IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 29019 of 2002(D)
1. THE MANAGEMENT OF PARAMEKKAVU DEVASWOM,
... Petitioner
Vs
1. K.RAMACHANDRAN,
... Respondent
2. THE INDUSTRIAL TRIBUNAL, PALAKKAD.
For Petitioner :SRI.ANTONY DOMINIC
For Respondent :GOVERNMENT PLEADER
Coram
Dated : 16/09/2004
O R D E R
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M. RAMACHANDRAN, J.@@
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O.P.NO.29019 of 2002-D@@
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DATED THIS THE 16th DAY OF SEPTEMBER, 2004.@@
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This Original Petition arises from an award
passed by the Industrial Tribunal, Palakkad in I.D
No.48/99. A dispute had been raised by the 1st
respondent herein about the termination of his
services, after a formal domestic enquiry had been
held. The 1st respondent was employed as a watchman
by the management of Paramekkavu Devaswom, Thrissur.
He was appointed from 01/01/1993 and his service were
terminated on 30/07/1997.
2. The Tribunal had to answer the
preliminary objection as to whether the workman
concerned was entitled to claim the privileges of a
workman, as an objection had been raised that the
management did not come within the purview of an
industry as defined under Section 2(j) of the
Industrial Disputes Act.
3. Though an enquiry had been held, for want
of full records, the request of the management for
permission to adduce materials de novo had been
accepted. Opportunity had been given to them to prove
the allegations. After evaluation of the materials so
placed, the Tribunal held that it was a case where
workman was entitled to reinstatement. Taking notice
of delay on his part to agitate the issue 25% of the
back-wages had been directed to be with held. The
Devaswom has filed this Original Petition pointing out
that the Tribunal had overlooked its objections
without sufficient justification. They did not
deserve to be characterised as an industry. Also in
view of the allegations, and resultant loss of
confidence, they plead that even if it is found that
there is any dispropotionality in punishment, the
relief of reinstatement in no circumstances should
have been granted.
4. Sri.Antony Dominic appearing for the
petitioner took me to the details. He submits that
the reason given by the Tribunal for holding that the
establishment came within the purview of definition of
`Industry’ is on reasonings, which are basically
defective. It is pointed out that the award proceeded
on an assumption that the temple as a whole was an
industrial activity and this consequently had led the
Tribunal to commit mistake, since the application of
Section 2k(a) which defined the Industrial
Establishment or undertaking, had been overlooked.
The objection is centered round the findings in
paragraphs 9 and 10 of Ext.P1 award, which I would
extract herein below:
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“9. There can be no doubt that the
above buildings and other businesses of
the management-devaswom were established
from the income of the temple and it
cannot be held that there is no profit
from the temple. It is observed from the
annual reports that the management has
revised the rates for various vazhipads.
If there was no profit motive, it was not
necessary to enhance the rates of
vazhipad. The management is also earning
money by selling prasadom; cassettes,
photos etc., within the premises of the
temple. Therefore, it is clear that at
least some business activities are being
carried on in the premises of the temple.
10………There can be no doubt,
that the relationship between the
devaswom board/trust and the persons
employed for the various activities of
the temple is master and servant or
employer and employee. The devotees are
now treated as customers and prasadam is
manufactured in factories and packed just
like any other consumer product and sold
for price through temples. The special
treatment given to VIPS and VVIPS in
temples is just like a businessman
treating his important customers. For
all these reasons, I am of the view that
temple and its managing agency viz the
Devaswom Board have now acquired the
status of “industry” as defined in
Section 2(j) of the I.D.Act.”
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.SP 2
5. There might be merit in the criticism,
but that itself need not be a reason to upset the award.
But, advertence to definition of `industrial
establishment’ [Sec.2(ka)] would not have advanced the
cause of the petitioner to any appreciable extent. Thus,
it is not as if the matter has not been considered by the
Tribunal with caution. He was aware of his function as
an adjudicator and though it may not be possible to
support some of the reasonings, if critically viewed, it
can very well be stated the ultimate finding of the
Tribunal that the workman was engaged in an industry is
unexceptionable.
6. Another argument put in by the petitioner
is that the workman was engaged exclusively in the
activities of the temple and coupled with his duties as a
watchman, he was being engaged in performance of the
duties closely linked with `Poojas’ of the temple and
receiving koor money. The plea is that the worship and
essentialities connected therewith are rituals, carried
on with the aid and assistance of several persons and
work of 1st respondent can never be one which makes him a
‘workman’ in the industry.
7. However, the submissions as above were
controverted by the learned counsel for the respondent.
