Calcutta High Court (Appellete Side)
Armenian Holy Church Of Nazareth vs Bijoy Biswas & Anr on 29 July, 2026
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
THE HON‟BLE JUSTICE SHAMPA DUTT (PAUL)
W.P.A. 27842 of 2025
Armenian Holy Church of Nazareth
Vs.
Bijoy Biswas & Anr.
For the Petitioner : Mr. Soumya Majumder, ld. Sr. Adv.
Ms. Sanjukta Dutta,
Mr. Soumalya Karmakar.
For the Respondent No. 1 : Mr. R. Guha Thakurta,
Ms. S. Sengupta.
For the State : Mr. Santanu Kumar Mitra,
Mr. Subhadip Biswas.
Judgment reserved on : 07.07.2026
Judgment delivered on : 29.07.2026
SHAMPA DUTT (PAUL), J.:-
1. The petitioner has preferred the writ application challenging the
impugned award dated 11th June, 2025, passed by the Learned
Fourth Industrial Tribunal, in Case No. VIII-08/2018.
2. It is the case of the petitioner that the respondent no. 1 was
appointed in the Church on 31st July, 2003. The respondent no. 1
had been practicing various irregularities in the Church premises,
and thus, on and from 3rd March, 2017 he was terminated from
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service of the Church. The respondent no. 1 has received his wages
in full till February 2017.
3. The Government of West Bengal made an order of reference on 26th
April, 2018. The respondent no. 1 preferred an intra Court appeal
from the said judgment and order dated 5th October, 2018, which
was disposed of on 2nd September, 2024, directing the Industrial
Tribunal to decide the question of maintainability of reference qua
the character of the Church as an industry, as a preliminary
issue.
4. The learned Tribunal on deciding the preliminary issue, thereafter
proceeded to pass an award on 11th June, 2025 on merit.
5. It is the further case of the petitioner that the tribunal completely
misdirected itself in arriving at the conclusion as regards the status
of the Church qua an „industry‟ within the meaning of Industrial
Disputes Act, 1947, by failing to appreciate the very purpose for
establishment of the Church and its related activities while deciding
the order of reference.
6. It is the case of the petitioner that the petitioner church is run
by the Armenian Church and propagates various religious
activities for and on behalf of the Church.
7. The respondent no. 1 was appointed as a caretaker of St.
Gregory‟s Chapel and for maintaining the cleanliness of the
Church premises and also for preparation of the Chapel on
Sundays for Church service, which is also inside the Church
premises.
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8. The affidavit in opposition has been filed by the
respondent/employee denying the case of the petitioner.
9. The petitioner by way of a supplementary affidavit has annexed
copies of evidence recorded before the tribunal in support of their
case.
10. Written notes have been filed by the parties along with judgments
relied upon.
11. It is the specific case of the private/respondent that Sir Catchick
Paul Chater Home‟s systematic activity of providing services to its
residents, is an industry and it employs workmen like him to give
services to the residents there at including the St. Gregory's Chapel,
which is part of the services offered at Sir Catchick Paul Chater
Home.
12. It is further stated by the respondent/employee that he performed
his duties under the instruction of his higher authorities and had
no power of giving job requisitions, sanction leave, etc. and no
employee worked under his supervision at that time of his
appointment.
13. He was entitled to Basic Wages of Rs.2500/- with Dearness
Allowance of Rs.1275/- per month and a Tiffin allowance of Rs.10/-
per day. It is further stated by the respondent that since 2005, the
Dearness Allowance component of his wages was unilaterally done
away with and merged with Basic Wages and since then has been
paid consolidated wages, whereafter the increments was arbitrary
and very meagre in comparison with the high inflationary trend.
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14. It is stated that all other workmen were given increment but the
petitioner was not given any such increment and this prima facie
shows the discrimination by the petitioner herein.
15. It is further stated by the respondent/employee that he was not
given the benefit of the memorandum of settlement dated May 16,
2016 executed between the Union under reference and the writ
petitioner herein.
16. The respondent states that his service was terminated by way of
refusal of an employment on March 3, 2017. It is stated that
without any show cause or charge sheet or the domestic enquiry
and/or disciplinary proceeding the respondent/employee has been
terminated by way of refusal of employment which is an illegal
termination.
17. It is further stated that since March 3, 2017 the
respondent/workman has remained unemployed.
18. In course of hearing both the parties have filed their respective
written notes along with judgments relied upon.
19. The petitioner relies upon the judgment in Bangalore Water
Supply and Sewerage Board v. A. Rajappa, reported at AIR
1978 SC 548 (paragraphs 71,140, 141, 160 & 161), the Supreme
Court held:-
"71. A conspectus of the clauses has induced
Gajendragadkar, J. to take note of the impact of
provisions regarding public utility service also: (SCR
p. 875)
"If the object and scope of the statute are considered
there would be no difficulty in holding that the
relevant words of wide import have been
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deliberately used by the legislature in defining
„industry‟ in Section 2(j). The object of the Act was to
make provision for the investigation and settlement
of industrial disputes, and the extent and scope of
its provisions would be realised if we bear in mind
the definition of „industrial dispute‟ given by Section
2(k), of „wages‟ by Section 2(rr), „workman‟ by
Section 2(s), and of „employer‟ by Section 2(g).
Besides, the definition of a public utility service
prescribed by Section 1(m) is very significant. One
has merely to glance at the six categories of public
utility service mentioned by Section 2(m) to realise
that the rule of construction on which the appellant
relies is inapplicable in interpreting the definition
prescribed by Section 2(j).
The positive delineation of "industry" is set in these
terms: (SCR p. 879)
"... as a working principle it may be stated that an
activity systematically or habitually undertaken for
the production or distribution of goods or for the
rendering of material services to the community at
large or a part of such community with the help of
employees is an undertaking. Such an activity
generally involves the co-operation of the employer
and the employees; and its object is the satisfaction
of material human needs. It must be organised or
arranged in a manner in which trade or business is
generally organised or arranged. It must not be
casual nor must it be for oneself nor for pleasure.
Thus the manner in which the activity in question is
organised or arranged, the condition of the co-
operation between employer and the employee
necessary for its success and its object to render
material service to the community can be regarded
as some of the features which are distinctive of
activities to which Section 2(j) applies. Judged by
this test there would be no difficulty in holding that
the State is carrying on an undertaking when it runs
the group of hospitals in question."
Again, (SCR p. 878)
"It is the character of the activity which decides the
question as to whether the activity in question
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attracts the provision of Section 2(7); who conducts
the activity and whether it is conducted for profit or
not do not make a material difference."
By these tests even a free or charitable hospital is
an industry. That the Court intended such a
conclusion is evident: (SCR p. 878)
"If that be so, if a private citizen runs a hospital
without charging any fees from the patients treated
in it, it would nevertheless be an undertaking under
Section 1(j). Thus the character of the activity
involved in running a hospital brings the institution
of the hospital within Section 2(j)."
140. "Industry', as defined in Section 2(j) and
explained in Banerji, has a wide import.
"(a) Where (i) systematic activity, (ii) organized by co-
operation between employer and employee (the
direct and substantial element is chimerical) (iii) for
the production and/or distribution of goods and
services calculated to satisfy human wants and
wishes (not spiritual or religious but inclusive of
material things or services geared to celestial bliss
e.g. making, on a large scale prasad or food), prima
facie, there is an „industry‟ in that enterprise.
(b) Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private
or other sector.
(c) The true focus is functional and the decisive test
is the nature of the activity with special emphasis on
the employer-employee relations.
(d) If the organization is a trade or business it does
not cease to be one because of philanthropy
animating the undertaking."
II
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141. Although Section 2(j) uses words of the widest
amplitude in its two limbs, their meaning cannot be
magnified to overreach itself.
"(a) „Undertaking‟ must suffer a contextual and
associational shrinkage as explained
in Banerji and in this judgment; so also, service,
calling and the like. This yields the inference that all
organized activity possessing the triple elements in I,
although not trade or business, may still be
„industry‟ provided the nature of the activity, viz.
the employer-employee basis, bears resemblance to
what we find in trade or business. This takes into
the fold of „industry‟ undertakings, callings and
services, adventures „analogous to the carrying on
the trade or business‟. All features, other than the
methodology of carrying on the activity viz. in
organizing the co-operation between employer and
employee, may be dissimilar. It does not matter, if
on the employment terms there is analogy."
III
160. I think the phrase „analogous to industry‟,
which has been used in the Safdarjung Hospital
case could not really cut down the scope of
"industry". The result, however, of that decision has
been that the scope has been cut down. I, therefore,
completely agree with my learned Brother that the
decisions of this Court in Safdarjung Hospital
case and other cases mentioned by my learned
Brother must be held to be overruled. It seems to me
that the term "analogous to trade or business" could
reasonably mean only activity which results in
goods made or manufactured or services rendered
which are capable of being converted into saleable
ones. They must be capable of entering the world of
"res commercium" although they may be kept out of
the market for some reason. It is not the motive of an
activity in making goods or rendering a service, but
the possibility of making them marketable if one who
makes goods or renders services so desires, that
should determine whether the activity lies within the
domain or circle of industry. But, even this may not
be always a satisfactory test.
