R.N.BISWAL, J. W.P.(C) NO.11451 OF 2005 (Decided on 19.10.2011) INDIAN COUNCIL OF AGRICULTURAL & RESEARCH …….. …Petitioner. .Vrs. P.O.,CGIT-CUM-LABOUR COURT,BBSR & ORS. …….…Opp.Parties. INDUSTRIAL DISPUTES ACT, 1947 (ACT NO.14 OF 1947) – S.2 (i). For Petitioner - M/s. Akshya Kumar Mishra. For Opp.Parties - M/s. A.K.Patnaik, GA (C ) P.C.Biswal, GA (C ) Mr. Bijay Ray. M/s. C.Choudhury, B.Mohanty, S.Mohanty, D.R.Das, D.Chhotray, B.Mahara. M/s. S.Mohanty, S.K.Das, S.Mohapatra. R.N.BISWAL,J. The only point for determination, in this writ petition is, whether the opp.party-Water Technology Center for Eastern Region, Bhubaneswar (WTCER in short)is an industry as defined under Section 2(j)of the Industrial Disputes Act,1947 (I.D.Act in short) 2. The factual back-ground leading to filing of the writ petition is that the opp.parties- workmen raised an industrial dispute before the Asst. Labour Commissioner (Central)- cum-Conciliation Officer, Bhubaneswar and the conciliation having been failed, the Govt. of India in exercise of its power under sub-section(1) and sub-section 2 (A) of Section 10 of the I .D. Act vide order dated 2.3.2000 referred the following dispute to the Presiding Officer, Central Government Industrial Tribunal, Bhubaneswar (hereinafter referred as C.G.I.T.) for adjudication. “Whether the action of the management of WTCER, Bhubaneswar by changing the employment of the disputants S/Sh. Harihar Kalia, Benudhar Nayak, Ramakanta Samal & Sh. Gumi Dei as so-called contract labourers and afterwards terminating their services is justified? Whether the action of the management of WTCER by not reinstating or by not giving temporary status to the disputants is legal and justified? If not, to what relief the disputants are entitled? The reference was registered as I.D. Case No.36 of 2000(c). Opp. parties- workmen filed their statement of claim and the petitioner filed written statement. On the basis of pleading of the parties, six issues were framed. As per direction of this Court vide order dated 22.9.2003 passed in W.P.(c)No.7082 of 2003 the Presiding Officer, C.G.I.T., Bhubaneswar took up Issue No.1 - Whether the management is an industry as defined under Section 2(j) of the I.D. Act? As per the statement of claim of the opp.parties-workmen, WTCER is an unit under the Indian Council of Agricultural Research (ICAR in short)which maintains a farm at Deras, Mendhasal to grow different varieties of crops and vegetables, besides undertaking various project works sponsored by different organizations and disseminates the research result to the sponsoring agency for money. Not only the research results, but also different agricultural products are sold at the appropriate market price, as such, the activities of the WTCER are analogous to trade and commerce and accordingly it is an ‘industry’ as defined under Section 2 (j) of the I.D. Act. On the other hand, in the written statement, petitioner contends that ICAR of which petitioner is an unit is a registered society, its main aim and objective is to do research work on water management for development of agricultural sectors of the nation in discharge of its sovereign function. The mandate of the petitioner Center are:- i) Act as centre for training in research methodologies and technology update in the area of agricultural water management in the region. ii) Act as repository of information in the status of agricultural water and management in the eastern region. iii) Collaborate with the relevant national and inter-national agencies to achieve the above objectives. iv) Provide consultancy in the field of agricultural water management; and v) undertake basic and applied research for developing strategies for efficient management on -farm water resources to enhance agricultural productivity on sustainable basis in the eastern region. According to the petitioner, as per section 2(j) of the I.D. Act WTCER is not an industry. 3. After hearing learned counsel for the parties and relying on the decision of the Apex Court in the case of Bangalore Water Supply and Sewerage Board Vs. A.Rajjappa and others AIR 1978 SC 969, The CGIT, Bhubaneswar held that though the petitioner is a research oriented organization of Scientists, the scientists themselves cannot carry on their project work without participation of the worker-class-employees. Simply from the mandate of the organization and the infrastructure facilities available in the center, it cannot be said that the activities of the organization are purely seasonal as claimed by the petitioner. It also held that in their counter, the petitioner-management admitted that the opp.parties-workmen were engaged on muster roll(as casual labourers)since the farms operation started in the year 1988 and their jobs have been entrusted to contract agency on 16.12.1990.This indicates that the research work of the institution is being carried on in an integrated manner with