Madras High Court
The Management Of K.R.M. Estate, ... vs The I Additional Labour Court, Madras ... on 26 April, 1996
Equivalent citations: (1997)ILLJ155MAD, (1996)IIMLJ130
ORDER
1. This writ has been filed for quashing the order in I.D. No. 311 of 1985, dated November 27, 1986.
2. The writ petition has been filed under the following circumstances :
The 2nd respondent was working as Maniam for collecting the lease rents from the lessees at Kottur village under the petitioner. Another person by name Natesa Kalingarayar was requested by the petitioner to collect the lease rents for the year 1984. Hence the 2nd respondent raised the dispute contending that he was employed under the petitioner as Maniam and getting Rs. 15 as monthly salary besides daily batta of Rs. 7.50. He was orally retrenched by the petitioner from service with effect from July 1, 1984. The 2nd respondent sent a letter dated August 29, 1984 requesting the petitioner to reinstate him. Since is request was not considered he raised an industrial dispute as stated above. After conciliation, he filed the petition I.D. No. 311 of 1985 before the 1st respondent. The 1 st respondent allowed the petition on November 27, 1986, directing the petitioner to reinstate him in service d full back wages and other attendant benefits. Hence the Trust, the petitioner, has preferred the writ petition in this Court.
3. Mr. K. Raghunathan, learned counsel for the petitioner raised several contentions, and argued that the award of the Labour Court is illegal and unjustified. He submitted that the K.R.M. Estate, represented by its Managing Trustee, the petitioner herein, is administered under a scheme decree of the High Court dated December 6, 1916. The properties were dedicated for performing religious and charitable ceremonies from the income of the properties of the trust. The 2nd respondent was appointed by trustees with the permission of the District Court. According to the learned counsel for the petitioner, the trust is not an industry and the 2nd respondent is not a workman. The appointment under Ex. M-3, dated July 14, 1982 was temporary for one month. No appointment order was issue to him. Further, the 2nd respondent was a lessee under the trust. Therefore he cannot be considered to be a workman. Therefore, in the light of is the abovesaid contentions, we have to consider first whether the petitioner is a trust and the 2nd respondent is a workman. The objects of the Trust is set out in the scheme decree framed by the High Court in Appeal Nos. 253 of 1915 etc. It is found at page 10 of the set filed in support of the writ petition, as follows :
"The accounts of the Trust shall be audited once in every year by a qualified auditor to be appointed by the District Court of Tanjore on the application of the trustees in August of each year. The court shall fix the remuneration of the auditor which shall be paid out of the Trust funds. A detailed account of the receipt and expenditure with a copy of the balance sheet certified by the auditor, together with the auditor, to gather with the auditor's report shall be submitted to the District Court of Tanjore not later than December 31, of each year. The budget and balance shall be published in the Local District Gazette in Tamil.
The Trustees shall set apart a sum of rupees seventy-five thousand (Rs. 75,0001/-) for acquiring a site in Mannargudi and erecting thereon suitable buildings for the location of the library, a hostel for boys receiving education, school premises for Sanskrit and Tamil education and the office of the Trustees.
A sum of Rupees two thousand-five hundred (Rs. 2,500/-) shall be expended in effecting repairs to the Vedic Patasala building in Perumal Koil Sannadhi at Kottur.
A sum of Rs. 10,000/- (Rupees ten thousand) shall be spent by the Trustees in adding to the testator's library which shall be located in the buildings above referred to.
Out of the annual income of the Trust, the Trustees, shall first pay the Government revenue and other taxes payable by the Trust. The Trustees shall set apart every year five per cent of the net annual income after payment of the revenue and taxes as a reserve fund.
The remaining income shall be utilised by the Trustees as follows :
(a) for office and village establishments exclusive of the establishment for the hostel, school and library mentioned above.
(b) for the Alangara Thaligai and Dhesantri Kattlais and in the Sannadbi of Sri Rajagopalaswami Temple at Mannargudi;
(c) For daily Dhesantri Kattalai, monthly festival, yearly festival, and Thirunakshatrams in the Temple of Sri Venkatachalapathi at Kottur, Mannargudi Taluk :
(d) For Veda Patasala at Kottur including boarding and teachers' salary.
