Mange Ram v. Presiding Officer & Anr.

independent activities such as petrol pumps, fire brigade, gas agency, motor-workshop, tile store, fair price shop, canteen, engineering store, shamiana store, water and sewerage department, advance langar facilities and paid restaurant etc. He had mentioned all the activities which were being performed at the Dera. Dera Beas is a complete self-independent vast establishment having thousands of workers and systematically carrying on constructive activities resulting in providing material services to the public at large with cooperation of the employer and employees. Apart from these, as per the Rules of the Dera Beas, other material services to the people at large were also being provided by the Dera Beas with the cooperation of the employees described as Parshadi like the petitioner i.e. making arrangement for congregation at different places in India, to arrange free and paid eating arrangement at large scale, to arrange lodging for large number of Sangat irrespective of religion, caste, race and colour or creed and to look after their needs, to printing/publication and sale of literature, to establish and run hospital and/or dispensary, to run literary and reading room, to look after, manage, expand and develop Dera Beas Colony and Satsang Ghar as well other properties belonging to the Dera Beas, to manage, possess, acquire and dispose of movable and immovable properties and to utilize produce and income.

Apart from this, counsel contends that the Dera Beas is earning profit and the returns submitted by it, show a huge surplus amount which can be termed as income of the Dera Beas. C.W.P.No.13439 of 2009 -7- Counsel for the petitioner relies upon a judgment of the Hon'ble Supreme Court in the case of Bangalore Water Supply and Sewerage Board vs. A.Rajappa and others, 1978 Lab. I.C. 467 (SC) paras 44, 46, 49, 51, 54, 55, 57, 58, 61, 77, 118, 119, 125, 126 and 161 to contend that the respondent-Dera Beas is an industry under the Industrial Disputes Act, 1947 and, therefore, for non-compliance of the provisions of the Act while terminating the services of the petitioner, the reference deserves to be allowed and the petitioner is to be held entitled to reinstatement in service with all consequential benefits. On the other hand counsel for the respondents contends that none of the activities which are being performed by the Dera Beas can be said to be of such a nature as would fall within the definition of Section 2(j) of the Act for terming it to be an “industry”.

Counsel has referred to the memorandum of association of the Dera Beas called Radha Soami Satsang Beas (Annexure R-2/1). She has referred to the objects of the Dera Beas and on that basis, contends that none of the activities which are being performed can be termed to be industrial activities. The object of the Dera Beas is to provide and make arrangements for holding Satsang (religious sermons) and Bhandaras at the colonies and other places; to run langar (kitchen for providing free meal) and lodgings for the Sadhus, Sewadars, Satsangis and others and to look after their needs; to arrange for printing, publication, sale as well as the dissemination of literature on Radha Soami faith in India to establish and/or run hospitals and/or dispensaries; to run a library and reading room in the colony and to look after, manage, expand and develop the Radha Soami Colony Beas and Satsang Ghars as well as other properties belonging to the Dera Beas.

According to the counsel, the C.W.P.No.13439 of 2009 -8- principal object of the registered Dera Beas, being spiritual and moral advancement of the people at large irrespective of the caste, creed or colour, the ancillary activities are subservient to the said object and are essential and needed just to achieve the main aim. In any case, she submits that the onus to prove that the petitioner is a “workman” and the respondent-Dera Beas is an “industry” was on the workman himself who had asserted in his demand notice these two aspects. The petitioner has utterly failed to discharge the onus which was placed on him. She refers to the cross- examination of the petitioner to contend that the petitioner-workman was drawing Rs.2900/- per month i.e. exceeding Rs.1600/- per month as provided under Section 2(s) of the Act, meaning thereby that he was not a “workman.” On this basis, she contends that the petitioner had admitted before the Labour Court that he was earning Rs.20,000/- per month before he joined the Dera Beas.