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161. The test indicated above would necessarily
exclude the type of services which are rendered
purely for the satisfaction of spiritual or
psychological urges of persons rendering those
services. These cannot be bought or sold. For
persons rendering such services there may be no
"industry", but, for persons who want to benefit from
the services rendered, it could become an "industry".
When services are rendered by groups of charitable
individuals to themselves or others out of missionary
zeal and purely charitable motives, there would
hardly be any need to invoke the provisions of the
Industrial Disputes Act to protect them. Such is not
the type of persons who will raise such a dispute as
workmen or employees whatever they may be
doing."
20. Mr. Majumder, learned Senior Counsel appearing for the
petitioner has argued that vide the impugned award the tribunal
has held the private respondent to be a "workman" of the
Church, by reckoning the Church to be an "industry" within the
meaning of the I. D. Act. 1947.
21. Sec. 2 (j) of the I.D. Act which defines "industry" is placed and is as
follows:-
"Section 2(j):-industry means any business, trade,
undertaking, manufacture or calling of employers and
includes any calling, service, employment, handicraft, or
industrial occupation or avocation of workmen";
22. It is further argued by Mr. Majumder that the appointment Letter of
the private respondent shows that he was appointed by the Church.
No activity of a Church can be said to be falling within the
definition of "industry". A service to the God and for
spiritual/religious purpose cannot certainly be said to be a
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service rendered by an employer and workmen. The service is
not for industrial purpose.
23. Reference with regard to the nature of activity of an "industry" is
made to the judgment in Bangalore Water Supply (supra), on the
anvil of the object of the Act being settlement of industrial disputes.
24. It is stated that the rendering of service by the Church to the people,
does not make the service marketable. Similarly rendering domestic
service in a residence is also not service to any "industry". Actual
function assumed by the body must be "analogous to the
carrying out of a trade or business" for constituting an
"industry". An activity involving co-operation of employer and
employees with the object of satisfying "material" human needs in
an organised manner, will be industry. The character of activity
of Church does not satisfy "material" human needs. It is a
religious service to human's spiritual wishes.
25. It is further argued by Mr. Majumder, that the Learned Tribunal
also proceeded on the basis that the form of settlement and sending
copies of settlement to authorities of the Government would render
the Church to be an "industry".
26. It is thus stated that the said findings of the tribunal is not in
accordance with law. In view of the facts that:-
i) Form test cannot override substance test.
ii) If the activity is not "industry" then there can be no scope of
coming within the mischief of the law governing "industry".
iii) There can be no estoppel against statute or law.
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iv) Just as parties cannot contract to go out of statute, they
cannot also contract to come within statue, so as to clothe an
authority with jurisdiction which it does not process, over a
subject matter.
27. The petitioner has thus, prayed for setting aside of the impugned
award by also filing written notes.
28. The State/respondent on filing written notes in the present
case argued that the termination of the respondent/workman was
done in utter violation of law and no proper notice or
compensation was ever paid to the workman. The
State/respondent to counter the argument of the petitioner herein
that Church is not "An Industry" has placed Clause VIII of the
appointment letter dated 31st July, 2003 issued to the
respondents/workman. Clause VIII is as follows:-
"Clause. Viii. In case your services are not found
satisfactory by the management, your employment may be
terminated without any reason whatsoever by giving one
month notice in writing or by paying one month salary in
lieu thereof. Similarly should you decide to resign from the
service of the church you shall have to give one month
notice in writing or pay the equivalent one month salary in
lieu thereof."
29. It is further stated by the State/respondent in their written notes
that in consonance with the said condition of service as per the
aforesaid appointment letter, subsequently a bipartite settlement
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had been entered into between the petitioner and the respondent
No.1 and the respondent No.1 established the fact that the
dispute arising out of employment of worker being the workman
Bijoy Biswas, the respondent No.1 herein shall be dealt with the
provisional Industrial Dispute Act, 1947.
30. It was settled by and between the said parties under the said
Memorandum of Settlement that in addition to some allowances
and uniform and advance loan, the workman shall be paid
gratuity in accordance with the Payment of Gratuity Act, 1972
and the workman will get leave in accordance with the provisions
of West Bengal Shop and Establishment Act. More over from the
impugned award, it appears that there is no gross denial about
the relationship between the parties as employer and employee.
31. The learned tribunal has also relied upon the judgment in
Bangalore Water Supply (supra) wherein the Hon‟ble Apex
Court held that there is triple test to identify an Industry and the
triple test are (i) Systematic Activity (ii) Co-operation between
employer and employees and (iii) Production and/or
distribution of goods and services calculated to satisfy human
wants and wishes. (not spiritual or religious but inclusive of
material things or services geared to celestial bliss, prima
facie, there is an industry in the enterprise).
32. The State has further supported the case of the
respondent/workman by stating that the learned tribunal rightly
considered the characteristic and activities and the relationship
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between the parties as employer and employee and also that
perquisite/bona fide obligation and other conditions of service
were determined from time to time by the subsequent bipartite
settlement and also the appointment letter which makes it
mandatory by the provision of Section 25(f) of the Industrial
Disputes Act 1947 mandatory in the present case. It is further
submitted that the parameter for classification of "industry" by the
Hon‟ble Supreme Court between the employer and employee is
well established in the present case and the findings of the
learned tribunal being in accordance with law should not be
interfered with.
33. The State/respondent submits that the entire issue can be laid to
rest by directing the respondent trust to pay a lumpsum
compensation of Rs.12,00,000/- since the appellant had worked
for 12 years in the said trust continuously, uninterruptedly and
without any blemish. The judgment of the Supreme Court in
Indravadan N. Adhvaryu Pipala Fali Modhvada vs
Laxminarayan Dev Trust, in Civil Appeal No. 7549 of 2011,
decided on 29th January, 2026, is relied upon.
34. In Bangalore Water Supply & Sewerage Board vs A. Rajappa
and Ors.(Supra), the Hon‟ble Five Judge Bench of the Supreme
Court also held:-
"........ (b) Absence of profit motive of gainful objective is
irrelevant, be the venture in the public, joint, private or
other sector.
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(c) The true focus is functional and the decisive test is
the nature of the activity with special emphasis on the
employer-employee relations.
(d) If the organisation is a trade or business it does not
cease to be one because of philanthropy animating the
undertaking. (Para 140)
(2) Although the sub-section uses the words of the
widest amplitude in its two limbs, their meaning
cannot be magnified to overreach itself.
(a) 'Undertaking' must have a contextual and
associated meaning as explained in Banerji's case; so
also service, calling and the like. Hence all organised
activity possessing the triple elements of systematic
activity, organised cooperation between employer and
employee and production and distribution of goods and
services calculated to satisfy human wants and
wishes, although not trade or business, may still be
industry provided the nature of the activity, namely,
the employer-employee basis bears resemblance to
what is found in trade or business. This takes into the
fold of industry, under-takings, callings, services, and
adventures "analogous to the carrying on of trade or
business". All features other than the methodology of
carrying on the activity, namely, in organising the
cooperation between employer-employee may be
dissimilar but it does not matter if on the employment
terms there is analogy. (Para 141)
(3) The ideology of the Act being industrial peace,
regulation and reso-lution of industrial disputes
between the employer and workmen the range of this
statutory ideology must inform the reach of statutory
definition and taken to the logical conclusion without
any pre-conceived notions.
(a) The consequences are (i) professions, (ii) clubs, (iii)
educational institutions, (iv) co-operatives, (v) research
institutes, (vi) charitable projects and (vii) other kindred
adventures, if they fulfil the triple tests, cannot be
exempted from the scope of Section 2(j).
(b) A restricted category of professions, clubs, co-
operatives and even gurukulas and little research
laboratories may qualify for exemption if, in simple
ventures, substantially and going by the dominant
nature criterion substantively, no employees are
entertained, but in minimal matters marginal
employees are hired without destroying the non-
employee character of the unit,
(c) If in a pious or altruistic mission, many employ
themselves free or for small honoraria or like return,
mainly drawn by sharing in the purpose or cause such
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as lawyers volunteering to run a free legal services
clinic or doctors serving in their spare hours in a free
medical centre or ashramites working at the bidding of
the Holiness, divinity or like central personality and the
services are supplied free or at nominal cost and those
who serve are not engaged for remuneration or on the
basis of master and servant relationship, then the
institution is not an industry even if stray servants
manual or technical are hired. Such eleemosynary or
like undertakings alone are exempted - not other
generosity, compassion, developmental passion or
project. (Para 142)
(4) (a) Where a complex of activities some of which
qualify for exemption and others not, involves
employees on the total undertaking, some of whom are
not workmen as in the University of Delhi case or some
departments are not productive of goods and services if
isolated, even then the predominant nature of the
services and the integrated nature of the departments
as explained in the Corporation of Nagpur case will be
the true test. The whole undertaking will be industry
although those who are not workmen by definition may
not benefit by the status.
