Bhawan Trust Vs. Bharat Bhawan Artists Assocation & Anr  Insc 409 (22 August 2001)
Babu & Shivaraj V. Patil Rajendra Babu, J. :
Bhawan Trust, appellant herein, was established under the Bharat Bhawan Nyas Adhiniyam,
1982 [hereinafter referred to as the Act]. The main objects of the said Trust
are to preserve and explore, innovate, promote and disseminate arts and to
manage and expand Bharat Bhawan as a national centre of excellence in creative
2(a) of the Act defines Bharat Bhawan to mean the structure for multi-arts
centre built in Bhopal and includes the premises described
in the Schedule with all buildings contained therein together with all
additions thereof which may be made after the commencement of the Act. Under
the Schedule to the Act, apart from describing the boundaries thereto, it has
been described to include
the Museum of Fine Art,
Madhya Pradesh Rangmandal, the theatre repertory,
the Library of Indian Poetry, and 4. Anhad, the Library of Music.
was appointed as the Director of the Rang Mandal and thereafter he was
succeeded by Mr. Habeeb Tanveer, another eminent theatre personality as the
Director. The appellant entered into an agreement with:
Anoop K. Joshi,
Sanjay Mehta and
are creative artists, for the purpose of production of drama and theatre
management. They were also entrusted with certain other duties ancillary to
production of drama and theatre management. Apprehending that their services
were likely to be terminated or not renewed on the expiry of the contract,
these artists filed a suit for declaration and injunction for regularisation of
their services and against the revamping of Rang Mandal. Temporary injunction
was refused. Thereafter, all the 13 artists, who approached the court, entered
into fresh agreement, which was to remain in force till 28.2.1997, and the suit
was thereafter withdrawn. On 10.1.1997, the said artists raised a dispute which
was referred to the Labour
adjudication in 33/97.ID and the artists filed their claims before the Labour Court and sought for interim relief.
appellant filed a statement of claim and reply to the claim for interim relief
raising preliminary objection that the Trust is not an industry and the artists
are not workmen under the Industrial Disputes Act. The Labour Court made an interim award directing
maintenance of status quo and restraining the appellant from terminating the
services of these artists. The High Court by an order made on 16.10.1997
directed the Labour
Court to decide the
preliminary objection raised by the appellant on the basis of the documents
filed by the parties before the Labour Court. The Labour
Court made an order
on 17.1.1998 holding on the basis of the documents filed by the parties that
the appellant is an industry and the artists are workmen. This order is in
challenge in this appeal.
learned senior Advocate appearing for the appellant, submitted that the
appellant is a unique institute of its kind in the country set up by the
Government of Madhya Pradesh where all forms of arts such as performing art,
fine art, music, drama, poetry and tribal arts are preserved, promoted and
developed. He submitted that although this Court in Bangalore Water Supply &
Sewerage Board vs.
& Ors., 1978 (2) SCC 213, has given a very wide meaning to both the
expressions of industry and workman, by no stretch of imagination the appellant
could be characterised as an industry, which is engaged in an esthetic
activity. He also drew our attention to the decisions in 1955 LLJ 448; Miss A.Sundarambal
vs. Government of Goa, Daman & Diu & Ors., 1988 (4) SCC 42 [in which
teachers were held not to be workmen although the educational institutions
where they serve may be industry]; T.P.Srivastava vs. M/s National Tobacco Co.
India Ltd., 1992 (1) SCC 281, wherein this Court held that a salesman employed
for canvassing and promoting sales of companys product in an area involve
duties suggesting of ways and means to improve sales, study of type or status
of the public to whom the product has to reach, study of market condition and
supervising work of other local salesmen cannot be termed to be either manual,
skilled, unskilled or clerical in nature but requires an imaginative and creative
mind and such a person cannot be termed as workman. He also submitted that the
incidental activity entrusted to the respondent artists are all connected with
the production of drama and theatre management and, therefore, cannot be taken
to be a separate activity to class them as workmen. He submitted that the view
taken by the Labour
Court needs to be
corrected at our hands.
learned senior Advocate appearing for the respondent artists, submitted that
considering the period for which the services of the respondent artists were
engaged, the nature of the activities carried on by them, even though to some
extent creative is not by itself sufficient to state that they fall outside the
scope of the definition of a workman and strongly relied upon the decision of
the Bombay High Court in 1959 (1) LLJ 78, wherein a set-up was available to
provide instrumental music on occasions like weddings or similar functions and
those who were engaged in playing the band or the music were held to be workmen.
He, therefore, submitted that the rationale adopted in that case may also be
adopted by us. Relying upon the decision in H.R.Adyanthaya & Ors. vs. Sandoz
(India) Ltd. & Ors., 1994 (5) SCC 737, he submitted that even though
respondent artists may be classed as skilled persons in their respective
fields, they were also workmen despite the fact they may not be engaged in
upon the decision in Workmen Employed by Hindustan Lever Ltd. vs. Hindustan
Lever Ltd., 1984 (4) SCC 392, he also pointed out that the parties should not
be allowed to raise preliminary objection in industrial disputes which may
stall the further proceedings and such contention should be dealt with only at
the final stage.
