1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.143 OF 2004 Shamim Ahmed Siddique. ..Petitioner. V/s. Kalyandas Udyog Bhavan Premises Co-op Society Ltd. & Ors. ..Respondents. WITH WRIT PETITION NO.613 OF 2004 Kaliandas Udyog Bhavan Premises Co-operative Housing Society Ltd. & Ors...Petitioners. V/s. Shamim Ahmed Siddique. ..Respondent. Mr.Naushad Engineer i/b. R.M.G.Law Asso. for Petitioner. Mr.Mahesh Londhe i/b. S.Udeshi & Co. for respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 11, 2008. DATE : FEBRUARY 11, 2008. DATE : FEBRUARY 11, 2008. P.C. : P.C. : P.C. : 1. This Order will dispose off both the Writ Petitions together, as it is between the same parties arising out of the Complaint(ULP) 64 of 1994 filed by the Complainant(Petitioner in W.P.No.143 of 2004). Whereas, Writ Petition No.613 of 2004 is filed by the Respondent (Management) in the said Complaint. For the sake of convenience, the parties will be referred to as per their description in the complaint. 2 2. Essentially, two questions would arise for consideration in the present Petitions. The first question is whether the Respondent Society is an Industry within the meaning of Industrial Disputes Act. Secondly, whether the Complainant is workman within the meaning of Industrial Disputes Act, so as to pursue the grievance regarding unfair labour practice by way of complaint before the Labour Court by invoking provisions of MRTU and PULP Act 1971. 3. The Courts below have concurrently found that the Respondent Society is an Industry and that the complainant is not a workman. If this Court were to accept the stand taken on behalf of the Respondent-soceity that it is not an Industry, it will not be necessary to address the second question, that would arise for consideration as to whether the Complainant can be said to be a workman within the meaning of the Industrial Disputes Act. 4. The Courts below have essentially found that the Respondent society is an Industry on the basis of the oral and documentary evidence, which according to them indicated that the Respondent Society was engaged in commercial activities with the cooperation 3 of its employees. It is further held that the activities performed by the Society are not disputed. Besides, the financial position of the Respondent Society is also very sound. In that, the Respondent Society has invested substantial amount in the fixed deposit on which interest is accruing. These are the vital facts which weighed with the Courts below to hold that the Respondent Society is an Industry. 5. Counsel for the Respondent Society has placed reliance on the recent decision of the Division Bench of our High Court in the case of Shantaram Pandurang Shantaram Pandurang Shantaram Pandurang Jadhav & Ors. V/s. Kiran Industrial Premises Co-op. Jadhav & Ors. V/s. Kiran Industrial Premises Co-op. Jadhav & Ors. V/s. Kiran Industrial Premises Co-op. Soc.Ltd. (2007 III CLR 418) Soc.Ltd. (2007 III CLR 418) Soc.Ltd. (2007 III CLR 418) to contend that the view taken by the Courts below as to whether the Respondent Society is an Industry, is not only an error apparent on the face of the record but also in the teeth of the legal position expounded by our High Court- which takes the view that in so far as cooperative societies are concerned, in particular, who are rendering personal services to its members and have been constituted only for the purpose of those members, if engages the services of employees, would not constitute an Industry nor the employees can be treated as workmen. Counsel for the Respondent Society has also placed reliance on the 4 decision of the single Judge of our High Court in same case reported in 2001(1) CLR 1046(Kiran 2001(1) CLR 1046(Kiran 2001(1) CLR 1046(Kiran Industrial Premises Co-op.Society Ltd. V/s. Janata Industrial Premises Co-op.Society Ltd. V/s. Janata Industrial Premises Co-op.Society Ltd. V/s. Janata Kamgar Union & Ors.) Kamgar Union & Ors.) Kamgar Union & Ors.), which went on to observe that services rendered by Cooperative Societies to its members, there is no commercial aim or purpose to engage in the activities of the Society. It is further held that the fact that the Society has excess amount over its expenditure, that cannot be the test to hold that the Society is a commercial establishment or an Industry as such. Applying the exposition in the above two reported cases, I have no difficulty in taking the view that the Respondent Society by no stretch of imagination can be said to be an Industry. 6. Counsel for the Complainant however, vehemently canvassed that the decisions pressed into service on behalf of the Respondent society can be distinguished. According to him, the Respondent society is registered as a general society under other category in terms of Rule 10(9) of the Maharashtra Cooperative Societies Rule, 1961. The said Rule classifies and subclassifies the societies as not covered either by the other subclauses referred to in the said provision. The argument 5 clearly overlooks that although the registration of the society is in the category of "general others", i.e. classified as general society and subclassified as other society, however, the objects of the society stipulated in the Bye-laws, the Society has been formed by the members with the following objects. B-OBJECTS B-OBJECTS B-OBJECTS THE OBJECTS OF THE SOCIETY SHALL BE:- B.1.1 The purpose of this society is primarily to constitute an organization of persons who have taken flats in the blocks of buildings of flats known as Kaliandas Gdyog Bhavan constructed on the land bearing Plot/s.No.1081,1082 T.P.S.IV Mahim admeasuring 5090.40 sq.mts.located at Worli Bombay-400015(referred to in the application for registration) as required by Sec.10 of the Maharashtra Ownership Flats Act, 1963 (regulatin of the promotion of construction, sale, management and transfer) and in pursuance of which its objects shall be:- (a) to obtain an assignment of title in the land and building referred to above from its promoter Shri Gobind Kaliandas Dayanani and to receive all documents of title relating to the property which may be in his possession or power as required by Sec. 11 of the M.O.F. Act 1963 (regulation of the promotion of construction c.c.) (b) to manage administer and maintain the said property in accordance with the co-operative principles and enforce the obligations of the flat-purchasers to the society and interse. (c) to provide social and other amenities to members who have taken flats. (d) to borrow monies as and when required 6 for carrying out the objects of the select subject to the provisions made in those bye-laws, or regulating of the part of the limit of raising loan funds. (e) shall other things that may be necessary to expedite attainment of the object of the society specified in those bye-laws. (f) shall be not act beyond the scope of the above objects without prejudice these bye-laws duly approved by the Registering Authority. 