Andhra Pradesh High Court - Amravati
Sri Varaha Lakshmi Narasimha Swamy Vari ... vs State Of Andhra Pradesh, on 5 December, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI
*****
Writ Petition No.8708 of 2019
Between
Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam,
Rep. by its Executive Officer, Simhachalam,
Visakhapatnam District
... Petitioner
and
1. State of Andhra Pradesh, Rep. by its Prl. Secretary,
Labour and Employment Dept., Secretariat,
Velagapudi, Amaravati, Guntur District;
and 2 others
... Respondents
DATE OF JUDGMENT PRONOUNCED: 05-12-2019
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1 Whether Reporters of Local Yes/No
newspapers may be allowed to see
the Judgments?
2 Whether the copies of judgment Yes/No
may be marked to Law
Reports/Journals
3 Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
_________________________________________
CHEEKATI MANAVENDRANATH ROY, J.
2 CMR, J.
wp_8708_2019 * HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY + Writ Petition No.8708 of 2019 % 05-12-2019 # Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, Rep. by its Executive Officer, Simhachalam, Visakhapatnam District ... Petitioner Vs. $ 1. State of Andhra Pradesh, Rep. by its Prl. Secretary, Labour and Employment Dept., Secretariat, Velagapudi, Amaravati, Guntur District;
and 2 others ... Respondents ! Counsel for the Petitioner: Sri K.Madhava Reddy, Standing Counsel Counsel for Respondents 1&2: Govt. Pleader for Labour Counsel for Respondent No.3: Sri S.V.S.S. Sivaram < Gist:
> Head Note:
? Cases referred:
1. (1978) 2 SCC 213
2. 1965 (1) FLR 313
3. (1979) ILLJ 448 AP
4. (1999) IILLJ 304 HP 3 CMR, J.
wp_8708_2019 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Writ Petition No.8708 of 2019 Order:
Challenging the jurisdiction of the Industrial Tribunal cum Presiding Officer, Labour Court, Visakhapatnam, in entertaining an industrial dispute raised by the 3rd respondent in I.D.No.110/2017 against the petitioner/Temple on the ground that the Temple is not an industry and that the Industrial Tribunal has no jurisdiction to entertain the said dispute, this writ petition has been filed by the petitioner.
2. Facts leading to the lis as pleaded in this writ petition may briefly be stated as follows:
(a) The petitioner is Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam (hereinafter called as "Devasthanam/Temple"), situated at Simhachalam in Visakhapatnam District. It is a religious institution published under Section 6(a)(ii) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (hereinafter called as "the Endowments Act"). The Devasthanam/Temple was also registered under Section 43 of the Endowments Act. The management and administration of the Devasthanam/Temple is being governed by the provisions of the Endowments Act and the Rules framed thereunder.
(b) The Assistant Director, Survey and Land Records, Visakhapatnam, addressed a letter dated 05-7-2008 to the management of Devasthanam requesting to utilize the services of 4 CMR, J.
wp_8708_2019 the 3rd respondent, a Licensed Surveyor, on payment of remuneration to him. Accordingly, the services of the 3rd respondent, who is a Licensed Surveyor, were utilized by the Devasthanam/Temple temporarily on daily remuneration basis by allotting work to him only when there is requirement of his services.
(c) Subsequently, the authorities of the Devasthanam opined that the services of the 3rd respondent are not at all satisfactory as it has come to their notice that the 3rd respondent is acting against the interest of the Devasthanam/Temple in collusion with some persons, who have vested interest who are all private individuals. It is noticed that when the 3rd respondent was directed to identity the boundaries of the land of the Temple that he has colluded with some private individuals, who have vested interest and acted against the interest of the Temple. Therefore, the Devasthanam stopped utilizing his services since 30-7-2017. He is not a regular employee of the Devasthanam/Temple at any point of time.
(d) Therefore, challenging the action of the authorities of the Devasthanam in not utilizing the services of the 3rd respondent since 30-7-2017, the 3rd respondent raised an industrial dispute before the Industrial Tribunal cum Labour Court, Visakhapatnam, in I.D.No.110 of 2017.
(e) The Devasthanam has filed a detailed counter in the said I.D.No.110 of 2017 raising the issue of jurisdiction contending that the Devasthanam/Temple is not an industry as defined 5 CMR, J.
wp_8708_2019 under the Industrial Disputes Act, 1947 and the 3rd respondent, who is a Licensed Surveyor, will not fall under the definition of 'workman' to invoke the provisions of the Industrial Disputes Act. In order to invoke the provisions of the Industrial Disputes Act and to raise an industrial dispute that there must be an industry and the 3rd respondent must be a workman. As the Devasthanam /Temple is not an industry and the 3rd respondent is not a workman that the said I.D.No.110 of 2017 on the file of the Industrial Tribunal cum Labour Court, Visakhaptnam, is not maintainable under law.
