A. Kesava Bhatt Vs. Sree Ram Ambalam Trust and anr. - Court Judgment

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labour and industrial - arrears - section 2 and 33 c (2)of industrial dispute act, 1947 - priest claimed arrears under act of 1947 - duties of priest neither contractual nor enforceable - priest cannot be treated as 'workman' entitled to seek relief under act - lack of locus standi renders claim not maintainable. - - ..performing the poojas in the temple'.according to the opposite party, when the petitioner crossed the age of 70, he was not in a position to render effectively his duties as a priest. if the labour court does not find it safe or sensible to accept the oral testimony of the petitioner as the sole basis for an order in his favour, that view cannot be faulted. like father damien, who, like him, nursed and cured many a lachrymose leper. the christian priests (and the nuns who, like well-lit candles, spread around them much of hallowed light, even while quickly melting into extinction) have added several glorious chapters in the compilation of the history of enlightenment of india. 'how can a man become a priest when he is so good looking. 4) recalls that it is written in the veda, a realm where a brahmin is appointed purohita flourishes'.the role of the purohita is multiple, and the translation 'chaplain' poorly indicates what his different functions are. ' 13. the decision recounted how rich endowments were made for the unkeep of temples. 'a vipra, who, though he may be well-versed in the four vedas is desirous of getting money, and who performs the worship of the gods for the sake of another will be considered equal to a chandala. in ancient times, it would seem that there had been a guild or corporate body of 3000 who served as temple priests inside kerala and a similar group of 3000 who served outside kerala, as could be gleaned from the hymns of alwars and nayanmars like tirumangai and sambandar of the 8th century a. 20. an evaluation of the evolution of the office of archaka or priest, as priest, as available from the rich legal literature, dissuades me from equating him to a mere wage earner;a. sukumaran, j.1. a priest in a family temple has come to court. purely materialistic is his demand; demand for money - arrears of salary, as he puts it-from the sree ram temple trust, alleppey. he fought for it before the labour court. he has not got it. an adverse order passed by the labour court is now attacked by him.2. the jurisdiction of the labour court under section 33c(2) of the industrial disputes act, 1947, was invoked by the petitioner by exhibit p-3 petition dated 31st january, 1986. he averred that he was entitled to unpaid salary for the preceding eight years at a monthly rate of rs. 553; and for 12 years prior to that at the monthly rate of rs. 200. the claims for the two periods aggregate to rs. 1,01,088.3. a fundamental objection was taken by the opposite party. it contended that the petitioner was not a 'workman' and that the opposite party was not an employer; it claimed to be a 'religious and charitable trust which manages the affairs of a family temple', and that the petitioner was only a 'poojari...performing the poojas in the temple'. according to the opposite party, when the petitioner crossed the age of 70, he was not in a position to render effectively his duties as a priest. that prompted the trust to terminate his services. by exhibit p-l communication dated 31st march, 1985, the trust terminated his services and intimated the petitioner its preparedness to pay him; in recognition of his past services, a sum of rs. 2,500 and requested him to receive that amount from its office.4. the evidence on behalf of the petitioner consisted only of his oral testimony.5. the labour court rejected the claim on three grounds: (1) there was no acceptabe evidence establishing his entitlement to the salary at the rate claimed, or of the other perquisites. the computation of the monetary benefits was, therefore, impossible. (2) whether a poojary will come under the definition of a 'workman' is itself doubtful and (3) the inordinate delay in preferring the claim disentitled him to reliefs.6. there is no ground to interfere with any one of the reasonings of the labour court.7. it is for the party who seeks reliefs from the labour court to adduce cogent and convincing evidence in substantiation of the claim. if the labour court does not find it safe or sensible to accept the oral testimony of the petitioner as the sole basis for an order in his favour, that view cannot be faulted. the delay in approaching the court is a vital factor which deprived him of an effective relief from the labour court.8. even on the fundamental question, about his statutory status as a workman, there is insurmountable difficulty for the petitioner.9. even from very ancient times, priests and law had intimate connection. a historic evaluation on this aspect is available from a recent study, 'lord chancellor' by nicholas underbill. (its young author had critically commented