Shrine Basilica of Our Lady orHealth Vailankanni v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.1.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.13034 of 1999Shrine Basilica of Our Lady orHealth Vailankanni, under the control of Diocese of TanjoreSociety rep.by its Rector and Parish Priest Fr.G.Arul Iruthayam .. Petitioner-vs-1. Government of Tamil Nadu, rep. by its Secretary, Labour and Employment Department, Fort St.George, Chennai-9.2. The Presiding Officer, Labour Court, Cuddalore.3. Vailankanni Punitha Arokia Annai Thozilalar Munnetra Sangam, rep.by its Secretary, No.81, Chetty Street, Vailankanni. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorari calling for the recordsof the first respondent in G.O.(D) No.149, dated 19.2.1999 and quash thesame. For petitioner :: Mr.Ravindran for M/s.T.S.Gopalan & Co. For respondents :: Mr.Girish Neelakantan, GA for R1 Mrs.A.L.Gandhimathi for R3 O R D E RHeard the parties.2. The writ petition was filed by the Rector and Parish Priest ofShrine Basilica at Vailankanni challenging the order of the firstrespondent State made in G.O.(D) No.149, Labour and EmploymentDepartment, dated 19.2.1999. By the aforesaid order, the first https://hcservices.ecourts.gov.in/hcservices/ respondent by the exercise of its power conferred under Section 10(1)(c)of the Industrial Disputes Act, 1947 (for short 'the ID Act') referredcertain issues for adjudication by the Labour Court, Cuddalore. Thefollowing are the issues :-1.Whether the demand of the trade union in seeking forrevision of payscales to the employees working in theestablishments depending upon the post held by them isjustified? If so, grant appropriate orders.2.Whether the demand of the trade union in seeking for theemployees working in the establishments dearness allowance,house rent allowance, medical allowance, tea allowance,night shift allowance, washing allowance and for thescavengers a special health allowance is justified? If so,issue appropriate orders.3.Whether the demand of the trade union in seeking forsupply of uniform to the workmen is justified? If so, issueappropriate orders.3. Pursuant to the order issued by the State Government, the LabourCourt, Cuddalore took up the dispute as I.D.No.54 of 1999 and issuednotice to the petitioner as well as to the third respondent trade union.The third respondent trade union has filed a claim statement before theLabour Court. Instead of filing a counter statement, the petitionermoved this Court with the present writ petition challenging the validityof the action of the State Government in referring the dispute foradjudication. 4. The writ petition was admitted on 02.8.1999 and an interim-staywas granted. Subsequently, the stay was made absolute on 30.12.2002. Onbehalf of the third respondent union, a petition was filed to fix anearly date and this Court directed the writ petition to be posted forfinal disposal on 05.9.2005. However, for the reasons best known, thematter 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 thepetitioner. The first contention was that the workmen represented by thethird respondent union are not workmen within the meaning of Section 2(s) of the ID Act and that the petitioner being a religiousestablishment cannot be considered to be an ''industry'' within themeaning of Section 2(j) of the ID Act. The second contention was thatsince the trade union represents more than 100 workmen and as the issuereferred for adjudication falls under Third Schedule to the ID Act, thereference could only be made to the Industrial Tribunal and not to theLabour Court. https://hcservices.ecourts.gov.in/hcservices/

6. Mr.Ravindran, the learned counsel for the petitioner, placedreliance upon the judgment of the Supreme Court in Bangalore WaterSupply and Sewerage Board -vs- A.Rajappa and others reported in (1978)ILLJ 359 = (1978) 2 SCC 213. The following passage relied upon by thelearned counsel and found in para 110 may be usefully extracted below:-''Para 110. ... ... .. If the substantial number ofparticipants in making available goods and services, if thesubstantive nature of the work, as distinguished from trivialitems, is rendered by voluntary wage-less sishyas, it isimpossible to designate the institution as an industry,notwithstanding a marginal few who are employed on a regularbasis for hire. The reason is that in the crucial, substantialand substantive aspects of institutional life the nature ofthe relations between the participants is non-industrial.Perhaps, when Mahatma Gandhi lived