Mutum B.K. Singh, J.
1. The judgment dated June 27,2003 passed by the learned single Judge in W.R(C) No. 2156/2002 dismissing the claim of the appellant that the Children Home managed by the Indian Red Cross Society at Jalukbari is an industry, is under challenge in this appeal.
2. Short facts leading to this appeal are that the appellant served as in-charge (Assistant) of Children Home Project, Jalukbari, a unit of the Indian Red Cross Society, Assam Branch since February, 1997 on payment of Rs. 1,600/- per month. He continued to serve but no monthly payment was made for the months of November and December, 1998. His representation to the 5 management over the matter, did not yield any favourable result and ultimately an industrial dispute being raised by him, the Government referred the same to the Labour Court, Assam on the following terms;n
Whether the management of Indian Red Cross Society is justified in dismissing Shri Ramen Baruah without any notice w.e.f. November 1, 1998?
3. The labour Court of Assam in reference Case No. 18/99 adjudicated the issues and passed an Award on October 15, 2001 as follows:
1. The Children Home Project at Jalukbari is a charitable institution and not an industry.
2. The service of the appellant cannot be equated with the job of an Industrial Workmen and that he was not a workman.
4. The appellant being dissatisfied by the said Award took the matter before the High Court in W.P. (C) No. 2156/2002 wherein the 3 learned single Judge also held that the Children Home Project managed by the Indian Red Cross Society at Jalukbari is not an industry and thus the Award of the Labour Court was not interfered with.3
5. Being dissatisfied with the decision of the learned single Judge, the appellant has filed the present appeal contending that the learned single Judge was not justified in holding that the appellant rendered his services voluntarily for the orphans out of passion on payment of subsistence allowance only, the finding of the learned single Judge that the decision of the Punjab and Haryana High Court Indian Red Cross Society, Haryana v. Additional Labour Court, Chandigarh and Ors. 1994-III-LLJ (Suppl) 919 (P & H) is not applicable is perverse and that the learned single Judge has failed to consider all the materials on records whiles passing the order under challenge.
6. Heard Mr. D.P. Chaliha, learned senior Counsel appearing for the appellant and Mr. L.P. Sharma, learned Counsel for the respondents.
7. There is no dispute at the Bar that the Indian Red Cross Society is a charitable Institution established under the Red Cross Society Act 1920. The question before us for decision is whether the Children Home Project, Jalukbari, which is a unit of Indian Red Cross Society, is an industry within the meaning of Section 2(j) of the Industrial Dispute Act, 1947, and that whether the appellant is a workman.
8. The learned Counsel for the appellant has strenuously contended that in view of the decision of the Apex Court passed in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. : (1978)ILLJ349SC , the term industry has a very wide import embracing all such educational Institutions, Charitable Organizations and others if such organization, Institution, etc. are being administered and run in a systematic manner by a group of persons in a combination of employer and employee. The profit making motive of such organization, institution etc. is not the basic criteria for determining whether the organization or institution would be an industry or not. The Children Home Project at Jalukbari has been running in a very systematic manner by employing many persons and thus in view of the above decision of the Apex Court, the said Children Home Project at Jalukbari is an industry, the learned Counsel urged.
9. The learned senior Counsel further contended that in Indian Red Cross Society, Haryana v. Additional Labour Court, Chandigarh and Ors.(supra), the Punjab and Haryana High Court held that the Indian Red Cross Society is an industry. In that case also the Punjab & Haryana High Court discussed the principles laid down in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. case. In that case, the Indian Red Cross Society had several stores having different commercial activities and the respondent was a sales man working for profits in one of such stores and therefore Indian Red Cross Society was held as an Industry exclusively for the stores connected with commercial activities. Learned senior advocate has also relied on the following cases:
1. Sumer Chand v. Labour Court, Ambala and Anr. 1992-I-LLJ 394.
2. Mrs. Pramodini Patkar v. Indian Cancer Society and Anr. 1993-I-LLJ 97 (Bom).
3.Indian Red Cross Society v. Additional Labour Court (supra)
10. On the other hand, the learned Counsel appearing for the respondents has submitted that the Children Home Project at Jalukbari is a] charitable institution which has been running by donations (cash/kind) received from various circles of the Society and that the Indian Red Cross Society itself is an International Humanitarian Organization dedicated to the services of the wounded, sick, disable end weaker Section of the Society. The people who are dedicated to serve for the welfare of the persons who became orphans due to ethnic clashes, earthquake, flood etc. used to join the: Children Home Project, Jalukbari and rendered their services irrespective of the money which may or may not be paid to them. The Project never advertised for appointment of any person as its employee and no amount had been fixed for payment to the persons rendering their services for the welfare of the orphans in the Children Home Project.
