Bombay High Court
Shri Gajanan Maharaj Sansthan, ... vs Industrial Tribunal, Amravati And Ors. on 9 October, 1996
Equivalent citations: [1997(75)FLR826], (1997)IILLJ256BOM
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT
1. Petitioner, Shri Gajanan Maharaj Sansthan, Shegaon, District Buldhana (hereinafter referred to as "the Sansthan" for the sake of brevity), challenges the award passed by the Labour Court in Reference No. 1 of 1983. The said reference was occasioned on account of an industrial dispute between the petitioner/Sansthan and its employees. The employees, who then were 200 in number, had submitted a Charter of Demand and demanded that their pay scales should be fixed and that they should be also given the pay as per their categories. There were number of other demands put up by the employees. The petitioner/Sansthan did not agree with these demands and, therefore, a reference came to be made by the Conciliation Officer. The said reference was answered against the petitioner/Sansthan firstly holding it as an industry and, secondly, fixing the pay scales of all the employees, by categorising them. It is this award which is the subject matter of the challenge in the present petition.
2 Shri A. R. Patil, learned Counsel appearing on behalf of the petitioner/Sansthan has restricted himself only to the question as to whether the petitioner/Sansthan can he called an industry within the meaning of Section 2G of the Industrial Disputes Act, 1947. He submits that the petitioner is a registered Public Trust under the Bombay Public Trusts Act, 1950, and carries only religious and charitable activities at Shegaon. According to him, it is because of the advent of a Great Sant Shri Gajanan Maharaj, in the year 1878 and on account of his divine powers that a temple came to be established where the Samadhi of the Great Sant is situated. It is this Samadhi which, ultimately, was transformed into a huge temple with hundreds of thousands devotees coming to his temple every day. It is pointed out by the learned Counsel that in order to see that the devotees are not put to inconvenience, the Public Trust, which has come into existence, gives various services to these devotees like distribution of free food, the facility to stay at Shegaon at cheap rates by making accommodation available to them. It is pointed out that other activities are also undertaken like running a free dispensary as also providing free transportation facilities to the devotees. The learned Counsel goes on to submit that since all these are religious activities, they cannot be called to be the commercial activities and, indeed, it cannot be held that they are the activities run with the idea of earning any profits. According to the learned Counsel, therefore, the said Public Trust/Sansthan cannot be held to be an industry.
3. Shiri A. V. Bhide, learned Counsel appearing on behalf of Respondent No. 2, workmen, on the other hand, points out that there is a systematic activity going on at the instance of the Sansthan. He further points out that even if a cheap accommodation is made available and even if the food is made available in extremely competitive rates by the Sansthans, the said Sansthan earns the profits of lacs of rupees per year, which would be clear from the accounts and balance sheets. According to Shri Bhide, the temple earns thousands of rupees on account of the offerings and a huge staff is engaged by the Sansthan to keep the temple clean and to look after the comforts of the pilgrims and the devotees who come to Shegaon. According to Shri Bhide, all these involve a systematic activity and, therefore, this would amount to an industry. Shri Bhide further relies upon a reported decision of this Court in Shri Cutchi Vias Oswal Derawasi Jain Mahajan v. B. D. Borude, I.T. Maharashtra (1987-I-LLJ-81) where a temple has been held as an industry by Pendse, J. (as he then was). According to Shri Bhide, merely because the activities of the Sansthan are not profit-oriented, it cannot be said that the said Sansthan is not an industry. The learned Counsel heavily relies upon the solitary case of Bangalore Water Supply and Sewerage Board v. A. Rajappa (1978-I-LLJ-349)(SC).
4. The only question, that has to be considered, therefore, is whether the said Sansthan is an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act.