(b) Sovereign functions strictly understood alone qualify
for exemption, not the welfare activities or economic
adventures undertaken by Government or statutory
bodies.
(c) Even in departments discharging sovereign
functions, if there are units which are industries and
they are substantially severable then they can be
considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative
provisions may well remove from the scope of the Act
categories which otherwise may be covered thereby.
(Para 143)
107. The second species of charity is really an
allotropic modification of the first. If a kind-hearted
businessman or high-minded industrialist or service-
minded operator hires employees like his non-
philanthropic counterparts and, in cooperation with
them, produces and supplies goods or services to the
lowly and the lost, the needy and the ailing without
charging them any price or receiving a negligible
return, people regard him as of charitable disposition
and his enterprise as a charity. But then, so far as the
workmen are concerned, it boots little whether he
makes available the products free to the poor. They
contribute labour in return for wages and conditions of
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service. For them the charitable employer is exactly like
a commercial-minded employer. Both exact hard work,
both pay similar wages, both treat them as human
machine cogs and nothing more. The material
difference between the commercial and the
compassionate employers is not with reference to the
workmen but with reference to the recipients of goods
and services. Charity operates not vis-Ã -vis the
workmen in which case they will be paying a liberal
wage and generous extras with no prospect of strike.
The beneficiaries of the employer's charity are the
indigent consumers. Industrial law does not take note
of such extraneous factors but regulates industrial
relations between employers and employers,
employers and workmen and workmen and workmen.
From the point of view of the workmen there is no
charity. For him charity must begin at home. From
these strands of thought flows the conclusion that the
second group may legitimately and legally be
described as industry. The fallacy in the contrary
contention lies in shifting the focus from the worker
and the industrial activity to the disposal of the end
product. This law has nothing to do with that. The
income tax law may have, social opinion may have.
109. We now move on to economic activities and
occupations of an altruistic character falling under the
third category.
110. The heart of trade or business or analogous
activity is organisation with an eye on competitive
efficiency, by hiring employees, systematising
processes, producing goods and services needed by
the community and obtaining money's worth of work
from employees. If such be the nature of operations
and employer-employee relations which make an
enterprise an industry, the motivation of the employer
in the final disposal of products or profits is immaterial.
Indeed the activity is patterned on a commercial basis,
judged by what other similar undertakings and
commercial adventures do. To qualify for exemption
from the definition of "industry" in a case where there
are employers and employees and systematic activities
and production of goods and services, we need a
totally different orientation, organisation and method
which will stamp on the enterprise the imprint of
commerciality. Special emphasis, in such cases, must
be placed on the central fact of employer-employee
relations. If a philanthropic devotion is the basis for the
charitable foundation or establishment, the institution
is headed by one who whole-heartedly dedicates
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himself for the mission and pursues it with passion,
attracts others into the institution, not for wages but for
sharing in the cause and its fulfilment, then the
undertaking is not "industrial". Not that the presence of
charitable impulse extricates the institution from the
definition in Section 2(j) but that there is no economic
relationship such as is found in trade or business
between the head who employs and the others who
emotively flock to render service. In one sense, there
are no employers and employees but crusaders all. In
another sense, there is no wage basis for the
employment but voluntary participation in the
production, inspired by lofty ideals and unmindful of
remuneration, service conditions and the like.
Supposing there is an Ashram or Order with a guru or
other head. Let us further assume that there is a band
of disciples, devotees or priestly subordinates in the
Order, gathered together for prayers, ascetic practices,
bhajans, meditation and worship. Supposing, further,
that outsiders are also invited daily or occasionally, to
share in the spiritual proceedings. And, let us assume
that all the inmates of the Ashram and members of the
Order, invitees, guests and other outside participants
are fed, accommodated and looked after by the
institution. In such a case, as often happens, the
cooking and the cleaning, the bed-making and service,
may often be done, at least substantially by the
Ashramites themselves. They may chant in spiritual
ecstasy even as material goods and services are made
and served. They may affectionately look after the
guests, and, all this they may do, not for wages but for
the chance to propitiate the Master, work selflessly and
acquire spiritual grace. It may well be that they may
have surrendered their lucrative employment to come
into the holy institution. It may also be that they take
some small pocket money from the donations or
takings of the institution. Nay more; there may be a
few scavengers and servants, a part-time auditor or
accountant employed on wages. If the substantial
number of participants in making available goods and
services, if the substantive nature of the work, as
distinguished from trivial items, is rendered by
voluntary wage-less sishyas, it is impossible to
designate the institution as an industry,
notwithstanding a marginal few who are employed on
a regular basis for hire. The reason is that in the
crucial, substantial and substantive aspects of
institutional life the nature of the relations between the
participants is non-industrial. Perhaps, when Mahatma
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Gandhi lived in Sabarmati, Aurobindo had his
hallowed silence in Pondicherry, the inmates belonged
to this chastened brand. Even now, in many
foundations, centres, monasteries, holy orders and
Ashrams in the East and in the West, spiritual
fascination pulls men and women into the precincts
and they work tirelessly for the Maharishi or Yogi or
Swamiji and are not wage-earners in any sense of the
term. Such people are not workmen and such
institutions are not industries despite some menials
and some professionals in a vast complex being hired.
We must look at the predominant character of the
institution and the nature of the relations resulting in
the production of goods and services. Stray wage-
earning employees do not shape the soul of an
institution into an industry.
142. Application of these guidelines should not stop
short of their logical reach by invocation of creeds, cults
or inner sense of incongruity or outer sense of
motivation for or resultant of the economic operations.
The ideology of the Act being industrial peace,
regulation and resolution of industrial disputes
between employer and workmen, the range off this
statutory ideology must inform the reach of the
statutory definition. Nothing less, nothing more.
"(a) The consequences are (i) professions, (ii) clubs,
(iii) educational institutions, (iv) co-operatives, (v)
research institutes, (vi) charitable projects, and (vii)
other kindred adventures, if they fulfil the triple tests
listed in I, cannot be exempted from the scope of
Section 2(j).
(b) A restricted category of professions, clubs, co-
operatives and even gurukulas and little research
labs, may qualify for exemption if, in simple ventures,
substantially and, going by the dominant nature
criterion, substantively, no employees are entertained
but in minimal matters, marginal employees are hired
without destroying the non-employee character of the
unit.
(c) If, in a pious or altruistic mission many employ
themselves, free or for small honoraria or like return,
mainly drawn by sharing in the purpose or cause, such
as lawyers volunteering to run a free legal services
clinic or doctors serving in their spare hours in a free
medical centre or ashramites working at the bidding
of the holiness, divinity or like central personality, and
the services are supplied free or at nominal cost and
those who serve are not engaged for remuneration or
18
on the basis of master and servant relationship, then,
the institution is not an industry even if stray servants,
manual or technical, are hired. Such eleemosynary or
like undertakings alone are exempt -- not other
generosity, compassion, developmental passion or
project."
IV
145. We conclude with diffidence because
Parliament, which has the commitment to the political
nation to legislate promptly in vital areas like Industry
and Trade and articulate the welfare expectations in
the "conscience" portion of the Constitution, has hardly
intervened to re-structure the rather clumsy, vapourous
and tall-and-dwarf definition or tidy up the scheme
although judicial thesis and anti-thesis, disclosed in
the two-decades-long decisions, should have produced
a legislative synthesis becoming of a welfare state and
socialistic society, in a world setting where ILO norms
are advancing and India needs updating. We feel
confident, in another sense, since Counsel stated at the
bar that a bill on the subject is in the offing. The rule of
law, we are sure, will run with the rule of life -- Indian
life -- at the threshold of the decade of new
development in which labour and management, guided
by the State, will constructively partner the better
production and fair diffusion of national wealth. We
have stated that, save the Bangalore Water Supply
and Sewerage Board appeal, we are not disposing of
the others on the merits. We dismiss that appeal with
costs and direct that all the others be posted before a
smaller Bench for disposal on the merits in accordance
with the principles of law herein laid down.
160. I think the phrase „analogous to industry‟,
which has been used in the Safdarjung Hospital
case could not really cut down the scope of "industry".