11. The learned Counsel further submitted that fine nexus of employer and employee is not in existence in this project, between the management and the persons' rendering their services. The Children Home project is not running for any commercial activity and the main object of the Project is to look after the orphans for their welfare and upliftment without charge in order to rehabilitate the orphans in the Society. The learned Counsel has also pointed out that in the case of State of U.P. v. Jai Bir Singh : (2005)IILLJ831SC , a Bench of five Judges dwelt on the meaning of 'industry' and 4 held that the decision of Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. (supra) requires reconsideration by a larger Bench for many reasons given therein. But the larger Bench is yet to be constituted and as such the decision of the Bangalore Water Supply & Sewerage Board v. A. Rajappa and Ors. (supra) case still holds the field.
12. In Bangalore Water Supply &, Sewerage Board v. A. Rajappa and Ors. (supra) case, the Hon'ble Apex Court held as regards the Charitable Enterprises as follows:
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 business but the goods and services, which are the output, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is where 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 are not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry?
13. The rival submissions have been duly assessed. As the nature of the activities pursued an establishment and its objectives constitute the decisive criteria to determine whether or not it is an industry, it would be appropriate to notice at the threshold the essential facts bearing on the above aspects. From the write up produced in course of the 'arguments it appears that the International Federation of Red Cross Societies being satisfied with the services rendered by the Assam Branch of the Indian Red Cross Society, sanctioned an orphanage in the State to nurse' and rear up the victims of ethnic violence and natural calamities. The Swiss Red Cross Society sanctioned on that count an amount of Rs. 31,00,000/- for the Assam Branch of the Indian Red Cross Society out of which a sum of Rs. 20.00 lakhs was earmarked for the constructions and the remaining Rs. 11.00 lakhs for the maintenance of the Orphanage. The entire amount was paid by way of donation. The Assam Branch or the Indian Red Cross l Society utilized the amount for the purposes as above and the orphanage was set up. The Children Home was also supported by other organizations and individuals with donations to meet the expenditure of its daily requirements. The statement of income and expenditure of the Children Home Project, Indian Red Cross, Society, Jalukbari, Guwahati corroborate the above facts. The account does not disclose any other source of income of the Society to administer and maintain the Children Home Project and it is evident there from that it is wholly dependent on donation for its said pursuit.
14. We have scrutinized the evidence adduced before the learned Labour Court as well, which does not suggest either that the Project undertaken is either a commercial venture or involves activities that are profit oriented. The allowances paid to the petitioner and others associated with the Project though paid monthly cannot be construed to be salary as understood in common parlance. The duties performed by the petitioner and others in the Project do not amount to working for gain and are dominantly selfless in quality. The materials on record therefore are demonstrative of the fact. that the children Home Project of the Assam Branch of the Indian Red Cross Society is a benevolent venture for the care, protection and betterment of the orphans afflicted by the cruel dictates of destiny and ravaged by mindless inhuman acts of violence. Applying the yardstick enunciated in Bangalore Water Supply and Swearage (supra), the Children Home Project, Jalukbari cannot be identified as an industry within the meaning of the Industrial Dispute Act 1947. The facts as obtained in Indian Red Cross Society, Harayana (supra) are clearly distinguish-able from those in hand and therefore that decision is of no avail to the petitioner.
15. The learned single Judge comprehensively evaluated the materials on record and rightly decided the issues against the petitioner. On a consideration of the recorded facts, we are unable to hold that the Children Home Project prosecute activities so as to render it an industry as defined in Section 22(j) of the Industrial Dispute Act 1947. No relationship of the employer and employee subsist between the Assam Branch of Indian Red Cross Societies, the Children Home Project and the petitioner for him to be an workman under the said legislation.
16. We find ourselves in complete agreement with the conclusions recorded by the learned single Judge. The appeal being without any merit and is thus dismissed. No cost.