{"id":134305,"date":"2004-09-16T00:00:00","date_gmt":"2004-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-management-of-paramekkavu-vs-k-ramachandran-on-16-september-2004"},"modified":"2014-12-02T21:05:26","modified_gmt":"2014-12-02T15:35:26","slug":"the-management-of-paramekkavu-vs-k-ramachandran-on-16-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-management-of-paramekkavu-vs-k-ramachandran-on-16-september-2004","title":{"rendered":"The Management Of Paramekkavu … vs K.Ramachandran on 16 September, 2004"},"content":{"rendered":"
Kerala High Court<\/div>\n
The Management Of Paramekkavu … vs K.Ramachandran on 16 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP No. 29019 of 2002(D)\n\n\n1. THE MANAGEMENT OF PARAMEKKAVU DEVASWOM,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. K.RAMACHANDRAN,\n                       ...       Respondent\n\n2. THE INDUSTRIAL TRIBUNAL, PALAKKAD.\n\n                For Petitioner  :SRI.ANTONY DOMINIC\n\n                For Respondent  :GOVERNMENT PLEADER\nCoram\n\n Dated :     16\/09\/2004\n O R D E R\n<\/pre>\n
.SP 2
\n……..L…….T….T…….T…….T…….T…….T…….J
\n         M. RAMACHANDRAN, J.@@
\n        j
\n         ===============================@@
\n        j
\n         O.P.NO.29019 of 2002-D@@
\n        j
\n         ===============================@@
\n        j
\n         DATED THIS THE 16th DAY OF SEPTEMBER, 2004.@@
\n        j<\/p>\n
((HDR 0
\nO.P No.29019\/2002@@
\nCCCCCCCCCCCCCCCCC<\/p>\n
 ::#::@@
\nj<\/p>\n
))
\n.HE 1
\n         J U D G M E N T@@
\n        jDDDDDDDDDDDDDDD<\/p>\n
        \tThis Original Petition arises  from  an  award
\n        passed  by  the  Industrial  Tribunal, Palakkad in I.D
\n        No.48\/99.  A  dispute  had  been  raised  by  the  1st
\n        respondent   herein   about  the  termination  of  his
\n        services, after a formal  domestic  enquiry  had  been
\n        held.   The  1st respondent was employed as a watchman
\n        by the management of Paramekkavu  Devaswom,  Thrissur.
\n        He  was appointed from 01\/01\/1993 and his service were
\n        terminated on 30\/07\/1997.\n<\/p>\n
        \t2.\tThe   Tribunal   had   to   answer    the
\n        preliminary   objection  as  to  whether  the  workman
\n        concerned was entitled to claim the  privileges  of  a
\n        workman,  as  an  objection  had  been raised that the
\n        management did not  come  within  the  purview  of  an
\n        industry   as   defined  under  Section  2(j)  of  the
\n        Industrial Disputes Act.\n<\/p>\n
        \t3.\tThough an enquiry had been held, for want
\n        of  full  records,  the  request of the management for
\n        permission  to  adduce  materials  de  novo  had  been
\n        accepted.  Opportunity had been given to them to prove
\n        the allegations.  After evaluation of the materials so
\n        placed,  the  Tribunal  held  that it was a case where
\n        workman was entitled to reinstatement.  Taking  notice
\n        of  delay  on his part to agitate the issue 25% of the
\n        back-wages had been directed to be  with  held.    The
\n        Devaswom has filed this Original Petition pointing out
\n        that   the  Tribunal  had  overlooked  its  objections
\n        without sufficient  justification.    They   did   not
\n        deserve to  be  characterised as an industry.  Also in
\n        view  of  the  allegations,  and  resultant  loss   of
\n        confidence,  they  plead that even if it is found that
\n        there is  any  dispropotionality  in  punishment,  the
\n        relief  of  reinstatement  in  no circumstances should
\n        have been granted.\n<\/p>\n
        \t4.\tSri.Antony  Dominic  appearing  for   the
\n        petitioner took  me  to  the details.  He submits that
\n        the reason given by the Tribunal for holding that  the
\n        establishment came within the purview of definition of
\n        `Industry’  is  on  reasonings,  which  are  basically
\n        defective.  It is pointed out that the award proceeded
\n        on an assumption that the temple as  a  whole  was  an
\n        industrial  activity and this consequently had led the
\n        Tribunal to commit mistake, since the  application  of
\n        Section    2k(a)    which   defined   the   Industrial
\n        Establishment or  undertaking,  had  been  overlooked.