The result, however, of that decision has been that the
scope has been cut down. I, therefore, completely agree
with my learned Brother that the decisions of this
Court in Safdarjung Hospital case and other cases
mentioned by my learned Brother must be held to be
overruled. It seems to me that the term "analogous to
trade or business" could reasonably mean only activity
which results in goods made or manufactured or
services rendered which are capable of being converted
into saleable ones. They must be capable of entering
the world of "res commercium" although they may be
kept out of the market for some reason. It is not the
motive of an activity in making goods or rendering a
service, but the possibility of making them marketable
19
if one who makes goods or renders services so desires,
that should determine whether the activity lies within
the domain or circle of industry. But, even this may not
be always a satisfactory test.
161. The test indicated above would necessarily
exclude the type of services which are rendered purely
for the satisfaction of spiritual or psychological urges of
persons rendering those services. These cannot be
bought or sold. For persons rendering such services
there may be no "industry", but, for persons who want
to benefit from the services rendered, it could become
an "industry". When services are rendered by groups
of charitable individuals to themselves or others out of
missionary zeal and purely charitable motives, there
would hardly be any need to invoke the provisions of
the Industrial Disputes Act to protect them. Such is not
the type of persons who will raise such a dispute as
workmen or employees whatever they may be doing."
35. Mr. Guha Thakurta appearing for the respondent no. 1/workmen
has relied upon The K.C.P. Employees' Association, Madras vs
The Management of K.C.P. Ltd. Madras & Ors., January 24,
1978. The said judgment does not apply to the present case, as
the company there in was "a public limited company, carries on
three business adventure........................"
36. The respondent/workman was appointed on 31.07.2003, as a
caretaker with terms and conditions and nature of duties,
emoluments etc. in the appointment letter.
37. The memorandum of settlement between the Church and the
Union, provides the term and condition of the settlement which
includes leaves, a copy of which was also sent to the Labour
Commissioner, West Bengal and also the Labour Secretary.
38. The respondent/workman states that since 03 March, 2017, 1
P.M., he has allegedly not been permitted to enter the work place.
20
39. Finally the Govt. of West Bengal made a reference on 26.04.2018
to the industrial tribunal on the recital that an industrial dispute
existed between the petitioner and the workman/Union an the
following issues:-
"ISSUE(S)
1. Whether the termination of service of Sri Bijoy Biswas,
the workman, by way of refusal of employment w.e.f.
03.03.2017 by the Armenian Holy Church of Nazareth is
justified?
2. What relief, if any, the workman is entitled to?"
40. The petitioner/Church filed written statement on grounds, some
of which are as follows:-
"Part-I
4. The Church submits that the Reference is not
maintainable since Armenian Holy Church of Nazareth is
not an 'industry' as contemplated in Section 2(j) of the
Industrial Disputes Act, 1947.
6. The Church submits that the Reference is not
maintainable since the union under reference has got no
locus-standi and/or representative character to espouse the
cause of the concerned person.
7. The Church submits that the Reference is not
maintainable since Sri Bijoy Biswas is not a 'workman'
within the meaning of Section 2(s) of the Industrial Disputes
Act, 1947.
Part-II
12. ............................
21
a. Armenian Holy Church of Nazareth is a spiritual
institution. The church has a home known as Sir Cathick
Paul Chater Home. The said home is an accommodation for
the economically distressed Armenians; particularly the
aged ones and it forms part of Philanthropic and Religious
duties of the church. It is not open to general public. Unlike
other homes no donation fees etc. is charged. The home is
principally to provide permanent shelter/accommodation for
the aged / distressed Armenians in Kolkata.
b. The activities of the church are spiritual in nature and
Church manages home for the distressed Armenians. The
home was founded by the church to prevent human
suffering and to extend necessary relief to the needy
towards the distressed Armenians. The object and purpose
of forming the home is evangelical being corner stone of the
church's religious endowment.
c. The activities of the church are not a systematic activity
carried on with the co-operations of personnel "for the
production of supply of distribution of goods or services with
a view to satisfy human ones and wishes".
d. The church carries its activities primarily from the funds
received through contributions, donations, endowment
received from various churches, missions and/or
philanthropic organisations.
22
f. In order to fulfil the needs of the aged or ailing humanity
with devotion to duty the Home was established to serve
the ailing humanity with utmost care. There was no profit
motive. It is only to provide aid or help to the distressed
Armenians in Kolkata.
i. Sri Bijoy Biswas was in the habit of committing all sorts of
irregularities and violated the disciplines, rules and
regulations of the Church. Adequate and reasonable
opportunities were afforded to him before affecting
termination. Moreover the investigations were carried out for
the misdemeanour made by him. For the misconducts
committed by him he was warned several times but it has
not yielded any result. There was complete ignorance of
instructions and warnings and indeed those were open
defiance of Authority. The gravity of the misconducts and
the gravity of the activities of the Church as well as his
arrogance prompted the management to take measure as
his presence is detrimental to the Church."
41. Vide an order dated 05.10.2018, the High Court in WP 15306(W)
of 2018, set aside the said order of reference dated 26th April,
2018, the Court held:-
"............... has impugned order dated 26th April,
2018 of reference to Seventh Industrial Tribunal,
issues as under :-
"1. Whether the termination of service of Sri Bijoy
Biswas, the workman, by way of refusal of
23
employment w.e.f. 03.03.2017 by the Armenian Holy
Church of Nazareth is justified?
2. What relief, if any, the workman is entitled to ?"
Mr. Majumdar, learned advocate appears on behalf of
petitioners and submits, in conciliation his clients
contended there could not be an industrial dispute
between Church and its employee. He relies on
judgment of Supreme Court in Bangalore Water
Supply vs. A. Rajappa reported in AIR 1978 SC
548 to, inter alia, paragraph 59. He submits,
Supreme Court relied on its earlier declaration to say
`industry' will cover 'branches of work that can be
said to be analogous to the carrying out of a trade or
business'. He submits, a Church and its activities
cannot be said to be Industrial activity. There, thus,
cannot be industrial dispute. He seeks intervention.
Mr. Guha Thakurta, learned advocate appears on
behalf of private respondent and submits, whether
the Church in running a home where his client found
employment was thereby doing industrial activity can
be a matter incidental to issues referred. He submits,
there should not be interference.
In Bangalore Water Supply (supra) Supreme
Court through several learned Judges in the Bench
said as it did regarding coverage by word, 'Industry'.
Appropriate Government did not refer existence of
industrial dispute also as an issue. It has referred
issues, which presume industrial dispute to exist,
petitioners' contention being it is not an Industry.
Private respondent could not show any declaration of
law to resist Intervention sought.
Impugned order is set aside for above
reasons................"
24
42. In appeal FMA 145 of 2020, the Court directed as follows:-
"6. Having heard Mr. Bikash Ranjan Bhattacharyya,
learned senior advocate for the appellant and Mr.
Soumya Majumder, learned advocate for the
respondents, this Court is of the view that as to whether
the Armenian Holy Church of Nazareth, respondent.
herein, is an industry or not within the meaning of the
Industrial Disputes Act must be framed as a preliminary
issue and decided first by the tribunal. Sufficient time
must thereafter be allowed to the parties before entering
into the other issues."
43. To substantiate the case of the respondent no. 1 that the
petitioner comes with the term „industry‟, the union has stated in
their written statement as follows:-
"4. I say that I was appointed by the Employer as
Caretaker of St. Gregory's Chapel at 418. North Range,
Calcutta - 700017 which is under the control of the
Employer on August 07, 2003 and is part of Sir Catchick
Paul Chater Home, which runs on the entire Chater
Home including the St. Gregory's Chapel from the
endowments of Sir Catchick Paul, which is invested in
various securities.
5. I say that Sir Catchick Paul Chater Home runs a
systematic activity of providing services to its residents
and is an industry and it employs workmen like me to
give services to the residents thereat including the St.
Gregory's Chapel, which is part of the services offered at
Sir Catchick Paul Chater Home."
44. On stating the same, the respondent no. 1 has proceeded to claim
illegal termination by way of refusal of employment.
25
45. The relevant extract of the cross examination of workman are
stated herein:-
"............... It is true that the OP/Church is involved
in various types of voluntary services to the
society.
There is a Nurse working to look after the inmates of the
Home under the management of the Church.
Out of such inmates in the Home some of them who are
physically abled used to cook their own food.
The inmates who are physically disabled used to
get a huge amount of stipend and yearly bonus as
provided by the Church.
There is a Doctor used to visit the inmates of the Home
and other Armenian twice in a week.
The Church used to bear all such cost towards medical
treatment of those inmates of the Home and Armenians.
The Church also bears the expenses towards education
of the children of the poor Armenians.
Personally I did not see that the OP/Church is
involved in any type of trading or business.
There are 18 (eighteen) rooms situated at the aforesaid
Home for patients.
I know that from any corner Church is getting any
financial or any other aid.
I know that this OP Church is a non profit
institute.
I cannot show any document to establish that the
OP Church is involved in any type of trade or
industrial activities..........."