(f) It is their further case that the Temple is a Hindu Religious Institution. Sri Varaha Lakshmi Narasimha Swamy Varu is the presiding deity in the Temple. The predominant function of the Devasthanam is to render spiritual benefit to Hindu public who comes to the Temple from all over the country. So, it cannot be treated as an industry. So, the Industrial Disputes Act has no application to the dispute. However, the Industrial Tribunal cum Labour Court, Visakhapatnam, has entertained the said I.D.No.110 of 2017. It is without jurisdiction and the same is not sustainable under law.
(g) Therefore, the petitioner-Devasthanam filed this writ petition seeking Writ of prohibition declaring the action of the Industrial Tribunal cum Labour Court, Visakhapatnam, in entertaining I.D.No.110 of 2017 as illegal, arbitrary, contrary to the provisions of the Endowments Act and is without jurisdiction and consequently direct the 2nd respondent/Chairman of 6 CMR, J.
wp_8708_2019 Industrial Tribunal cum Labour Court, Visakhapatnam, not to proceed further in I.D.No.100 of 2017.
3. Heard Sri K.Madhava Reddy, learned Standing Counsel for the petitioner/Devasthanam; learned Government Pleader for Labour for the respondents 1 and 2; and Sri S.V.S.S. Sivaram, learned counsel for the 3rd respondent.
4. Learned counsel for the petitioner would submit that Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam, the petitioner herein, is a religious institution published under Section 6(a)(ii) of the Endowments Act and it is also registered under Section 43 of the Endowments Act. The management and administration of the Devasthanam/Temple is being governed by the provisions of the Endowments Act and Rules made thereunder. Its predominant activity and object is to arrange for worship of the Deity in the Temple to the pilgrims visiting the Temple from all parts of the country. So, it is a spiritual institution. The income of the Devasthanam is being used only for religious purposes. Therefore, it cannot be regarded as an "industry" under the Industrial Disputes Act. So, the 3rd respondent is not a workman. Therefore, the Industrial Tribunal cum Labour Court, Visakhapatnam, has no jurisdiction to entertain the industrial dispute raised by the 3rd respondent.
5. In oppugnation, learned counsel for the 3rd respondent would submit that although the petitioner is a religious institution published under Section 6(a)(ii) of the Endowments Act, it is not exempted from the application of the Industrial Disputes Act, 7 CMR, J.
wp_8708_2019 1947. As per the interpretation given to the word "industry" in the landmark judgment of the seven-Judge Bench of the Apex Court in Bangalore Water Supply and Sewerage Board v. Rajappa1, even the temple is brought within the ambit of the definition of "industry" as defined under the Industrial Disputes Act. Therefore, the petitioner establishment is an industry. He would then submit that the 3rd respondent was appointed as Surveyor by the State Endowments Commissioner of Andhra Pradesh on 06-8-2008 and his services are utilized till 30-7-2017 when he was abruptly terminated. Therefore, he is a workman as defined in the Industrial Disputes Act. Since the petitioner Endowment is an industry and as the 3rd respondent is a workman, he got legal right to raise an industrial dispute. So, the Industrial Tribunal cum Labour Court, Visakhapatnam, has got ample jurisdiction to entertain the said industrial dispute.
6. From the aforesaid rival contentions of both the parties, the points that emerge for determination in this writ petition are:
(1) Whether the petitioner is an industry as defined under Section 2(j) of the Industrial Disputes Act?
(2) Whether the 3rd respondent is a workman under Section 2(s) of the Industrial Disputes Act? and (3) Whether the Industrial Tribunal cum Labour Court, Visakhapatnam, got jurisdiction to entertain the industrial dispute raised by the 3rd respondent against the petitioner?
