Shri Sai Bhakta Samaj (Regd.) Vs. Shri Durga Prasad and ors. - Court Judgment

Shiv Narayan Dhingra, J.

1. By this writ petition the petitioner has challenged the validity of Award passed by the Labour Court No. III dated 14.10.2003.

2. Briefly, the facts are that respondents Durga Prasad and Shiv Charan were working in the petitioner's society as Chowkidar and Pujari respectively. They were retired by the management at the age of 58 years after payment of all dues as applicable under law. They challenged their retirement at the age of 58 years before Conciliation Officer and the following dispute was referred for adjudication:

Whether the action of the management by retiring S/Sh. Durga Prasad and Shiv Charan Tripathi from the services is illegal and/or unjustified. If so, to what relief are they entitled and what directions are necessary in this respect.

3. The management took the stand that it was a religious institute registered under the Societies Registration Act. It was conducting charitable activities like running hospital, clinic, dharamshala etc. thereforee, it was not covered under the definition of industry. The other plea of the management was that both workmen were superannuated from services only at the age of superannuation i.e 58 years as per model standing order. There was no illegality in it. Both the pleas of the management were rejected by the Tribunal and Tribunal came to the conclusion that since the management was running a diagnostic, laboratory, a X-ray unit and management was charging money for the services and it was also earning from donations, the management was an industry as defined by the Supreme Court in Bangalore Water Supply and Sewage Board v. A. Rajjappa 1978 (2) SCC 230. The Tribunal held that management did not produce service record and appointment letters of the workmen showing that the workmen could be retired at the age of 58 years. The retirement of the workmen was illegal and in violation of the principal of natural justice. Tribunal, considering that during the pendency of the proceedings the workmen had reached at the age of 65 and 62 respectively directed the management to pay lump sum compensation of Rs. 20,000/- to each of the workman.

4. The order of the Tribunal has been challenged on the ground that the Tribunal has wrongly held the petitioner was an industry. The petitioner society was managing 'Sai Temple' and a temple cannot be an industry. It is stated that if the petitioner had been held an industry then the modal standing order as applicable to the industry shall be applicable to the petitioner and the age of the retirement of the employee as given in the model standing order was 58 years, thereforee, the retirement of the respondent could not be held illegal.

5. The order of the Tribunal is a strange and mindless order. The Tribunal held that petitioner's establishment was an industry because it was running a X-ray and diagnostic centre. The Tribunal simultaneously held that the retirement of the two workmen at the age of 58 years was illegal. If Tribunal considered that petitioner was an industry, the Tribunal could not have escaped in its conclusion application of the modal standing orders in case of the petitioner and and under these standing order a workman is to retire at the age of 58 years. Even otherwise the Tribunal has not held as to what would have been the age of retirement of two workmen, if they were not to retire at the age of 58 years.

6. Another factor which strikes the mind is that one of the workman is a Pujari. He has been held as a workman unmindful of Section 2(s) of I.D. Act. Section 2(s) of the Act reads as under:

(s) '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.)

7. The Tribunal has not disclosed in its order how Pujari has been considered as a workman. A pujari in a temple cannot be workman. Only those persons who are covered under the definition of Section 2(s) of the Act can be described as workman. In H.R. Anyathuaya 1994 (11) CLR 552, Supreme Court held that in order to be covered under Section 2(s) a workman is supposed to be one who does any manual, unskilled, skilled, technical, operational, clerical or Supervisory work. It is clear that a Pujari in a temple does not do any manual, unskilled, skilled, technical, operational, clerical or Supervisory work. Pooja by a Pujari is an application of his knowledge of religious hymens and bhajans and artieswhich he has to recite in the temple. This work cannot be considered by any stretch of imagination a work specified in Section 2(s) of the Act. The Tribunal has misdirected itself by considering a Pujari as a workman. The other workman was working as a Chowkidar. Since the activities of the petitioner were not only confined to running temple but petitioner was involved in other charitable activities, I consider that the Tribunal has rightly held that petitioner was covered under the definition of the industry as presently known.

8. In view of my above discussions, I consider that the retirement of the workmen at the age of 58 years after payment of dues as per law does not amount to retrenchment and the order of the Tribunal to pay compensation of Rs. 20,000/- to each workman was illegal. The Award is hereby set aside. The writ petition is allowed.