The systematic activities of the management were being
carried on analogous to an industry by a commercial firm
in every sense of the term. The commercial activities in
business lines were inseparably linked with the
establishment as a whole, and one or two workmen could
not have been segregated, even on the basis of duties
expected of them. According to Mr.Nagaresh, the test to
be applied is as to whether the activities of Devaswom,
if carried out by a private individual, would have been
considered as industrial in nature. If so, the exception
claimed was of no consequence. He maintains that the
Tribunal has not committed any error in understanding the
situation. The ultimate direction resulting in
reinstatement also is in conformity with the overall
findings arrived at.
8. While we examine the rival contentions,
it may be necessary to examine the background in which
the activities surrounding the temple had developed.
Perhaps in the early stages, what might have been there
was a place for worship, pure and simple, where devotees
thronged to offer prayers. But, by passage of time, the
activities had gradually developed by the patronage of
the State Administration and liberal offerings of
devotees. The temple came to possess substantial
properties. Naturally, for the proper administration of
such properties, and for proper arrangement of ‘Poojas’
and maintenance of the temple as such, investiture of
power, and an organised system had to be introduced.
Extensive properties, by itself were sufficient to
generate wealth. Personnel were to be engaged for
administrative and executive work and multifarious other
activities. This gradual, but definite changes have
made the substantial difference as between the past and
the present.
9. Deity of a temple always is recognised as
a legal person. The claim is not against the temple as
it is. Here the employer is shown as the Management of
Paramekkavu Devaswom. I feel that this itself is
sufficient to dispel controversies. A temple as such
cannot come within the definition of industry. Nor can
that come as an industrial establishment or undertaking
as envisaged under Section 2 (ka) of the Industrial
Disputes Act. Temples are associated with religious
activities, for satisfying the spiritual needs of
believers. But as referred to earlier, the body of the
management who are entrusted with the duties of looking
after the properties of a religious institution stands on
a different footing. The Industrial Disputes Act is a
pre-independent statute, and even if perhaps the statute
makers may not have intended to bring in an all
encompassing definition, so long as there is no specific
exclusion, interpretation, should be on the basis of the
plain meaning gatherable, and text of the statute.
10. Devaswom literarily means the properties
of Deva, viz. the God. The properties require to be
appropriately managed. Though Deva(God) could never be
equated to an employer, the properties received by him as
gifts when invested for any purpose including generating
wealth, loses the exclusive sanctity which it might
originally enjoy. What is managed by Devaswom Authority,
is the wealth of the deity, which has come to their hand.
It may be for the benefit of community, but that also is
not very relevant. An establishment has thus got itself
created to manage the wealth, viz. Devaswom properties.
The controller of the Estate, interestingly becomes the
controller of the affairs of the God as well though the
accretion of wealth always is thanks to the presence of
the deity. The statutes could be equated to that of a
minor. Thus the ‘All powerful’ comes within the tutelage
of the Manager, as next friend. Therefore, the essential
religious activities pertaining to the Pooja and rituals
alone need to be separated from the industrial
activities, all others coming under the Industrial
Disputes Act. As to the category who are to be so
segregated from the Industrial Disputes Act, is not an
issue coming up for consideration here.
11. The definition of industry has two limbs,
one giving accent to the element of activities from the
point of view of employer, and the other looked from the
perception of a person employed. The idea was to bring
in all human endeavour within the four corners of the
definition. In simple terms, if therefore a service, or
employment was there, it merited to be called an
industry, and consequently it become an industrial
establishment.
12. In the present dispute, as could be seen
from Ext.P5, the activities of the Devaswom, was
multifaceted and included almost all commercial ventures
as is usually understood. They have to maintain a
substantial Establishment. As pointed out by
Sri.Nagaresh, the commercial activities included renting
of premises/furniture, agriculture, conduct of chitties
and included running of educational institutions. They
had to engage staff mainly clerical and of supportive
nature, drivers, mahouts etc. The management directly
conducted commercial Exhibitions, which were capable of
bringing wealth. All these activities are separable from
the essential rituals referred to above, and have
characteristics of an organised business activity.
13. Of course, the learned counsel for the
petitioner referred to a decision reported in Manager,@@
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Panchasara Jain Derasar Patna Dist. v. Mahamadka@@
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Gajikha Baloch [1993(1) LLJ 523] which stood confirmed by@@
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the Supreme Court in Mahamadkha Gajika Baloch v.@@
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Manager, Panchasara Jain Derasar [1994 (2) LLJ 1051], as@@
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also Harihar Bahinipati & Ors. v. State of Orissa@@
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[1965(1) LLJ 501]. These of course give general
guidelines to aid and assist the Court for coming to test
the presence of activities, which is analogous to a
system of carrying on an industry. Reference was also
made by Mr.Dominic to the commentaries by Malhothra on
Industrial Disputes Act 6th Edition (Page 386). However,
the decision cited are not helpful to the petitioner.
