JUDGMENT S.N. Srivastava, J.
1. The proceedings under the Minimum Wages Act, 1948 were initiated against the petitioner on the basis of the notice dated 8.8.1995 and 21.11.1995 (Annexures- 1 and 2 to the writ petition). The notice dated 8.8.1995 were also mentioned in the said notice. On the basis of this notice M.W. Case No. 237/95 (Sri R.P. Srivastava, Labour Enforcement Officer, Varanasi v. Shree Satya Naram Tulsi Manas Mandir) was registered before the respondent No. 1 under the Minimum Wages act and the respondent No. issued notice to the petitioner fixing 28.11.1995 and directing the petitioner to appear along with all documents and witnesses in support of his case. Notice (Annexure 1) to the writ petition makes it clear that all 29 workers in Shree Satya Narain Tulsi Manas Mandir Durga Kund Varanasi are getting fixed amount of Rs. 450/- to 650/- per month except persons mentioned at Serial Nos. 17 and 18, who are being paid a fixed amount of Rs. 1050/- per month.
2. After receiving the notice the petitioner filed objection/written statement (Annexure-4 to the petition) raising the question of jurisdiction and the applicability of the provisions for the Minimum Wages Act.
3. In the written statement filed by the petitioner, it is stated that Shree Satya Naram Tulsi Manas Mandir is a temple of Sanatam Dharm Sect and is a holy place where devotees come for darshan and pujan for their Adhyatmik Santushthi by Murti Puja. No Prasad is sold in the temple and it is purely a religious shrine of Hindus and not a commercial establishment. It was further stated that the temple is neither an industry within the meaning of U.P. Industrial Disputes Act nor a shop or commercial establishment within the meaning of U.P. Shop and Commercial Establishment Act and it is a religious and spiritual place which has no room for any sort of business, trade or manufacturing. Various other fats were also brought through this objection/written statement.
4. Subsequently the petitioner moved an application stating that since the petitioner temple is not a commercial establishment and the notification issued to fix minimum wages for commercial establishment is not applicable to it nor it being a scheduled employment the provisions of Minimum Wages Act are not applicable at all to the petitioner Temple and as such the question whether provisions of Minimum Wages Act are applicable to the petitioner Temple be decided as a preliminary issue.
5. The respondent No. 1 by the impugned order dated 4.2.1992 turned down the objection of the petitioner while observing that all the issues need be decided together while delivering final verdict.
6. Heard Sri Mool Behari Saxena, learned Counsel for the petitioner and Sri Bhupendra Nath Singh, learned Counsel appearing for Opposite party No. 3, Dr. Ashok Nigam, learned Addl. Solicitor General of India and Sri K.C.Sinha, learned Asstt. Solicitor General of India, appearing for Union of India, Sri Adish Agarwal, Addl. Advocate General assisted by Sri Sanjai Goswami and Sri S.K.Maurya, learned Standing counsel, and Dr. R.G.Padia, Senior Advocate assisted by Sri Prakash Padia who assisted the Court in this matter.
7. The question for consideration as framed by this Court by means of order dated August 29, 2002 may be excerpted below.
Whether the employees of Religious/Charitable Institution/Establishment are the employees protected under the Minimum Wages Act or any other statutory enactment in the matter of wages and if not, whether a citizen of India employed in any religious or charitable Institution/Establishment is entitled to protection in the matter of wages under Article 21 of the Constitution of India?
8. The present proceeding under the minimum Wages Act were triggered after issue of notice (Annexure 1 to the petition). This notice presupposed the petitioner Sri Satya Narain Tulsi Manas Mandir as a factory/firm under the Minimum Wages Act and the case came to be registered on the basis of the said notice.