in Sabarmati, Aurobindo hadhis hallowed silence in Pondicherry, the inmates belonged tothis chastened brand. Even now, in many foundations, centres,monasteries, holy orders and Ashrams in the East and in theWest, spiritual fascination pulls men and women into theprecincts and they work tirelessly for the Maharishi or Yogior Swamiji and are not wage-earners in any sense of the term.Such people are not workmen and such institutions are notindustries despite some menials and some professionals in avast complex being hired. We must look at the predominantcharacter of the institution and the nature of the relationsresulting in the production of goods and services. Stray wage-earning employees do not shape the soul of an institution intoan industry". 7. Therefore, he submitted that on the basis of these observationsthe petitioner's activities cannot be brought within the meaning ofsection 2(j) of the ID Act. He also submitted that even the decision bya Seven-Judges Bench of the Supreme Court in Bangalore Water Supplycase (cited supra) was also doubted by a subsequent Constitution Benchof the Supreme Court in State of U.P. -vs- Jai Bir Singh reported in2005 (2) LLJ 831= (2005) 5 SCC 1. The following passage found in para 31may be usefully reproduced below:-''Para 31. After hearing learned counsel for the contestingparties, we find there are compelling reasons more than onebefore us for making a reference on the interpretation of thedefinition of “industry” in Section 2(j) of the Act, to alarger Bench and for reconsideration by it, if necessary, ofthe decision rendered in the case of Bangalore Water Supply &Sewerage Board.. The larger Bench will have to necessarily gointo all legal questions in all dimensions and depth .. .. ..".8. The learned counsel also relied upon the following judgments oftwo Division Benches of the Kerala and Karnataka High Courts to https://hcservices.ecourts.gov.in/hcservices/ 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) LLJ32, 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 onthe basis of the order of reference made by the first respondent. Theissue will have to be decided on the basis of the evidence to be let inbefore the Labour Court. In the absence of a pleading placed before theLabour Court and evidence to be let in, such issues cannot be decided bylooking into the order of reference made by the State Government. Theissue whether a particular institution is an 'industry' within themeaning of Section 2(j) of the ID Act and whether a particularindividual is a 'workman' within the meaning of Section 2(s) are mixedquestions of fact and law. In the present case, the State Government wasprima facie satisfied that the petitioner institution was an 'industry'.But, however, the order of reference is not final and it is still opento the petitioner to convince the Labour Court that their activities arenot covered by the provisions of the ID Act.10. There may be very many activities undertaken by a religiousinstitution and all such activities cannot be said to be excluded fromthe coverage under the ID Act. In this context, a reference can be madeto a judgment of the Supreme Court in Workmen of Tirumala TirupatiDewasthanams -vs- The Management and another reported in 1980 (1) LLJ211 = (1980) 1 SCC 583. Reference may be made to the following passagefound in paragraph 2:-''Para 2 : ... ... Is the Transport Department so merged inand integrated with the Devasthanam as to be incapable ofindependent identity? Is the Transport Industry run by theDevasthanam sufficiently spread as to be treated as aninstitution in itself? There is no doubt, as the Tribunal hasrightly held, that it is an industry but the further questionarises whether it is an institution in the context and withinthe text of the Payment of Bonus Act. ... ..." 11. Though in the above case, the question arose was under thePayment of Bonus Act, yet the fact that a particular activities of atemple was not excluded from the purview of the ID Act is clearlyestablished. Even otherwise, an order of a reference cannot be rejectedon the basis of an affidavit submitted before this Court. This Courtwill not embark upon such an exercise when there is an effective forumavailable for the petitioner before the Labour Court. https://hcservices.ecourts.gov.in/hcservices/