(e) For the expenses of the annual ceremony of the testator and his wives to be paid to Padmasani Anni.
Rs. 150
(f) For the daily worship and Gurupuja of Orathandu Vadthiyar Aiya.
Rs. 200
(g) For the feeding two Deshantris in Baluswaini Mutt at Tanjore.
Rs. 120
(h) For the upkeep of Goparalayam Nandavanam.
Rs. 300
(i) For the establishment of the Library.
Rs. 300
(j) To be paid to Gopalaswami Mudaliar and Venkatachata Mudaliar during their lives.
Rs. 600
(k) For the Sanskrit Education of 20 boys and their boarding charges in the school and hostel mentioned above.
Rs. 2,000
(l) For the maintenance and education of poor boys belonging to the Testator's family or caste, i.e., Thondamandala Mudaliar.
Rs. 4,000
(m) For the Warden and other necessary staff of the Hostel mentioned above upto Rs. 1,800
(n) For expenses in connection with attendance of Vidwans at the Panguni Festival not exceeding Rs. 1,000
(o) For the following annual payments :
(1) Thirukkannamangai Desikar Utchavam Rs. 10 (2) Gantharvakottai Desikar Utchavam Re. 1 (3) Thirukannapuram Thathiarathanam Rs. 4 (4) Akandakaveri Thathiarathanam Rs. 50 (5) Thirukkudanthai Desikar Utchavam Ittili Kainkaryam Rs. 25 (6) Peruvalanthan Desikar Utchavam Re. 1 (7) Ghee and Sugar for Vedaparayana Brahmins at Mannargudi Panguni Utchavam Rs. 5 (8) Sankarachariar Mutt at Kumbakonam Rs. 4 (9) Vaduvur Festival Thathiarathanam Rs. 25 (10) Thirukkannapuram Kuthiraivahanam festival Rs. 50 (11) Pamani koil for Karthikai Somayaram Rs. 5 (12) Mannargudi Kailasanathan Temple Adi Friday Abishekam Rs. 5 (13) Sakaraipongal Sathumurai in Margazhi in Festival in Mannargudi Rajagopalaswami Temple Rs. 35 (14) Karappaiikadu Perumal Koil Thathiarthanam Rs. 20 (15) Rajagopalaswami Floating Festival Thathiarathanam Rs. 50 (16) Rajagopalaswami Anithirumanjanam Rs. 10 (17) Mannargudi Peria Perumal Thirumanjanam Punukuehattam Rs. 15 (18) Sriperumpudur Udayavar Festival Thathiarathanam Rs. 3 (19) Srivilliputhur Thathiarathanam is Rs. 20 (20) Puvanoor Koil for lighting oil Rs. 10 (21) Parithiyur Koil for lighting oil Rs. 10 (22) Navagraha Pooja at Banaras Rs. 75 (23) Srirangam Mathurakavi Pushpathottam Kainkaryarn Rs. 6 (24) Kumbakonam Sarangapani Temple for flowers Rs. 4 (25) Tanjore Vennar Nilamcka Perumal Tirumanjanam Rs. 6 (26) Srirangam Marghazhi Rappathu Festival Rs. 25 (27) Thirukalar Temple Rs. 25 (28) Kottur Koluntheeswaraswarni Temple Festival Rs. 50 (29) Conjeevaram Festival Thathiarathanam Rs. 10 The balance of the annual income, if any, after meeting the expenses mentioned above may be utilised for the advancement of the education of the Thondamandala Mudaliar boys and for the purpose of the hostel mentioned above. If in any particular year any portion of the amounts specified in the above paragraphs are unspent for the purposes for which they have been allotted, such unspent sums shall be added to the income of the Trust for the next year and shall be treated as next year's income.
Apart from the aforesaid charges, in the Codicil also the following objects are required to be performed :
(1) The two diamond olais and the big ring which were in the testator's possession should be converted into a Lakshmi Padbakkam by supplying the necessary precious stones and fine gold therefor and presented to Sri Rajagopalaswami at Mannargudi.
