JUDGMENT Ashok Bhushan, J.
1. Heard Sri K.P. Agrawal Senior Advocate assisted by Miss Bushra Maryam for the petitioner and Sri Pradeep Verma learned Counsel appearing for the respondent Nos. 3 and 4. Affidavits have been exchanged by the parties and with the consent of parties the writ petition is being finally disposed of.
2. By this writ petition the petitioner has prayed for quashing the award dated 6.11.2003 published on 28.4.2004 of the Industrial Tribunal, U.P. Allahabad. Brief facts in the case necessary for deciding the controversy raised in the writ petition are :
3. Respondent No. 4 is a trust, namely, Jawahar Lal Nehru Memorial Fund which was constituted for the purpose of promoting various activities which were dear to the heart of Jawaharlal Nehru and any other activities in furtherance of his ideals, including such activities as would conduce to the general welfare and uplift of the poor and service of the oppressed. The object of the trust are enumerated in Clause 2 of trust deed. Some of the constructive activities have been detailed in Appendix 'C' to the trust deed which is as follows :
"APPENDIX-C
1. Promotion and encouragement of scientific education and research.
2. Promotion of international goodwill and understanding.
3. Care of Children.
4. Women welfare programmes.
5. Ameliorative measures to improve living conditions in villages and towns and provision of basic amenities in rural areas.
6. Promotion of mountaineering.
7. Care of animals."
4. The Executive Committee of the trust appoints a Secretary from amongst the trustees whose duty includes to employ such subordinate clerical and other staff as may be necessary from time to time on such salary and emoluments as may be approved by the Chairman or the Vice Chairman (as contained in the Rules and Regulations of the Trust which was submitted by the counsel for the respondents along with the deed of declaration of trust at the time of hearing). Petitioner was appointed on 31,8.1995 as Stenographer by the Jawahar Lal Nehru Memorial Fund, Anand Bhawan, Allahabad. Services of the petitioner were terminated with effect from 5.6.2000. A reference was made by the State Government under Section 4K of the U.P. Industrial Disputes Act, 1947 to the Industrial Tribunal (I) Allahabad. Adjudication Case No. 95 of 2001 was registered. Petitioner filed written statement and a supplementary written statement. Written statement was also filed by the Employer, rejoinder affidavits were also filed by the petitioner and the Employer. The main plea of the Employer in the written statement was that his fund is not industry within the meaning of Industrial Disputes Act, 1947. It was stated in the written statement that the services of the petitioner were terminated as economy measure. It was further stated that the Fund is a Charitable Trust and is not an industrial establishment. The case of the workman was that the provisions of the Industrial Disputes Act, 1947 are attracted to the respondent No. 4 as an industry within the meaning of Industrial Disputes Act, 1947. It was stated in the supplementary written statement that the respondent No. 1 run a book shop which earns a profit of rupees one lack per month, it charge entry fee for the first floor of the Anand Bhawan and fee is also charged from the planetarium. Computer Classes and Yoga Classes also run for which fee is charged from the students. The Employer also stated that the petitioner's services have been terminated in accordance with the relevant Service Rules. In term of Rule 116 of the Service Rules by which three months pay in lieu of notice has been given to the petitioner. The Industrial Tribunal after hearing both the parties and after considering the respective pleadings and records, came to the conclusion that the petitioner is not workman and the respondent No. 4 is not an industry within the meaning of Industrial Disputes Act, 1947. The Tribunal also held that the services of the petitioner were not terminated on account of any ill-will or malice or victimisation. The termination was not found illegal and the reference was answered against the petitioner.
5. The Counsel for the petitioner challenging the award contended that the Tribunal committed error in holding that the respondent No. 4 is not covered by the Industrial Disputes Act, 1947. Sri Agrawal contended that the respondent No. 4 is industry within the meaning of Section 2 (j). The U.P. Industrial Disputes Act, 1947 and the provisions of Section 6N of the Act having not been complied with while affecting termination, the termination is illegal and the petitioner was entitled for reinstatement with full back wages. Reliance has been placed on Seven Judge judgment of the Apex Court in Bangallore Water Supply and Sewerage Board v. A. Rajappa and Ors. etc., AIR 1978 SC 548.