9. Learned Counsel for the petitioner began his argument by submitting that Shree Satya Narain Tulsi Manas Mandir is a temple of Sanatan Dharam Sect and it is a religious place where devotees throng for darshan and Pujan and that it is neither a firm/factory nor a shop or commercial establishment. It is further submitted that no commercial activities are carried on within the temple precincts and the persons who have been shown in the list attached to the notice dated 8.8.1995 as the employees of the Establishment are in fact 'Sevadars' who have been kept to facilitate worship and Pujan of the idols by the devotees who pay a visit to the temple and as such the provisions of Minimum Wages Act are not applicable to the petitioner. It was further submitted that the question of jurisdiction was raised by the petitioner before the respondent No. 1 and the order passed by him to the effect that the question of jurisdiction could be raised after the evidence is closed, cannot be sustainable. He further submitted that admittedly, the petitioner is a temple and persons have been engaged as Sevadar to maintain the temple and to facilitate darshan and pujan of the idols established in the temple by the devotees and, therefore, the entire proceedings against the petitioner under the Minimum Wages Act are without Jurisdiction, He further submitted/ argued that the respondent No. 1 has acted illegally and with material irregularity in the matter by refusing to decide the question of jurisdiction as to whether the proceedings against the petitioner under the Minimum Wages Act are maintainable as a preliminary issue.
10. Sri B.N. Singh, learned Counsel for the respondent No. 3 argued that the question whether the petitioner is a factory/Firm or a shop or commercial establishment could only be determined by leading evidence and the order passed by the respondent No. 1 directing this question to be decided only after evidence is closed, is absolutely in accordance with law. The learned Counsel did not dispute that the petitioner is a temple belonging to Vaishnav sect and idols are kept therein for worship by the devotees but since a counter has been set up and tickets are sold to the devotees it shall be considered to be a shop or commercial establishment and the persons engaged by the petitioner are the employees of commercial establishment. He further urged that the writ petition should be dismissed as the order passed by the respondent No. 1 directing to adduce evidence was perfectly valid. According to him, no decision is required on the application filed by the petitioner at this stage.
10. After hearing learned Counsel for the parties, it is necessary to consider the relevant provisions of the Minimum Wages Act, 1948, U.P. Minimum Wages (U.P. Amendment) Act, 1960, U.P. Minimum Wages Rules, 1952 and U.P. Dookan Aur Vainjya Adhishthan Niyamavali, 1963.
11. Section 2(e) of the Minimum Wages Act, 1948 which defines "employer" is being reproduced herein below:
2(e) "employer" means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in Sub-section (3) of Section 26(i) ....
12. Scheduled employments are mentioned in Schedule II of the notification dated 31.3.1978 issued under Section 22F of the Minimum Wages Act and published in U.P. Gazette Extraordinary dated 31.3.1978. Employment in shops and Employment in any Commercial Establishment are mentioned at serials No. 36 and 47 respectively in Schedule II Par I. The notification dated 18.1.1992 provides for minimum rate of wages in respect of the employees employed in (i) commercial establishment in U.P. and (ii) Shops in U.P.
13. Section 2(4) of the Uttar Pradesh Dookan Aur Vanijya Adhisthan Adhiniyam, 1962 defines 'Commercial establishment' which means any premises, not being the premises of a factory, or a shop, wherein any trade, or incidental or ancillary thereto, is carried on for profit and includes a premises wherein, journalistic or printing work, or business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, or which is used as theatre, cinema, or for any other public amusement or entertainment or where the clerical and other establishment of a factory, to whom the provisions of the Factories Act, 1948, do no apply, work. Similarly Section 2(16) defines 'shop' means any premises where any wholesale or retail trade or business is carried on, or where services are rendered to customers, and includes, all offices, godowns or warehouses, whether in the same premises or not, which are used in connection with such trade or business.
14. The definition of commercial establishment makes it clear that it must be connected with trade, business manufacture or any work connected with the same. Similarly it is clear from the definition of shop that any premises where any wholesale or retail trade or business is carried on or where services are rendered to customers in a shop.
15. The expression "Wages" which is defined in Section 2(h) of the Minimum Wages Act means all remuneration, capable of being expressed in terms of money, which would be payable to a person employed in respect of his employment or of work done in such employment and the word "employee" as defined in Section 2(i) means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered , ornamented, finished, repaired, adopted or otherwise processed for sale for the purposes of the trade or business of that other person.
16. Now in the above background it is to be seen whether from the pleadings of the parties, Shree Satya Narayan Tulsi Manas Mandir is a commercial establishment or a shop. According to the pleadings of the petitioner in the petitioner's establishment about 29 persons are working and they are getting wages as mentioned in the list-appended alongwith the notice-dated 8.8.1995. From the pleadings of the parties it is established that the petitioner is involved in the activities relating to Sanatan Dharma sect of Hindu religion.