(2) Two silver Kudams weighing within about one Maund should be made with thick plates and presented to Rajagopalaswami at Mannargudi for the daily Thirumanjanam in the above shrine at Mannargudi.
(3) The gold wire Karai of the testator's wife should be presented to Sri Mula-Thayar Ranganayaki at Srirangam.
(4) Such Thiruvabharanams as may always be worn by the Thirukkannapuram Sri Sowri Raja Perumal should be made at a cost of Rs. 200 and presented to the said Perumal.
(5) A Lakshmi Padhakkam at a cost of Rs. 125 should be made and presented to Sri Veeraraghava Perumal at Trivellore.
(6) A sum of Rs. 15 should he paid into the said Trivellore Sri Veeraraghava Perumal Sannadbi Matam for effecting repairs to take off the theertham of the said Sannadhi therefrom into the Pushkarani.
(7) On the day on which Tiruvonam, Shashti and Friday all these synchronize in the month of Karthigai answering to the month of Margaii in Thirumalai (Thirupathi) parts, a sum of Rs. 420 or something more should be paid according to the Thittam in the said Thiruis malai Sannadhi, out of the sum of Rs. 586 deposited in the Urban Bank at Mannargudi and its interest and one or two Thirumanjanam according to the funds available should be conducted in the name of Padmasani. If it is not possible to so conduct the Thirumanjanam, a Thirumanjanam should be performed on Friday in the month of Karthikai aforesaid and proper Kainkaryam should be performed in the said Sannadhi itself for the amount available.
(8) Daughter Padmasani shall take the sovereigns, mohurs, diamonds, etc., coins that are in the testator's box (sic).
(9) A sum of Rs. 500 shall be paid to Alivalam Vasu Mudaliar's daughter at the time of her marriage.
(10) Interest accruing on a sum of Rs. 500 shall be paid to Keezhayur Velu Mudaliar as he has not sufficient means for his livelihood, and if his family becomes large and if the amount becomes insufficient for his livelihood and if the Trustees are willing the principle sum may be paid to him as a present.
(11) Interest accruing on a sum of Rs.500 shall be paid to Keezhayur Parameswara Mudaliar as he has not sufficient means for his livelihood, and if his family becomes large and if the amount becomes insufficient for his livelihood and if the Trustees are willing the principal sum may be paid to him as a present.
(12) A sum of Rs. 50 should be given as a present to the cook Sundaram for his marriage.
(13) For Kottur Subramaniaswami Mollathanam there shall be made and presented to the deity for decorating the same as a silver kreedam wherein should he fixed in the middle on the front part the rubies which are set in the four cut stones ring which was with the testator.
(14) As the aforesaid Kottur Subramaniaswami temple is wanting in security, there shall be fixed to the door frame at the Sannadhi vasal a strong door made of iron bars and a strong lock shall be given with instructions to have the door locked and with further instructions to the effect that the said kreedam should be daily kept placed over the idol from Kalasanthi to Arthajamam and after Arthajamam is over, the same should be removed daily and kept safely.
(15) If there are no kreedams for Ubhaya Nachiar in the aforesaid shrine two kreedams should be made at a cost of Rs. 30 and the idols decorated therewith. Even if sandal is required for purposes of fixing in position the said kreedams necessary arrangements should be made for providing it.
(16) A padhakkam worth Rs. 250 should be made for the aforesaid amman who shall be decorated therewith.
(17) A building at a cost of Rs. 500 shall be constructed for Orathanadu-Chatm Vathiar Aiya Gurumuhurtharn.
(18) Money to the extent of Rs. 1,000 shall he spent in cash for testator's funeral ceremonies.
(19) Two hundred kulis on the southern side of Sundaram Kattalai at Sellapillayar Kottagam and 200 Kulis on the southern side of Ottukattalai in the village of Puttur, shall be given away as gift.
(20) Vilakkudi Kuyavan Panttam Nanjah shall be given away to Aiyarval Rangachariar Avargal together with the produce of the year 1907 therefrom and the income derived from the produce of the previous year in Kottur.