the co-operation of the workers as without them the predominating activity and object of the organization can never be reached. The entrustment of the works to a contract agency further indicates that the establishment is not possessed of non-employee character, the menial work performed by these workers and the work done by the scientists being complementary to each other. In this premises, the establishment cannot claim exemption from the operation of Section 2(j) of the I.D.Act. Accordingly, learned Presiding Officer, Industrial Tribunal held that the petitioner-organization by itself may be a research oriented one, but from the factum of engagement of the workers to carry out the basic work to 2 augment the research activities, it can well be said that the whole undertaking is ‘industry’ although those who are not workmen by definition may not benefit by the status, vide order dated 29.7.2005. This order has been challenged before this Court in the present writ petition. 4. Learned counsel for the petitioner submits that petitioner is carrying on the activity of research in a systematic manner with the help of its employees. It is not engaged in carrying any business activities. So, it cannot come under the ambit of ‘industry’ as defined under Section 2 (j) of the I.D. Act. Moreover, as per the amendment of the I.D. Act in the year 1982, research institutes are excluded from the purview of ‘industry’. So, the C.G.I.T., Bhubaneswar erred in holding that WTCER is an industry. In support of his submission, he relies on the decision in the case of Physical Research Laboratory v. K.G. Sharma, AIR 1997 Supreme Court, 1855 and the decision in the case of Central Agricultural Research Institute and another v. The Presiding Officer, Labour Court and others (1998) 3 CALLT, 209, HC. 5. Per contra, learned counsel appearing for the opp. parties-workmen contends that petitioner has a farm at Deras, Mendhasal extending more than 100 acres of land where it grows different variety of crops and vegetables and sales the same in the open market, besides undertaking various project works sponsored by different organizations and disseminates the research result to the sponsored agency for money. So, it fulfils the triple test, viz. (i) systematic activity (ii) organized by cooperation between the employer and employee; iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes and as such comes under the ambit of section 2 (j) of the I.D. Act, as held in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and others, (1978) 2 SCC 213.He further submits that clause (c) of Section 2 of Industrial Dispute (Amendment) Act, 1982 wherein the definition of ‘industry’ has been restructured has not yet come into force. So, the ‘industry’ as defined under Section 2 (j)in the pre-amended Act is still in force and accordingly, he supports the impugned order as passed by the C.G.I.T., Bhubaneswar. As per the amendment Act, 1982, the term ‘industry’ stands redefined as follows:- “(j) ‘Industry’ means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not, – (i) any capital has been invested for the purpose of carrying of such activity; or (ii) such activity is carried on with a motive to make any gain or profit, and includes- xxx xxx xxx xxx xxx xxx but does not include- 3 (1) xxx xxx xxx (2) xxx xxx xxx or (3) educational, scientific, research or training institutions; or xxx xxx xxx xxx xxx xxx xxx xxx xxx” As per this amendment, scientific, research institutions do not come within the ambit of the definition of ‘industry’. Basing on this restructured definition of ‘industry’ the Calcutta High Court in the case of The Central Agriculture Research Institute and another Vs. the Presiding Officer, Labour Court and others (1998)3 CALLT 209 HC held as follows:- “The result is that after the amendment a research institute will be outside the scope of the definition of ‘industry’ in section 2 (j) even if it satisfies the triple tests laid down by the Supreme Court and adopted in the amended definition of section 2 (j). Consequentially once it is found - as it has been - that CARI is a research institute it will be outside the definition of ‘Industry’ even if it satisfies the triple tests. In other words, now that once it has been found that CARI is a research institute, it does not become necessary thereafter to examine whether it satisfies the triple tests because by legislative definition research institute has been exempted expressly from the pale of the term ‘industry’. The conclusion therefore is inescapable that CARI being basically and functionally a research institute, is not an industry and consequently the reference of the matter relating to CARI for adjudication under the Industrial Disputes Act and the entire proceedings before the labour court and the award passed therein are all wholly without jurisdiction.” The Central Government appointed the 21st day of August, 1984 as the date on which clause (a), (b) and (d) to (k) of Section 2 and Sections, 3, 4, 5, 6, 8, 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 23 of the Industrial Disputes (Amendment) Act, 1982 would come into force. But clause (c) of Section 2 of the said Act which redefined ‘industry’ has not been included therein. Though asked, learned counsel for the petitioner could not give the date, if any, on which clause (c) of Section 2 of 1982 Amendment Act came into force. So, with due regard, the view taken in the case of Central Agricultural Research Institute (supra), cannot be accepted. 