17. From the perusal of the counter-affidavit filed on behalf of the respondents, it appears that the workmen were engaged by the petitioner to look after the premises of the Manas Mandir, sale of books, issuing the tickets and collection of fare, checking of tickets and their collection etc. It further appears that the main source of income of the petitioner is from the sale of books, sale of tickets of exhibition and rent realized from the shops and Bank.
18. The petitioner urged that the sale of tickets for entering in the temple premises where moving idols of various deities are kept as well as sale of religious books are part of religious activities for maintenance of Radha Krishna Leela Jhanki which is run by the Thakur Das Surekha Charitable Fund. It is not run for profit but for propagation of religious and cultural heritage of Hindu religion. Rupee One charged from the devotees is not for public amusement or entertainment but for the maintenance of the Jhanki and payment of electricity charges as without this the Jhankl can not continue further. The books published by the Thakur Das Surekha Charitable Fund are available and distributed free of cost and for outsiders the expenses of sending the books by registered post are charged otherwise the books are published and made available to the public on the basis of no profit and no loss. The money received from the entry charges and rent of the shops etc. is utilized to meet out the heavy expenses of the maintenance of the temple without any move of profit. The petitioner has stated in paragraph 13 of the rejoinder affidavit that the workers engaged in the petitioner's establishment are there with the sense of their religious duty and not for earning of their livelihood and they are given all the facilities. The petitioner has denied the allegation of denial of leave, earned or sick or casual, to the workers. It has been stated that the total yearly earning of the temple is approximately Rs. 50,000/- for which proper account is maintained.
19. Shri B.N.Singh has contended that the petitioner is a 'commercial establishment' and in this context the definition of 'commercial establishment' as contained in Uttar Pradesh Dookan Aur Vanijya Adhishthan Adhmiyam will have to be looked into. The said at envisages that commercial establishment is a premises wherein any trade, business, manufacture or any work in connection with, or incidental or ancillary thereto is carried on for profit. From the aforesaid definition, it is clear that Manas Mandir is not a premises wherein any trade, business or manufacturing work is carried on for profit and it is a place for religious activities wherein idols of different deities are kept for Puja and darshan by the devotees, religious books are distributed free of cost and Re.1/- is charged as entry free from the devotees for proper maintenance and management of the temple and not for any profit. No material is available on record to establish that there was any profit-oriented motive In establishing the Manas Mandir or in establishing the moving idols of the deities. Thus, it does not transpire that the petitioner is a commercial establishment as defined under the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 and as such, the notice issued to the petitioner by the Opp. party No. 1 is without jurisdiction and the entire proceeding initiated on that basis is also without any basis and is liable to be quashed.
20. It was also canvassed by the learned Counsel for the Opp. parties that even though the workers are engaged in charitable or religious activities, they are also the citizens of India and they have every right to live with dignity. Article 21 of the Constitution of India also guarantees their livelihood and they are also entitled to get such wages to keep their potboiling. Merely because they are engaged in religious activities in religious establishment, they cannot be denied their basic right of earning livelihood and in consequence, cannot be allowed to be exploited and they too are entitled to basic human right and to get minimum wages from the earnings of religious and charitable institutions like temples, mosque and churches. In the above conspectus, it falls to the Government to initiate steps in order to secure them decent living and minimum wages.