upon the evaluation and working of the office of lord chancellor from early times; and in the course of such a critical evaluation, he has not spared lord campbell and his book 'lives of chancellors' from harsh comments). due to very many historic reasons, laws have sometimes reacted to priests unkindly. perhaps, the most horrifying exercise, was that of the english parliament, when in 1530 it enacted that the bishop of rochester's cook be boiled to death. comparatively less hard was a recent ligislation attempted by the state of tennessee in america when it imposed under the statute a prohibition against priests entering politics. the prohibition was declared unconstitutional by the american court -- see paul a.mc daniel v. selma cash paty, 435 us 618; 55 l ed. 2d 593.10. priests have played prominent parts in the history of mankind. some, by their humanism, live through history; like father damien, who, like him, nursed and cured many a lachrymose leper. francis xavier, known for his 'vigorous self-devotion, and incredible labour for no wisable reward'; who usually went on foot, and without shoes, living only on roasted rice, which he begged as he went on and slept on the ground with a stone, under his head. the christian priests (and the nuns who, like well-lit candles, spread around them much of hallowed light, even while quickly melting into extinction) have added several glorious chapters in the compilation of the history of enlightenment of india. the endless saga of sacrifice associated with a priest even generated a feeling that only the rough and hardlooking, could pursue a priest's life. it is such a mental make-up that prompted an innocent question by a character in 'princess kathilde'by marguerite castillon du perron: 'how can a man become a priest when he is so good looking.' however, as in other professions too, deviations have been detected in divinity. william ralph inge in his 'lay thoughts of a dean' quotes colet as referring to, 'pestilent and pernicious traits seen in the evil and wicked life of priests'. the portrait of the cardinal by marguerite castillon du perron with special reference to his sleeping habit is fictional and not factual. however, howard, who heralded the prison reform in england and in europe was factual in his observation, and effectual in his condemnation of the luxuriant life of the holy fathers he saw at the capuchin convent at prague. howard recorded as having seen the monastery as 'a house of revelling and drunkenness', that shattered his notion about the priests as persons 'who had retired from the world to live a life of abstemiousness and prayer'. a russsian priest, very close to the sceptre and crown, now lives in the musical lines: rasputin, rasputin, lover of russian queen.11. the hiatus between the ideal and actual in relation to the priestly class was visible in the indian setting too. the ideal is referred to by robert lingat in 'the classical law of india'. there is a pointed discussion on the role and the duties of a 'purohita' at page 217 reading:'thus the king is bound to choose amongst the brahmins a purohita who will be his chief counsellor. agreement between king and purohita is regarded by gautama (xi. 12-14) to be the very symbol of harmony between the two powers. and vasistha (xix. 4) recalls that it is written in the veda, 'a realm where a brahmin is appointed purohita flourishes'. the role of the purohita is multiple, and the translation 'chaplain' poorly indicates what his different functions are. he is far from being simply a priest with the duty to see that the king fulfils his religious obligations. elsewhere manu (vii.78) and yajnavalkya (i.314) distinguish him from officiating priests whose duty it was to celebrate ritual ceremonies. yajnavalkya (i.312) demands of him knowledge of astrology in order to know the influence of the planets and to be able to neutralise their effects if they are sinister; he should also be versed in the atharva veda and know the required spells to be cast, and magic prayers. the same verse requires him to be knowledgeable in the art of politics (danda-neethi). in reality, the purohita is the brain of the king. as a servant of dharma he is a servant of the state. for the rest, he occupies a singular position by reason of his functions. vijnesvara (mit., on yaj., 1.353) ranks him amongst the ministers (mantrin) and manu (xii.46) classes him, with kings and kshatri-yas, amongst those whose future destiny is dominated by rajas ('energy', 'passion')'.12. a very illuminatng judicial decision about the priestly class and its degeneration in later times is seen in annaya tantri v. ammakka bengsu, (1918)ilr 41 mad 886. that dealt with the competence of a hindu female to succeed to the office of 'archaka', in a temple and the emoluments attached thereto. she was not incompetent by reason of her sex-was the majority decision. seshagiri ayyar j., in a very illuminating order of reference (which fortunately forms part of the reported decision) indicated how from the point of view of the