He became disciple of the Dera Beas in 1993 and applied for Sewa in the Satsang Beas on 9.7.1996 vide an application. Apart from the research job, the petitioner had admitted that he used to supervise the work of Gurbachan Singh, Surender Singh, Vinod Kumar and Sahib Singh, who were working with him and he further used to allot work to them. The petitioner was allowed facility of free food in Bhojan Bhandar. All the machines designed and prepared under the supervision of the petitioner were used in the Satsang Ghars and were not sold in the market. Langar was free for all the visitors and the residents of the Dera free of cost. About 3-4 lacs of people came to Satsang Ghar for hearing Satsang (religious sermons ) when Babaji gave religious discourses to them. He had stated that he did not know who makes arrangements for visitors coming for the Satsang and their sitting, living, food and other necessities' C.W.P.No.13439 of 2009 -9- arrangements.

He also admitted that he did not know the number of Sewadars involved in making arrangements for visitors or their needs. He also did not know the activities of the Dera except his work. He also denied that he had any knowledge about any activity or conduct of business of various departments like petrol pump, fire brigade, gas agency, motor- workshop, tile store, fair price shop, canteen, engineering store, shamiana store, water and sewerage department, advance langar facilities and paid restaurant etc. and their mode of operation or its aims and objects and he did not know about the involvement of the Dera Beas in any activity except his own work. She, on this basis, contends that the petitioner had himself admitted that he was appointed as a Researcher and was performing the duties of a Supervisor and, thus, was not a “workman”. He was not aware of any of the activities being performed by Dera Beas and the purpose, the aim, the object, modus operandi or the working thereof, as alleged by him.

She contends that there being no evidence on the record which would show that the activities which were being conducted by the Dera Beas were such which could be termed to be covered by the definition of “industry” as provided under Section 2(j) of the Act, the findings recorded by the Labour Court are fully justified and do not call for any interference by this Court in exercise of its writ jurisdiction being based on the pleadings and the evidence on record. In support of her contention, counsel relies upon the observations made by the Hon'ble Supreme Court in para 132 at pg. 504 of the judgment in Bangalore Water Supply's case (supra). She also relies upon the judgment of the Jharkhand High Court in the case of Asit baran Modak vs. Presiding Officer, Labour Court and another, (2008) II LLJ C.W.P.No.13439 of 2009 -10- 550; a judgment of the Allahabad High Court in the case of Radhasoami Satsang Sabha, Dayalbagh, Agra vs.

Rashtriya Mazdoor Congress, Lucknow and others, 1987 (55) FLR 849 and a Division Bench judgment of this Court in the case of Jagjit Singh Katara vs. P.O.L.C., Bathinda and others, (2007-3) PLR 9. She, on this basis contends that the Award passed by the Labour Court is fully justified and does not call for any interference by this Court. I have heard counsel for the parties and with their able assistance have gone through the records of the case. Both the counsel have primarily relied upon the judgment of the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board's case (supra) wherein the Hon'ble Supreme Court has, after detailed analysis of the definition of “industry” as provided under Section 2(j) of the Act and referring to the earlier precedents, provided the working principles in para 161 of its judgment which reads as follows:- “161. 'Industry' as defined in S.2(j) and explained in Banerji (AIR 1953 SC 58) has a wide import.

(a) Where (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e. making on a large scale prasad or food) prime facie, there is an industry in C.W.P.No.13439 of 2009 -11- that enterprise. (b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. ( c) The true focus is functional and, the decisive test is the nature of the activity with special emphasis on the employer-employee relations. (d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking. II Although Section 2 (j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.

(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold 'industry' undertakings, callings and services, adventures 'analogous to the carrying on of trade of business.' All features, other than the methodology or carrying on the activity viz. in organizing the co-operation between employer and C.W.P.No.13439 of 2009 -12- employee, may be dissimilar. It does not matter, if on the employment terms there is analogy. III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations.

The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more. (a) The consequences are (i) professions, (ii) Clubs (iii) educational institutions (iv) co-operatives, (v) research institutes (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted from the scope of Section 2 (j). (b) a restricted category of professions, clubs, co-operatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.

(c ) If, in a pious or altruistic mission many employ C.W.P.No.13439 of 2009 -13- themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt – not other generosity, compassion, developmental passion or project. IV. The dominant nature test : (a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (AIR 1963 SC 1873) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur (AIR 1960 SC 675) will be the true test.

