Heard the parties.
2. The writ petition was filed by the Rector and Parish Priest of Shrine Basilica at Vailankanni challenging the order of the first respondent State made in G.O.(D) No.149, Labour and Employment Department, dated 19.2.1999. By the aforesaid order, the first respondent by the exercise of its power conferred under
Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short 'the ID Act') referred certain issues for adjudication by the Labour Court, Cuddalore. The following are the issues :-
1.Whether the demand of the trade union in seeking for revision of payscales to the employees working in the establishments depending upon the post held by them is justified? If so, grant appropriate orders.
2.Whether the demand of the trade union in seeking for the employees working in the establishments dearness allowance, house rent allowance, medical allowance, tea allowance, night shift allowance, washing allowance and for the scavengers a special health allowance is justified? If so, issue appropriate orders.
3.Whether the demand of the trade union in seeking for supply of uniform to the workmen is justified? If so, issue appropriate orders.
3. Pursuant to the order issued by the State Government, the Labour Court, Cuddalore took up the dispute as I.D.No.54 of 1999 and issued notice to the petitioner as well as to the third respondent trade union. The third respondent trade union has filed a claim statement before the Labour Court. Instead of filing a counter statement, the petitioner moved this Court with the present writ petition challenging the validity of the action of the State Government in referring the dispute for adjudication.
4. The writ petition was admitted on 02.8.1999 and an interim-stay was granted. Subsequently, the stay was made absolute on 30.12.2002. On behalf of the third respondent union, a petition was filed to fix an early date and this Court directed the writ petition to be posted for final disposal on 05.9.2005. However, for the reasons best known, the matter came to be posted for final disposal only on 23.7.2008, i.e. after a period of three years.
5. The two contentions raised by the learned counsel for the petitioner. The first contention was that the workmen represented by the third respondent union are not workmen within the meaning of Section 2(s) of the ID Act and that the petitioner being a religious establishment cannot be considered to be an ''industry'' within the meaning of
Section 2(j) of the ID Act. The second contention was that since the trade union represents more than 100 workmen and as the issue referred for adjudication falls under Third Schedule to the ID Act, the reference could only be made to the Industrial Tribunal and not to the Labour Court.
6. Mr.Ravindran, the learned counsel for the petitioner, placed reliance upon the judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board -vs- A.Rajappa and others reported in (1978)I LLJ 359 = (1978) 2 SCC 213. The following passage relied upon by the learned counsel and found in para 110 may be usefully extracted below:-
''Para 110. ... ... .. If the substantial number of participants in making available goods and services, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wage-less sishyas, it is impossible to designate the institution as an industry, notwithstanding a marginal few who are employed on a regular basis for hire. The reason is that in the crucial, substantial and substantive aspects of institutional life the nature of the relations between the participants is non-industrial. Perhaps, when Mahatma Gandhi lived in Sabarmati, Aurobindo had his hallowed silence in Pondicherry, the inmates belonged to this chastened brand. Even now, in many foundations, centres, monasteries, holy orders and Ashrams in the East and in the West, spiritual fascination pulls men and women into the precincts and they work tirelessly for the Maharishi or Yogi or Swamiji and are not wage-earners in any sense of the term. Such people are not workmen and such institutions are not industries despite some menials and some professionals in a vast complex being hired. We must look at the predominant character of the institution and the nature of the relations resulting in the production of goods and services. Stray wage-earning employees do not shape the soul of an institution into an industry".
7. Therefore, he submitted that on the basis of these observations the petitioner's activities cannot be brought within the meaning of
section 2(j) of the ID Act. He also submitted that even the decision by a Seven-Judges Bench of the Supreme Court in Bangalore Water Supply case (cited supra) was also doubted by a subsequent Constitution Bench of the Supreme Court in State of U.P. -vs- Jai Bir Singh reported in 2005 (2) LLJ 831= (2005) 5 SCC 1. The following passage found in para 31 may be usefully reproduced below:-
''Para 31. After hearing learned counsel for the contesting parties, we find there are compelling reasons more than one before us for making a reference on the interpretation of the definition of industry in
Section 2(j) of the Act, to a larger Bench and for reconsideration by it, if necessary, of the decision rendered in the case of Bangalore Water Supply & Sewerage Board.. The larger Bench will have to necessarily go into all legal questions in all dimensions and depth .. .. ..".
8. The learned counsel also relied upon the following judgments of two Division Benches of the Kerala and Karnataka High Courts to reinforce his arguments that a place of worship cannot be an 'industry' within the meaning of
Section 2(j) of the ID Act:-
1.Cherinjumpatty Thampuratty -vs- State of Kerala (2005 (1) LLJ 32, Kerala (DB);
2.Radhakrishna Bhakta -vs- Subramanya Shastri and another (2006 (2) LLN 249, Karnataka (DB).