5. On behalf of the workmen, some witnesses have been examined, the chief amongst them being one Dnyandeo Ramrao Gaigol, who was working as a clerk in the Money Order Department, to begin with, and then he was working as an Accountant. This witness has given a graphic description of the activities which are undertaken by the Sansthan. According to him, there is a unit called 'Bhakt Nivas' and about 100 rooms are provided for the devotees who have to pay Rs. 11/- as deposit and Rs. 11/- as rent for 24 hours. He also pointed out that the bed-sheets are also provided at the rent of Re. 1/- per bed-sheet. He further deposed that i the Sansthan also provides food at the rate of Rs. 2/- per Rice Plate. He had also spoken about the three hospitals which are run by the Sansthan. The witness deposed about a Mangal Karyalaya, where marriages are solemnised and a fee is charged. The witness has also pointed out that in the temple, ceremony 'Abhishek' is held on sonic payment, for which the devotees pay Rs. 11/-, or Rs. 2/- or even Rs. 101/-. Besides this, according to the witness, there are donations received by the temple in thousands of rupees. He has also given a graphic description of different departments, such as Poojapat Vibhag, Accounts Department, Donation Department, Money Order Section, Utensils and Bichhayat Department, Bhakta Niwas, Bhojan Kaksha, Gorakshan (Pashu Vibhag), Motor Section, Bhagwat Dharm Shikshana Sanstha, Garden Vibhag, Agriculture, Diwabatti, Maintenance of Building, Hospitals Departments, etc. In short, this witness has given a complete blue-print of the activities of this Sansthan. He has also pointed out that the utensils as also fans etc., are given on rent so also the place is provided on rent for performing marriages. Thus, it is clear from the evidence of this witness that there are systematic activities going on under the various departments of the temple.
October 9, 1996 5A. The witness has been cross-examined at length. However, nothing significant has been brought out in the cross-examination regarding these activities and it is established that these activities are really run by the Sansthan.
5B. There are other witnesses examined, who were actually working as Pujaris or watchmen, who have also deposed about their service conditions. There is very little or no challenge to that evidence. One clerk is also examined as witness No. 4, who has spoken regarding income of the Trust from the Bhakta Niwas on account of the devotees being charged for their stay for 24 hours and also the Rice Plates which are made available by the Sansthan to the devotees for charges. He has also spoken about the charges for Abhishek and the other religious rituals, which are charged by the Sansthan. He has also spoken about the dispensary. All this evidence has remained almost unchallenged.
6. The only witness, who has been examined by the Trust, is one Mahadeo Pundlik Patil, who is a trustee of the said Sansthan, who has tried to suggest that the only object was to perform Pooja, to maintain Akhand Veena, to celebrate Jayantis, Kirtans and Parwachans, etc. In short, according to him, the Trust was doing only the religious functions. He has, however, also admitted in his examination-in-chief that a dispensary is maintained, religious training is imparted, eye-camps are held, T.B. Centre and Leprosy Centre are also maintained. He has reiterated that the Trust does not have an objective of earning profits. He has also deposed that there are about 157 permanent employees and rest were daily-wagers. He has also proved the service Rules for the governance of employees, which are also filed on record, which show the categories of workers. He has also suggested that the Rules provided for the educational qualifications of the employees and their pay and other emoluments. He has reiterated that apart from the pay, the employees are paid two months' salary at the time of Deewali and they are furnished with one set of clothes. Some other workers are provided with uniforms and Pujaris are provided with silk Dhoties. The employees and their families are given free medical aid. Employees are also provided with utensils and Bichhayat at the time of functions at their places. The employees are also provided tea twice a day. They can also avail of the Eye-camp and other medical camps. In short, the said witness wanted to suggest that there was no need to fix the salary and there was also no need to categorise the employees. The witness has also spoken about an Engineering College being run on account of which the donation was given by the Sansthan of five lacs rupees. He has also spoken about the shopping complex in front of the temple. He also referred to the free transport service and the distribution of free PRASAD. All this evidence is led only with an idea to suggest that the function of the Sansthan is purely religious and, therefore, it cannot be declared to be an industry.
7. In his cross-examination, the witness had to admit that some charges were levied in the dispensary for preparation of the cards and that the income of the Sansthan has improved from year to year since 1979 and that there was a profit of ten lacs of rupees in that year, while in 1983, the profit was Rs. 78,00,000/-.
8. It is apparent from the evidence of both the sides that the Sansthan does not only run a temple which is a religious activity, but also arranges for the other social services to the devotees and caters to their needs. Not only it provides for their stay, though at nominal rate, but also provides food for them at nominal charges. It also caters to the medical needs and it seems that there is a full-fledged hospital.
9. The only other witness examined on behalf of the Sansthan is Vijay Namdeorao Patil, who is working as a Supervisor, who has proved the list of employees and their respective salaries. He has also deposed about the service conditions of the employees.
