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1990 Supreme(Cal) 68
High Court of Calcutta
Kalyanmoy Ganguli, J.
Workmen Ms Baikuntha Nath Debasthan Trust – Appellant
Versus
State of West Bengal – Respondent
Decided On : Feb 15, 1990
An activity is an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 if it involves employer-employee relations, systematic activities, and the production of goods and services.
Headnote:
INDUSTRIAL DISPUTE - TEMPLE - 'INDUSTRY' - WHETHER TEMPLE IS AN 'INDUSTRY' WITHIN THE MEANING OF SECTION 2(J) OF THE INDUSTRIAL DISPUTES ACT, 1947 - EVIDENCE REQUIRED TO REBUT PRESUMPTION OF INDUSTRIAL DISPUTE - FACTORS TO BE CONSIDERED - COURT HELD THAT THE TEMPLE IS AN 'INDUSTRY'.
Fact of the Case:
The petitioner, a trade union representing employees of a temple, filed a writ petition challenging an award of the Industrial Tribunal holding that the temple was not an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The temple contended that it was not an 'industry' as it was engaged in religious activities and not for profit.
Finding of the Court:
The court held that the temple was an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The court observed that the temple employed several paid employees, including pujaris, darwans, and clerical staff, and that it engaged in commercial activities such as selling religious books and photographs, letting out halls for various purposes, and charging fees for pujas and other religious services. The court further held that the temple was not a charitable institution as it did not provide free services to devotees and that the majority of the participants in the temple's activities were not unpaid volunteers but paid employees.
Issues: 1. Whether the temple is an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947? 2. Whether the temple is a charitable institution?
Ratio Decidendi: The court applied the following legal principles in reaching its decision: 1. There is a presumption of the existence of an industrial dispute when a reference is made under Section 10 of the Industrial Disputes Act, 1947. 2. The onus is on the employer to rebut the presumption of an industrial dispute. 3. An activity is an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 if it involves employer-employee relations, systematic activities, and the production of goods and services. 4. The motivation of the employee in the final disposal of products or profits is immaterial in determining whether an activity is an 'industry'. 5. A charitable institution is an institution that provides free services to the public.
Final Decision: The court allowed the writ petition and quashed the award of the Industrial Tribunal. The court directed the Tribunal to decide the merits of the industrial dispute within six months.
1. IN this application under Article 226 of the Constitution of India, the petitioner, inter alia prays for a writ in the nature of mandamus commanding the respondents to rescind, recall, cancel and withdraw an award dated December 8,1987 passed in case No. VIII-149/84 by the respondent No. 3 pursuant to an order of reference made by the Government of West Bengal, Labour Department by order No. 1134/ir/ IR-IIL-292/83 dated April 26, 1984.
2. THE petitioner is a Trade Union registered under the Trade Unions Act and represents the employee of respondent No. 2. It is stated in the petition that the petitioner raised a charter of demands before the respondent No. 2 and the respondent No. 2, as a consequence thereof terminated the services of seven workmen without any charge-sheet and/or enquiry and without assigning any reason for such termination and without paying any compensation at the time of termination. The petitioner raised an industrial dispute before the appropriate authority and as the conciliation failed, the Government of West Bengal, ultimately, referred the said dispute to the learned 8th Industrial Tribunal. West Bengal, hereinafter referred to as the said learned tribunal. The issues were as follows :-(i) Revision of Wages (ii) Dearness Allowances (iii) Tiffin Allowances (iv) Medical Allowances (v) Leave and holiday, and (vi) Duty hours.
3. BOTH the petitioner and the respondent No. 2 filed their written statements along with the list of documents, the respondent No 2, in its written statement took : a preliminary objection, inter alia, to the effect that the respondent No. 2 is not an 'industry' within the meaning of Section 2 (j) of the Industrial Disputes Act, 1947, hereinafter referred to as the said Act and prayed before the said learned Tribunal being respondent No. 3 to the writ petition to hear and dispose of the said preliminary point before entering into the merits of the case. The learned Tribunal was pleased to decide the preliminary point first and asked the parties to adduce the evidence on the said preliminary point.
4. THE petitioner led evidence to prove that the respondent No. 2 is an industry and the respondent No. 2 adduced evidence in support of its contention that it is not an 'industry' within the meaning of Section 2 (j) of the said Act. Before proceeding further, a reference may be made to the case of M/s. Reckitt and Colman of India Ltd. v. 5th. Industrial Tribunal and others (1980 Lab. IC 92. In paragraph 7 of the said judgment it was, inter alia, held as follows :-
". . . . . . . . when a reference is made under Section 10 there is a presumption of existence of an industrial dispute. That presumption is no doubt a rebuttable one. But for the purpose of rebutting the same it requires evidence to be adduced by the employer."
It appears from the evidence adduced by the parties that the respondent No. 2 has got a rate chart to offer Prasad to outsiders. There are several types of pujas i.e. Archana, Pushpaseba, Abhishek etc. and the charges for each type of puja are different. The respondent No. 2 publishes its Income and Expenditure Account and Balance Sheet etc. indicating the amount of Fixed Deposit to the tune of Rs. 21,68,500. It is in evidence that the Manager was a paid employee. It is in evidence that the respondent No. 2 publishes books and sells them to customers. The respondent No. 2 engages clerical staff to maintain the books of accounts. There are 7 servants, 10 darwans, 10 pujaris, one munim, one Manager and 2 electricians who are paid regular wages. The respondent No 2 also lets out its hails for various purposes. The respondent No. 2 engages about 35 or 36 people to work within the trust and the temple is under the control of the trust. There are fixed duty hours for the employees for the three shifts-The respondents contended (1) that the office of the trust is situate at 21 Sirand Road, Calcutta-1 where there is no employee except its Hony Secretary. (2) that the tr