(21) The land in Puttur Vasambodai Kattalair and the Nathangal at the foot of Sanarakupan's house and also land from the southern moiety of Sangadi land to make up the deficiency of a veli of land shall be given away as gift to Kalappal Somasundaram Aiyar Avargal at the time of the obsequies of the testator.
(22) The testator's daughter Padmasan shall enjoy during her life time the entire land possessed by the testator in the village of Parithivur, Naniiiiam Taluk, together with the trees standing thereon, that is to say she shall enjoy the above village in lieu of the cash payment of Rupees five hundred made payable to her every year under the will of the testator dated January 10, 1907.
(23) A sum of Rs. 150 shall be paid to the individuals who perform the testator's funeral ceremonies as well as the ceremonies for the testator's wife yet to be performed to the end of the year. If the persons be pure in body and possessed of merit, they shall be paid something more for the acts performed.
(24) The funeral ceremonies of the testator's wife shall be performed at a cost upto the amount of rupees two hundred and fifty.
(25) The parties shall be at liberty to apply to the District Court of Tanjore for further directions in the future.
From the objects mentioned above, I find that the income of the trust has to be spent for purely religious and charitable purposes. Further, the learned counsel for the petitioner cited a decision in Madurai Children Care Society v. The Labour Court, Madurai and another, 1995 Writ L.R. 873. In the said case, AR Lakshamanan, J. has held that Madurai Children Care Society is not an industry and the Assistant Matron temporarily employed in the said society is not a workman as defined in Sec. 2(s) of the Industrial Disputes Act. The learned judge has elaborately considered the scope and the effect of Sec. 2(j) and 2(s) of the Act. The learned Judge has also relied upon the following passage of the decision reported in Bangalore Water Supply and Sewerage Board v. A. Rajjappa (1978-1-LLJ-349) at 392) (SC).
"Can Charity be 'industry' ? This paradox can be unlocked only by examining the nature of the activity of the charity, for there are charities and charities. The grammer of labour law in a plularist society tells us that the Is worker is concerned with wages and conditions of service, the employer with output and economics and the community with peace, production and stream of supply. This complex of work, wealth and happiness, firmly grasped, will dissolve the dilemma of the law bearing on charitable enterprises. Charity is free; industry is business. Then how ? A lay look may scare; a legal look will see; a social look will see through a hiatus inevitable in a sophisticated society with organizational diversity and motivational dexterity.
If we mull over the major decisions, we get a hang of the basic structure of 'industry' in its legal anatomy. Bedrocked on the ground norms, we must analyze the elements of charitable economic enterprises, established and maintained for satisfying human wants. Easily, three board categories emerge; more may exist. The charitable element enlivens the operations at, different levels in these patterns and the legal consequences are different, viewed from the angle of 'industry'. For income-tax purposes, Trusts Act or Company law or Registration law or Penal code requirements the examination will be different. We are concerned with a benignant disposition towards workmen and a trichotomy of charitable enterprises run for producing and/or supplying goods and services, organized systematically and employing workmen, is scientific.
The first is one where the enterprises like any other, yields profits but they are siphoned off for altruistic objects. The second is one where institution makes no profit but hires the services of employees as in other like businesses but the goods and services which are the output, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is where the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the, test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry ?
All industries are organised, sysetamatic activity. Charitable adventures which do not possess this feature, of course, are not industries. Sporadic or fugitive strokes of charity do not become industries. All three philanthropic entities, we have itemized, fall for consideration only if they involve co-operation between employers and employees to produce and/or supply goods and/or services.
If, in a pious or altruistic mission many employ themselves, from or for small honoraria or like return, many drawn by sharing the purposes or cause such as lawyers volunteering to run a free legal service, clinic of doctors serving in the spare hours in a free medical centre, or ashramites working at the bidding of the holiness, divinity or like central personality and the services are supplied free or at nominal cost and those who serve but are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry, even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project."