21. After hearing both the counsel for the parties, issue for determination cropped up if employees of religious or charitable Institutions/Establishment are employees not protected under the Minimum Wages Act or any other statutory provisions in the matter of wages and if not whether a citizen of India employed in any religious or charitable Institutions/Establishment is entitled to protection in the matter of wages under Article 21 of the Constitution of India. As a necessary consequence, notices were issued to State of U.P. as also the
22. Union of India. Sri S.C. Rai, they learned Addl. Chief Standing Counsel accepted notice on behalf of State of U.P. and learned Senior Standing counsel accepted notice on behalf of Union of India. Learned Addl. Chief Standing Counsel representing the State of U.P. and learned Senior Standing counsel for Union of India sought time for instructions in the matter and they were accorded four weeks' time to file their respective counsel affidavits. Both the counsel sought further time on 22.10.2002 and therefore 26.11.2002 was fixed for further hearing. On 26th Nov 2002. Both the counsel were granted one month's and no more time to file counter affidavit or to take appropriate steps in this regard. On 11.8.2003, learned Addl. Chief Standing Counsel made a statement before the Court that he has received instructions not to file any counter affidavit or resist the issues involved in the writ petition. He also read out copy of the letter issued by the Labour Secretary dated 10.1.2003, which was placed on record. Sri K.C.Sinha, learned Assistant Solicitor General of India filed a short counter affidavit on the question. The text of short counter affidavit as contained in para 3 thereof is that the minimum wage is a concurrent subject of III List, Seventh Schedule of Constitution of India and under the statutory provisions of the Minimum Wages Act, 1948, both the Central and the State Government are the appropriate Government to fix, revise and enforce minimum wages of the workers engaged in the scheduled employments under their respective jurisdictions and therefore, in implementing provisions of the Act, the role of the Central Government is of advisory in nature as both Central Government and the State Government implement the Act independent of each other. In para 6 of the short counter affidavit, the specific averment is that the Central Government is the appropriate Government under Minimum Wages Act only in relation to any scheduled employment carried on or by under the authority of the Central government or a Railway administration, or in relation to Mines, Oil Fields or Major Ports or any Corporation established by a Central Act. For remaining employments, the State Government is the appropriate Government. In para 7 of the short counter affidavit, the averment is that religious institutions do not stand included in the schedule of employments in the Central Sphere and ultimately, it has been prayed that necessary direction, if any, be given to the State of U.P. to add any new employment in the Schedule of employments within the sphere of State Government. It was in the above backdrop that the case was again heard. Having gone through all this tedium, I heard Sri Adish Agarwal, learned Addl. Advocate General, learned Counsel for the Opp. Parties and also Dr. R.G.Padia, learned Senior Advocate, who entered appearance to assist the Court in the matter on the request of the Court and also Dr. Ashok Nigam, learned Addl. Solicitor General of India who assisted the Court.
23. In view of the fats stated and borne out from the pleadings of the parties, it is to be seen whether the petitioner is an employer within the definition of the Minimum Wages Act, 1948 and the persons working in Shree Satya Narayan Tulsi Manas Mandir are in the scheduled employment. From a punctilious reading of the notifications issued by the Government from time to time under the Minimum Wages Act, 1948, U.P. Minimum Wages (Amendment) Act, and U.P. Minimum Wages Rules, 1952 it is found that there is no notification providing for categorization of the workers engaged by Shree Satya Narayan Tulsi Manas Mandir or any religious or charitable Trust or Math, Mandir etc.
24. As stated supra, a question of pivotal importance begs consideration in the above conspectus and it is whether the workers who are engaged in various Charitable/ Religious Establishments viz. in Temples, Maths, Monasteries etc within the fold of Hindu Religion have also a constitutional right to be given minimum wages notwithstanding the fact that Minimum Wages Act and the Rules framed thereunder are not intended for application for the reason that these institutions cannot be said to be a shop/commercial establishment or industry? In connection with this question, I feel called to deal with this aspect on the admitted fact that the workers mentioned in Annexure 1 to the notice are working in the charitable and religious establishment of the petitioner but are not getting wages sufficient to keep the life meaningful, complete and worth living i.e. something more than survival of animal existence. I am told across the bar that in majority of religious and charitable institutions, notwithstanding the fact that huge income is flowing to their coffer from the devotees, the condition of the workers employed in such institutions is very dismissal and they are keeping a precarious existence as the Minimum Wages Act is not applicable by reason of the fact that such institutions do not fall within the ambit of definition of a shop or commercial establishment or industry. Most of these workers like Opposite party No. 3 get very exiguous amount, which is too meagre and incapable of protecting their own lives and the lives of their family members.
25. It is engrafted in Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. It is also essential to refer to Articles 37, 38, 39 and 43 embodied in Part IV of the Constitution of India. Article 38 of the Constitution is being excerpted below for ready reference.
Article 38. State to secure a social order for the promotion of welfare of the people-
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
39. Certain principles of policy to be followed by the State,-
(a) That the citizens, men and women equally, have the right to an adequate means of livelihood;
Article 38(2) of the Constitution specifically mandates that the State shall, in particular, strive to minimize the inequalities in income and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Similarly, Article 43 mandates that the State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. For the workers employed in shops and commercial establishments the State has already provided minimum wages Act and various other welfare legislations but for the workers who are engaged and working in charitable and religious institutions and are bleeding themselves for the upkeep of the institutions and for gratifying the spiritual urges of the public at large and in number of cases such hapless workers keep themselves on tenterhook round the clock or in the minimum 12 to 8 hours a day, the State seems to be still oblivious of their suffering and has not made any legislation for their welfare as yet.