7. Going by the aforesaid objects, by no standards it can be said that the Society has been formed to undertake commercial activities. In other words, the nomenclature of registration as "General Others" cannot be the sole basis to assume that the Society has commercial aim or purpose. The objects for which the Society has been formed is controlled by the Statement in the Bye-laws, which indicates that it is formed to extend specified services to its members. 8. The Counsel for the complainant would then rely on the observations made by the Courts below that the oral evidence and documentary evidence shows that the Respondent Society is doing commercial activities with the help of its employees. This argument clearly overlooks the admission of the 7 complainant during the cross-examination in paragraph-6. The Complainant has deposed thus: "It is correct that the respondent society is provided essential services to the office members i.e. society work, lift man work, water supply, and electricity work. It is correct that the respondent is not mfg. any product. It is correct that the respondent was not selling and purchasing the goods. It is correct that the society has not its own premises." In view of the stand taken by the complainant, in his evidence, it is too late in the day for the complainant to contend that Respondent Society is engaged in commercial activities, as such. 9. Besides, it will be apposite to advert to the finding recorded by the Industrial Court in paragraph-11. The Industrial Court observed thus: "11. Admittedly the orig. respondent society is not carrying any commercial business as such. The society is not possessing any shop for carrying out the manufacturing activities. The function of the society is to provide essential service to the society members, such as security service, liftman, water supply, electricity work." 10. A priori, the abovesaid finding of the Industrial Court that the Respondent society is not 8 engaged in carrying on commercial business is unexceptionable. Going by the said finding and applying the exposition of the Division Bench of our High Court in the case of Shantaram P. Jadhav Shantaram P. Jadhav Shantaram P. Jadhav (Supra) (Supra) (Supra), which follows the dictum of the Apex Court in the case of Managment of SOM Vihar Apartment Managment of SOM Vihar Apartment Managment of SOM Vihar Apartment Owners Housing Maintenance Society Ltd.. reported in Owners Housing Maintenance Society Ltd.. reported in Owners Housing Maintenance Society Ltd.. reported in 2001(1) LLJ 307 2001(1) LLJ 307 2001(1) LLJ 307, which in my opinion, is directly on the point. The test to be applied is expounded by the Apex Court. In that, when the personal services are rendered to the members by the society and society is constituted for the purpose of its members, to engage the services of its employees to effectuate such activities cannot be treated as industry, nor the employees as workman. 11. Suffice it to observe that neither in fact nor in law, it is possible to accede to the stand taken on behalf of the complainant that the Respondent Cooperative Society is or was engaged in commercial activities and business activities as such. On this conclusion, it necessarily follows that the complaint filed by the complainant before Labour Court was not maintainable. 12. Counsel for the complainant would then submit 9 that the question whether the complaint as filed by the complainant was maintainable, cannot be agitated at the instance of the Respondent society before this forum. For that, the Counsel would rely on the grounds taken in the revision filed before the Industrial Court being Revision Application (ULP) No. 71 of 1999 and the eventual Order passed by the Industrial Court in the earlier round on 1st December, 1999, partly allowing the said Revision Application. According to the complainant, the question as to whether the complaint filed by the complainant was maintainable, was directly put in issue at that stage of the proceedings and has been answered against the Respondent society by relegating the parties before the Labour Court, in terms of the remand order dated 1st December, 99. This submission clearly overlooks that the opinion recorded by the Industrial Court in its earlier Order dated 1st December, 1999 was only to remand the proceedings without expressing any final opinion on the fact as to whether the Respondent society is an Industry or otherwise. That question was to be eventually answered by the Labour Court, being one of the issue to be considered upon remand. 13. Even assuming that the Order of the 10 Industrial Court may have finally answered the question of maintainability of the complaint against the Respondent society, however, that cannot preclude the Respondent society from agitating the said issue before this Court in the present Writ Petition, which is before a superior Court. To my mind, the opinion recorded by the Industrial Court, at best, would be binding on the said Court or the Labour Court where the remand proceedings were tried. Indubitably, the question as to whether the Respondent society is an industry goes to the root of the matter; and if the Respondent is not an industry, it will necessarily follow that the Labour Court has no jurisdiction to try and entertain the dispute as was brought before it. Thus understood, the argument that the issue of maintainability of the complaint cannot be entertained at the instance of the Respondent society in the present Writ Petition does not commend to me. 14. As no other contention has been raised before me, in my opinion, both the Petitions will have to be disposed off on the finding that the complaint as filed before the Labour Court was not maintainable as the Respondent society is not an industry. No order as to costs. 11 15. Needless to observe that the complainant will be free to take recourse to such other remedy, as may be permissible by law, which will be decided on its own merits. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)