10. Now, considering the over-all evidence, it has to be realised that there are number of other activities run by the Sansthan which can be called systematic activities. The only factors, which will have to be considered for deciding whether the Sansdian is an industry or not, are whether there is a systematic activity which is organised by co-operation between the employer and the employees for production or distribution of goods calculated to satisfy human wants. The decision in Bangalore. Water Supply and Sewerage Board, (cited supra) has now finally set at naught the controversy, where the charitable institutions are held to be industries. The discussions regarding the charitable institutions is covered by paragraph No. 125 onwards upto paragraph No. 132. The Supreme Court in that case has dubbed such charitable institutions which are spiritual or religious institutions, as industries. The Supreme Court has only excluded the institutions 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. Now, the present institution could not come within exception carved out by the Supreme Court. It is true that all the activities of the Sansthan are carried out with the philanthropic idea, but it cannot be forgotten that the workers working have not exactly come for rendering their services with the religious outlook. They are there purely as servants to earn their wages. The Supreme Court has also held that merely because the earnings are spent for charities, it does not change the fate of the workers who are unconcerned about the destination of the profits. The workers in such industries are treated like any other workmen in any other industry. Even in the matter of industries which were exempted by the Supreme Court, in para 102, the Supreme Court clarifies as under at p. 394 :
"Not that the presence of charitable impulse extricates the institution from the definition in Section 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the other who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the life. Supposing there is an Ashram or Order with a Guru or other head. Let us further assume that there is a band of disciples, devotees or priestly subordinates in the Order, gathered together for prayers, ascetic practices, bhajans, meditation and worship. Supposing further, that outsiders are also invited daily or occasionally, to so share in the spiritual proceedings. And, let us assume that all the inmates of the Ashram and members of the Order, invitees, guests and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning, the bed-making and service, may often be done, at least substantially by the Ashramites themselves. They may chant in spiritual ecstasy even as material goods and services are made and served. They may affectionately look after the guests, and all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace. It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be that they take some small pocket money from the donations or takings of the institution. Nay more; there may be a few scavengers and servants, a part time Auditor or Accountant employed on wages. If the substantial number of participants in making available goods and services, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wageless sishyas, it is impossible to designate the institution as an industry, not with-standing a marginal few who are employed on a regular basis for hire. The reason is that in the crucial, substantial and substantive aspects of institutional life the nature of the relations between the participants is non-industrial".
Such is not and cannot be the case with the present Sansthan. Here are 157 servants; there is a systematic activity going on and all these servants have not joined with the idea that they are the devotees and, therefore, in the service of the Sansthan. By no stretch of imagination, could these employees be called sishyas or the devotees and their services could not be imagined to be that of a disciple or a devotee. The above mentioned law laid down by the Supreme Court is practically the last word.
11. Our own Court in S.C.V.O.D.J. Mahajan's case (supra) while considering the case of a Jain Temple run by a Society, has held the said employer to be an industry. Pendse, J. (as he so then was) has held that where the Trust has purchased large number of properties, including godowns, shops and halls and they are let out on rent for running shops or for performance of marriages or for holding meetings and for which the charges are recovered, this activity would be a commercial activity. The learned Judge has also held that where a Pujari is engaged on a monthly salary and the trust accepts offerings before the deity, it has to be held that Pujari is engaged for giving service to the devotees and the services are not necessarily spiritual in nature and, therefore, such Pujari will have to be dubbed as a workman. The judgment is binding on me and I respectfully agree with the law laid down therein. The situation is not different here in any manner, as has already been pointed out with reference to the evidence led.
