Holding

Artists engaged in creative theatrical performance are not "workmen" under the Industrial Disputes Act, 1947.

Summary

The Bharat Bhawan Trust, a statutory body created to promote art and culture, engaged a group of artists for drama production and theatre management. The artists later raised a dispute before the Labour Court, to which the Trust objected on the preliminary ground that it was not an "industry" and the artists were not "workmen" under the Industrial Disputes Act, 1947. The Labour Court rejected the objection, holding that the Trust was an industry and the artists were workmen. On appeal, the Supreme Court examined the statutory definitions and held that an artist engaged in creative performance does not fall within the definition of "workman" as the work is neither manual, unskilled, technical, operational nor clerical, and must be read ejusdem generis. While the Court noted that the Trust’s status as an "industry" was doubtful, it declined to decide that issue and upheld the Trust’s preliminary objection, setting aside the Labour Court’s order. The appeal was allowed.

Issues considered

Whether the Bharat Bhawan Trust qualifies as an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act, 1947.
Whether artists engaged in drama production and theatre management constitute "workmen" under Section 2(s) of the Industrial Disputes Act, 1947.

Legislation cited

Industrial Disputes Act, 1947s. 20, s. 2(j), s. 2(s)

Subjects

Industrial Disputes Actdefinition of workmandefinition of industryartiststheatrecultural institutionpreliminary objectionlabour courtSupreme Court

Judgment

BHARAT BHA WAN TRUST A
V.

BHARAT BHAWAN ARTISTS ASSOCIATION AND ANR.

AUGUST 22, 2001

[S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.]· B

Labour Laws;

Industrial Disputes Act, 1947 :
c
Section 2(s)- "Workman "-Who is--An artist engaged in an institution
for promotion of art and culture-Not indulged in any manual, unskilled or
technical, operational or clerical work-Held, cannot be termed as
"workman'.'-Bharat Bhawan Nyas Adhiniyam, 1982.

Section 20)-"Industry"-Scope of-Requirements of Section 20) of the D
Act and the tests laid down by Supreme Court in Bangalore Water Supply's
case must be satisfied-Trust engaged in promotion of art and culture-Held,
whether it is as an industry need not be finally decided in the instant case-
Bharat Bhawan Nyas Adhiniyam, 1982.

Words & Phrases:
E

"Workman"-Meaning of in the context of Section 2(s) of the Industrial
Disputes Act, 1947.

"Indust1y"-Meaning of in the context of Section 2(/) of the Industrial F
Disputes Act, 1947.

Appellant-Trust, an institution established for promotion of art and
preservation of artistic talent, engaged respondent-artists for the purpose of
production of drama and theatre management alongwlth other ancilliary
duties. The respondent-artists raised a dispute before the Labour Court in G
-~
which preliminary objection was raised by the Trust that it was not an
J
I "industry" and that the artists were not "workman" under the Industrial
Disputes Act, 1947. The said objection having been dismissed, the Trust
preferred the present appeal.

On behalf of the appellant it was contended that by no stretch ·or H ·
27
28 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A imagination the appellant could be characterised as an "industry", which is
engaged in an aesthetic activity; that the incidental activity entrusted to the
respondent artists were 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".

B Allowing the appeal, the Court

HELD: I. I. An 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 he does not indulge in any manual, unskilled
or technical, operational or clerical work, though he may be skilled, it is not
c such a work which can be read ejusdem generis along with other kinds of
work mentioned in the definition. [33-D-E)
•
1.2. The work that the respondent artists 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. An artist must be distinguished from
D
a skilled manual worker by the inherent qualities, which are necessary in an
artist, allied to training and technique. In the instant 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. The other works, apart from acting that is
E entrusted to them is only ancillary to the main work and thus the respondents
are not 'workmen'. (33-G-H; 34-A, D-EJ

H.R. Advanthaya and Ors. v. Sandoz (India) Ltd and Ors., (1994( 5 SCC
737, followed.

