IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 MFA.No. 107 of 2010() --------------------- WCC.221/2003 of W.C.C.,THRISSUR .................... APPELLANT/1ST OPPOSITE PARTY: -------------------------------------------------- THE COMMISSIONER, HR & CE(Admn.) DEPARTMENT (PRESENTLY COMMISSIONER, MALABAR DEVASWOM BOARD) HOUSEFED COMPLEX, ERANHIPALAM, KOZHIKODE BY ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM RESPONDENTS: ----------------------- 1. SANKARAN S/O.KUNHIKORAN CHAVAKKAD, KIZHKKARA VENGITANGU P.O., THRISSUR DIST. 2. THE PRESIDENT, PARAPUMTHALLY AMBALAM UTSAVA COMMITTEE PARAMBATHALLY, MULLASSERRY, THRISSUR DIST. ADV. SRI.P.V.BABY FOR R1 SRI.A.N.SANTHOSH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 107 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th September, 2011 JUDGMENT K.M. Joseph J., The appellant, the Commissioner, HR & CE(Admn.) Department of Malabar Devaswom Board is the first opposite party in a proceeding under Section 22 of the Workmen's Compensation Act. The first respondent was the applicant therein. The application was filed seeking compensation on the basis that while the first respondent was employed by the appellant on 12.3.2003, he received personal injuries by accident arising out of and in the course of his employment. According to him, while he was lighting kadina as part of the vedi vazhipadu an offering performed in the M.F.A. No. 107 of 2010 :2: temple, it exploded and he sustained serious injuries. He has referred to the injuries. 2. The appellant filed written statement, inter-alia contending that Sri Parambanthalli devaswom is a public religious institution coming under the purview of the H.R. & C.E. Act 1951. It is contended that specific rules are provided in respect of service conditions of employees and the same is applicable to employees of temple. It is stated that the applicant is not a workman within the meaning of Workmen's Compensation Act. It is further contended that the employment of the applicant is by the 2nd respondent alone and any claim is to be made against that party only. The first respondent filed proof affidavit in support of his claim in the application. The first respondent was examined as AW1 and documents Exts.A1 to A6 were marked. AW2 is the medical practitioner. No documents were produced on the side of the opposite parties before the Commissioner. 3. The first two issues before the Commissioner and the finding of the Commissioner with regard those issues are as M.F.A. No. 107 of 2010 :3: follows: “(i). Whether the applicant was a workman as defined in the Act and whether there were employer- employee relationship between the first opposite party and the applicant? (ii). Whether there is an accident arose out of and in the course of employment of applicant? Finding of the Commissioner: The 1st opposite party employer of the applicant disputed all the claims of the applicant. The 2nd opposite party was absent in this case. The case of the applicant is that the applicant was a workman employed by the 1st opposite party for lighting the kathina as a part of the vedi vazhipadu performed in the temple, it exploded and sustained serious injuries on 12.3.2002. Ext.A1 is a copy of entry pass of Heart Hospital, Thrissur and it is evidence of accident on 12.3.2002 and noted that blast injury at Parambanthally temple. Ext.A2 is copy of intimation from Heart Hospital to the police. Ext.A3 is copy of wound certificate. Ext.A5 are medical bills for treatment made by the applicant. It is clear that the accident occurred and M.F.A. No. 107 of 2010 :4: applicant had sustained injuries in the accident which occurred while in the course of employment. Therefore I decide that the applicant was a workman as defined under section 2(1)(a) of the Act and there was employer-employee relationship between the 1st opposite party and the applicant and the applicant sustained injuries in the accident which arose out of and in the course of his employment. The above two issues are decided accordingly.” 4. Thereafter the Commissioner proceeded to refer to the disabilities suffered and fixed loss of earning capacity as 50%. The Commissioner thus awarded a compensation in a sum of Rs.1,51,559/- with interest at 12%. Aggrieved by this order, the appellant/1st opposite party has filed this appeal. 