1 WP 656/1997 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.656 OF 1997 Shri Vatavriksha Swami Maharaj ] Devasthan, Akkalkot, through ] its Chairman Shri. K.S. Ingle ] Petitioner Vs. 1. State of Maharashtra through its ] Secretary to the Ministry of Industry, ] Labour & Welfare, Mantralaya, ] Mumbai - 400 032 ] ] 2. The Commissioner of Labour ] Maharashtra State, having ] Respondents Office at Commerce Centre, ] Tardeo, Mumbai ] ] 3. The Assistant Commissioner of ] Labour, Solapur ] ] 4. The Shop Inspector, ] Nagar Parishad, Akkalkot ] Mr. G.S. Godbole, Advocate for the petitioner. Mr. C.R. Sonawane, AGP for Mr. Mandar Soman i/by Mr. A.A. Kumbhakoni, Advocate for respondent. Coram : B.H. Marlapalle & U.D. Salvi, JJ. Date : 16th November, 2010 2 WP 656/1997 JUDGMENT (Per B.H. Marlapalle, J.) : 1. This petition questions the order dated 22nd July 1996 passed by the Commissioner of Labour, State of Maharashtra as the prescribed authority under Section 7(3) of The Bombay Shops and Establishments Act, 1948 ( the Act in short) thereby holding that “ ” the petitioner is a commercial establishment within the meaning of Section 2(4) of the said Act and consequently required to be registered under Section 7 therein. While granting rule, the order impugned was stayed by this Court on 6th February 1997 and the stay order continued all along. 2. The petitioner is a Devsthan/Math at Akkalkot in Solapur District and is a trust registered under the provisions of Bombay Public Trust Act on 19th December 1953. As per the trust deed, the main objects of the trust are charitable and religious in nature and secondly that it does not carry on any business, trade or profession or any work connected therewith or incidental or ancillary to any such activities. 3. It appears that the respondent no.4 visited the trust and by his letter dated 30th January 1996 called upon its Chairman to obtain registration as a commercial establishment under Section 7(1) of 3 WP 656/1997 the Act. The trust was aggrieved by the said communication and therefore it approached the Deputy Commissioner of Labour (Shops) in the Office of the Commissioner of Labour, Mumbai, by its letter dated 5th February 1996 and opposed the view taken by respondent no.4. Consequently the Commissioner of Labour appears to have exercised his powers under Section 7(3) of the Act and passed the impugned order. 4. On receipt of the said order, the petitioner submitted its representation dated 9th August 1996 to the Commissioner of Labour, Mumbai and raised a grievance that before the impugned order was passed, it did not receive any notice nor was it heard so as to carry out an enquiry under Section 7(3) of the Act. As there was no response from any of the respondents, this petition by way of last resort came to be filed. 5. Mr. Godbole, learned counsel for the petitioner has raised two fold grounds namely : (a) That while passing the impugned order, the principles of natural justice have not been followed in as much as while conducting the enquiry under Section 7(3) of the Act, the Labour Commissioner did not issue any notice to the 4 WP 656/1997 petitioner and the petitioner was not heard. The rule of Audi Alteram Partem has not been followed and that itself is a sufficient ground to set aside the order and remand the case for fresh decision to the prescribed authority, and (b) Even otherwise the petitioner cannot be called a commercial establishment as defined under Section 2(4) of the Act and it is also not an establishment within the meaning of Section 4(8) therein. 6. Mr. Godbole referred to the objects of the trust as set out in the scheme for the management and administration of the petitioner- Devsthan and as approved by the Assistant Charity Commissioner on 4th July 1995 under Section 50-A(2) of the Bombay Public Trust Act, 1950. It was further submitted that the residential accommodation provided to the devotees cannot be termed as a commercial activity and the devotees are provided free meals. There is no motive of profit in any of the religious and charitable activities undertaken by the petitioner including the schools and balwadi s. In support of these contentions, Mr. ’ Godbole has relied upon the following decisions : 5 WP 656/1997 (i) State of Andhra Pradesh v/s M/s H. Abdul Bakhi and Bros., AIR 1965 Supreme Court, 531, (ii) State of Gujarat vs. M/s Raipur Manufacturing Co., AIR 1967 Supreme Court 1066; (iii) V. Sasidharan vs. M/s Peter & Karunakar and others, II L.L.J., 385. (iv) Augustine Mathai vs. Appellate Authority, 1992 II, L.L.J, 780 and (v) Narendra Keshrichand Fuladi another vs. State of Maharashtra and Girdhar s/o Laxman Bundele, 1985(1) Bom. C.R. 460. 7. Mr. Godbole also relied upon the earlier order dated 15th July 1987 passed by the Deputy Commissioner of Labour (Shops), Mumbai, wherein the said authority held that the petitioner could not be termed as a shop or a commercial establishment as defined under the Act and therefore it was not required to obtain registration thereunder. 8. The Deputy Commissioner of Labour (Shops) from the office of Commissioner Labour, Mumbai and the Shop Inspector from the 6 WP 656/1997 office of the Assistant Commissioner of Labour at Solapur have filed affidavits in reply, so as to oppose the petition. As per the Deputy Commissioner while passing the impugned order, various documents as well as the reports submitted by respondent no.4 were considered and the office of Assistant Labour Commissioner, Solapur had reported that at the relevant time, the petitioner had employed 35 employees for maintenance of the temple, book selling, keeping accounts etc. and it was running two independent Dharmashalas with about 200 rooms. Each room was charged anywhere from Rs.50/- to Rs.200/- per day. In addition, the petitioner provided lockers to the devotees by charging them and meals which were not free. Hence, the trust has been rightly classified as a commercial establishment. Dealing with the earlier order dated 15th July 1987, which has been relied upon by the petitioner, it has been contended that it is not known from the record as to how the said order came to be passed and even if it is deemed to have been passed, it was possible that at the relevant time, the petitioner trust was not doing on any commercial activities. 