Points 1 to 3:
7. It is not in dispute that the petitioner Sri Varaha Lakshmi Narasimha Swamy Vari Devasthanam is a religious institution 1 (1978) 2 SCC 213 8 CMR, J.
wp_8708_2019 published under Section 6(a)(ii) of the Endowments Act. It is also not in controversy that the petitioner/Devasthanam was registered under Section 43 of the Endowments Act. Sri Varaha Lakshmi Narasimha Swamy is the presiding Deity in the Temple. Pilgrims from various parts of the country visit the Temple and offer their prayers. These material facts are incontrovertible facts in this lis. Therefore, it is clear that it is essentially a religious institution. It is also primarily a spiritual institution. So, when the object of the institution is primarily to render spiritual services to the pilgrims to enable them to worship the presiding Deity in the Temple, having regard to the said predominant activity of the Temple, it is to be held that it is undoubtedly a religious institution and a spiritual institution.
8. The legal position in this regard is not res nova and the same has been well settled. The question whether a temple rendering religious and spiritual services to the pilgrims, who visit the temple to worship the presiding Deity in the temple is a religious institution or an industry, has fallen for consideration on many occasions before the Apex Court and various High Courts including the High Court of Andhra Pradesh. Therefore, it is expedient to consider the relevant judgments on the point which are of precedential guidance which throw light on the controversy involved in this lis to decide whether the temple whose primary objective is to render religious and spiritual services to the pilgrims of the temple, is to be considered as an industry under the Industrial Disputes Act or not. 9
CMR, J.
wp_8708_2019
9. The Division Bench of the High Court of Orissa in the case of Harihar Bahinipaty v. State of Orissa2 had an occasion to deal with the issue whether the management of Puri Jagannath Temple and its workmen comes within the purview of the Industrial Disputes Act or not. The workers working in Sri Jagannath Swamy Temple, Puri, raised a dispute before the Assistant Labour Commissioner for conciliation for redressal of their grievance relating to payment of arrears of salary by the management of the Temple. The conciliation failed. So, the workers moved the State Government for referring the dispute for adjudication to the Industrial Tribunal under the Industrial Disputes Act. The State Government declined to refer the dispute under the Industrial Disputes Act on the ground that there is no case for reference of the dispute for adjudication as the dispute between the management of the Temple and its workmen does not come within the purview of the Industrial Disputes Act, 1947. Therefore, challenging the decision of the State Government, the workers of the Temple approached the High Court invoking the writ jurisdiction. The Division Bench of the Orissa High Court considered the earlier precedents rendered on the subject and held at paragraph No.22 of the judgment as follows:
"22. It is thus abundantly clear that Shri Jagannath Temple is not an institution where material human needs are being met. It is primarily a spiritual institution. The Ballav that is prepared is offered to the deity as Bhog. It is therefore sold as prasad. It is not that the Temple serves the purpose of a hotel for catering foodstuffs. The maintenance of order and discipline and proper hygienic conditions in the temple and of proper standard of cleanliness and 2 1965 (10) FLR 313 10 CMR, J.
wp_8708_2019 purity in the offerings made therein, as required under Section 15(4) of the Shri Jagannath Temple Act 11 of 1955, is for preserving spiritual atmosphere of the temple and for providing facilities to the pilgrims to have peaceful Darshan of the Deity. The primary object is spiritual. The petitioners are to maintain peace and tranquility inside the temple. The duty of maintaining order and discipline inside the temple is different from the duty of the policeman to keep law and order outside on the public road. The duty of the petitioners inside the Temple is akin to that of teachers to maintain order and discipline inside a class room in an educational institution."
10. Having held so, the Division Bench of the Orissa High Court ultimately held that the main objective of an institution is always to be kept in view. As the spiritual side is the ultimate object of Shri Jagannath Swamy Temple, it cannot be said that it is an industry. The duties of the management of the temple are to keep the temple in order and to see that there is no irregularity. Thus, one of the features which are distinctive to which Section 2(j) applies are present in the instant case. Therefore, the High Court of Orissa upheld the decision of the Orissa Government in declining to refer the dispute under the Industrial Disputes Act on the ground that the dispute between the management of the temple and the workmen does not come within the purview of the Industrial Disputes Act.
11. The Division Bench of Andhra Pradesh High Court in the case of Tirumala Tirupati Devasthanam v. Commissioner of Labour3 had an occasion to deal with the issue whether the Tirumala Tirupati Devasthanam is an industry as defined under Section 2(j) of the Industrial Disputes Act and whether its 3 (1979) ILLJ 448 AP 11 CMR, J.