26. Articles 14 of the Constitution of India make it clear that the workers in the employment of such institutions cannot be discriminated against simply on the grounds that they are employed in religious and charitable institutions which were founded not with the motive of earning profits but for religious and charitable purposes. Considering the provisions of Articles 21, 38(2) and 43 of the Constitution of India, the view is irresistible that such workers are also entitled to get minimum wages as right to life under Article 21 of the Constitution of India. Article 43 of the Constitution of India also makes it clear and does not make any discrimination while stating "to all workers, agricultural, industrial or otherwise" to all workers, agricultural, industrial or otherwise" and all such workers are entitled to get a living wage. The word 'living wage' contained in Article 43 means the wages by which a worker can maintain his life to live with dignity with all other facilities as contained and implicit in Article 21 as held by the Supreme Court in various decisions. While interpreting 'living wage' to secure to all workers a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, anybody could come to the conclusion that living wage means at least minimum wage. It has been held in various pronouncements by the Supreme Court that fundamental rights and directive principles of State Policy are complementary and supplementary to each other. Paragraphs 138 and 141 of the judgment in the case of Unnikrishnan K.P. v. State of Andhra Pradesh are being quoted below:
138. This Court has also been consistently adopting the approach that Fundamental Rights and Directive Principles are supplementary end complementary to each other and that the provisions in Part III should be interpreted having regard to the preamble and the Directive Principles of the State policy. The initial hesitation to recognize the profound significance of Part IV has been given up long ago. We may explain. While moving for consideration the interim report on Fundamental Rights, Sardar Vallabhai Patel described both the rights mentioned in parts III and IV as Fundamental Rights- one justiciable and other non-justiciable. In his supplementary report, he sated:
There were two parts of the report; one contains Fundamental Rights which were justiciable and the other part of the report refers to Fundamental Rights which were not justiciable but were Directives.
This statement indicates the significance attached to Directive Principles by the founding fathers. Yet another decision on the point is Minerva Mills v. Union of India . It is true that in the State of Madras v. Champakam Darairajan (sic) fundamental rights were held pre-eminent vis-a-vis Directive principles but since then there has been a perceptible shift in this Court's approach to the inter-play of Fundamental Rights and Directive Principles.
141. It is thus well established by the decisions of this Court that the provisions of Part III and IV are supplementary and complementary to each other and that Fundamental Rights are but a means to achieve the goal indicated in Part IV. It is also held that Fundamental Rights must be construed in the light of the Directive Principles, It is from the above standpoint that question No. 1 has to be approached.
The case of Francis Corlie v. Union Territory of Delhi AIR 1981 SC 745 was the first case in which right to life was interpreted. It says that right to life includes the right to live with human dignity. Hon. Supreme Court has now settled in number of cases that right of livelihood is a right to live and let all other live with human dignity and all that goes along-with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms freely moving about and mixing and commingling with fellow human beings. It further states that right to life includes the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bar minimum expression of the human-self. Every act, which offends against or impairs human dignity would constitute deprivation of this right to live and it would have to be in accordance with reasonable, fair and just procedure established bylaw which stands the test of other fundamental rights. It was held in this case by the Supreme court that these are necessary components of Articles 14 or 21 of the Constitution of India.
27. Right of livelihood has further been defined in ; and 1992 (IV) S.C.C. 465. In the case of Olga Tellis v. Municipal Corporation right to life has been further defined in paragraphs 32 and 33 of the judgment. Relevant extracts from paragraphs 32 and 33 are being quoted below: -
32...If the right to livelihood is not treated as a part of the constitution right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation....
33. Article 39(a) of the Constitution, which is a directive principle of State policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to adequate means of livelihood. Article 41, which is another directive principle, provides, inter-alia, that that State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and all the undeserved want. Article 37 provides that the directive principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The principles contained in Articles 39(a) and 41 must be regarded as equal fundamental in the understanding and interpretation of the meaning and content of fundamental rights, If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as off ending the right to life conferred by Article 21.