14. The 1st respondent appears to be a
ministerial, subordinate staff attached to an
establishment engaged in commercial activities. The only
circumstance that he was an employee attached to the
temple expected to partake in rites by itself is not a
clinching circumstance. As per the conditions of his
service, he was transferable to any of the other
establishments, viz. office, college, auditorium etc.
As a watchman, he was discharging duties, which was
expected of a person, who was employed in an industrial
undertaking. Devaswom employees are governed by Rules,
and the benefits extended to them even include membership
in the Employees Provident Fund Scheme. At least as at
present, there is no reason to hold that they be held as
remaining outside the purview of the Industrial Disputes
Act.
15. As a participant of pooja rites, some of
the employees might be getting ‘koor panam’. It is
explained as a payment, taking note of customary practice
and usually extended to members of certain families, who
associate themselves with the temple. The Tribunal has
found that the receipt as above were not reckonable as
wages. A privilege so received, is not to lead him away
from his substantive rights.
16. The discussions as above strengthen my
conclusion that the 1st respondent was a workman,
attached to an industry, and therefore, the dispute was
maintainable and Tribunal had jurisdiction to decide the
issue referred for adjudication.
17. The next two issues could be discussed
together. They are;
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i) Whether there was any element of@@
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misconduct on the part of the 1st
respondent.
ii) Justifiability of the finding including@@
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punishment, and the sustainability of the
directions in the award.
.SP 2
The allegation as against workman was that he had taken
initiative for holding of a meeting of the watchmen in
the ‘Gopuram’ within the temple premises. An explanation
had been called for. It has come out that there was a
meeting of 4 or 5 persons wherein they had discussed
about their affairs. It is however asserted that there
was no disturbance caused to he tranquility of the temple
atmosphere. The management did not rely on the enquiry
held; the Tribunal was to be the arbitrator of the
materials placed before him. According to the Tribunal,
there was no element of misbehavior from them. It had
not been possible to establish that such a meeting of a
few people or a discussion of their personal matters, was
a conduct, which was objectionable, or one prohibited.
The 1st respondent had apologized for the conduct. If
the allegation is as above, it is too much to contend
that there was actionable conduct. Sri.Dominic points
out that there is no definite finding by the Tribunal as
to whether there was misconduct or not. But the argument
is too feeble. Of course, observation made in the award
may be read as a finding to the effect that it is a case
of misconduct. But he is definite that this does not
merit severe punishment of dismissal. The Tribunal
obviously had adverted to the conduct alone. Leaving it
apart, it has not been primarily possible for the
management to establish that what has been alleged is
actionable misconduct.
18. If that be the case, the further argument
of the management that they had lost confidence in the
workman also does not have any meaningful significance.
It was pointed out that there were occasions for the
management to take action against him. But that also
have no relevance since it has not been possible for the
management to establish that there was culpable
dereliction on the part of the workman now. Therefore
the protracted proceedings were totally unwarranted.
Definitely the allegations themselves could not have been
utilised to get rid of an employee. The request has been
rightly turned down by the Tribunal.
19. In the aforesaid circumstances, I do not
think there is justification for the management for
contending that the Tribunal has lost sight of the issue
that has been presented before it or any relevant aspects
have been over looked. The award does not suffer from
any material irregularities so as to warrant interference
of this Court, excepting perhaps in the matter of grant
of back-wages. Even in a case where the termination was
irregular or unwarranted, the workman has to agitate his
rights appropriately. The delay in the matter of raising
the disputes is not explained. There is no allegation of
malafides. Obviously the petitioner had been attempting
to enforce discipline though there was an over reaction.
Therefore, back-wages for the entire period should not
have been awarded. The evidence in these region is
scanty. Also I may take notice of the principles laid
down by the Supreme Court in Steel Authority of India v.@@
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Presiding Officer, Labour Court [1996 (2) LLJ 720].@@
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Back-wages at 50% alone will be admissible to the 1st
respondent and too only from the date of reference of the
dispute viz.16/07/1999.
The Original Petition is dismissed, but modifying
the directions in the Award to the above extend. Parties
are to bear their respective costs.
M.RAMACHANDRAN, JUDGE.
csb
.PA
M.RAMACHANDRAN, J.
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O.P NO.29019 OF 2002
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JUDGMENT
16/09/2004
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