P. Ramakrishnam Raju, J.
1. The 2nd respondent, an ex-winch Driver. Visakhapatnam Dock Labour Board, raised an Industrial Dispute before the industrial Tribunal, Hyderabad questioning the termination of his services. According to the claim statement filed by him, his request for voluntary retirement was accepted, and he was relieved from service. He was also advised to collect the retirement benefits. But surprisingly, an order was passed removing him from service from Dock Labour Board, Visakhapatnam. As there was no response to several representations made by him, he filed Writ Petition No. 498 of 1989, wherein the High Court held that the Labour Board is an Industry, and accordingly, a reference was made to the Industrial Tribunal in I. D. No. 80 of 1988. While so, the petitioner filed Miscellaneous Petition No. 149 of 1989 to decide "whether the Industrial Tribunal has got jurisdiction to try this matter" as preliminary issue. The Industrial Tribunal has decided that the Dock Labour Board is an Industry, and therefore, it has got jurisdiction to agitate the matter. Hence, the writ petition.
2. In this writ petition, Sri M. Srinivasamurthy, the learned Counsel for the petitioner contends that the issue that arises for consideration in this writ petition viz. whether the Dock Labour Board, Visakhapatnam is an Industry or not has been decided as early as on 10-9-1969 by the Supreme Court in Dock Labour Board v. Stevedores Association , and therefore the said question is no longer res integra. According to the learned Counsel, the Supreme Court considering the various decisions in this aspect and also several provisions of the Industrial Disputes Act and the scheme framed by the Central Government under sub-section (3) of the Section 4 of the Act, finally decided that Dock Labour Board, Visakhapatnam is neither an employer, nor carries on any industry.
3. Shri P. B. Vijayakumar, the learned Counsel appearing for the second respondent relying on a decision reported in Bangalore Water Supply v. A. Rajappa contends that Dock Labour Board is an industry and the decision reported in Dock Labour Board v. Stevedores Assn. is impliedly overruled. A seven Judge Bench of the Supreme Court considering the definitions like 'Industry' undertaking employee, worker and the other provisions of the Act and after considering the conspectus of case law on the subject, finally postulated triple test viz., (i) systematic activity; (ii) organised 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 i.e., making on a large scale prasad or food) prima facie, there is an industry in that the enterprise. They have also overruled The Management of Sardar Jung Hospital v. Kuldip Singh Sethi ; National Union of Commercial Employees v. M. R. Meher ; Madras Gymkhana Club Employees' Union v. Management ; University of Delhi v. Ram Nath (AIR 1963 SC 1878); The Dhanrajgirji Hospital v. The Workmen and other rulings whose ratio runs counter to the proposition enunciated above. According to the learned counsel for the second respondent the decision reported in Dock Labour Board v. Stevedores Assocn. us based on Madras Gymkhana Club Employees' Union v. Management , which was overruled. In Madras Gymkhana Club Employees' Union v. Management ,
Hidayatullah, J., as he then was speaking for the Court observed that :
"What matters is not the nexus between the employee and the product of the employer's occupation. If his work cannot be described as an industry his workmen are not Industrial workmen and the disputes arising between them are not industrial disputes. The cardinal test is to find to out whether there is an industry according to the denotation of the work in the first part. The second part will them show what will be included from the angle of employees."
It is further observed that industry is the nexus between employers and employees and it is this nexus which brings the distinct bodies together to produce a result. Basing on this reasoning, Justice Vidyalingam speaking for the Bench in Dock Labour Board v. Stevedores Association (supra), held that the Dock Labour Board is not an Industry. As the decision reported in Madras Gymkhana Club Employees' Union v. Management has been overruled, the
subsequent decision relied upon by the petitioner reported in Dock Labour Board v. Stevedores Association (supra), also is had in law. Therefore, the Labour Court has rightly, in my view, found that the Dock Labour Board mist be treated as industry, and therefore, the Tribunal has got jurisdiction to decide the dispute.
4. Sri K. Srinivasamurthy, the learned Senior Advocate for the petitioner next submitted that the Supreme Court in Dock Labour Board v. Stevedores Association (supra), on consideration of the relevant provisions of the scheme framed by the Central Government came to the conclusion that there is no relationship of employer and employee between the petitioner and the second respondent. I am unable to accept this submission for two reasons. Firstly, the decision of the Supreme Court on which he relies is no longer a good law; and secondly, this question was not raised before the Industrial Tribunal. As this question is not decided under the impugned order, it is not proper for me to go into this aspect in this writ petition.
5. Lastly, the learned Counsel for the second respondent appealed to this Court that as the Industrial Tribunal is established at Visakhapatnam, it would be more convenient for both the petitioner whose office is also located and where the second respondent is residing to have the matter adjudicated by the Industrial Tribunal at Visakhapatnam and not at Hyderabad. Keeping in view the convenience of the parties, I direct the Central Government to transfer the matter to the Industrial Tribunal at Visakhapatnam for adjudication according to law.
6. For all the above reasons, the writ petition fails and is accordingly dismissed. No order as to costs.