6. Sri Pradeep Verma, learned Counsel for the respondent Nos. 3 and 4 supported the view of the Tribunal that the respondent Nos. 3 and 4 is not an industry. Sri Verma contended that the respondent No. 4 is a trust formed under the Indian Trust Act, 1882 and it is not an industry. It has been contended that it is a trust without any aid by the Government. It is therefore, not an instrumentality within the meaning of Article 12 of the Constitution. Elaborating his submission Sri Verma submitted that the activities of the trust are educational in nature to supplement personality traits. Anand Bhawan is a museum, trying to give education on our freedom movement and the role of Jawaharlal Nehru. Jawahar Planetarium is trying to educate public and particularly children, about astronomy and Science in every day life; and inculcate scientific temper. Jawahar Bal Bhawan is an after-school institution offering activities in creative arts, performing arts and sciences for the fuller development of children. The above type of education in its true aspect, is more a mission in fulfilling the aims and objects of the trust rather than a profession or trade or business. A decision was taken to terminate the petitioner due to financial constraint. Lastly it was contended that according to Section 6N of the Act petitioner was entitled for one month salary in lieu of the notice and retrenchment compensation and since the petitioner was paid three months salary in lieu of notice under Rule 116. There is substantial compliance of provisions of Section 6N. Learned Counsel for the respondents has also placed reliance on the judgment of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors., etc. (supra) and contended that the establishment of the nature of respondent No. 4 is clearly excluded from the definition of industry as per above decision of the Apex Court. Reliance has also been placed on the judgment of the Gujarat High Court in Bhalchandra J. Dhivar v. Shangvi Industries, 2004 Lab IC 1930.
7. I have considered the submissions of both the parties and perused the record.
8. The question which arises for determination in the present case is as to whether the respondent No. 4 is an industry within the meaning of U.P. Industrial Disputes Act, 1947. The Tribunal has ruled that the respondent No. 4 is not an industry and the petitioner is not a workman so as to make the provisions of Section 6N of the Act is applicable. The tribunal has noted the facts of the case and gave its finding that the respondent No. 4 is not an industry. Paragraphs 11 and 12 of the judgment of the Tribunal is extracted below :
"11. It has been urged on behalf of the employees that it is a charitable institute and does not run any trade, business or industry. It is admitted to the employers that they charge fee from the children who come to learn dance, music, yoga and computer and practical science. It is also admitted that they charge fee for going on the first floor of Anand Bhawan. It has also been admitted that the employers have set up a planetarium and they are charging fee. It is also admitted that they have a book counter and sell literature relating to petitioner, Jawahar Lal Nehru.
12. None of these activities amount to running a trade, business or industry. The activities referred to above are meant only for running the establishment of Jawahar Lal Nehru Memorial Fund and maintaining the same. The Jawahar Lal Nehru Memorial Fund is not engaged in any activity which may be called business, trade or industry. It is only an institution discharging certain functions to commemorate the memory of petitioner, Jawahar Lal Nehru and to give a glimpse to his life and touching and also to run the educational, cultural and scientific pursuits. It cannot be said to be an industry as it is neither engaged in producing and distributing services or carrying on a trade or business. It is simply engaged in pure charitable functions which incidentally include running of a planetarium as well which is also mode of imparting scientific education and is not ran as a entertaining venture or as an entertainment enterprise. It, therefore, cannot be said that the employers are in any way engaged in any trade or business or are covered by the term industry."
9. The tribunal has excluded the respondent No. 4 from the purview of the definition of industry on the premise that the respondent No. 4 is engaged in pure charitable functionings which incidentally include running of a planetarium as well which is also mode of imparting scientific education and is not ran as an entertaining venture or as an entertainment enterprise. The tribunal further held that the employer is not engaged in any trade, business, manufacture or distribution process. As noted above, the Trust was constituted with the object and purpose of carrying it manifold constructive activities e.g. some of which have been enumerated in Appendix 'C' as quoted above which were dear to the heart of Jawahar Lal Nehru and any other activities in furtherance of ideals of late Jawahar Lal Nehru. There is an Executive Committee of the Trust for carrying on the management and activities of the Trust. According to the rules and regulations of the Trust the Secretary is empowered to employ such subordinate clerical and other staff as may be necessary from time to time on such salary and emoluments as may be approved by the Chairman or the Vice-Chairman. The petitioner was engaged as stenographer on payment of salary and her services have been terminated on payment of three months salary in lieu of notice as per Rule 116 of the Rules of the Trust.