worshipper, it was the fitness of the archaka for the discharge of the duties that had to be considered, and how from the point of view of archaka, the question of secular rights was more important. a historic background is furnished thus:'in the vedas and in the ancient smritis we do not hear of the founding of temples. it is to the puranic age that we owe their existence. in manu's days, the only religious teacher was the ascetic sanyasi. he gave instructions to his disciples who, in their turn, spread a light of wisdom among the lay people. there were no places of worship, and no images to worship. it is to buddha that india owes the introduction of fixed places of worship and ordained orders of preachers... temples for the worship of siva and vishnu were established mostly by non-aryans at or about this time to circumvent the buddhistic influence.the second period begins with the advent of sankara. he found that the ancient worship of the elements was losing hold on the popular mind, and that the people were being led by the precepts of buddhism into the track of atheism. he had to fight blind orthodoxy behind him and materialism ahead of him. he adopted a compromise.'13. the decision recounted how rich endowments were made for the unkeep of temples. trusted service had however, to be found. it had always been the belief in india that 'the nearer a man is to god, the farther is he from him.' it is unnecessary for the purpose of this case to delve deep into, or deal at length with, the history of the temples, yet, a reference to a decline in the priestcraft as made therein, may furnish a background to the present sight and fight in the case, when a priest had taken the road to the labour court. the slokas of vaidyanatha dikshitar (together with their translations by manghat krishna menon) were given in that decision. one sloka is particularly striking. it reads:the translation reads:'a vipra, who, though he may be well-versed in the four vedas is desirous of getting money, and who performs the worship of the gods for the sake of another will be considered equal to a chandala.'14. coming to the kerala scene, some useful information about 'the temple clergy' is obtained from a publication of the archaeology department of the state 'temple architecture in kerala' by m.v. soundara rajan, m.a. there is a reference to the initiated clergy, in the context of the interior architecture of the temple. a passage at page 18 reads:'...visiting a kerala temple is not the same as understanding it. because, an air of fervid piety and scrupulous enforcement of sanctity prevails in the inner realms of the temple, and unlike temples in other parts of india, the main temple proper is open for visit or worship, only from its exterior and not in the interior. this precious privilege is given only to the initiated clergy in charge of daily worship.' 'the conservative temperament of the priestly communities that throve here and who were the sentinels of vedic brahmanism as different from agamic rituals,' is alluded to page 27. a specific reference to the kerala temple clergy occurs at page 28:'the kerala temple clergy are enforced celebrates during their term of office, and by a meticulous procedure, the office descends in the family and community by eligibility. in ancient times, it would seem that there had been a guild or corporate body of 3000 who served as temple priests inside kerala and a similar group of 3000 who served outside kerala, as could be gleaned from the hymns of alwars and nayanmars like tirumangai and sambandar of the 8th century a.d.' (it is possible that the word 'celebrates' is a mistaken one for the word 'celibates'.)15. the question pointedly arose in the context of industrial jurisprudence itself in a decision rendered by the house of lords in davies v. presbyterian church of wales, (1986) 1 all er 705. a dismissed pastor applied to an industrial tribunal under the employment protection (consolidation) act, 1978. he claimed that he had been employed by the church under a contract of service and that he had been unfairly dismissed. the house of lords held that an industrial tribunal had no jurisdiction to determine the reasonableness of such a termination. it was contended that on his appointment, a pastor agreed to preach, conduct religious services and give religious instructions, to comfort the sick and bereaved and to propagate the faith in his pastorate for the benefit of the church and its members; that he was employed by the church full-time and in consideration he became entitled to a stipend and a manse. on these factors, it was claimed that the pastor was a servant employed under a contract of service.the contention was, however, repelled. the house of lords observed (at p.709) :'the duties owed by the pastor to the church are not contractual or enforceable. a pastor is called and he accepts the call. he does not devote his working life but his whole life to the church and his religion, his duties are defined and his activities are dictated not by contract but by conscience. he