46. The petitioner‟s case is that:-
"5. ......... the church are not a systematic activity
carried on with the co-operations of personnel "for the
26
production of supply of distribution of goods or services
with a view to satisfy human ones and wishes".
6. ........ the church carries its activities primarily from
the funds received through contributions, donations,
endowment received from various churches, missions
and/or philanthropic organisations.
7. I say that the church is not a factory nor an
establishment such as industrial, commercial,
agricultural or otherwise. In order to fulfil the needs of
the aged or ailing humanity with devotion to duty the
Home was established to serve the ailing humanity with
utmost care. There is no profit motive. It is only to
provide aid or help to the distressed Armenians in
Kolkata.
8. I say that the inmates of the home of the Church are
needy and distressed persons. The inmates who are not
able to cook their own food they are given financial
assistance by the Church to buy their foods from
outside. The Church provides them primary medical
facilities and the money are given by the Church to buy
their medicine also from outside medicine shops.
9. I say that the Church Authority sponsors educational
facilities to the Armenian students."
47. It is thus the case of the petitioner that they not being an
„industry‟, the workman herein cannot invoke the provisions
of the Industrial Dispute Act.
48. The tribunal‟s finding that the petitioner is an "industry" is on the
following observations:-
"................ So, having considered the above discussed
facts and circumstances coupled with the evidence on
record, I find it is very convincing argument before me
27
that had there been no relation by and between the
parties as Employer and Workman and had there been
no existence of any registered/affiliated trade union then
certainly the aforesaid bipartite settlement ought not
arrived at in between the Employer and the Trade Union
by way of said 'Memorandum of Settlement' containing
the conditions of service in consonance with the practice
and procedure as well as the rules and regulations of
Industrial Disputes Act, particularly in keeping the clause
of forwarding copies of the 'Memorandum of Settlement' to
those authorities of Labour Department of West Bengal in
terms of the Rules and Regulations of Industrial Disputes
Act, 1947. May be the nature of the activity of the
OP/Employer was charity and has no profit motive
having no trading or business but the fact remain that the
concerned workman used to work there because of he
was paid wages for his service but not because of his
passion of voluntary service for charity. So, in presence of
such direct evidence of nature, activity and relation
between the parties and also maintaining expressed
conditions of service in those documents i.e., Exhibit-1
(Exhibit-A) & Exhibit-2 in consonance with the rules and
regulation of relevant Industrial Dispute Act, 1947, I am
of the considered view that without critical analysis of the
above referred decisions as relied upon by the Ld.
Counsel of the OP/Employer undoubtedly it can be held
that this case is maintainable treating the disputes
between the parties as Industrial Disputes to be dealt
with the provision of Industrial Disputes Act........."
49. The tribunal then proceeds to decide as to the issue of termination
of the workman.
28
50. Now it is to be seen as to whether the learned tribunal rightly
decided the preliminary issue that the petitioner herein falls
within the definition of „industry‟ under the Industrial Dispute Act.
51. The tribunal while deciding the said issue on which the whole
case rests, held:-
"...........May be the nature of the activity of the
OP/Employer was charity and has no profit motive
having no trading or business but the fact remain
that the concerned workman used to work there
because he was paid wages for his service but not
because of his passion of voluntary service for
charity........."
52. In Lawrence Messy vs Diocese of Delhi, AIRONLINE 2019 DEL
1526, decided on 11 September, 2019, the Delhi High Court
held:-
"23. The definitive locus classicus, which charts out the
contours of the concept of "industry", as defined in
the ID Act, continues to remain Bangalore Water
Supply & Sewerage Board v. A. Rajappa, (1978) 2 SCC
213. The overarching scope of the concept of "industry",
as conceptualised in the said pronouncement, is well
known and, for the limited purposes of this judgment, it
is not necessary to expound, in detail, with reference
thereto. Suffice it to state that, even after providing, to
the definition of "industry", such an expansive arena
within which to peregrinate, Krishna Iyer, J., whose
incisive exposition has immortalised the said judgment,
stopped short, when it came to activities which were
spiritual or religious in nature. A few observations,
from the said decision, which underscore the point, may
be reproduced thus:
...................................................
140. “Industry’, as defined in Section 2(j) and
explained in Banerji, has a wide import.
29
“(a) Where (i) systematic activity, (ii) organized by co-
operation between employer and employee (the direct
and substantial element is chimerical) (iii) for the
production and/or distribution of goods and services
calculated to satisfy human wants and wishes (not
spiritual or religious but inclusive of material things or
services geared to celestial bliss e.g. making, on a large
scale prasad or food), prima facie, there is an „industry‟
in that enterprise.
(b) Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint, private or
other sector.
(c) The true focus is functional and the decisive
test is the nature of the activity with special
emphasis on the employer-employee relations.
(d) If the organization is a trade or business it
does not cease to be one because of philanthropy
animating the undertaking.”
(Emphasis and underlining supplied) The references, in
the above extracted passages, to Banerji and
Safdarjung, it may be noted, are to the well-known
precedents in D. N. Banerji v. P. R. Mukherjee, AIR
1953 SC 58 and Safdarjung Hospital v. Kuldip Singh
Sethi, (1970) 1 SCC 735.
24. Concurring with the views expressed by Krishna
Iyer, J., Beg, C.J. echoed the sentiment, thus:
“161. The test indicated above would necessarily
exclude the type of services which are rendered
purely for the satisfaction of spiritual or
psychological urges of persons rendering those
services. These cannot be bought or sold. For
persons rendering such services there may be no
“industry”, but, for persons who want to benefit
from the services rendered, it could become an
“industry”.
(Emphasis supplied)
25. It is important to note that the predominant nature
of the activity carried out by the institution concerned,
has necessarily to guide the decision as to whether the
institution satisfies the test of an “industry”, for the
purposes of applicability of the ID Act, or not. As has
30
been aptly noted, in the afore-extracted passages
from Bangalore Water Supply (supra), the fact that, in
order to function, the institution or undertaking
concerned has to hire staff, or employees, would not,
ipso facto, result in the institution metamorphosing into
an “industry”.
26. It may also be noted, in this context, that the ID
Act does not conceive of any “industry”, qua a particular
workman, or group of workmen. An institution, or
undertaking, is either an “industry”, or it is not. If it is
not an “industry”, it does not become one, in relation to
any particular person who may have been hired, for
wages, by the institution, in order for the institution to
run. To that extent, it is necessary to dichotomise the
concepts of “industry” and “workman”, as conceived by
the ID Act. This distinction has essentially to be borne
in mind, for the reason that, in modern times,
institutions, or establishments ordinarily involve a
multitude of operations. If, in a select few of such
operations, or to discharge certain duties, which
are essentially tangential to the main purpose of the
organisation, some persons had to be taken on hire,
those persons cannot elevate themselves to the status of
“workmen”, competent to maintain a dispute under
the ID Act; neither, conversely, would the institution be
liable to be regarded as an “industry”, qua the said
employees. A simple example could be visualised, of a
security guard hired to keep watch at the gates of a
temple. The activity in the temple being essentially
spiritual or religious in nature, it cannot be said that the
temple is an “industry”. It does not, therefore, become an
industry even qua the security guard, who has been
engaged on hire, to keep watch over the premises. The
security guard cannot, therefore, maintain a dispute
under the ID Act, claiming himself to be a “workman”,
merely because, between the temple and him, a
commercial arrangement exists. Had he been performing
the same duty in another, “industrial” organization, he
might have been able to maintain such a dispute, and
approach, for the resolution thereof, the Labour Court or
Industrial Tribunal; as placed, however, he is proscribed
from doing so, not because he is not a workman,
engaged for wages, having a purely commercial
relationship with the management of the temple, but
because the temple, which employs him, is not an
“industry”, within the meaning of the ID Act.
31
27. A Division Bench of this Court in Assem Abbas v.
Rajghat Samadhi Committee, 2012 SCC OnLine Del 838
has, after digesting several authorities on the
includibility of religious and spiritual enterprises, within
the ambit of the expression “industry”, as contained
in Section 2(j) of the ID Act, pronounced on the issue.
The controversy, in the said case, related to a security
guard engaged by the Rajghat Samadhi Committee.
Observing that the Rajghat Samadhi was “akin to a
place of worship”, this Court, speaking through A. K.
