Brij Mohan Bagaria v N.C. Chatterjee (1958)

It is the clearest statement of the argument that a liberal profession is not an industry, and it draws a line that is still worth knowing: between what a professional does by his own intellectual attainment and skill, and a business he may happen to carry on alongside it.

The case also makes a point that students often get wrong: the size of the staff is irrelevant. A solicitor with fifty employees is not carrying on an industry merely because he employs fifty people.

The petitioner, Brij Mohan Bagaria, was an attorney practising in the Calcutta High Court, and had been for eighteen years. His office at 6 Old Post Office Street employed 6 qualified assistants, 2 articled clerks, about 42 ordinary clerks and 14 subordinate staff.

His employees formed the B.M. Bagaria Employees' Union. In November 1956 the Union submitted a Charter of Demands seeking increases in basic salary and dearness allowance, stating that while the petitioner's practice was flourishing, the salaries of clerical and subordinate staff "fell far below the middle class and working class living index respectively and did not even reach the bare subsistence level."

The petitioner alleged the employees tried to create a deadlock and used pressure tactics; the Union denied this. It is common ground that on 18 March 1957 the employees held a pen-down strike. The petitioner served charge-sheets and, after enquiry, terminated the services of some employees — victimisation for a lawful strike, said the Union.

Conciliation failed, and on 10 July 1957 the Government of West Bengal made a reference under s. 10. Notably, the reference described the parties as "Messrs. B.M. Bagaria ... and their employees", and the Labour Court described the petitioner as a "company" — he was neither.

Is the calling of a solicitor or attorney, carrying on his normal professional avocations, an "industry" within the Act — so that a dispute with his employees is an industrial dispute referable under s. 10?

The rule was made absolute. The reference was quashed by certiorari and a writ of prohibition issued restraining the respondents from proceeding with the adjudication. No order as to costs.

The reasoning

"The profession of a lawyer, in so far as the normal avocations of lawyers are concerned which is dependent upon his own intellectual attainments and the skill with which he conducts the cases entrusted to him by his clients, that has never been construed as industry in the sense in which it is used in the Act."

The same for an attorney: "the normal avocations of an attorney are entirely dependent upon his own intellectual attainments and individual skill with which he acts for his clients."

Staff size is not the test: "In doing so, he may employ many assistants and a large number of staff, but, that, to my mind, makes no difference, because it is not the largeness or smallness of the staff that is decisive of the question."

But the profession can become an industry: "a lawyer under certain circumstances may be carrying on an industry. For example, if a lawyer carries on a business of publication of legal literature, that would be a different matter altogether." And "an attorney's profession can be turned into an industry under certain circumstances. For example, if he carries on an investment business."

On the facts, "it is not the case of the respondents that the petitioner carries on anything more than his normal avocation as an attorney."

The arguments rejected

The Union had argued that a profession is a "calling", and callings are included in the definition; that the petitioner employed many people; that the staff did clerical and manual work and were therefore workmen; and that he earned fees "with the help of the labour and skill of his employees combined with his own skill, labour and capital."

"In my opinion, these grounds are not sufficient to hold that the calling of the petitioner constitutes an industry within the meaning of the Act."

And a candid acknowledgement of where the power lies

"It is open to the legislature to include such callings within the scope of the Act. But until that is done, the calling of a solicitor carrying on his normal avocations cannot be called an industry within the meaning of the word as used in the Act."

It followed that "there was neither an Industry in the present case, nor an industrial dispute, nor can the employees of the petitioner be described as workmen", so the reference under s. 10 was without jurisdiction.

The normal professional practice of a lawyer or attorney, depending on his own intellectual attainment and individual skill, is not an "industry", irrespective of how many employees he engages; but a professional who also carries on a business — publishing, investment — may to that extent be carrying on an industry.

This is the older view, and it did not survive intact.

Bangalore Water Supply and Sewerage Board v A. Rajappa (1978), a seven-judge bench, laid down the triple test and swept in most undertakings, expressly addressing the liberal professions. Krishna Iyer J's propositions treat a professional firm as capable of being an industry where there is co-operation between employer and employees for the production or distribution of services — with the qualification that where the professional's own skill is the whole of the service and employees are merely incidental, it may fall outside.

So the modern answer to the question this case asks is less categorical. Use Bagaria for the classical argument and the intellectual-skill distinction; use Bangalore Water Supply for the governing test.

• Direct question: Are the liberal professions an industry? Give the classical position with this case, then the triple test in Bangalore Water Supply, and conclude with the modern position rather than the 1958 one.
• Two points that always earn marks: the number of employees is not decisive; and a professional may carry on an industry alongside the profession — publishing, investment — so ask what the person actually does.
• On jurisdiction: if there is no industry, there is no industrial dispute and no power to refer under s. 10; the remedy is certiorari and prohibition. This case is a clean illustration of a reference quashed for want of jurisdiction.
• A detail worth noticing: the reference described a sole practitioner as "Messrs" and the Labour Court called him a "company". Sloppy identification of the parties is itself a ground of attack on a reference.