\n        The  objection  is  centered  round  the  findings  in
\n        paragraphs 9 and 10 of Ext.P1  award,  which  I  would
\n        extract herein below:\n<\/p>\n
……………L….T…….T…….T…….T…….T..J
\n.SP 1
\n               \t“9.  There can be no doubt that  the
\n               above  buildings  and other businesses of
\n               the management-devaswom were  established
\n               from  the  income  of  the  temple and it
\n               cannot be held that there  is  no  profit
\n               from the temple.  It is observed from the
\n               annual  reports  that  the management has
\n               revised the rates for various  vazhipads.
\n               If there was no profit motive, it was not
\n               necessary   to   enhance   the  rates  of
\n               vazhipad.  The management is also earning
\n               money  by  selling  prasadom;  cassettes,
\n               photos  etc.,  within the premises of the
\n               temple.  Therefore, it is clear  that  at
\n               least  some business activities are being
\n               carried on in the premises of the temple.\n<\/p>\n
               \t10………There can  be  no  doubt,
\n               that   the   relationship   between   the
\n               devaswom  board\/trust  and  the   persons
\n               employed  for  the  various activities of
\n               the  temple  is  master  and  servant  or
\n               employer and  employee.  The devotees are
\n               now treated as customers and prasadam  is
\n               manufactured in factories and packed just
\n               like  any other consumer product and sold
\n               for price through temples.   The  special
\n               treatment  given  to  VIPS  and  VVIPS in
\n               temples  is  just  like   a   businessman
\n               treating his  important  customers.   For
\n               all these reasons, I am of the view  that
\n               temple  and  its  managing agency viz the
\n               Devaswom  Board  have  now  acquired  the
\n               status   of   “industry”  as  defined  in
\n               Section 2(j) of the I.D.Act.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t5.\tThere might be merit  in  the  criticism,
\n        but  that itself need not be a reason to upset the award.
\n        But,   advertence   to    definition    of    `industrial
\n        establishment’  [Sec.2(ka)]  would  not have advanced the
\n        cause of the petitioner to any appreciable extent.  Thus,
\n        it is not as if the matter has not been considered by the
\n        Tribunal with caution.  He was aware of his  function  as
\n        an  adjudicator  and  though  it  may  not be possible to
\n        support some of the reasonings, if critically viewed,  it
\n        can  very  well  be  stated  the  ultimate finding of the
\n        Tribunal that the workman was engaged in an  industry  is
\n        unexceptionable.\n<\/p>\n
        \t6.\tAnother argument put in by the petitioner
\n        is that  the  workman  was  engaged  exclusively  in  the
\n        activities of the temple and coupled with his duties as a
\n        watchman,  he  was  being  engaged  in performance of the
\n        duties closely linked with `Poojas’  of  the  temple  and
\n        receiving koor  money.   The plea is that the worship and
\n        essentialities connected therewith are  rituals,  carried
\n        on  with  the  aid  and assistance of several persons and
\n        work of 1st respondent can never be one which makes him a
\n        ‘workman’ in the industry.\n<\/p>\n
        \t7.\tHowever, the submissions  as  above  were
\n        controverted  by  the learned counsel for the respondent.
\n        The systematic activities of the  management  were  being
\n        carried  on analogous to an industry by a commercial firm
\n        in every sense of the term.  The commercial activities in
\n        business  lines  were   inseparably   linked   with   the
\n        establishment  as  a  whole, and one or two workmen could
\n        not have been segregated, even on  the  basis  of  duties
\n        expected of  them.  According to Mr.Nagaresh, the test to
\n        be applied is as to whether the activities  of  Devaswom,
\n        if  carried  out by a private individual, would have been
\n        considered as industrial in nature.  If so, the exception
\n        claimed was of no consequence.   He  maintains  that  the
\n        Tribunal has not committed any error in understanding the
\n        situation.    The   ultimate   direction   resulting   in
\n        reinstatement also is  in  conformity  with  the  overall
\n        findings arrived at.\n<\/p>\n
        \t8.\tWhile  we  examine the rival contentions,
\n        it may be necessary to examine the  background  in  which
\n        the  activities  surrounding  the  temple  had developed.