F TP. Srivastava v. Mis. National Tobacco Co. of India Ltd, f 1992( I SCC
281 and Hussinabhai v.Alath Factory Tezhila/i Union., 1978 (Lab IC 1264 SC),
relied on.

2. In order to hold the appellant trust to be an "industry", it must satisfy _,
the requirements of Section 2 (j) of the Act, and the tests laid down by this
G court in Bangalore Water Supply's case. On perusal of objectives of appellant-
t

Trust it is clear that it 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 production to involve the cooperative efforts of the employer and
the employees nor can it be said that the production of the plays will be a
H systematic activity to result in some kind of service. Therefore, it is doubtful,
BHARAT BHA WAN TRUST•·. BHARAT BHAWAN ARTISTS ASSOCIATION. [RAJENDRA BABU, J.) 29

inspite of the wide connotation given to "industry" in Bangalore Water Supply's A
case if the appellant can be classed as an 'industry under the definition given
under Section 2(j) of the l.D. Act. Thus, this aspect need not be finally decided
in the instant case. 132-E-H; 33-AI

Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors.,
'1197812 sec 213, followed. B
Suresh Kumar v. Union of India., (1989) (II) L'l,J 110, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5614 of
2001.
c
From the Judgment and Order dated I 7.1.98 of the Labour Court No.
2 Bhopal in C.N. No. 33 of 1997 .

. Dr. L.M. Singhvi, Dr. S.K. Verma, Rakesh Shroti, M.K. Choudhary
and Ashutosh Kumar for the Appeilant. D
S.K. Gambhir, Awanish Sinha, Anil Shanna, H.K. Puri, S.K. Puri, Rajesh
Srivastava, Ujjwal Banerjee and Ms. Anindita Gupta for the Respondent.

The Judgment of the Court was delivered by
E
RAJENDRA BABU, J. Leave granted.

Bharat Bhawan Trust, appellant herein, was established under the Bharat
Bhawan Nyas Adhiniyam, i 982 [hereina!ler referred to as 'the Act']. The
main objects of the said Trust are to preserve and explore, innovate, promo!~
and disseminate arts and to manage and expand t3harat Bhawan as a national F
centre of excellence in creative arts. Section 2(a) of the Act detines '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, apmt from describing the boundaries G
thereto, it has been described to include -

I. Roopankar, the Museum of Fine Art,

2. Madhya Pradesh Rangmandal, the theatre repertory,

3. Vagarth, the Library of Indian Poetry, and H
30 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A 4. Anhad, the Library of Music.

Mr. B. V. Karan! was appointed as the Director of the Rang Manda! and
thereafter he was succeeded by Mr. Habeeb Tanveer, another eminent theatre
personality as the Director. The appellant entered into an agreement with: I]
Gopal Dubey, 2] Anita Dubey, 3] Bhupendra K. Sahu, 4] Anoop K. Joshi, 5]
B Ravilal Sanghde, 6] Meena Sidhu, 7] Saroj Sharma, 8] Vibha Mishra, 9]
Amar Singh Lehre, I OJ Umesh K. Tarsakvar, 11 J Amod Krishan Bhatt, 12]
Sanjay Mehta and 13] Subhashshree, who 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
C management. Apprehending that their services wm; 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 Manda!. 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
D withdrawn. On I0.1.1997, the said artists raised a dispute which was referred
to the Labour Court for adjudication in 33/97.ID and the artists filed their
claims before the Labour Court and sought for interim relief. The 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
E '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. I .1998
F 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.