10. There is no dispute between the parties about the facts of the case as noted above. The dispute between the parties is as to whether the activities of the respondent No. 4 as noted above takes out the trust from the purview of definition of industry as contained in Section 2 of the U.P. Industrial Disputes Act, 1947. The word 'industry' has been defined under Section 2(j) of the Industrial Disputes Act, 1947 came for consideration before the Seven Judges Bench of the Apex Court in the case of The Bangallore Water Supply and Sewerage Board v. A. Rajappa and Ors., etc. (supra). The Apex Court also considered as to whether the Charitable Institution can be industry within the meaning of that Charitable Institutions were categorised in three categories. Paragraph 126 of the judgment itself mentions the above categories is quoted as below :
"126. The first is one where the enterprise, like any other, yields profits but they are siphoned off for altruistic objects. The second is one where the institution makes no profit but hires the services of employees as in other like businesses but the goods and services, which are the out put, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is whether the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry?"
11. According to above judgment only last category of the Charitable Institution i.e. whether the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. While considering the second category of Charitable Institution the Apex Court made following observation in paragraph 130 which is quoted below :
"130..... Noble objectives, pious purposes, spiritual foundations and developmental projects are no reason not to implicate these institutions as industries."
12. While elaborating the charitable organisation which clarify for exemption from definition of industry following was observed in paragraph 132 :
"132. To qualify for exemption from the definition of "industry" in a case where there are employers and employees and systematic activities and production of goods and services, we need a totally different orientation, organisation and method which will stamp on the enterprise, the imprint of commerciality. Special emphasis, in such cases, must be placed on the central fact of employer-employees relations. If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is headed by one who wholeheartedly dedicates himself for the mission and pursues it within passion, attracts others into the institution, not for wages but for sharing in the cause and its fulfilment, then the undertaking is not "industrial". Not that the presence of charitable impulse extricates the institution from the definition in Section 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the like."
13. Applying the principle and test as laid down by the Apex Court in the above case does the respondent No. 4 falls in third category is the question to be determined. The trust constituted for the objectives as enumerated in the trust deed. The Executive Committee is entrusted to carry out the management and administration of the trust. Executive Committee is to make rules for the purposes of regulating its proceedings. The trustees are entitled to make regulations for determination of management of the trust. It is true that all the activities of the trust has to be achievement of the lofty object of which the trust was created for carrying out systematic activities of the trust, day to day affairs, appointment of the employees is contemplated in the trust deed. The appointment of the subordinate clerical and other staff is on such salary and other emoluments as may be approved by the Chairman or the Vice-Chairman of Executive Committee as enumerated in the duties of the Secretary under Rule 41 (j) of the Rules of the trust deed which is extracted below :
"41. Subject as aforesaid the duties of the Secretary shall be :
(a) ......................................................
(j) to employ such subordinate clerical and other staff as may be necessary from time to time on such salary and emoluments as may be approved by the Chairman or the Vice-Chairman of the Executive Committee."
14. It is not disputed that the petitioner was employed as Stenographer on payment of salary and has worked for more than five years. The association of the petitioner with the Trust cannot be said to be on basis of any philanthropic devotion for dearable foundation although when a person is employed or engaged by the Trust he has to work for the trust achieving the objects. He has to discharge his duties entrusted to him/her for fulfilling the objects of the trust. The participation of the petitioner is not a voluntarily participation inspired by the lofty ideals and unmindful of remuneration, service conditions and the like. The petitioner has been engaged on payment of salary and other emoluments to work as stenographer in the trust of the respondent No. 4. The written statement and the rejoinder affidavit was filed by the employers. In the affidavit of the Administrator of the trust Annexure-7 to the writ petition it was admitted that the entry fee is charged for the first floor and also entry fee is charged for admission to planetarium. It was admitted that the trust does collect fees from different activities, because it needs funds to run its activities on continual basis. The tribunal in paragraph 11 of the judgment as extracted above, has found that the charging of fee from the children who come to learn dance, music, Yoga and computer and practical science is not denied. The activities in which the respondent No. 4 is engaged shows activities organised by Corporation between the employer and employee for rendering service calculated to satisfy human wants. As per decision in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors., etc. (supra) the respondent No. 4 fulfils the test of 'industry' and considering the material brought on record and the finding recorded by the Tribunal, the submission raised by the counsel for the petitioner has force that despite the findings as rendered by the Tribunal has erred in holding that the respondent No. 4 is out of the purview of the definition of 'industry' as contained in the Act. The respondent No. 4 do not clarify the exemption from the purview of the 'industry' as charitable institution. As per the test laid down by the Apex Court in the above judgment while exempting the charitable institution. Thus it cannot be accepted that the respondent No. 4 is out of the purview of the Industrial Disputes Act, 1947 and the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 have hot to be complied with while terminating the services of the petitioner.