\n        Perhaps in the early stages, what might have  been  there
\n        was  a place for worship, pure and simple, where devotees
\n        thronged to offer prayers.  But, by passage of time,  the
\n        activities  had  gradually  developed by the patronage of
\n        the  State  Administration  and  liberal   offerings   of
\n        devotees.    The   temple  came  to  possess  substantial
\n        properties.  Naturally, for the proper administration  of
\n        such  properties,  and for proper arrangement of ‘Poojas’
\n        and maintenance of the temple  as  such,  investiture  of
\n        power,  and  an  organised  system  had to be introduced.
\n        Extensive  properties,  by  itself  were  sufficient   to
\n        generate wealth.    Personnel  were  to  be  engaged  for
\n        administrative and executive work and multifarious  other
\n        activities.   This gradual,  but  definite  changes  have
\n        made  the  substantial difference as between the past and
\n        the present.\n<\/p>\n
        \t9.\tDeity of a temple always is recognised as
\n        a legal person.  The claim is not against the  temple  as
\n        it is.    Here the employer is shown as the Management of
\n        Paramekkavu Devaswom.    I  feel  that  this  itself   is
\n        sufficient to  dispel  controversies.    A temple as such
\n        cannot come within the definition of industry.   Nor  can
\n        that  come  as an industrial establishment or undertaking
\n        as envisaged under  Section  2  (ka)  of  the  Industrial
\n        Disputes Act.    Temples  are  associated  with religious
\n        activities,  for  satisfying  the  spiritual   needs   of
\n        believers.   But  as referred to earlier, the body of the
\n        management who are entrusted with the duties  of  looking
\n        after the properties of a religious institution stands on
\n        a different  footing.    The Industrial Disputes Act is a
\n        pre-independent statute, and even if perhaps the  statute
\n        makers   may  not  have  intended  to  bring  in  an  all
\n        encompassing definition, so long as there is no  specific
\n        exclusion,  interpretation, should be on the basis of the
\n        plain meaning gatherable, and text of the statute.\n<\/p>\n
        \t10.\tDevaswom  literarily means the properties
\n        of Deva, viz.  the God.  The  properties  require  to  be
\n        appropriately managed.    Though Deva(God) could never be
\n        equated to an employer, the properties received by him as
\n        gifts when invested for any purpose including  generating
\n        wealth,  loses  the  exclusive  sanctity  which  it might
\n        originally enjoy.  What is managed by Devaswom Authority,
\n        is the wealth of the deity, which has come to their hand.
\n        It may be for the benefit of community, but that also  is
\n        not very  relevant.  An establishment has thus got itself
\n        created to manage the wealth, viz.  Devaswom  properties.
\n        The  controller  of the Estate, interestingly becomes the
\n        controller of the affairs of the God as well  though  the
\n        accretion  of  wealth always is thanks to the presence of
\n        the deity.  The statutes could be equated to  that  of  a
\n        minor.  Thus the ‘All powerful’ comes within the tutelage
\n        of the Manager, as next friend.  Therefore, the essential
\n        religious  activities pertaining to the Pooja and rituals
\n        alone  need  to  be   separated   from   the   industrial
\n        activities,   all  others  coming  under  the  Industrial
\n        Disputes Act.  As to  the  category  who  are  to  be  so
\n        segregated  from  the  Industrial Disputes Act, is not an
\n        issue coming up for consideration here.\n<\/p>\n
        \t11.\tThe definition of industry has two limbs,
\n        one  giving  accent to the element of activities from the
\n        point of view of employer, and the other looked from  the
\n        perception of  a  person employed.  The idea was to bring
\n        in all human endeavour within the  four  corners  of  the
\n        definition.   In simple terms, if therefore a service, or
\n        employment  was  there,  it  merited  to  be  called   an
\n        industry,   and  consequently  it  become  an  industrial
\n        establishment.\n<\/p>\n
        \t12.\tIn  the present dispute, as could be seen
\n        from  Ext.P5,  the  activities  of  the   Devaswom,   was
\n        multifaceted  and included almost all commercial ventures
\n        as is usually  understood.    They  have  to  maintain  a
\n        substantial Establishment.        As   pointed   out   by
\n        Sri.Nagaresh, the commercial activities included  renting
\n        of  premises\/furniture,  agriculture, conduct of chitties
\n        and included running of educational institutions.    They
\n        had  to  engage  staff  mainly clerical and of supportive