perspective presented to us in this case, two issues arise for consideration,
viz., 1] whether the appellant, which is an institution for the promotion of
art and culture, is an industry, and 2] whether the respondents, who are
artists, are workmen. We may start our investigation with reference to three
tests referred to in BWSSB vs. A.Rajappas case [supra], which are as under:
the institution is engaged in a systematic activity,
by cooperation between employer and employee
the production of goods and services.
in BWSSB vs. A.Rajappas case [supra] included a wide variety of situations
within the ambit of Section 2 (j), including professions, clubs, educational
institutions, cooperative societies, research institutions, charitable projects
etc. This Court also held that the absence of profit motive or gainful
objective is of no consequence and would not leave the entity outside the scope
of the definition of industry.
have been innumerable decisions following the said decision, which have taken a
broad view of the definition of industry. Following the tests laid down in
BWSSB vs. A.Rajappas case [supra], this Court in Suresh Kumar v. Union of India
 II LLJ 110, held that an institution of Yoga was an industry. In BWSSB
vs. A.Rajappas case [supra], this Court, however, qualified the dictum by
explaining that where a complex of activities some of which qualify for
exemption, others not, involves employees on the total undertaking, some of
whom are not workmen, or some departments are not productive of goods and
services, and the integrated nature of the departments will be the true test.
The whole undertaking will be industry although those who are not workmen by
definition may not benefit. It was held that in an educational institution
there may be many activities which are separable from the teaching activities.
to hold that the appellant is an industry, it must satisfy the requirements of
the section and the tests laid down in BWSSB vs. A.Rajappas case [supra].
Bhawan Trust, as is clear from its objects, to which we have adverted to
earlier, is engaged only in the promotion of art and preservation of artistic
talent. Such activities are not one of those in which there can be a large
scale of production to involve the cooperation of efforts of the employer and
the employee nor can it be said that the production of the plays will be a
systematic activity to result in some kind of service. Therefore, it is
doubtful, in spite of the wide connotation given to industry in BWSSB vs. A.Rajappas
case [supra], if the appellant can be classed as an industry under the
definition given under Section 2(j) of the ID Act and we need not finally
decide this aspect in the present case.
assuming that the appellant is an industry the more important question would be
to examine whether the artists employed by it are workmen. Under the ID Act, a workman
any person (including an apprentice), employed in any industry to do any
manual, unskilled, skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of employment be express or implied,
and for the purposes of of any proceeding under this ac, in relation to an
industrial dispute, includes any such person who has been dismissed
,discharged, or retrenched in connection with or in consequence of that
dispute, or whose dismissal, discharge or retrenchment has led to that dispute
but does not include..
artist engaged in the production of drama or in theatre management or to
participate in a play can by no stretch of imagination be termed as workman
because they do not indulge in any manual, unskilled or technical, operational
or clerical work, though they may be skilled, it is not such a work which can
be read ejusdem generis along with other kinds of work mentioned in the
definition. A Constitution Bench of this Court in H.R.Adyanthaya vs. Sandoz (India) Ltd.s case [supra], after review
of the entire case law, held as follows :
regards the word skilled, we are of view that the connotation of the said word
in the context in which it is used, will not include the work of a sales
promotion employee such as the medical representative in the present case. That
word has to be construed ejusdem generis and thus construed, would mean skilled
work whether manual or non-manual, which is of a genre of the other types of
work mentioned in the definition.. [emphasis supplied] [p.755] The work that
the respondents perform is in the nature of a creative art and their work is
neither subject to an order required from the Art Director nor from any of the
artists. In performing their work, they have to bring to their work, their
artistic ability, talent and a sense of perception for the purpose of
production of drama involving in the course of such work, the application of
the correct technique and the selection of the cast, the play, the manner of
presentation, the light and shade effects and so on. In effect, the work they
do is creative art which only a person with an artistic talent and requisite
technique can manage.
call such a person, a skilled or a manual worker is altogether inappropriate.
An artist must be distinguished from a skilled manual worker by the inherent
qualities, which are necessary in an artist, allied to training and technique.
We derive support for this proposition from T.P.Srivastava vs. M/s National
Tobacco Co. of India Ltd.s case [supra] wherein section
salesman employed for canvassing and promoting sales of companys products in an
area could not be put under the category of workman. There is no question of
any work being given to them because the work of an artist is essentially
creative, and freedom of expression is an integral part of it. In Hussianbhai v
Alath Factory Tezhilali Union,  Lab IC 1264 (SC), this Court held as
a worker or a group of workers labour to produce goods or services and these
goods or services are for the business of another, that other is in fact the
this case, firstly, no goods and services are being produced, secondly, the
acting that is done is not for the business of another. There is a mere
expression of creative talent, which is part of freedom of expression.
other work, apart from acting, that is entrusted to them is only ancillary to
the main work and thus the respondents are not workmen.
The Labour Court has missed the essence of the
matter and has gone on to deal with the aspects not germane to a case of this
nature. Even a careful perusal of the documents which may regulate the terms on
which they were employed and the emoluments to be payable to them and other
kinds of work they have to do such as extension of hospitality by receiving and
taking care of other artists are not factors which would weigh against the
conclusion reached by us. The Labour Court,
on the other hand, has relied on these aspects which are mere details.
we find that the preliminary objection raised by the appellant is valid and
ought to have been upheld by the Labour Court. We, therefore, allow this appeal and set aside the order
made by the Labour Court. No costs.
RAJENDRA BABU ] ...J.
V. PATIL] August 22,