Sikri, ACJ (as his Lordship then was) examined the
authorities on the point of whether activities, which were
religious or spiritual in nature, would attract Section
2(j) of the ID Act. From the judgments in Tirumala
Tirupati Devasthanam v. Commissioner of Labour,
(1979) I LLJ 448 AP, Workmen employed in the Madras
Pinjrapole v. Management of the Madras Pinjrapole, AIR
1963 MAD 89, Shiromani Gurdwara Prabandhak
Committee of Management Gurdwara Dhakhwaran
Sahib v. Presiding Officer Labour Court, (2003) 135 PLR
462, Harihar Bahinipaty v. State of Orissa, AIR 1966
ORI 35, K.C. Cherinjumpatty Thampuratty v. State of
Kerala, 2004 (2) KLJ 398, The Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt., AIR 1954 SC 282
and, needless to say, Bangalore Water Supply (supra),
this Court noted that (i) an institution, the main function
of which was worship and facilitation of worship by
pilgrims, would be essentially a religious institution and
such an institution could not be regarded as an
“industry”, even if, for the convenience of the pilgrims,
certain departments, in which persons were required to
be taken on hire, had to be maintained, (ii) what was
required to be seen was, therefore, the essential
character of the institution, and (iii) in order to qualify as
an “industry”, within the meaning of Section 2(j) of the
ID Act, an element of res commercium was essential,
i.e., the institution had to be in the business of
distribution of goods and services, or in activities
analogous thereto.
Applying these tests, it was held that the Rajghat
Samadhi, which was akin to religious or spiritual
institutions discussed in the aforenoted decisions,
could never have been considered to be an
“industry”, as conceptualised in Section 2(j) of the
ID Act.
32
33. In such circumstances, the burden lay on the
petitioner to establish, with positive material, the fact
that the respondent was, in fact, an “industry”, within
the meaning of the ID Act. The affidavits in evidence,
and oral deposition, of the petitioner, as WW-1, and the
documents exhibited by the petitioner in support of his
case, do not serve to discharge this onus, to any
appreciable degree. That being so, it has necessarily to
be held that the petitioner had failed to establish that
the respondent was an “industry”, so as to maintain
the proceedings, initiated by him, before the Labour
Court, under the ID Act.
34. The preliminary issue, regarding the aspect of
whether the respondent was an “industry”, or not,
being, therefore, answerable in favour of the
respondent, the other issues, as framed by the Labour
Court, do not survive for consideration. The proceedings
initiated by the petitioner before the Labour Court, were,
therefore, incompetent for want of jurisdiction and were,
therefore, liable to be dismissed even on that score.”
53. In The Corporation of The City of Nagpur vs Its Employees,
AIR 1960 SC 675, decided on 14 December, 1959, the
Supreme Court has exhaustively discussed and decided the issue
as follows:-
“5. The first question need not detain us, for it has
now been finally decided by two decisions of this
Court against the appellant. In D. N. Banerji v. P. K.
Mukherjee ([1953] S.C.R. 302), the chairman of a
municipality dismissed two of its employees, namely,
the Sanitary Inspector and the Head Clerk, and the
Municipal Workers’ Union Questioned the propriety of
the dismissal and claimed that they should be re-
instated and the matter was referred by the
Government to the Industrial Tribunal for adjudication
under the Industrial Disputes Act. In that case two
questions were raised before this Court – one was
whether the said dispute was industrial dispute
within the meaning of s. 2(j) of the Industrial
Disputes Act and the other was whether
the Industrial Disputes Act was invalid inasmuch as
it allowed the Tribunal to re-instate employees and to
that extent trenched on the power of the chairman to
33appoint and dismiss employees. This Court held that
the Act was not invalid, as it was in pith and
substance a law in respect of industrial and labour
disputes and that the conservancy service rendered
by the municipality was an industry and the dispute
between the municipality and the employees of the
conservancy department was an industrial dispute
within the meaning of the Industrial Disputes
Act. This decision was followed by this Court
in Baroda Borough Municipality v. Its
Workmen ([1957] S.C.R. 33). In that case the effect of
the earlier decision was summarized thus, at p. 38 :
“It is now finally settled by the decision of this Court
in D. N. Banerji v. P. K. Mukherjee ([1953] S.C.R.
302) that a municipal undertaking of the nature we
have under consideration here is an “industry” within
the meaning of the definition of that word in s. 2(j) of
the Industrial Disputes Act, 1947, and that the
expression “industrial dispute” in that Act includes
disputes between municipalities and their employees
in branches of work that can be regarded as
analogous to the carrying on of a trade or business.”
6. In that case the workmen employed in the
electricity department of the Baroda Municipality
demanded bonus. The electricity undertaking of the
Baroda municipality was held to be an industry and
the dispute between the Municipality and its
employees an industrial dispute. Bonus was refused
on other grounds and we are not concerned with that
aspect of the case here. These two cases, therefore,
have finally and authoritatively held that
municipal undertakings could be “industry”
within the meaning of the Industrial Disputes
Act.
7. A faint argument is attempted to sustain a
distinction between the definition of an “industry” in
the Industrial Disputes Act and the definition of the
same word in the Act in question. Section 2(j) of the
Industrial Disputes Act “industry” to mean any
business trade, undertaking, manufacture or calling
of employers and to include any calling, service,
employment, handicraft, or industrial occupation or
avocation of workmen”. Section 2(14) of the Act
divides the definition into three parts, namely, “(a)
any business, trade, manufacturing or mining
34
undertaking or calling of employers, (b) any calling,
service, employment, handicraft or industrial
occupation or avocation of employees, and (c) any
branch of an industry or a group of industries.” A
comparative study of these two sections brings out
the following differences : While the definition of
“industry” in the Industrial Disputes Act means
certain things and includes others, the definition of
“industry” in the Act includes the three categories
described therein; while the definition in the former
Act places ‘undertaking ‘ in a category different from
‘manufacturing or mining’, in the latter Act it is
qualified by the words ‘manufacturing or mining’. In
our view these differences do not justify us in taking
a different view from that accepted by this Court in
the foregoing decisions. Clause (a) of the definition
defines industry with reference to the employers and
clause (b) with reference to the employees. Excluding
the words “manufacturing or mining undertaking”
from clause (a) of the definition, the other words in
cls. (a) and (b) thereof are comprehensive enough to
take in all the categories which the definition of
“industry” in the Industrial Disputes Act will take in.
That apart, a perusal of the decision of this Court
in D. N. Banerji v. P. R. Mukherjee ([1953] S.C.R.
302) does not indicate that this Court would have
come to a different conclusion if the word
“undertaking” in the Industrial Disputes Act was
qualified by the words “manufacturing or mining”. The
decision was founded on a broader basis, having
regard to the history of the legislation, the cognate
definitions in the Act and the inclusive part of the
definition corresponding to s. 2(14)(b) of the Act. We,
therefore, hold that a service rendered by a
corporation, if it complies with the conditions implicit
in the definition – which we would consider at a later
stage of the judgment – will be an “industry” within
the meaning of the definitions in the Act.
8. The next question is whether activity of the
Corporation is not “industry” unless it shares the
common characteristics of an industry. The
following five characteristics are stated to be
the conditions implicit in the definition : (i) the
activity must concern the production or
distribution of goods or services; (ii) it must be to
serve others but not to oneself; (iii) it must
involve co-operative effort between employer and
employee, between capital and labour; (iv) it
35
must be done as a commercial transaction; and
(v) it must not be in exercise of purely
governmental functions.
9. We have considered this aspect in State of Bombay
v. The Hospital Mazdoor Sabha in the context of the
definition of “industry” in the Industrial Disputes
Act and formulated certain broad principles. But as
this case is concerned with the definition of “industry”
in a different Act, we shall briefly resurvey the law on
the subject with specific reference to a corporation.
10. Let us scrutinize the definition of “industry” to
ascertain whether all or some of the conditions are
implicit in the definition and whether the said
conditions constitute the necessary basis for it. The
true meaning of the section must be gathered from the
expressed intention of the Legislature. Maxwell in his
book “On the interpretation of Statutes”, 10th Edn.,
rightly points out at p.2 that “if the words in their
natural and ordinary sense, the words themselves in
such case best declaring the intention of the
legislature”. The words used in the section are clear
and unambiguous and they prima facie are of the
widest import. We have pointed out that the section is
in two parts : clause (a) defines “industry” with
reference to employers and clause (b) defines it with
reference to employees. Clause (c) extends the
definition to any branch of an industry or a group of
industries, i.e., industries coming within the definition
of cls. (a) and (b). It is said that in construing the
definition we must adopt the rule of construction
noscuntur a sociis. Maxwell explains this doctrine at
p. 332 thus :
“when two or more words which are susceptible of
analogous meaning are coupled together noscuntur a
sociis. They are understood to be used in their
cognate sense. They take, as it were, their colour from
each other, that is, the more general is restricted to a
sense analogous to the less general.”