The above case also laid down the law that any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.
28. There are various other pronouncement of the Supreme Court in which this principle was followed subsequently in all such cases. In D.S. Nakara v. Union of India , the Supreme Court held that if an under privileged also are clamouring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court, the Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guests of the Five Star hotel.
29. The Supreme Court in Lingappa Pochanna v. State of Maharashtra has laid down the law relating to distributive justice to achieve a fair division of wealth among the members of society based upon the principle' from each according to his capacity, to each according to his needs'. Distributive justice comprehends more than achieved lessening of inequalities by different taxation, giving debt relief or distribution of property owned by one many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargaining should he restored their property. All such laws may take the form of forced re-distribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements. In State of Himachal Pradesh v. Umed Ram the Supreme Court has further elaborated that right under Article 21 embraces not only physical existence of life but the quality of life and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. Right to live with dignity is a fundamental right as held by Apex Court in Maneka Gandhi v. Union of India AIR l978 SC 597. Article 38(2) was regarded as another constitutional imperative. In Mohini Jain v. State of Karnataka the Supreme Court has further repeated that "right to life" is the compendious expression for all those rights, which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct, which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. From the above it is clear that right to earn wages to maintain human dignity with all such connected matters in a dignified manner is part of right to life, It is further held that depriving a person of his right to livelihood amounts to depriving him of his right to life.
30. India is a signatory to the Universal Declaration of 1948. Article 25 of the Universal Declaration, 1948, which also provides such right to citizen of India.
31. It has come on record through the means of affidavit that the petitioner earns huge money during certain period of the year and that money is used and appropriated by the management and the officebearers of the petitioner to their use. Each and every person working in a religious and charitable institution, whether he is an ordinary worker or an office bearer, is the custodian to protect the property of the establishment. Even the Chairman, Secretary, Trustees of such institutions are workers in similar way and have been engaged to protect the property of the institution and to follow the aims and objects for which the institution has been established. The Mahants, Secretaries and heads of such religious and charitable institutions are like other workers who have also been engaged to achieve the same goal. The wealth collected or received by the religious and charitable institutions is to be distributed in a rationale manner to protect the life and livelihood of the workers and their family members.
32. In these circumstances, I direct the State to make certain scheme for such religious and charitable institutions and frame regulation in the scheme to provide protection to such workers. The State has every duty to enforce the constitutional rights of the workers of such institutions as applicable to other Establishments i.e. commercial establishment. The work "otherwise" mentioned in Article 43 of the Constitution, contained in Directive Principles, read with Article 21 of the Constitution fully covers the case of such workers.
33. The above discussion gives birth to consideration of the precise question as to what are the rights of employees or Sevadars, or Imams etc. who are charged with the duties/responsibilities to upkeep the establishment or to perform Pooja of Deity in a temple, managed either by the Trustees, Committee, Manager or Savaits as the case may be, and whether in the matter of offerings to the Deity or the income flowing from such trust, temple, they can lay claim to surplus income or offerings to a use other than betterment and maintenance /upkeep of the Trust etc. and employees/workers are entitled to get wages.
34. Having scanned the matter in all its entirety, and after hearing the learned Counsel for the parties, my conclusions lean in favour of the view that the offerings or income from such Temple/charitable Trust, etc. is an offering/income meant for deity and Almighty and in this connection, such trustee, Savaits etc. have not personal claim to appropriate such offering and income according to their own choice. In my view they are also in the service Of Deity or Almighty at par with the other employees or Sevadars engaged in the service of Almighty and the Deity and by this reckoning, merely because, they are Savait or Mahants etc. or at the helm of the affairs in the Management of such establishments, they have no overriding claim or personal rights to the offerings/gifts/Daan received by the temple or charitable or religious establishment or its use except for the upkeep and maintenance of such
35. Trust/Temple/Establishment/Institutions vis-a-vis other employees and Sevadars. No doubt, a Poojari performs Pooja to Almighty and for service so rendered by him entitles him to receive remuneration whether it is from the offerings or income derived from such Charitable Trust, establishment etc, but the service so rendered by him does not invest him with a right to claim more and more from the property which does not belong to him in individual capacity but is dedicated or gifted or offered to Almighty or Idol and the same cannot be appropriated as a personal property, of any one of the servants of Almighty, or Poojari or Savaits of a temple. He may have personal interest of beneficial character for the cause of temple, religious or charitable establishment but he cannot claim his personal rights to receive offerings made to idol or Almighty. By no reckoning, such offerings could be utilised or appropriated for his use except that the same can be utilised for accomplishing and furthering the aims and objects of the Charitable Trust, temples etc,. The persons who are engaged by the management or persons involved in the management are working on behalf of the Devotees in a similar way as Sevadars and other persons involved and they are also entitled at par with Savait/members of the Trust who are involved for whole time in the service of temple and they have also got same rights of livelihood like Sevadars and other employees.