After considering the other decisions, namely Pappammal Anna Chatram v. The Labour Court, Madurai, and Raj Ratna Seth v. Ashok Bhasin, 1982 Lab. I.C. 338, the learned Judge has held that Madurai Children Care Society was not an industry, because there is no production of goods nor service, which are sold for consideration by the petitioner-society. The learned Judge has culled out the principle after consideration of the judgments mentioned above. If we apply the same principles, I do not think that the petitioner-society can be considered to be an industry.
4. The learned counsel for the 2nd respondent Mr. R. Ganesan vehemently contended that the petitioner-society must be considered to be an industry and the 2nd respondent is a workman. Therefore the order of the Labour Court is just and proper. He cited the following decisions :
(1) Bangalore Water Supply and Sewerage to Board v. A. Rajappa, (1978-1-LLJ-349) (S.C.).
(2) Satyendra Singh Rathore v. R. R. P. P. Mandal, Jaipur, (1989-11-LLJ-289) (Raj).
(3) D. N. Banerji v. P. R. Mukerjee, :
(4) Madurai Children Care Society, etc. v. The Labour Court Madurai, (Supra) The abovesaid decision Bangalore Water Supply and Sewerage Board v. A. Rajappa, (supra), contains the test to find out whether the establishment is an industry or not. The relevant passage also had been already set out earlier. The third test, according to the Supreme Court, is where the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. Further, the appointment of the 2nd respondent appears to be stray and his service has been hired for collecting the lease rent from the tenants for the purpose of carrying out the objects of the Trust, namely the charges mentioned above. Therefore, the abovesaid decision is not helpful to the 2nd respondent. The learned counsel for the 2nd respondent also cited Sathyendra Singh Rathore v. R. R. P. P. Mandal, Jaipur, (supra). It is true that profit motive is not relevant. But, here the fruits like coconut, etc., which are realised from the properties owned by the Trust are sold and the mere sale cannot be considered to be a sale for profit. The sale for profit in my view will arise only when a person purchases an article for a price and then he sells it for others. Here, in this case the products are said to be sold by necessity for realization of funds for carrying out the objects of the Trust. But that does not mean such one is a commercial or profit motivated one, in the sense, it is understood normally. Therefore, the abovesaid decision is also not helpful to the 2nd respondent. In D. N. Banerji v. P. R. Mukherjee, (supra) cited by the learned counsel for the 2nd respondent, a Sanitary Inspector of a municipality is held to be a workman. But as we stated above, the Supreme Court has issued guidelines in (1978-1-LLJ-349), to find out whether an establishment is an industry or not. When we apply the said guidelines issued in the said decision, we have to come to the conclusion that the petitioner is not an industry. Therefore, I am not in a position to accept the contention of the learned counsel for the 2nd respondent. The 1 st respondent has placed heavy reliance upon the fact that the charitable purposes are not carried out and no amount is spent for the same. That does not mean that a charitable institution will become an industry. Here what we have to see is the objects of the charitable institution and not whether they are carried out or not. If some trustees do not perform the charities, commit default, or mismanage it, that will not alter the nature and character of the trust. Another reason for holding against the 1st respondent is that the petitioner sells lease paddy and fruits of trees. One instance cited by the 1st respondent is that the petitioner purchased casuarina plants from other neighbouring villages and raised casuarina trees, and they are sold to private parties. When a trust owns agricultural lands it cannot keep them idle. It has to raise paddy or other crops. Similarly, if the lands are useful for planting or raising trees that also has to he done, for earning money and spending for charitable purposes. From the evidence and the statement of facts contained in the order of the 1st respondent, I do not find that there was purchase of commodities for a price and sale of the same for a different price thus earning a profit. The accounts mentioned in the audit also show that the income was realised from the products cultivated in the agricultural lands of the petitioner. Therefore, the conclusion that because of these sales of articles realised from the agricultural lands, the petitioner is doing business is unjustified. As already stated the products from the agricultural lands, etc., have to be sold. They cannot be buried underground, in which case it will tantamount to not only a foolish act but also an act against the interest of the Trust. Therefore, I am satisfied that the petitioner is not an industry, and the 2nd respondent is not a workman. Hence, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. However, there will be no order as to costs.