The profession of Patent and Trade Mark Agents is not an industry within the meaning of the Industrial Disputes Act, 1947, and their employees are not workmen within the meaning of the Act.

ORDER :- The petitioners in this case are husband and wife and practise the profession of Patent and Trade Mark Agents, in partnership with each other, under the name and style of De Penning and De Penning, at No. 10, Government place East, Calcutta. On 4-1-1958, the Government of West Bengal in purported exercise of powers conferred upon it by Sec. 10 of the Industrial Disputes Act, 1947 (herein referred to as "the Act") made a reference of certain disputes, which are described as industrial disputes", said to exist between Messrs. De Penning and De Penning and their workmen represented by the Mercantile Employees Union, Calcutta. This name has been corrected by a corrigendum dated 14-2-1958 and altered to "Patent and Trade Mark Agencies Employees" Union, C/o. Federation of Mercantile Employees" Union, 123A, Netaji Subhas Road, Calcutta -1". The issues that have been referred to for adjudication by the Third Industrial Tribunal, West Bengal are the following :

"(1) Minimum pay and scales of pay,

(2) Dearness Allowance.

(3) Leave and holidays.

(4) Retiring benefit.

(5) Bonus for 1956 and 1957.

(6) Free Medical Aid.

(7) Tiffin Allowance.

(8) Whether the members of sub-staff should be paid an extra allowance for extra work after working hours."

2. The petitioners first of all objected to Government about the reference order itself, stating that the petitioners did not carry on any industry and that there was no industrial dispute and that the Act had no application to the petitioners work whatsoever. The Government, however have not withdrawn the order of reference and the matter is-before the Tribunal which is proceeding to adjudicate on the dispute. The petitioners have come up to this Court for a writ in the nature of Certiorari quashing the order of reference, so that the Tribunal, which according to them has no jurisdiction, should not proceed with the reference and adjudicate upon the same. The short point made out on behalf of the petitioners is that the practice or the profession of Patent and Trade Mark Agents is essentially of a specialised legal and technical nature requiring a thorough knowledge of the law relating to Patents and Trade Marks, as well as technical knowledge in various branches of science and manufacture, and consists of the application of the petitioners personal knowledge training and experience to the handling of the affairs of the petitioners clients. Therefore, it is stated that the petitioners cannot be said to carry on an industry" within the meaning of the Act, and the employees of the petitioners, which consist of 22 permanent clerical staff and 7 subordinate staff, are not "workmen" within the meaning of the said Act, and therefore any dispute between them cannot be called an industrial dispute, and the Government has no jurisdiction to refer the same to adjudication of an Industrial Tribunal under the provisions of the said Act. It has been argued that the matter is covered by two decisions of this Court - one of mine Brij Mohan Bagaria v. N.C. Chatterjee 62 Cal W.N. 473 : (AIR 1958 Cal 460), where I have held that a Solicitor practising in this Court cannot be said to be carrying on an industry unless there were special facts showing that he was. The second decision relied upon is the decision of Mukharji, J., D.P. Dunderdale v. G.P. Mukharji, 62 Cal W.N. 484 : (AIR 1958 Cal 465), in which the learned Judge approved of my decision and decided that a firm of Solicitors cannot be said to carry on an industry, and the Industrial Tribunal has no jurisdiction to settle a dispute between its employers and its employees, I shall presently advert to these decisions. In so far as the petitioners carry on their work as Patent and Trade Mark Agents in its legal side, there is little controversy upon the point, and it is not seriously contended that such work would constitute an industry within the meaning of the said Act. An affidavit has, however, been filed by one John Archibald Joseph on 6-5-1958 in which h

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