Dr. L.M. Singhvi, learned senior Advocate appearing for the appellant,
G 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 v. A. Rajappa and Ors., [1978] 2 SCC 213,
has given a very wide meaning to both the expressions of "industry" and
H "workman", by no stretch of imagination the appellant could be characterised
BHARAT Bl IA WAN TRUST v. BHARAT BHAWAN ARTISTS ASSOCIATION. [RAJENDRA BABU, J.] 31

as an industry, which is engaged in an esthetic activity. He also drew our A
attention to the decisions in 1955 LLJ 448; Miss A. Sundarambal v.
Government of Goa, Daman and Diu and Ors., [1988] 4 SCC 42 [in which
teachers were held not to be workmen although the educational institutions
where they serve may be "industry"]; TP. Srivastava v. Mis National Tobacco
Co. of India Ltd., [1992] l SCC 281, wherein this Court held that a salesman B
employed for canvassing and promoting sales of company's 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 C
'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.
D
Shri S.K. Gambhir, learned senior Advocate appearing for the respondent
artists, snbmitted that considering the period for which the services of the
respondent artists were en·gaged, 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 E
.> relied upon the decision of the Bombay High Court in 1959 (!) 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 HR. Adyanthaya and Ors. v. Sandoz (India) Ltd. and Ors., F
[1994] 5 SCC 737, he submitted that even though respondeot artists may be
classed as skilled persons in their respective fields, they were also workmen
despite the fact they may not be engaged in manual work. Relying upon the
decision in Workmen Employed by Hindustan lever ltd. v. Hindustan lever
ltd, [ 1984] 4 sec 392, he also pointed out that the parties should not be G
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.

On the perspective presented to us in this case, two issues arise for
consideration, viz., I] whether the appellant, which is an institution for the H
32 SUPREMI' COURT REPORTS [2001] SUPP. 2 S.C.R.

A 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 v. A. Rajappa's case [supra], which are
as under:

I. that the institution is engaged in a systematic activity,
B 2. organised by cooperation between employer and employee
3. for the production of goods and services.

The decision in BWSSB v. A. Rajappa 's case [supra] included a wide
variety of situations within the ambit of Section 2 (j), including professions,
C 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'. There have been innumerable
decisions following the said decision. which have taken a broad view of the
D definition of industry. Following the tests laid down in BWSSB v. A. Rajappa 's
case [supra], this Court in Suresh Kumar v. Union of India, [ 1989] II LLJ
110, held that an institution of Yoga was an industry. In BWSSB v. A.
Rajappa's 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
E 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.

F Thus, to hold that the appellant is an ·industry', it must satisfy i:hc
requirements of the sectioi1 and the tests laid down in BWSSB v. A. Rajappa 's
case [supra].

The Bharat Bhawan Trust, as is clear from its objects, to which we
have adverted to earlier, is engaged only in the promotion of art and
G 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"
H in /JWSSB v. A. Rajappa 's case [supra]. if the appellant can be classed as an
BHARAT BHAWAN TRUST'· BHARATBHAWAN ARTISTS ASSOCIATION. [RAJENDRA BABU.!.] 33

"industry" under the definition given under Section 2U) of the ID Act and we A
need not finally decide this aspect in the present case.

Even 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 :
B
"means 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
employmenr be express or implied, and for the purposes of any
proceeding under this act, in relation to an industrial dispute, includes
any such person who has been dismissed ,discharged, or retrenched C
in connection with or in consequence of that dispute, or whose
dismissal, discharge or retrenchment has led to that dispute but does
not include ....."

An artist engaged in the production of drama or in theatre management D
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 v.
Sandoz (India) Ltd. 's case [supra], after review of the entire case law, held E
as follows :

" .......... As 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 F
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]
G
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 H
34 .
~UPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A 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. To 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
B artist, allied to training and technique. We derive support for this proposition
from TP. Srivastava v. Mis National Tobacco Co. of India Ltd's case [supra]
wherein section salesman employed for canvassing and promoting sales of
company's 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
C integral part of it. In Hussianbhai v. Alath Factory Tezhilali Union, [1978]
Lab IC 1264 (SC), this Court held as under:

"Where 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 employer".
D
In 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.

The other work, apart from acting, that is entrusted to them is only
E 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
F qrtists 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.

Thus we find that the preliminary objection raised by the appellant is
G 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.

SV.K. Appeal allowed.