IMPORTANT POINT
The main legal point established in the judgment is that the dominant function of an entity, such as a non-trading corporation, determines its classification as an 'industry' under the Industrial Disputes Act, and personal services rendered for the convenience of members do not fall within the definition of 'industry'.

JUDGMENT :

1. Rule returnable forthwith. Learned advocate Mr. Shrijit Pillai waives service of notice of rule on behalf of respondent-workman.

2. With the consent of the learned advocates for the parties, the matter is taken up for final hearing.

3. The petitioner- a Non-trading Corporation has filed this petition challenging the award of Labour Court, Bhavnagar dated 17.02.2021 in Reference (LCB) No. 37 of 2007, wherein the petitioner has been directed to reinstate the respondent- workman to his original post with continuity and with 10% back wages.

4. The brief facts referred in the petition are as under: -

4.1 Adinath owners Association- a non-trading corporation, registered under the provisions of Bombay Non-trading Corporation Act was constituted for the convenience of its members, who are flat owners of Shalibhadra Apartment. The said non-trading corporation was constituted for providing common amenities like light, water, cleanliness and other maintenance purposes. There are 32 flats owners in Shalibhadra Apartment. The non-trading corporation is not carrying out any activity of trade, business or commerce and the residents of the Apartments are the members of the petitioner. It was case of the petitioner that it is registered under Bombay Non-trading Corporation Act and formed for the maintenance of the Apartment and not an industry within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 (for short the ‘Act’).

4.2 It was case of the respondent that he was working as Chowkidar (Watchman) with petitioner-non-trading corporation and for his termination on 03.10.2006, he raised dispute before the Assistant Labour Commissioner, Bhavnagar on 06.12.2006. Upon conciliation being failed, the dispute was referred to Labour Court, Bhavnagar and registered as Reference (LCB) No. 37 of 2007. Upon adjudication, Labour Court, Bhavnagar while partly allowing the reference directed the petitioner to reinstate the respondent-workman with continuity and 10% back wages. Being aggrieved by the award dated 17.02.2021, present petition is filed.

5. Heard learned advocate Mr. D.G. Shukla for the petitioner and learned advocate Mr. Shrijit Pillai for the respondent- workman.

6. Learned advocate for the petitioner submitted that the award of Labour Court dated 17.02.2021 is erroneous on following grounds:-

(a) The petitioner herein is a Non-trading Corporation, which entered into a deed of conveyance with the owners of Shalibhadra Apartments, for maintenance and other such amenities. Several covenants of the said deed of conveyance refers to maintenance of apartment by its members by collecting funds. Since the petitioner is a non-trading Corporation, the provisions of Industrial Disputes Act would not be applicable, because the petitioner is not an industry within the meaning of Section 2 (j) of the Act.

(b) In support of above submission, learned advocate Mr. Shukla for the petitioner relied upon the decision of the Hon’ble Supreme Court in the case of Management of Som Vihar Apartment Owners Housing Maintenance society Vs. Workmen C/o Indian Engineering and General Madoor reported in 2002 (9) SCC 652 and the decision of Bombay High Court in the case of Arihant Siddhi Co-operative Housing Society Ltd. Vs. Pushpa Vishnu More, reported in 2018 (0) AIJ-MH 181736. He thus submitted that when no commercial activity is carried out and when the Corporation is formed only for the convenience of the residents of the Apartment, the provisions of I.D. Act would not be applicable.

(c) Referring to the statement of claim at Exh.3, Learned Advocate submitted that in the statement of claim, respondent-workman had accepted that he was working as Chowkidar in the flats. The reference of commercial activity by Non-trading Corporation was not referred and therefore, the finding of Labour Court that petitioner falls within the meaning of industry is erroneous.

(d) The deed of conveyance entered into between the members of the Apartment and the seller, eviden