36. Article 21 of the Const of India is applicable equally to all such persons. The right to get livelihood, wages to maintain themselves and their families as discussed above, and to get fair wages cannot be denied merely on the ground that the establishment or Institution is a religious or charitable institution or that persons who are engaged are Sevadars or employees at the pleasure of management. Employees or Sevadars are the persons who have dedicated themselves to the service of Deity and Almighty and in such way, merely on that ground cannot be denied their right of living wages to maintain themselves or their families and to live a life with human dignity.
37. In the above conspectus, it is now established that though service conditions of the employees of religious and charitable establishments are not governed by any statutory rules, looking to the fact that these people are committed to their works in religious and charitable establishment and service to the entire sociality selflessly and have been devoting their time to the service of the mankind, a humanistic approach is called for towards their plight and predicament. It is settled that under Article 21 of the Constitution of India, the rights to live takes within its sweep the right to livelihood and by this reckoning they are also entitled to such emoluments so as to keep the pot boiling for himself and his family members. The above viewpoint receives reinforcement from various decisions including the decision of the Workmen represented by Secretary v. the Management of Reptakos Brett & Co and Anr. , in which five norms of fixation of minimum wages have been delineated i.e. food requirement, clothing requirement, other misc. expenses including fuel, lighting etc. Besides the above, the right to get education and maintain health of the children has also been recognized to
38. De taken into account for constituting living wages. As observed in (supra), a living wage/minimum wages have been promised to the workers under the Constitution. Further, a socialist frame work to enable the working people in India a decent standard of life, has been promised by the 42nd Amendment by adding word 'socialism in the Preamble. The workers are hopefully looking forward to achieve the said ideal. The promises are piling up but the day of fulfillment is nowhere ins sight. In the light of the above observations, it cannot be disputed that every citizen whether employee of a religious or charitable establishment or otherwise is entitled to get living wages. It is now well settled by several pronouncements of Apex Court as well as this Court that religious activities, which are integral part of religion, cannot be interfered with but the matters, which are not integral part of religious activities, can be regulated by legislation or by any scheme.
39. A decision rendered by a Division Bench of Allahabad High Court in Vikram Narain Singh v. State of U.P. 1987 ALJ 728. Yet another decision in which similar matter came up for consideration before the Apex Court is the decision rendered in Raja Vir Kishore Deo v. State of Orissa in which Constitution Bench of Apex court held Orissa Act No. 11 of 1995 valid. In the judgment, the rights of management of temple, which were vested in Raja of Puri and his ancestors, were taken away. In the said decision, the Supreme Court held that the Act so enacted has not taken away the right of Raja of Puri as Sewaks and it also does not affect religious rights of Raja. This judgment also pronounces that all persons in the management are Savaits like its employees and any one engaged in the service and performance and up-keep of the temple/trust etc. person has no right to use the offerings of devotees personally except in the interest of all the persons and the interest of temple or religious institutions. Another Constitutional Bench decision is Commissioner Hindu Religious Endowments (Madras) v. Sri Lakshmandra Thirtha Swamiar 1954 S.C. 282, in which the Constitution a Bench in para 22 of the decision, observed that freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the constitution itself has laid down under Article 26(b). Therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. It was further observed by the Apex Court that the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature, for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. Another Constitution Bench decision of the Apex court in Darhgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. , also lends countenance to the view that the matters of religion include even practices which are regarded by the community as part of its religion. In order that the practices in question should be treated as a part of religion they must however be regarded by the said religion as its essential and integral part, otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices.
