petitioners attempted to obtain leave to appeal to the Supreme Court against the appellate order but this Court refused the application for leave. An attempt to obtain Special leave to appeal to the Supreme Court also failed.
( 6 ) THEREAFTER, the Tribunal, presided over by Mr. S. N. Guha Roy, took evidence upon the issues referred to it and came to the following conclusions : (1) "the activities of the firm of Messrs. Price Waterhouse Peat and Co. , constitute an industry within the meaning of the term in Section 2 (j) of the Industr
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