The whole undertaking will be “industry” although those who are not “workmen” by definition may not benefit by C.W.P.No.13439 of 2009 -14- the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies. ( c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within S.2(j). (d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby. V. We overrule Safdarjung (AIR 1970 SC 1407), Solicitors' case (AIR 1962 SC 1080), Gymkhana (AIR 1968 SC 554), Delhi University (AIR 1963 SC 1873) Dhanrajgirji Hospital (AIR 1975 SC 2032) and other rulings whose ratio runs counter to the principles enunciated above and Hospital Mazdoor Sabha ( AIR 1960 SC 610) is hereby rehabilitated.” While referring to the aspect as to whether “charitable institutions” are “industries”, the Hon'ble Supreme Court has broadly categorized them, in the context of the industry into three parts, this Court is basically concerned with the third category where economic activities and occupation of altruistic character are being performed by charitable C.W.P.No.13439 of 2009 -15- institutions.

In para 132 at page 504 of the said judgment it has been held as follows:- “132. The heart of trade or business or analogous activity is organisation with an eye on competitive efficiency, by hiring employees, systematising processes, producing goods and services needed by the community and obtaining money's worth of work from employees. If such be the nature of operations and employer-employee relations which make an enterprise an industry, the motivation of the employer in the final disposal of products or profits is immaterial. Indeed the activity is patterned on a commercial basis, judged by what other similar undertakings and commercial adventures do. 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-employee relations. If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is headed by one who whole-heartedly dedicates himself for the mission and pursues it with passion, attracts others into the institution, not for wages but for sharing in the cause and C.W.P.No.13439 of 2009 -16- its fulfilment, then the undertaking is not 'industrial'. Not that the presence of charitable impulse extricates the institution from the definition in Sec. 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.

Supposing there is an Ashram or Order with a guru or other head. Let us further assume that there is a band of disciples, devotees or priestly subordinates in the Order, gathered together for prayers, ascetic practices, bhajans, meditation and worship. Supposing further, that outsiders are also invited daily or occasionally, to share in the spiritual proceedings. And, let us assume that all the inmates of the Ashram and members of the Order, invitees, guests and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning the bed-making and service, may often be done, at least substantially by the Ashramites themselves. They may chant in spiritual ecstasy even as material goods and services are made and served. They may affectionately C.W.P.No.13439 of 2009 -17- look after the guests, and all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace.

It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be that they take some small pocket money from the donations or takings of the institution. Nay more, there may be a few scavengers and servants, a part-time auditor or accountant employed on wages. If the substantial number of participants in making available goods and service, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wageless 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 Soamiji and are not wage-earners in any sense of the term. C.W.P.No.13439 of 2009 -18- 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.” When the above reproduced broad working principles as culled out by the Hon'ble Supreme Court are applied to the case in hand, it is apparent that the employer-employee relationship between the petitioner and the respondent-Dera Beas stands established.

The petitioner applied on a printed application form for appointment (Annexure R-2/3). The heading of the application form itself provided for two types of appointment i.e. honorary Sewadars and Parshadi Sewadars. As explained by the counsel for the respondents, honorary Sewadars are not paid whereas Parshadi Sewadars are paid. The petitioner after filling in the printed application form, applied for appointment as Parshadi Sewadar. The columns of the application forms require the filling of the educational qualification, experience whether an applicant is a retired employee from govt. service, marital status, whether accommodation required, apart from other personal information. The medical fitness certificate is issued by the Chief Medical Officer of the Dera Beas. Security clearance is also given by Sewadar Incharge (Security) and the applicant has to specify the post on which he is applying for and then he is required to give the C.W.P.No.13439 of 2009 -19- following undertaking:- “I hereby give the following undertaking: (1) That I will abide by the instructions issued from time time.