40. This Court is also of the view that the State cannot interfere with the Integral part of the religious functions but such matters like payment of Minimum Wages or other welfare scheme for the Sevaks/workers in the employment of Temple or other religious and Charitable Establishments can well be regulated.
41. My view is fortified by certain cases, which I consider germane to the controversy involved in this petition, may be noticed. One such question relating to an employee working in a temple whether he was entitled to get gratuity was on the tapis in Administrator, Shree Jagannath Temple v. Jagannath Padhi 1992 LAB IC 1621. A division bench consisting of Hon. B.L.Hansana then C.J. and Sri A. Pasayat, gave vent to the following observation:
It does not have foundation on any legal liability, but upon a bounty streaming from appreciation and graciousness. Long service carries with it expectation of an appreciation from the employer and a gracious financial assistance to tide over post retrial difficulties. Judged in that background, we feel that it would be unconscionable to keep temple out of the purview of the Act, more particularly when opposite party No. 1, a low paid employee has served the temple for a very long span of time.
42. In the light of above observation that every citizen whether employees of any Religious and Charitable establishment/Institution which includes, Math, Monastery etc. are entitled to get living/minimum wages, it is held that Opposite party No. 3 and all employees working in the Establishment of the petitioner are entitled to get minimum wages from the date the dispute was raised. The petitioners are liable to pay the same forthwith alongwith arrears. Besides, the State is also liable to make suitable legislation for securing to all workers, a living wage conditions of work ensuring a decent standard of life in the tenor and spirit of Article 43 of the Constitution of India.
43. Similar matter came up for consideration before the Apex court in All India Imam Organization v. Union of India 1993 SC 2089. In that matter also, there was absence of legislation for payment of salary/wages to Imam. The Apex court in paragraph 5 of the said decision laid down as under:
Absence of any provision in the Act or the rules providing for appointment of Imam or laying down condition of their service is probably because they are not considered as employees. At the same, it cannot be disputed that due to change in social and economic set up they too need sustenance. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. But there are large number of such persons who have no other occupation or profession or service for their livelihood except doing duty as Imam. What should be their fate? Should they be paid any remuneration and if so how much and by whom? According to the Board they are appointed by the mutawallies and therefore, any payment by the board was out of question. Prima facie it is not correct as the letter of appointments issued in some states are from the Board. But assuming that they are appointed by the Mutawallies the Board cannot escape from its responsibility as the Mutawallies too under Section 36 of the Act are under the supervision and control of the Board. In series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity. It is too late in the day, therefore, to claim or urge that since Imams perform religious duties they are not entitled to any emoluments. Whatever may have been the ancient concept but it has undergone change and even in Muslim countries mosques are subsidized and the Imams are paid their remuneration.
44. The only difference between the case referred to above and this case appears to be that in case of Imams, there was a statutory body like wakf Board covered by Central as well as State Wakf Act but there was also no provision regulating the services of Imams. Here, in the present case, there is no statutory body, which may be directed to prepare a scheme for payment of minimum/living wages to the employees-workers of such Establishment.
45. In view of above discussions, in order to make fundamental right of such workers enforceable, it is directed that the Union of India and the State of U.P. shall prepare a scheme for constitution of Board on the lines of the U.P. Muslim Wakf Act, 1960 with suitable amendments commensurate to the requirements of Hindu religion representing all sects falling within the fold of Hinduism. The Board so constituted shall be self-governing autonomous body, regard being had to tenets, customs and other provisions governing to such sects. This Board shall register all such religious and charitable establishments/Endowments according to the norms represented by Maths, Monasteries, Temples and Religious and Charitable Trust or Societies as the case may be, through their heads or the representatives of all sects. The central as well as the State Government may also frame welfare scheme for providing minimum wages to such workers as well as other welfare measures relating to such workers/employees. As stated supra, such scheme will 6e prepared on the lines of the U.P. Muslim Wakf Act, 1960 or any other legislation in this regard with suitable amendments/changes as according to Hindu religion may be deemed proper after inviting objections from all sections in the fold of Hindu religion. The Scheme so framed may be placed before this Court after three months.
46. List this matter after three months i.e. on 4.9.2006. Let a copy of this order be supplied each to learned Advocate General U.P. and to Addl. Solicitor General, Union of India within two (sic) for taking effective steps in the light of directions aforestated.