12. Shri Patil relied on some cases to show that the like establishments were not held as industries. Predominantly, he relied on 1978 Labour and Industrial Cases NOC 102, the full judgment of which case has come in (1979-I-LLJ-448), Tirumala Tirupati Devasthanams, Tirupati v. Commissioner of Labour. The learned Counsel pointed out that the Division Bench of the Andhra Pradesh High Court has held that Tirumala Tirupati Devasthanams are essentially a religious institution. 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. Therefore the Devasthanam cannot generally be regarded as an industry, within the meaning of Trade Unions Act or within the meaning of Industrial Disputes Act. In the first place, this judgment nowhere takes into consideration the law laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board's case. (supra) Secondly, here also the thrust of the judgment is that the said Tirumala Tirupathi Devasthanam cannot be held as an industry as a whole . The Division Bench as in para 24 held as under :
"We are unable to agree with the contention that the Tirumala Tirupathi Devasthanani should he regarded generally as an industry"
The emphasis on the word "generally" in the sentence is highlighted, because in paragraph 28, the Division Bench holds :
"It is possible to envisage an institution which is generally not an industry but which is carrying on some industrial activities in certain departments. It is not impossible to conceive of the Tirumala Tirupathi Devasthanam carrying on such an activity even in the nature of trade or business because of its enormous resources and using the income for the benefit of its pilgrims. 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".
Therefore, what is held as not industry is the Devasthanam only, while the other activities run in which the charges are taken from the devotees have been held to be the industries. In view of the specific judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board's case and of this Court in S.C.V.O.D.J. Mahajan's case (both cited supra), the law laid down in Tirumala Tirupati Devasthanam's case by the Andhra Pradesh High Court would not be binding on this Court, in so far as it declares that the Devasthanam is not an industry.
13. The second case relied upon by the learned Counsel is Thirumullapulli Devaswom v. Commissioner of Workmen's Compensation (1979-I-LLJ-398), (the judgment by the learned Single Judge of the Kerala High Court). However, this case will not be of any assistance because in this case, the only question was as to whether the Devaswom was a commercial establishment within the meaning of the definition of 'commercial establishment' in Kerala Shops and Commercial Establishments Act, 1960. The controversy involved is wholly different and, therefore, the case is of no consequence.
14. The third decision relied upon by the learned Counsel was Kesava Bhatt v. Sree Ram Ambalam Trust (1990-I-LLJ-192) (Ker). Here, the question was as to whether a Pujari could be called as a workman and the learned single Judge of the Kerala High Court has held that Pujari is not a workman. That is not a controversy involved in this petition, the only controversy is whether the Sansthan is an industry or not. It will be remembered that the reference does not in any manner contemplate a question is to whether a particular set of workers are workmen or not. Apart from that, in view of the judgment of this Court in S.C.V.O.D. Mahajan's case (cited supra), the Court finds it difficult to agree with the learned Single Judge of the Kerala High Court.
15. Lastly, the learned Counsel relied upon a decision of the Gujarat High Court in Manager Shri Panchasara Jain Derasar, Patan v. Mahmadkha Gajikha Baloch 1993 (1) CLR 103. Here, the Division Bench of the Gujarat High Court has held that Shri Panchasara Jain Derasar is not an industry. This case is wholly different on facts. This was a case where a watchman had filed a claim against the temple. On the basis of the evidence led therein, it was held that the only activity, which was going on in the said temple was Dharma and Dhyan. It was further endorsed that except Bhakti and Pooja, no other activity is carried on in the temple. It was in that view that the Division Bench of the Gujarat High Court held that the Derasar is not an industry. The situation is entirely different, as has already been pointed out above.
16. In view of the above cases, it will have to be held that the present Sansthan is an 'industry' and the finding by the Industrial Tribunal in that behalf is a correct finding.
17. Shri Patil then urged that while deciding upon the categories of workmen and fixing their salaries, the Tribunal had also fixed the salaries of some doctors and, according to him, the salaries of the doctors and the Medical Officers, who were the medical graduates, could not be fixed as they were not the workmen. Indeed, whether the doctor is a workman or not is not a question in issue here, because that is not reference. I have already made reference to the referred question. The said referred question only is pertaining to the regularisation of the employees and deciding upon their salaries and service conditions. Even if the doctors' salaries are fixed and their pay scales are decided upon, such exercise was necessary because the salaries of the compounders and the other staff, who were admittedly workmen, were also required to be decided by the Industrial Court. In that view, the Industrial Court has not committed any error in fixing the salaries of the doctors, as the salaries of the lower staff will have to be fixed only on the basis of the salaries fixed for the doctors, and the two salaries would be comparable considering the duties involved for both categories. In that view, even this contention of Shri Patil fails.
18. No other points were argued before me.
19. In the result, the petition fails and is dismissed, but without any order as to the costs.