wp_8708_2019 employees are workmen as defined under Section 2(s) of the Act or not. The Division Bench of this High Court considered various judgments rendered by various High Courts and also the Apex Court on the said controversy and elaborately discussed the legal position in this regard and ultimately held at paragraph No.22 of the judgment as follows:
"22. The Tirumala Tirupathi Devasthanam consists of a group of religious institutions in Tirumalai and Tirupathi. They are together regarded as one religious institution for the purposes of Charitable and Religious Endowments Act. The main function of the Devasthanam is to arrange for the worship in its temples and to enable the pilgrims from all parts of India to visit temples and offer their prayers. It is, therefore, essentially a religious institution. Having regard to the enormous income, which this Devasthanam derives, it utilises the income for various educational and religious purposes. It has established several educational institutions and also it is one of the prime donors of the Venkateswara University. In order to cater to the thousands of pilgrims especially to the temple of Tirumalai, the Devasthanam also runs several canteens, dispensaries, etc. It has necessarily to provide for transport of the pilgrims, which it was undertaking on its own till recently. It has departments dealing with supply of electricity and water, not only to the pilgrims but to the members of the staff, Archakas, etc., and to the quarters constructed in Tirumala for the benefit of the pilgrims. Even though, having regard to the enormous flow of pilgrims throughout the year the Devasthanam has to maintain several departments, there can be no doubt that the essential character of the institution is that of a religious institution. We cannot, therefore, regard the Devasthanam generally as an industry within the meaning of Trade Unions Act or within the meaning of Industrial Disputes Act."
12. It is further held at paragraph No.24 as follows:
"24. We are unable to agree with the contention that the Tirumala Tirupathi Devasthanam should be regarded generally as an industry. As pointed out in University of Delhi v. Ramnath, in considering whether a public institution is an industry or not, the predominant activity or object must be taken into consideration.12
CMR, J.
wp_8708_2019 Adopting this test we are of the view that the Tirumala Tirupathi Devasthanam as a body cannot be considered to be an industry within the meaning of Section 2(j) of the Industrial Disputes Act or within the meaning of Trade Unions Act."
13. In fact, the above judgment of the Orissa High Court in Harihar Bahinipaty's case (2 supra) was also quoted with approval in this judgment by the Division Bench of this High Court. However, the Division Bench of this High Court held that although the Devasthanam as a whole cannot be regarded as an industry, if any separate departments like Electricity, Water and Transport Departments are maintained by the Devasthanam, those departments as a single unit can be regarded as an industry or analogous to an industry and employees in those departments would be the workmen within the meaning of the Trade Unions Act.
14. At paragraph No.28 of the judgment, it is held as follows:
"28. ... ... ... It is possible to enivsage an institution which is generally not an industry but which is carrying on some industrial activities in certain departments. ... ... ... It cannot then be argued that the persons employed in those departments are not workmen and the activities carried on are not in the nature of industry. It has already been noticed that until recently the Devasthanam was operating a number of buses. It had naturally employed a large number of workmen as drivers, conductors, cleaners and so on and has also used to run one workshop. If fares were charged from the pilgrims and services were rendered in the shape of transport, such an activity would, in our view, be an activity in the nature of trade or industry."
15. Thus, from the conspectus of law enunciated in the above judgment of the Division Bench of this High Court, the legal position is now manifest that when the primary object of the 13 CMR, J.
wp_8708_2019 Temple/Endowment is to render spiritual services to the pilgrims visiting the Temple to worship the Deity and its predominant activity is a religious and spiritual activity, the Temple or the Endowment, as the case may be, as a whole cannot be regarded as an industry, bringing the same within the purview of the definition of the industry as defined under Section 2(j) of the Industrial Disputes Act. Therefore, any dispute that arises between the Endowment and its employee cannot be regarded as an industrial dispute and the employee of the said Temple or Endowment cannot be considered as a workman as defined under Section 2(s) of the Act. So, no right is conferred on any such employee appointed by the Endowment to raise an industrial dispute under the Industrial Disputes Act in connection with any dispute that arose between the Endowment and the employee.
16. The learned counsel for the 3rd respondent relied on the judgment of the High Court of Himachal Pradesh in the case of Jagbir Singh v. State of Himachal Pradesh4 wherein it is held that the Trust is an industry and the writ petitioners who were working in the said Trust are workmen and as they were retrenched without giving notice and compensation as provided under Section 25-F of the Industrial Disputes Act that the dispute raised by them is valid.