\n        nature, drivers, mahouts etc.   The  management  directly
\n        conducted  commercial  Exhibitions, which were capable of
\n        bringing wealth.  All these activities are separable from
\n        the  essential  rituals  referred  to  above,  and   have
\n        characteristics of an organised business activity.\n<\/p>\n
        \t13.\tOf  course,  the  learned counsel for the
\n        petitioner referred to a decision  reported  in  Manager,@@
\n                                                         CCCCCCCC
\n        Panchasara Jain Derasar   Patna  Dist.    v.    Mahamadka@@
\n        CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC          CCCCCCCCC
\n        Gajikha Baloch [1993(1) LLJ 523] which stood confirmed by@@
\n        CCCCCCCCCCCCCC
\n        the  Supreme  Court  in  Mahamadkha  Gajika   Baloch   v.@@
\n                                 CCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        Manager,  Panchasara Jain Derasar [1994 (2) LLJ 1051], as@@
\n        CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        also Harihar Bahinipati & Ors.    v.    State  of  Orissa@@
\n             CCCCCCCCCCCCCCCCCCCCCCCCC          CCCCCCCCCCCCCCCCC
\n        [1965(1) LLJ   501].     These  of  course  give  general
\n        guidelines to aid and assist the Court for coming to test
\n        the presence of  activities,  which  is  analogous  to  a
\n        system of  carrying  on  an industry.  Reference was also
\n        made by Mr.Dominic to the commentaries  by  Malhothra  on
\n        Industrial Disputes Act 6th Edition (Page 386).  However,
\n        the decision cited are not helpful to the petitioner.\n<\/p>\n
        \t14.\tThe   1st  respondent  appears  to  be  a
\n        ministerial,   subordinate   staff   attached    to    an
\n        establishment engaged in commercial activities.  The only
\n        circumstance  that  he  was  an  employee attached to the
\n        temple expected to partake in rites by itself  is  not  a
\n        clinching circumstance.    As  per  the conditions of his
\n        service,  he  was  transferable  to  any  of  the   other
\n        establishments, viz.    office,  college, auditorium etc.
\n        As a watchman,  he  was  discharging  duties,  which  was
\n        expected  of  a person, who was employed in an industrial
\n        undertaking.  Devaswom employees are governed  by  Rules,
\n        and the benefits extended to them even include membership
\n        in the  Employees  Provident Fund Scheme.  At least as at
\n        present, there is no reason to hold that they be held  as
\n        remaining  outside the purview of the Industrial Disputes
\n        Act.\n<\/p>\n
        \t15.\tAs  a participant of pooja rites, some of
\n        the employees might be  getting  ‘koor  panam’.    It  is
\n        explained as a payment, taking note of customary practice
\n        and  usually extended to members of certain families, who
\n        associate themselves with the temple.  The  Tribunal  has
\n        found  that  the  receipt as above were not reckonable as
\n        wages.  A privilege so received, is not to lead him  away
\n        from his substantive rights.\n<\/p>\n
        \t16.\tThe  discussions  as  above strengthen my
\n        conclusion  that  the  1st  respondent  was  a   workman,
\n        attached  to  an industry, and therefore, the dispute was
\n        maintainable and Tribunal had jurisdiction to decide  the
\n        issue referred for adjudication.\n<\/p>\n
        \t17.\tThe  next  two  issues could be discussed
\n        together.  They are;\n<\/p>\n
.SP 1<\/p>\n
        \ti) Whether  there   was   any   element   of@@
\n           i
\n                        misconduct   on   the  part  of  the  1st
\n                        respondent.\n<\/p>\n
        \tii) Justifiability of the  finding  including@@
\n            i
\n                        punishment, and the sustainability of the
\n                        directions in the award.\n<\/p>\n
.SP 2
\n        The allegation as against workman was that he  had  taken
\n        initiative  for  holding  of a meeting of the watchmen in
\n        the ‘Gopuram’ within the temple premises.  An explanation
\n        had been called for.  It has come out that  there  was  a
\n        meeting  of  4  or  5  persons wherein they had discussed
\n        about their affairs.  It is however asserted  that  there
\n        was no disturbance caused to he tranquility of the temple
\n        atmosphere.   The  management did not rely on the enquiry
\n        held; the Tribunal  was  to  be  the  arbitrator  of  the
\n        materials placed  before him.  According to the Tribunal,
\n        there was no element of misbehavior from them.    It  had
\n        not  been  possible to establish that such a meeting of a
\n        few people or a discussion of their personal matters, was
\n        a conduct, which was objectionable,  or  one  prohibited.