is the servant of god.... the duties owed by the church to the pastor are not contractual.' differences and details notwithstanding, a basic approach is indicated by the above decision, in the context of a cleavage of views regarding the nature and character of services by a person in the spiritual fields.16. v.p. gopalan nambiar j., as he then was, took the view in superintendent, koodalmanickom devaswom v. kunhan kartha that (1967-ii-llj-639 at 641):'...that part of the koodalmanickom devaswom which is engaged in the collection of rent of its properties and maintenance of records of these collections, is an 'establishment' as given in the definition of 'commercial establishment' in the kerala shops act, 1960.'17. the decision of this court on this aspect in the devaswom board's maramath department case 1963-klt-218 and jaganath temple case, (1965-i-llj-501), decided by the orissa high court have been referred to in that case. the discussion could indicate that the conclusion was reached by the learned judge in a halting manner, as evident from the sentence reading (1967-ii-llj-639 at 641)'...the only question is whether the devaswom fills the bill for the limited purpose of the act and not whether it can be said to be a commercial establishment for all purposes whatsoever.'the learned judge, after referring to the decisions rendered in the background of the industrial disputes act, chose to emphasise the fact that 'it would be inappropriate to import into the shops and commercial establishments act the definition of the term 'industry' as given in the industrial disputes act.' it was also observed that the definition of the term 'commercial establishment' in the kerala shops and establishments act was 'wider than what is contained in the madras or travancore-cochin counterparts.'the case was taken up in appeal. the subject matter was compromised during the pendency of the appeal. the division bench took care to set aside that decision, and left the matter 'open for consideration in an appropriate case untrammelled by anything said in that judgment.'18. when an employee of a thirumullapulli devaswom was dismissed, the question again sprang up. namboodiripad j. had a different approach and a different conclusion-see thirumullapulli devaswom v. commissioner, (1979-i-llj-398). the approach was more from the point of view of the nature and features of the establishment. a deep insight into, and an intimacy with the internal working of a temple enabled the learned judge to have his views in sharp focus. with great respect, i endorse that approach and conclusion - see the observations at (p 400):''devaswom' is a compendious expression taking in a temple, its property, its management, etc. certain employees of a temple will have to discharge duties which are exclusively concerned with the performance of religious rites in accordance with sastras, the traditions of the temple, custom, etc... every person employed by a devaswom normally discharges functions pertaining to the proper functioning of the temple, the paramount object of which is to maintain a place of worship in proper condition for the benefit of the devotees... the mere fact that certain employees are directed to discharge non-religious or administrative functions does not mean that the persons employed by the devaswom are 'mainly engaged in office work'.'the learned judge sought to buttress his view by drawing on general observations contained in v. sasidharan v. peter and karunakaran, 1978 klt 613. that decision which concerns a lawyer's office has been affirmed by the supreme court in sasidharan v. peter and karunakaran, (1984-ii-llj-385).19. it is unnecessary in this case to consider whether other employees of a devaswom will adequately satisfy the requirements of the relevant definition of 'employee' or 'workman'. a poojary or a priest stands away from the general queue, with his distinctive dress, decorum, discipline and devotion, and with his distinct duties and subtle service. there is all the difference between a mahout, cook or clerk, active in the precincts of the temple or its corridors and office rooms, and priest placed in the sanctum sanctorum and silently saying his prayers.20. an evaluation of the evolution of the office of archaka or priest, as priest, as available from the rich legal literature, dissuades me from equating him to a mere wage earner; and to treat his services as manual or clerical in the sense in which those terms are employed in the setting of the industrial disputes act, 1947. the diety he propitiates or the god he serves, cannot be looked upon as a profit producing scheme or set up. the owner of a temple cannot, therefore, be equated to an industrial or commercial employer. the petitioner cannot, therefore, be treated as a workman, coming under that term as defined in the industrial dispustes act, 1947. the order of the labour court on this point is, therefore, correct. consequently, there is no scope for interference with the order for that reason too.21. the writ petition is dismissed.