11. On the basis of this doctrine, it is argued
that the words following the words “any
business, trade, manufacturing or mining
undertaking” shall partake the characteristics
of any business, trade, manufacturing or mining
undertaking, and the words “any calling,
36
service, employment, handicraft or industrial
occupation or avocation of employees” shall
share the qualities of an industrial occupation
or avocation. In other words, the general word
“calling” in clause (a) is controlled by the words
preceding it, and the general words “calling,
service etc.” in clause (b) are restricted by the
succeeding words “industrial occupation or
avocation”. This doctrine was dealt with by this
Court in State of Bombay v. The Hospital
Mazdoor sabha. Therein this Court has
considered the scope of this doctrine and has
observed thus:
“It must be borne in mind that noscuntur a sociis is
merely a rule of construction and it cannot prevail in
cases where it is clear that the wider words have
been deliberately used in order to make the scope of
the defined word correspondingly wider. It is only
where the intention of the Legislature in associating
wider words with words of narrower significance is
doubtful that the present rule of construction can be
usefully applied. It can also be applied where the
meaning of the words of wider import is doubtful; but
where the object of the Legislature in using wider
words is clear and free of ambiguity, the rule of
construction in question cannot be pressed into
service.”
12. The said doctrine, therefore, cannot be
invoked in cases where the intention of the
Legislature is clear and free of ambiguity. The
phraseology used in the section is very clear and
it is not susceptible of any ambiguity. The words
used in the first part of clause (b) are
unqualified; and the qualification is introduced
only in the later part. If the words “calling,
service, employment, handicraft” are really
intended to be qualified by the adjective
“industrial”, one should expect the legislature to
affix the adjective to the first word “calling”
rather than to the last word “occupation”. The
inclusive definition is a well recognized device
to enlarge the meaning of the word defined,
and, therefore, the word “industry” must be
construed as comprehending not only such
things as it signifies according to its natural
37
import but also those things the definition
declares that it should include : see Stroud’s
Judicial Dictionary, Vol. 2, p. 1416. So
construed, every calling, service, employment of
an employee or any business, trade or calling of
an employer will be an industry. But such a wide
meaning appears to overreach the objects for which
the Act was passed. It is, therefore, necessary to limit
its scope on permissible grounds, having regard to the
aim, scope and the object of the whole Act. To arrive
at the real meaning of the words, Lord Coke in
Heydon’s case ([1584] 3 Rep. 7 b) says that the
following matters are to be considered: (1) What was
the law before the Act was passed; (2) what was the
mischief or defect for which the law had not provided;
(3) What remedy Parliament has appointed; and (4)
The reason of the remedy. The word “employers” in
clause (a) and the word “employees” in clause (b)
indicate that the fundamental basis for the
application of the definition is the existence of that
relationship. The cognate definitions of “industrial
dispute”, “employer”, “employee”, also support it. The
long title of the Act as well as its preamble show that
the Act was passed to make provision for the
promotion of industries and peaceful and amicable
settlement of disputes between employers and
employees in an organized activity by conciliation and
arbitration and for certain other purposes. If the
preamble is read for certain other purposes. If the
preamble is read with the historical background for
the passing of the Act, it is manifest that the Act was
introduced as an important step in achieving social
justice. The Act seeks to ameliorate the service
conditions of the workers, to provide a machinery for
resolving their conflicts and to encourage co-operative
effort in the service of the community. The history of
labour legislation both in England and India also
shows that it was aimed more to ameliorate the
conditions of service of the labour in organized
activities than to anything else. The Act was not
intended to reach the personal services which do not
depend upon the employment of a labour force.
13. Before considering the positive aspects of the
definition, what is not an industry may be
considered. However wide the definition of “industry”
may be, it cannot include the regal or sovereign
functions of state. This is the agreed basis of the
arguments at the Bar, though the learned counsel
38
differed on the ambit of such functions. While the
learned counsel for the Corporation would like to
enlarge the scope of these functions so as to
comprehend all the welfare activities of a modern
State, the learned counsel for the respondents would
seek to confine them to what are aptly termed “the
primary and inalienable functions of a constitutional
government”. It is said that in a modern State the
sovereign power extents to all the statutory functions
of the State except to the business of trading and
industrial transactions undertaken by in its quasi-
private personality. Sustenance for this contention is
sought to be drawn from Holland’s Jurisprudence,
wherein the learned author divides the general
heading “public Law” into four sub-heads and under
the sub-head “Administrative Law” he deals with a
variety of topics including welfare and social activities
of a State. The treatment of the subject “Public Law”
by Holland and other authors, in our view, has no
relevance in appreciating the scope of the concept of
regal powers which have acquired a definite
connotation. Lord Watson, in Coomber v. Justices of
Berks ((1883-84) 9 App. Cas. 61,74), describes the
functions such as administration of justice,
maintenance of order and repression of crime, as
among the primary and inalienable functions of a
constitutional Government. Isaacs, J., in his
dissenting judgment in The Federated State School
Teachers’ Association of Australia v. The State of
Victoria ((1929) 41 C.L.R. 569), concisely states thus
at p. 585:
“Regal functions are inescapable and inalienable.
Such are the legislative power, the administration of
laws, the exercise of the judicial power. Non-regal
functions may be assumed by means of the legislative
power. But when they are assumed the State acts
simply as a huge corporation, with its legislation as
the character. Its action under the legislation, so far
as it is not regal execution of the law is merely
analogous to that of a private company similarly
authorised.”
14. These words clearly mark out the ambit of the
regal functions as distinguished from the other
powers of a State. It could not have been, therefore, in
the contemplation of the Legislature to bring in the
regal functions of the State within the definition of
39
industry and thus confer jurisdiction on Industrial
Courts to decide disputes in respect thereof. We.
therefore, exclude the regal functions of a State from
the definition of industry.
19. Emphasis is laid upon the words “analogous to
the carrying out of a trade or business”. and an
argument is built upon those words to the effect that
this Court held that only such activities of
municipalities analogous to trade or business would
be industry within the meaning of the definition of
“industry” in the Act. This argument, if we may say
so, is the result of an incorrect reading of the decision.
There the question was whether the sanitary
department of a municipality was an industry within
the meaning of the Industrial Disputes Act and
whether the dispute between the municipality and its
employees in that department was an industrial
dispute thereunder. At p. 311, the learned Judge
specifically deals with a contention based upon the
collocation of the words in the section and observes :
“Though the word “understanding” in the definition of
“industry” is wedged in between business and trade
on the one hand and manufacturing on the other, and
though therefore it might mean only a business or
trade undertaking, still it must be remembered that if
that were so, there was no need to use the word
separately from business or trade. The wider import
is attracted even more clearly when we look at
the latter part of the definition which refers to
“calling, service, employment, or industrial
occupation or avocation of workmen.”
“Undertaking” in the first part of the definition
and “industrial occupation or avocation” in the
second part obviously mean much more than
what is ordinarily understood by trade or
business. The definition was apparently
intended to include within its scope what might
not strictly be called a trade or business
venture.”
20. This passage leaves no room for doubt that
this Court construed the terms of the definition
of “industry” in a way which takes in activities
which are not strictly called trade or business.
40
Therefore, the words “not strictly be called a
trade or business venture” and the words
“analogous to the carrying out of a trade or
business” emphasize more the nature of the
organized activity implicit in a trade or
business than to equate the other activities with
trade or business. This is made more clear by
the learned Judge when he expressly reserves
the Court’s opinion on a wider question in the
following words at p. 318 :
“it is unnecessary to decide whether disputes arising
in relation to purely administrative work fall within
their ambit.”
21. We cannot, therefore, agree with the contention
that the said decision, it when it expressly accepted
the comprehensive meaning which the words of the
section naturally bear, intended to circumscribe the
wide sweep of the section to business of trade and
activities in the nature or business. Nor a fair reading
of the section bears out such a construction. We have
already indicated our view on the construction of the
section, having regard to the clear phraseology used
or business or activities analogous to trade or
business.
22. ………………………………………..
“The material question is : What is the nature of the
actual function assumed – is it a service that the State
could have left to private enterprise, and, if so
fulfilled, could such a dispute be “industrial” ?”
23. This test steers clear of the argument that
to be an industry the activity shall be a trading
activity. If a service performed by an individual
is an industry, it will continue to be so
notwithstanding the fact that it is undertaken
by a corporation.
24. Another test suggested by the learned council
may be scrutinised. It is said that unless there is a be
quid pro quo for the service, it cannot be an industry.
This is the same argument, namely, that the service
must be in the nature of trade in a different garb. this
Court in D. N. Banerji v. P. R. Mukherjee ([1953]
S.C.R. 302) has held that neither the investment
41
of capital or the existence of profit earning
motive seems to be a sine qua non or necessary
element in the modern conception of industry.