\n        The 1st  respondent  had  apologized for the conduct.  If
\n        the allegation is as above, it is  too  much  to  contend
\n        that there  was  actionable  conduct.  Sri.Dominic points
\n        out that there is no definite finding by the Tribunal  as
\n        to whether there was misconduct or not.  But the argument
\n        is too  feeble.  Of course, observation made in the award
\n        may be read as a finding to the effect that it is a  case
\n        of misconduct.    But  he  is definite that this does not
\n        merit severe  punishment  of  dismissal.    The  Tribunal
\n        obviously had  adverted to the conduct alone.  Leaving it
\n        apart,  it  has  not  been  primarily  possible  for  the
\n        management  to  establish  that  what has been alleged is
\n        actionable misconduct.\n<\/p>\n
        \t18.\tIf that be the case, the further argument
\n        of  the  management  that they had lost confidence in the
\n        workman also does not have any  meaningful  significance.
\n        It  was  pointed  out  that  there were occasions for the
\n        management to take action against him.    But  that  also
\n        have  no relevance since it has not been possible for the
\n        management  to  establish   that   there   was   culpable
\n        dereliction on  the  part  of the workman now.  Therefore
\n        the  protracted  proceedings  were  totally  unwarranted.
\n        Definitely the allegations themselves could not have been
\n        utilised to get rid of an employee.  The request has been
\n        rightly turned down by the Tribunal.\n<\/p>\n
        \t19.\tIn the aforesaid circumstances, I do  not
\n        think  there  is  justification  for  the  management for
\n        contending that the Tribunal has lost sight of the  issue
\n        that has been presented before it or any relevant aspects
\n        have been  over  looked.   The award does not suffer from
\n        any material irregularities so as to warrant interference
\n        of this Court, excepting perhaps in the matter  of  grant
\n        of back-wages.   Even in a case where the termination was
\n        irregular or unwarranted, the workman has to agitate  his
\n        rights appropriately.  The delay in the matter of raising
\n        the disputes is not explained.  There is no allegation of
\n        malafides.   Obviously the petitioner had been attempting
\n        to enforce discipline though there was an over  reaction.
\n        Therefore,  back-wages  for  the entire period should not
\n        have been awarded.   The  evidence  in  these  region  is
\n        scanty.   Also  I  may take notice of the principles laid
\n        down by the Supreme Court in Steel Authority of India  v.@@
\n                                     CCCCCCCCCCCCCCCCCCCCCCCC
\n        Presiding  Officer,  Labour  Court  [1996  (2)  LLJ 720].@@
\n        CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        Back-wages at 50% alone will be  admissible  to  the  1st
\n        respondent and too only from the date of reference of the
\n        dispute viz.16\/07\/1999.\n<\/p>\n
        \tThe Original Petition is dismissed, but modifying
\n        the directions in the Award to the above extend.  Parties
\n        are to bear their respective costs.\n<\/p>\n
        \t\t\t\tM.RAMACHANDRAN, JUDGE.\n<\/p>\n
        csb
\n.PA<\/p>\n
        \t\t\t\tM.RAMACHANDRAN, J.\n<\/p>\n
        \t\t\t\t=====================
\n        \t\t\t\tO.P NO.29019 OF 2002
\n        \t\t\t\t=====================<\/p>\n
        \t\t\t\tJUDGMENT<\/p>\n
        \t\t\t\t16\/09\/2004<\/p>\n
        \t\t\t\tCSB<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court The Management Of Paramekkavu … vs K.Ramachandran on 16 September, 2004 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-134305","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nThe Management Of Paramekkavu ... vs K.Ramachandran on 16 September, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-management-of-paramekkavu-vs-k-ramachandran-on-16-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Management Of Paramekkavu ... vs K.Ramachandran on 16 September, 2004 - 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