9. However, the questions raised here cannot be decided solely on the basis of the order of reference made by the first respondent. The issue will have to be decided on the basis of the evidence to be let in before the Labour Court. In the absence of a pleading placed before the Labour Court and evidence to be let in, such issues cannot be decided by looking into the order of reference made by the State Government. The issue whether a particular institution is an 'industry' within the meaning of Section 2(j) of the ID Act and whether a particular individual is a 'workman' within the meaning of
Section 2(s) are mixed questions of fact and law. In the present case, the State Government was prima facie satisfied that the petitioner institution was an 'industry'. But, however, the order of reference is not final and it is still open to the petitioner to convince the Labour Court that their activities are not covered by the provisions of the ID Act.
10. There may be very many activities undertaken by a religious institution and all such activities cannot be said to be excluded from the coverage under the ID Act. In this context, a reference can be made to a judgment of the Supreme Court in Workmen of Tirumala Tirupati Dewasthanams -vs- The Management and another reported in 1980 (1) LLJ 211 = (1980) 1 SCC 583. Reference may be made to the following passage found in paragraph 2:-
''Para 2 : ... ... Is the Transport Department so merged in and integrated with the Devasthanam as to be incapable of independent identity? Is the Transport Industry run by the Devasthanam sufficiently spread as to be treated as an institution in itself? There is no doubt, as the Tribunal has rightly held, that it is an industry but the further question arises whether it is an institution in the context and within the text of the Payment of Bonus Act. ... ..."
11. Though in the above case, the question arose was under the Payment of Bonus Act, yet the fact that a particular activities of a temple was not excluded from the purview of the ID Act is clearly established. Even otherwise, an order of a reference cannot be rejected on the basis of an affidavit submitted before this Court. This Court will not embark upon such an exercise when there is an effective forum available for the petitioner before the Labour Court.
12. The second contention raised that the matter falls under the Schedule III and, therefore, it must go before the Industrial Tribunal is only stated to be rejected. If a matter is found in Schedule II, the same may be referred either to the Labour Court or to the Industrial Tribunal. Therefore, the argument of the learned counsel for the petitioner has no substance.
13. The Supreme Court has taken an exception to the courts' entertaining the writ petitions at the interlocutory stage thereby stalling the main adjudication for years together. In the present case, the management had the advantage of the stay order for over ten years and has thus had effectively prevented an adjudication of the dispute by the Labour Court.
14. In this context, it may be relevant to refer to the concern expressed by the Supreme Court in D.P.Maheswari -vs- Delhi Administration reported in (1983) 4 SCC 293. The following passage found in paragraph 1 may be reproduced below:-
'' It was just the other day* that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under
Article 226 of the Constitution and to this Court under
Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under
Article 226 of the Constitution stop proceedings before a tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under
Article 226 of the Constitution nor the jurisdiction of this Court under
Article 136 may be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from court to court for adjudication of peripheral issues, avoiding decision on issues more vital to them.
Article 226 and
Article 136 are not meant to be used to break the resistance of workmen in this fashion. Tribunals and courts who are requested to decide preliminary questions must therefore ask themselves whether such threshold part-adjudication is really necessary and whether it will not lead to other woeful consequences. After all tribunals like Industrial Tribunals are constituted to decide expeditiously special kinds of disputes and their jurisdiction to so decide is not to be stifled by all manner of preliminary objections and journeyings up and down. It is also worthwhile remembering that the nature of the jurisdiction under
Article 226 is supervisory and not appellate while that under
Article 136 is primarily supervisory but the court may exercise all necessary appellate powers to do substantial justice. In the exercise of such jurisdiction neither the High Court nor this Court is required to be too astute to interfere with the exercise of jurisdiction by special tribunals at interlocutory stages and on preliminary issues".
15. In view of the above, it is for the petitioner to move the Labour Court with appropriate pleadings, let in evidence and satisfy the Court about the illegality of the order of reference. Hence, the writ petition stands dismissed. However, there will be no order as to costs.
16. Since the dispute is of the year 1999, and more than 10 years have lapsed, the first respondent Labour Court is hereby directed to give preference for expeditious disposal of the dispute and in any event dispose of the same within a period of three months from the date of receipt of a copy of this order.
js To
1. The Secretary to Government, Labour and Employment Department, Fort St.George, Chennai-9.
2. The Presiding Officer, Labour Court, Cuddalore.
3. The Secretary, Vailankanni Punitha Arokia Annai Thozilalar Munnetra Sangam, No.81, Chetty Street, Vailankanni