15. Respondent No. 4 was vigilant to confirm (he provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 while terminating the service of the petitioner. It is not the case of the respondent No. 4 that the retrenchment compensation was given to the petitioner while terminating her services. The stand of the respondent No. 4 is being that the provisions of the Industrial Disputes Act, 1947 are not applicable. The question of compliance by the respondent No. 4 of the provisions of Section 6N does not arise. The tribunal thus held that the termination of the petitioner was held in violation of provisions of Section 6N of the Act.
16. The submission of the respondent No. 4 that even if the respondent No. 4 did not pay the retrenchment compensation to the petitioner but since the termination was made while giving three months' salary to the petitioner there is substantial compliance of the provisions of Section 6N hence the termination be upheld. Reliance has been placed on the judgment of Gujarat High Court in Bhalchandra J. Dhivar v. Shangvi Industries (supra). In the case before the Gujarat High Court notice was issued for retrenchment. However, retrenchment compensation was not accepted by the workman on the ground that according to his calculation the compensation is more. The Labour Court gave an award that there was compliance of Section 25F of the Industrial Disputes Act, 1947. The High Court held that even if the amount of the retrenchment compensation is calculated on the basis of 15 days average pay by dividing month's salary by 26 days and multiplying it by number of completed years service, it would not have come to the amount demanded by the petitioner. In the case before the Gujarat High Court the retrenchment compensation was offered for payment to the workman. The present is not the case where any retrenchment compensation was paid or offered to the petitioner because the respondent No. 4 did not even purport to comply the provisions of Section 6N of the Act. The petitioner had worked from 31.8.1995 to 5.6.2001 i.e. for about six years. The petitioner according to Section 6N would have entitled to the retrenchment compensation equivalent to about three months of average pay in addition to one month notice or wages for a period of one month in lieu of such notice. The payment of three months salary in lieu of notice in the present case, cannot be said to be compliance of requirement of Section 6N, hence the submission of the respondent No. 4 that there is substantial compliance cannot be accepted. It is thus held that the tribunal fell in error in holding that the provisions of Section 6N are not attracted, The observation of the tribunal that the employers genuinely proved that Smt. Vibha Ratan was not workman and employers are not engaged in any industry hence only three months' salary was paid otherwise they could have easily paid four months' salary. The fact that the employers could have paid four months salary while terminating the service in compliance of the provisions of Section 6N of the Act cannot be justified the termination. The termination having been done in violation of Section 6N. The fact that the employers could have terminated the services of the petitioner by paying retrenchment compensation and notice amount will not save the termination.
17. After having found that the termination of the petitioner was in violation of provisions of Section 6N, it remains to found out as to what relief the petitioner is entitled for. In the facts and circumstances of the case no useful purpose will be served in remanding the matter to the Tribunal to again examine the question of relief to which the petitioner is entitled. The termination having in violation of provisions of Section 6N, the petitioner has made out a case for reinstatement. The question still remains is as to whether the respondents be directed to pay the entire back wages. From the facts of the case as noted above, if is clear that the respondent No. 4 is a charitable establishment and the fact that they denied the plea that the provisions of the Industrial Disputes Act, 1947 is not applicable to the respondent No. 4. Further the termination was thus done of the petitioner on account of financial constraint which fact is clearly pleaded by the respondent before the tribunal. It was clearly stated in the statement of the administrator that the post on which the petitioner appointed has been abolished and no one has been employed on the said post thereafter. Taking into consideration the above facts the order for payment of entire back wages to the petitioner from the date of termination cannot be given. However, the petitioner is entitled for her wages from the date of publication of the award. This order, however, does not preclude the respondent No. 4 to take any action in accordance with the provisions of the U.P. Industrial Disputes Act, 1947. The award dated 6.11.2003 published on 28.4.2004 is quashed.
The writ petition is allowed to the extent indicated above. Parties shall bear their own costs.