(2) That I am liable to be transferred to any Department of the Dera in the interest of my Sewa. (3) That my services are liable to be terminated in the case of misconduct and long absence. (4) xxx” The above-mentioned undertaking in the application form shows the nature of appointment which was given to the petitioner. Thereafter, (Annexure P-1) dated 20.4.1998 further shows the performance report (workout/analysis) showing the assessment of the petitioner by his Sewadar Incharge. This shows that from time to time, the assessment of the Sewadar was done by the Sewadar Incharge. The memorandum dated

3.9.2001 (Annexure R-2/4) issued to the petitioner calling upon him to submit reply thereto within a period of 7 days wherein it was mentioned that his services could be terminated for his refusal which would constitute an act of gross indiscipline and disobedience, reflects the employer-employee relationship which is cemented by the order dated 7.10.2001 passed by the Secretary of Dera Beas when he was relieved from the service with effect from 8.10.2001 for his act of wilful disobedience by not obeying the orders of his In-charge. It, therefore, establishes that there was a relationship of employer-employee between the petitioner and respondent No.2-Dera Beas. However, this alone would not be enough to establish that the C.W.P.No.13439 of 2009 -20- petitioner is a “workman” as defined under Section 2(s ) of the Act which reads as follows:- “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii)who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.” C.W.P.No.13439 of 2009 -21- Although the petitioner had asserted that he was primarily performing the duties as a Fabricator which were purely of mechanical nature but in his cross-examination, he stated as follows:- “I was earning Rs.20,000/- per month at that time.

I became disciple of RSSB in 1993. I applied for Sewa in the Satsang Beas on 9th July, 1996 vide application dated 9.7.1996. I was doing Researcher job and I was doing all other or job. It is correct that Gurbachan Singh, Surinder Singh, Vinod Kumar, Sahib Singh were working with me. It is correct that I used to supervise them and I was working with them some time. I used to allot work to them. I was allowed the facility of free food in Bhojan Bhandar. It is correct that all the machines designed and prepared by us were used in the Satsang Ghars and it was not sold in the market.” A perusal of the above proves beyond doubt that the petitioner was appointed in the supervisory capacity and was performing the duties of a Supervisor. He was being paid Rs.2900/- as Parshadi as was admitted by him in his demand notice and the claim statement. Therefore, the petitioner cannot be held to be a “workman” as defined under Section 2 (s) of the Act.

As regards the contention of the counsel for the petitioner that the respondent-Dera Beas is an “industry”, when the above principles as laid down by the Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board's case (supra) are taken into consideration and applied to the pleadings and evidence led by the parties before the Labour Court, it cannot be held that the evidence which has been led by the petitioner C.W.P.No.13439 of 2009 -22- would prove that the respondent-Dera Beas is an “industry”. Again, the cross-examination of the petitioner at Annexure P-7 needs reference, relevant portion whereof reads as under:- “xxxx Lacs of people come to Satsang Ghar for hearing Satsang. I do not know if satsang is conducted daily. It is correct that there is a langar place. It is correct langar is free to all the visitors and residents of dera free of costs. It is correct thousands of people come from Foreign country to Dera for hearing satsang.

When Baba Ji gives satsang about three four lacs listeners came to hear the satsang. I do not know who makes arrangements for visitors coming for satsang for their seating arrangements, living arrangements food and other necessary arrangements. I also do not know the no. of sewadars involved in making arrangements for visitors for various needs. I do not know any other activity of Radha Soami Sat Sang Beas except my personal work. I also do not know any activity or conduct of business of various departments like petrol pump, canteens, fire brigades engineer store tile store motor workshop water sewerage department as regards to their modus operandi and its aims and object. I do not know about the involvement of Radha Soami Satsang Beas in any activity except my own work.” A perusal of the above goes beyond doubt to establish that the C.W.P.No.13439 of 2009 -23- petitioner has utterly failed to prove that the respondent-Dera Beas is an “industry” as there is no evidence to support the contention raised by him.

In this regard, mere oral assertion has been made by the petitioner without any documentary proof. In cross-examination, he has admitted that he has no knowledge about the activities of the Dera Beas. That being so, the onus which was on the petitioner-workman to prove that the respondent-Dera Beas is an industry, was not discharged leading to the only conclusion that there was no sufficient evidence on record to declare Dera Beas as an “industry”. In view of the above, finding no merit in the present writ petition, the same stands dismissed. May 14, 2010 poonam ( AUGUSTINE GEORGE MASIH ) JUDGE Whether referred to Reporters. Yes/No.