7 WP 656/1997 As per the affidavit filed by respondent no.4, the petitioner- trust has constructed 250 rooms (Bhakti Niwas) and it is running three dining halls with about 20 employees. Bhakti Niwas is rented out for marriage ceremonies by charging Rs.5,000/-. It is also running two nursing schools and a primary school with teachers and other supporting staff. It sells religious books on subsidised prices and it also offers free meals for the poor. However, for all these activities, there were about 60 employees on the rolls of the petitioner. It also stated that the meals to the devotees are provided at Rs.10/- per meal and it also received donations in sumptuous amounts. It is further pointed out that on account of the opposition by the petitioner to obtain registration under Section 7(1) of the Act, the appropriate authority decided the issue and passed the impugned order under Section 7(3) of the Act. The affidavit emphasises that the petitioner has been rightly categorised as a commercial establishment and therefore is required to obtain the registration under the Act. Mr. Sonawane, AGP in his argument has adopted these averments. 8 WP 656/1997 9. Section 7(3) of the Act reads as under : In the event of any doubt or difference of opinion “ between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall refer the matter to the prescribed authority which shall, after such inquiry as it thinks proper, decide the category and such establishment and its decision shall be final for the purposes of this Act. ” Thus an enquiry is contemplated to be held by the prescribed authority on the reference made to him by the Inspector. Conducting an enquiry would also include calling upon the party to submit its response to the report submitted by the Inspector and provide an opportunity to submit documents give a hearing before any final order is passed. Such an order is treated to be final for the purpose of the Act, which means the only remedy available against the order would be to approach this court in a writ petition. The order to be passed under Section 7(3) has therefore serious ramifications and the party affected or against whom such an order is passed ought to be issued a notice in the process of conducting an enquiry by the prescribed authority. Admittedly this has not been done in the instant case and at the earliest opportunity available, 9 WP 656/1997 the petitioner by its letter dated 9th August 1996 pointed out to the Commissioner of Labour that the impugned order was passed exparte and it was denied an opportunity of hearing as was requested by the earlier letter dated 5th February 1996. On these grounds alone, in our opinion, the order impugned is required to be set aside, so as to provide a fresh enquiry to be undertaken by the prescribed authority under Section 7(3) of the Act. During such an enquiry, the petitioner will have to produce all the records pertaining to its different activities, the employees salary register, attendance register and the yearly accounts (income and expenditure). The motive of profit, in our view is immaterial. When this is a welfare peace of legislation and has been enacted for regulating the conditions of the work and employment in the shops and establishments in the State of Maharashtra. We are also aware that in the State of Maharashtra, similar Devsthans been registered as trusts and they are running their charitable and religious/devotional activities, in an organised manner and deriving income from such activities. It is therefore, necessary to conduct an enquiry under Section 7(3) of the Act keeping in mind not only the case of the petitioner but all similarly placed Devsthans/trusts which have not 10 WP 656/1997 yet been registered under the Act and undoubtedly if such trusts are noticed, each one of them, will have to be also heard along with the petitioner while undertaking a denovo enquiry. 10. In the premises, this petition succeeds partly and the same is allowed. The impugned order of dated 22nd July 1996 is hereby quashed and set aside. The petitioner s case for an enquiry ’ under Section 7(3) of the Act is remanded to the prescribed authority and we direct the said authority to conduct a denovo enquiry on the lines stated hereinabove and after hearing the petitioner and other ... establishments if any, pass the fresh order. This shall be done as expeditiously as possible and preferably within a period of six months. All issues are left open. Rule is made absolute accordingly. This order does not prevent the office of the Assistant Commissioner of Solapur to undertake fresh inspection of the petitioner-establishment and submit a report to the Commissioner of Labour within one month from today and a copy of such report will also be made available to the petitioner. 11. Rule is made absolute accordingly but without any order as to costs. 11 WP 656/1997 12. Writ to go to the Commissioner of Labour, Tardeo, Mumbai and Assistant Commissioner of Labour, Solapur forthwith. (U.D. Salvi, J) (B.H. Marlapalle, J.)