12. The second contention raised that the matter falls under theSchedule III and, therefore, it must go before the Industrial Tribunalis only stated to be rejected. If a matter is found in Schedule II, thesame may be referred either to the Labour Court or to the IndustrialTribunal. Therefore, the argument of the learned counsel for thepetitioner has no substance.13. The Supreme Court has taken an exception to the courts'entertaining the writ petitions at the interlocutory stage therebystalling the main adjudication for years together. In the present case,the management had the advantage of the stay order for over ten yearsand has thus had effectively prevented an adjudication of the dispute bythe Labour Court. 14. In this context, it may be relevant to refer to the concernexpressed by the Supreme Court in D.P.Maheswari -vs- DelhiAdministration reported in (1983) 4 SCC 293. The following passage foundin paragraph 1 may be reproduced below:-'' It was just the other day* that we were bemoaning theunbecoming devices adopted by certain employers to avoiddecision of industrial disputes on merits. We noticed how theywould raise various preliminary objections, invite decision onthose objections in the first instance, carry the matter to theHigh Court under Article 226 of the Constitution and to thisCourt under Article 136 of the Constitution and delay adecision of the real dispute for years, sometimes for over adecade. Industrial peace, one presumes, hangs in the balance inthe meanwhile. We have now before us a case where a disputeoriginating in 1969 and referred for adjudication by theGovernment to the Labour Court in 1970 is still at the stage ofdecision on a preliminary objection. There was a time when itwas thought prudent and wise policy to decide preliminaryissues first. But the time appears to have arrived for areversal of that policy. We think it is better that tribunals,particularly those entrusted with the task of adjudicatinglabour disputes where delay may lead to misery and jeopardiseindustrial peace, should decide all issues in dispute at thesame time without trying some of them as preliminary issues.Nor should High Courts in the exercise of their jurisdictionunder Article 226 of the Constitution stop proceedings before atribunal so that a preliminary issue may be decided by them.Neither the jurisdiction of the High Court under Article 226 ofthe Constitution nor the jurisdiction of this Court underArticle 136 may be allowed to be exploited by those who canwell afford to wait to the detriment of those who can illafford to wait by dragging the latter from court to court foradjudication of peripheral issues, avoiding decision on issuesmore vital to them. Article 226 and Article 136 are not meantto be used to break the resistance of workmen in this fashion. https://hcservices.ecourts.gov.in/hcservices/ Tribunals and courts who are requested to decide preliminaryquestions must therefore ask themselves whether such thresholdpart-adjudication is really necessary and whether it will notlead to other woeful consequences. After all tribunals likeIndustrial Tribunals are constituted to decide expeditiouslyspecial kinds of disputes and their jurisdiction to so decideis not to be stifled by all manner of preliminary objectionsand journeyings up and down. It is also worthwhile rememberingthat the nature of the jurisdiction under Article 226 issupervisory and not appellate while that under Article 136 isprimarily supervisory but the court may exercise all necessaryappellate powers to do substantial justice. In the exercise ofsuch jurisdiction neither the High Court nor this Court isrequired to be too astute to interfere with the exercise ofjurisdiction by special tribunals at interlocutory stages andon preliminary issues". 15. In view of the above, it is for the petitioner to move theLabour Court with appropriate pleadings, let in evidence and satisfy theCourt about the illegality of the order of reference. Hence, the writpetition stands dismissed. However, there will be no order as to costs. 16. Since the dispute is of the year 1999, and more than 10 yearshave lapsed, the first respondent Labour Court is hereby directed togive preference for expeditious disposal of the dispute and in any eventdispose of the same within a period of three months from the date ofreceipt of a copy of this order.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.jsTo1. The Secretary to Government, Labour and Employment Department, Fort St.George, Chennai-9.2. The Presiding Officer,Labour Court, Cuddalore.+ 1 CC to M/s.AL.Ganthimathi, Advocate SR.NO.1489+ 1 CC to Mr.T.S.Gopalan, Advocate SR.NO.1200MDR(CO)EM/30.1.09 W.P.No.13034 of 1999 https://hcservices.ecourts.gov.in/hcservices/

12.1.2009