1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3916 OF 2008 Bholanath R. Pandey ..Petitioner. Vs. Avsar Premises Co-op. Soc. Ltd. and others ..Respondents. .... Mr. K.K. V. Kurup for the Petitioner. Mr. Rajesh Gehani for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th September, 2008. P.C. : 1. The dismissal of a complaint of unfair labour practices has been upheld by the Industrial Court in revision. The Petitioner was employed as a watchman by the First Respondent which is a co-operative society registered under the Maharashtra Co- operative Societies Act, 1960. The society had constructed tenements which were sold to its members. Each individual member of the society conducts his own business in the tenement owned by the member. The society collects charges from the members which are utilized for maintaining the common amenities. Four employees were engaged by the society. On these facts, the Industrial Court while confirming the order of dismissal passed by 2 the Labour Court held that the activities of the First Respondent did not fall within the definition of 'industry' under Section 2(j) of the Industrial Disputes Act, 1947 and that consequently the complaint of unfair labour practices under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 was not maintainable. 2. The question which arises before the Court is not res intergra. In Shantaram Pandurang Jadhav v. Kiran Industrial Premises Co-operative Society Limited ( Appeal 582 of 2001 in Writ Petition 2443 of 2000)1, the Division Bench of this Court by a judgment dated 29th August, 2007 confirmed the judgment of a Learned Single Judge insofar as it held that in similar facts, the co- operative society formed of owners of commercial premises cannot constitute an industry within the meaning of Section 2(j). The facts in relation to which the judgment of the Division Bench was rendered are set out in paragraph 2 and for convenience of reference, it would be appropriate to extract therefrom : “The respondent is a Co-operative Society registered under the Maharashtra Co-operative Societies Act and that it has employed only four persons as watchmen. The Society also employed two clerks. The Society has 1 2007 III CLR 418. 3 several commercial premises wherein different kinds of commercial and trading activities are carried on by the members of the Society. The Society is registered as a commercial premises society. The units are held by the persons who are members of the Society. The commercial activities that are carried on by the members are maintained by the members and not by the Society. The only work of the Society is to maintain its building and the watchmen were engaged by the Society who were complainants before the Industrial Court to protect its building.” 3. The Division Bench adverted to the judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa2 and to the subsequent judgment in Management of SOM Vihar Apartment Owners Housing Maintenance Society Limited and Workmen C/o. Indian Engineering and General Mazdoor3. The Division Bench, held thus : “Perusal of the above observations of the Supreme Court shows that when employees are engaged by a co- operative society for the purpose of rendering personal service to the members of the society, the activity of the society cannot be termed as an industry and the employees also cannot be termed as workmen for the purpose of Industrial Disputes Act. Thus, perusal of the Judgment of the Supreme Court in the case of Management of SOM Vhiar Apartment Owners Housing Maintenance Society Ltd., makes it clear that when employees are engaged by a co-operative society for providing personal service to its members, the activity does not amount to an industry. In the present case, it is 2 1978 Labour Industrial Cases 467. 3 (2002) 9 SCC 652. 4 common ground that watchmen have been engaged just to protect the building which belongs to the society wherein various activities are carried on by the members of the society. It is, thus, clear that the employees have been engaged by the society for providing personal service to its members and, therefore, the respondent – co-operative society cannot be termed as an industry. As the respondent cannot be termed as an industry, then it cannot be termed as an employer for the purpose of unfair labour practice and, therefore, it cannot be held that it is guilty of any of the unfair labour practices which can be committed only by an employer. In this view of the matter, therefore, it is clear beyond doubt that the learned Single Judge was perfectly justified in holding that the complaint filed by the appellants under the unfair labour practices was not maintainable.” 4. It is evident therefore from the law laid down by the Supreme Court in the Management of SOM Vihar Apartment Owners and from the judgment of the Division Bench in Kiran Industrial Premises Co-operative Society, that when a few employees are engaged by a co-operative society essentially for providing personal service to the members of the society, that activity will not amount to an industry within the meaning of Section 2(j). Kiran Industrial Premises also involved a situation where the co-operative society was a commercial premises society in which commercial tenements were allotted to the members of the society. In that case four persons were engaged as watchmen and 5 two persons were engaged as clerks. The Division Bench held that the activity of the society was not an industry within the meaning of Section 2(j). Essentially the same principle must apply in the present case. The Industrial Court in revision has noted that the society engaged the services of four employees to maintain the premises. The fact that the society is not a residential co-operative society but a commercial premises society would not make any difference to the outcome. As a matter of fact even in the Kiran Industrial Premises Co-operative Society, the society in question was a commercial premises society. The society in such cases does not carry on any industrial activity and the business of the individual members of the society cannot be regarded as the business of the society. The society only exists to provide services to its members and the engagement of a few employees would not bring it within the fold of the expression industry for the purpose of Section 2(j). 5. In these circumstances the view which has been taken by the Industrial Court in revision is consistent with the law laid down by the Supreme Court and in the judgment of the Division Bench by this Court. No case for interference has therefore been 6 made out. The Petition is dismissed. *****