The conception that unless the public who are
benefited by the services pay in cash for the
services rendered to them, the services so
rendered cannot be industry is based upon an
exploded theory. As observed by Chandrasekhara
Aiyar, J., “the conflicts between capital and labour
have now to be determined more from the standpoint
of status than of contract”. Isaac and Rich, JJ., in the
Federated Municipal and shire Council Employees’
Union of Australia v. Melbourne Corporation ([1918-
19] 26 C.L.R. 508, 530-531) formulated the modern
concept of industry at p. 554 thus :
30. We can also visualize different situations. A
particular activity of a municipality may be covered
by the definition of “industry”. If the financial and
administrative departments are solely in charge of
that activity, there can be no difficulty in treating
those two departments also as part of the industry.
But there may be cases where the said two
departments may not be in charge of a particular
activity or service covered by the definition of
“industry” but also in charge of other activity or
activities falling outside the definition of “industry”. In
such cases a working rule may be evolved to advance
social justice consistent with the principles of equity.
In such cases the solution to the problem
depends upon the answer to the question
whether such a department is primarily and
predominantly concerned with industrial
activity or incidentally connected therewith.
31. The result of the discussion may be summarized
thus : (1) The definition of “industry” in the Act is very
comprehensive. It is in two parts : One part defines it
from the standpoint of the employer and the other
from the standpoint of the employee. If an activity
falls under either part of the definition, it will be an
industry within the meaning of the Act. (2) The history
of Industrial disputes and the legislation recognizes
the basic concept that the activity shall be an
organized one and not that which pertains to private
or personal employment. (3) The regal functions
described as primary and inalienable functions of
State though statutorily delegated to a corporation are
necessarily excluded from the purview of the
42
definition. Such regal functions shall be confined to
legislative power, administration of law and judicial
power. (4) If a service rendered by an individual or a
private person would be an industry, it would equally
be an industry in the hands of a corporation. (5) If a
service rendered by a corporation is an industry, the
employees in the departments connected with that
service, whether financial,administrative or executive,
would be entitled to the benefits of the Act. (6) If a
department of a municipality discharges many
functions, some pertaining to industry as defined in
the Act and other non-industrial activities, the
predominant functions of the department shall be the
criterion for the purposes of the Act.”
54. From the finding of the learned tribunal that the petitioner
Church is an „industry‟ and that the reference is thus
maintainable, it appears that the tribunal instead of first
deciding whether the petitioner is an „industry‟, first decided
the claim of the employee, as to why the employee was a
„workman‟ under the industrial disputes act and on the basis
of such finding proceeded to hold that as the respondent is
deemed to be a workman, the petitioner is thus an „industry‟,
which this Court finds is entirely a wrong/erroneous approach
in deciding the issue.
55. Herein, as the employee claims to be a „workman‟ under the
industrial disputes act, being employed with the
petitioner/church which he claims is an „industry‟, it is to be
first decided as to whether the petitioner/church is an
„industry‟.
56. In case, it is decided in the positive, only then the employee‟s
claim proceeds. When negative, the claim fails.
43
57. Now regarding the phrase “analogous to carrying out of a trade or
business” (City of Nagpur (Supra)).
58. The phrase has been taken into consideration by the Supreme
Court in Srinibas Goradia vs Arvind Kumar Sahu & Ors., in
Civil Appeal No. …………. of 2025 (arising out of SLP (Civil)
No. 3682 of 2025), decided on December 17, 2025, the Court
held:-
“5.7.5 The dominant nature test was propounded and
discussed in a slightly different context of considering
the definition of “industry”, under the Act, in Corporation
of the City of Nagpur vs. Employees15, a body like
corporation or municipality discharges functions in
different areas through working of different
departments. This Court observed that a particular
activity of municipality may be covered by the definition
of “industry‟ with the financial and administrative
departments are solely in charge of that activity,„But there may be cases where the said two
departments may not only be in charge of a
particular activity or service covered by the
definition of “industry” but also in charge of
other activity or activities falling outside the
definition of “industry”. In such cases a
working rule may be evolved to advance
social justice consistent with the principles of
equity. In such cases the solution to the
problem depends upon the answer to the
question whether such a department is
primarily and predominantly concerned
with industrial activity or incidentally
connected therewith.’
(Para 17)
(emphasis supplied)”
59. Analogous means similar, comparable, or like another thing in
certain ways. It describes two different things that share a
44
common job, purpose, or feature, making them easy to
compare.
60. The word incidental means happening as a minor result of
something else, occurring by chance, or being less important
than the main thing, connected.
And is Less important than the main action or goal.
Unplanned: Happening by chance or without a strict plan.
Connected: Accompanying a main event as a natural byproduct.
61. Analogous herein means analogous to the carrying out of a trade
or business. The „analogous‟ work will be treated as an „industry‟ if
it is analogous to an establishment which runs a regular trade or
business.
62. Thus in the present case:-
i) The petitioner/church is religious and non-profit institution.
However, it shares operational similarities with businesses
and contributes to the economic landscape.
The petitioner herein, the Armenian Church of the Holy
Nazareth functions as a place of worship, the center of the
local Armenian community, and the seat of the Armenian
Vicariate of India and the Far East.
It serves as the operational Mother Church for Indian
Armenians in Kolkata, holding traditional services affiliated
with the Mother See of Holy Etchmiadzin.
45
It also Acts as the cultural and administrative headquarters
for the Armenian community in the region.
It preserves a historic courtyard and marble tombstones,
functioning as a heritage site and tourist destination that
marks centuries of Armenian presence in Bengal.
Churches collect donations, pay staff, and buy supplies.
Their main goal is spiritual growth and community help, not
making money for owners or shareholders.
They are registered as non-profit or charitable groups and do
not pay standard corporate taxes on donations.
They offer worship, comfort, and religious services rather
than selling goods or commercial services for profit.
Spiritual services and the propagation of faith are
completely different from systematic economic trades or
business undertakings.
A diocese/church organization is devoted to spiritual
propagation and upkeep of faith, meaning it is not an
industry, and its personnel cannot claim the status of
workmen under the ID Act.
Thus staff or service workers engaged directly by a church
do not satisfy the criteria of an industrial dispute because
the institution itself falls outside the definition of an
„industry‟.
46
ii) The respondent/employee, was appointed as a “care taker”
and was given specific jobs connected with the purpose and
functioning of the petitioner church, it‟s services and spiritual
acts. Generally, an employee of a church is not considered a
“workman” under the Industrial Disputes Act, 1947. This is
because religious institutions and dioceses engaged in
spiritual, charitable, or propagating activities do not qualify
as an “industry” under Section 2(j) of the Act.
The core functions of a church is spreading the Gospel,
administering sacraments, and managing spiritual needs
which is sovereign or religious duties rather than systematic
economic or commercial industrial activity.
Under Section 2(s) of the Industrial Disputes Act, a person
qualifies as a workman only if they are employed in an
“industry” to do manual, unskilled, skilled, technical,
operational, clerical, or supervisory work.
Without an “industry,” the status of a “workman” cannot
be established.
Whether it is a priest, pastor, evangelist, or general helper
performing duties tied to a religious mission, the relationship
is governed by faith and ecclesiastical/charitable
administration rather than a standard commercial employer-
employee industrial contract.
47
iii) Admittedly the petitioner/church does not conduct any
trade or business nor carries on any act which is
analogous/incidental to trade or business.
iv) The sir Catchick Paul Chater Home admittedly runs on
endowments of Sir Catchick Paul. The home provides free
service and care to the inmates/destitute/elderly.
v) Such services provided are not for any trade or business
nor analogous/incidental to any trade and business and
thus is not an “industry”.
vi) Any investments (if any) in various securities as stated by the
employee is for the purpose of running the home to secure
funds and is not trade or business.
63. Thus the petitioner herein (Armenian Holy Church of Nazareth)
admittedly being a religious and non profit organization, runs the
Sir Catchick Paul Chater Home, and cares for the elderly, with
estate endowments bequeathed, to the petitioner/Armenian
Church of Holy Nazareth in Kolkata.
64. Admittedly there is neither any trade or business and nor any
analogous/ incidental to any trade or business being carried on
by either the petitioner/Church or by the Sir Catchick Paul Chater
Home.
65. Investment of funds bequeathed to the home as endowments
is neither trade nor business.
48
66. Thus the petitioner (Armenian Holy Church of Nazareth) is
not an „industry‟ as defined under Section 2(j) of the
Industrial Dispute Act.
67. In view of the finding that the petitioner/Church is not an
„industry‟, the respondent no. 1 is thus not a „workman‟ as
defined under Section 2(s) of the Act and the said issue stands
decided accordingly.
68. The impugned award dated 11th June, 2025, passed by the
Learned Fourth Industrial Tribunal, in Case No. VIII-08/2018, is
thus quashed and set aside, the same being not in accordance
with law.
69. WPA 27842 of 2025 is allowed.
70. Applications, if any, connected thereto stand disposed of.
71. Interim order, if any, stands vacated.
72. Photostat certified copy of this Judgment, if applied for, be given
to the parties on priority basis upon compliance of all formalities.
(Shampa Dutt (Paul), J.)