17. As it is found in the said case that the Baba Balak Nath Temple is a Trust, in the fact situation obtained in the said case, the High Court of Himachal Pradesh held that the Trust is an industry. The said case is distinguishable on facts and it is not 4 (1999) IILLJ 304 HP 14 CMR, J.
wp_8708_2019 of use to the case set up by the 3rd respondent herein. The petitioner in this writ petition is not a Trust. It is a religious Endowment Temple and in view of the judgment of the Division Bench of Andhra Pradesh High Court in Tirumala Tirupati Devasthanam's case (3 supra) which prevails over the judgment of other High Court, considering the ratio laid down in the said judgment, this Court arrived at a conclusion that the petitioner/ Temple is not an industry and the 3rd respondent is not a workman.
18. However, the legal position as enunciated by the Division Bench of this High Court in the above judgment, after undertaking a laborious exercise of surveying the entire law on the subject with reference to the earlier precedents rendered by the Apex Court is that when the Temple or the Endowment, as the case may be, maintains other individual departments like Engineering Department, Transport Department, Water Department etc., then the said separate departments as individual units can be regarded as an industry and employees working in the said separate units can be considered as workmen and any dispute which arises between the employer and employee relating to the said separate units is amenable to raise an industrial dispute.
19. Applying the aforesaid tests, if the dispute on hand is considered, it is to be held that Sri Varaha Lakshmi Narasimha Swamy Vari Temple, which is declared as an endowment under Section 6(a)(ii) of the Endowments Act and registered under Section 43 of the Endowments Act, whose primary object is to 15 CMR, J.
wp_8708_2019 render spiritual services to its pilgrims visiting the Temple from all over the country to offer worship to the presiding Deity of the Temple which is religious activity and having regard to the said predominant activity of the Temple, it is to be held that the petitioner Temple/Endowment as a whole cannot be regarded as an industry.
20. Now, it is significant to note that it is not the case of the 3rd respondent herein that the petitioner is maintaining any separate departments wholly unconnected with the said spiritual and religious activity which is the predominant activity of the petitioner and that the 3rd respondent has been appointed in the said separate unit maintained by the petitioner to hold that the said separate department as an individual unit is an industry and that the 3rd respondent is a workman entitled to raise an industrial dispute under the Industrial Disputes Act. The 3rd respondent did not file any counter making any such assertions or taking a specific plea that there is a separate department being run by the petitioner and that he is appointed in the said separate unit. As it is a crucial aspect which clinches the issue, as the 3rd respondent did not file any counter, this Court as an abundant caution has gone into the petition filed by him to vacate the stay to ascertain whether any such plea is taken or not. A meticulous perusal of the said vacate stay petition also do not show that it is the case of the 3rd respondent that the petitioner is maintaining any separate department and that he was recruited in the said separate department or unit. Thus, 16 CMR, J.
wp_8708_2019 there is no factual foundation for the said plea to consider the same. In fact it is also not contended on behalf of the 3rd respondent that there is any separate department or unit in the petitioner endowment and that he was appointed in the said separate department. Therefore, it is evident that it is not his case that he has been appointed in any separate department or unit being run and maintained by the petitioner. Nothing can also be culled out from the material available on record that like the Tirumala Tirupati Devasthanam, the petitioner Devasthanam herein is also maintaining any separate departments or units and that the 3rd respondent is appointed in any such separate unit to hold that he can be considered as a workman and that the said separate unit is to be considered as an industry to raise an industrial dispute. Therefore, in the absence of any specific plea to that effect and sans evidence to that effect on record, the irresistible conclusion that could be arrived at in this writ petition is that the 3rd respondent is only appointed as a Surveyor by the Endowment for the purpose of identifying the boundaries of the lands owned by the Temple itself and he was not appointed in any separate department or unit. Therefore, in the said facts and circumstances of the case, the petitioner Devasthanam cannot be held to be an industry and the 3rd respondent cannot be considered to be a workman as defined under Section 2(j) and 2(s) respectively of the Industrial Disputes Act. Consequently, the Industrial Tribunal cum Labour Court, Visakhapatnam, has no 17 CMR, J.
wp_8708_2019 jurisdiction to entertain any such industrial dispute raised by the 3rd respondent. So, the points 1 to 3 are answered accordingly.
21. In the result, the writ petition is allowed, declaring that the Industrial Tribunal cum Labour Court, Visakhapatnam, has no jurisdiction to entertain the industrial dispute raised by the 3rd respondent in I.D.No.110/2017 against the petitioner Devasthanam. Pending applications, if any, shall stand closed.
_________________________________________ CHEEKATI MANAVENDRANATH ROY, J.
05th December, 2019.
Note:-
L.R. Copy to be marked.
(B/o) Ak 18 CMR, J.
wp_8708_2019 HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY Writ Petition No.8708 of 2019 05th December, 2019.
(Ak)