6. The decision rendered by the Apex Court in the case of Bangalore Water Supply (supra) still holds good. If a research institute fulfils the triple tests, as stated earlier, it cannot be exempted from the scope of section 2 (j) of the I.D. Act. As per the case of opp.parties-workmen WTCER undertakes welfare activities and economic adventure. It has more than 100 acres of land where it grows different variety of crops and vegetables by the help of workmen and sells the same in open market, besides undertaking various project works on being sponsored by different organizations and disseminates the research results to the sponsored agencies for money. In other words, in WTCER there is systematic activity, organized by cooperation between the employer and employees for production and distribution of goods and services calculated to 4 satisfy human wants and wishes and as such it would come within the ambit of Section 2(j)of the I.D.Act. It would be profitable to quote the view of the Apex Court taken in this regard in the case of Bangalore Water Supply(supra) which reads as follows:- “Does research involve collaboration between employer and employee? It does. The employer is the institution, the employees are the scientist, para-scientists and other personnel. Is scientific research service? Undoubtedly it is. Its discoveries are valuable contributions to the wealth of the nation. Such discoveries may be sold for a heavy price in the industrial or other markets. Technology has to be paid for any technological inventions and innovations may be patented and sold. In our scientific and technological age nothing has more case value, as intangible goods and invaluable services, than discoveries. For instance, the discoveries of Thomas Alva Edison made him fabulously rich. It has been said that his brain had the highest cash value in history for he made the world vibrate with the miraculous discovery of recoded sound. Unlike most inventors, he did not have to wait to get his reward in heaven; he received it munificently on this gratified and grateful earth, thanks to conversion of his inventions into money aplenty Research benefits industry. Even though a research institute may be a separate entity disconnected from the many industries which funded the institute itself, it can be regarded as an organization, propelled by systematic activity, modeled on co-operation between employer and employees and calculated to throw up discoveries and inventions and useful solutions which benefit individual industries and the nation in terms of goods and services and wealth. It follows that research institutes, albeit run without profit- motive, are industries.” Moreover, the decision in the case of Mgt. of Indian Council of Agricultural Research, Krishi Bhawan, New Delhi and its workmen (I.D.No.9182) rendered by the Presiding Officer, Industrial Tribunal No.2, TIS HAZARI Court, Delhi published on February 4, 1988 in the Govt. of India, Delhi Gazette shows that the learned counsel appearing on behalf of ICAR did not press before the Labour Court that ICAR was not an ‘industry’. In other words it was admitted that ICAR was an ‘industry’. Furthermore, it is found from instruction No.4/85 dated 17.5.1985 of the Chief Labour Commissioner (C), New Delhi addressed to all concerned officers to treat that the Central Government is the appropriate Government in respect of Indian Council of Agricultural Research and its allied institutions in Central Sphere and enforce the provisions of Minimum Wages Act, 1948, Contract Labour(R&A)and entertain Disputes under the Industrial Disputes Act. All these go to show that WTCER which is an unit of ICAR is an industry. 7. With respect, I am of the view that the case of Physical Research Laboratory (supra), would not be applicable to the present case, because Physical Research Laboratory is an institution under the Government of India’s Department of Space which is engaged in pure research in Space and Science. The purpose of the research is to acquire knowledge about the formation and evolution of the universe, but the knowledge thus acquire is not intended for sale. 5 So, it is held that WTCER is an ‘industry’ as defined under Section 2 (j) of the I.D. Act, and as such, the writ petition stands dismissed. No cost. Writ petition dismissed. 6