5. We heard learned counsel for the appellant and learned counsel for the applicant. There is no appearance for the second respondent in the proceeding. In fact, there was no appearance for the second opposite party even before the Commissioner also. M.F.A. No. 107 of 2010 :5: 6. Learned counsel for the appellant would firstly contend that the order of the Commissioner is illegal for the reason that the applicant cannot be treated as a workman in view of the decision of a Division Bench of this Court reported in Cherinjumpatty Thampuratty v. State of Kerala (2004(3) KLT 303 and also decision of a Single Judge of this Court reported in Paramekkavu Devaswom v. Ramachandran (2004(3) KLT 553). It is further contended that the applicant has not taken up the contention that the applicant was an employee of the appellant and met the finding rendered on the same is unsustainable. He would point out that 1200 temples come under the control of the appellant. There is no employer-employee relationship between the employees of the temples and the appellant. It is the Trustee/Trustee Board, who is the employer. Absolutely no employer-employee relationship exists between the appellant and the workman. Therefore, at any rate, the order is un- sustainable . 7. Per contra, learned counsel for the applicant/ first respondent would contend that the said decisions relied are not M.F.A. No. 107 of 2010 :6: applicable. As far the question of employer-employee relationship is concerned, he would point out that there is no question of law raised by the appellant. He would also point out that the records would reveal that the applicant/ first respondent has filed proof affidavit. The applicant was not cross-examined by the appellant. Therefore no interference is called for. 8. The first decision is Cherinjumpatty Thampuratty v. State of Kerala (2004(3) KLT 303). The Division Bench was dealing with the question whether the Government has got the power to refer a dispute between an employee and a temple governed by the provisions of the Hindu Religious and Charitable Endowments Act 1951 to the Industrial Tribunal in exercise of the powers conferred under S.10(1)(d) of the Industrial Disputes Act, 1947. The Court proceeded to hold inter-alia as follows: “Industrial Disputes Act 1947, S.10(1)(d), 2 (j) & (k) -- Government has no power to refer a dispute between an employee and a temple governed by the provisions of the Hindu Religious and Charitable Endowments Act to the M.F.A. No. 107 of 2010 :7: Industrial Tribunal under S.10(1)(d) -- Hindu Religious and Charitable Endowments Act 1951, S.49. The appointment and conditions of service of the employees are as provided under the rules framed under S.100(2)(y) of the H.R. & C.E. Act. S.49 of the Act provides for taking disciplinary action against the employees for good and sufficient reasons. Deputy Commissioner and Commissioner have also got powers under S.49(2) and (3) of the Act to deal with the disciplinary proceedings initiated against an employee of a temple coming under the provisions of the H.R. & C.E. Act. When Special Provisions are provided under H.R. & C.E. Act to take disciplinary action against an employee of a temple, and the remedy has also been provided thereunder, the Government have no jurisdiction or power to refer the dispute to the Industrial Tribunal. Further, Industrial Tribunal has also no jurisdiction to resolve those disputes when the power is conferred on the Commissioner under the provisions of the H.R. & C.E. Act. The temple managed by the petitioner Trustee would not fall M.F.A. No. 107 of 2010 :8: within the definition of S.2(j) of Industrial Disputes Act. The dispute between the temple employee and the temple management is not an industrial dispute which falls under the definition of S.2(k) of the Act. The activities carried on in a temple is purely of a religious nature. The temple has to function in an atmosphere different from that of an industrial and commercial undertakings. The dispute, if any, between the temple employee and the temple management has therefore to be resolved by the authority constituted under special enactment, H.R.& C.E. Act and the Rules framed thereunder. The Industrial Tribunal has therefore no jurisdiction to resolve the disputes between the temple employee and the temple management.” 9. As far as the judgment of the learned Single Judge in Paramekkavu Devaswom v. Ramachandran (2004(3) KLT 553) is concerned, the question which arose was as follows. A dispute was raised by the first respondent therein about the termination of his employment, after a formal domestic enquiry. He was employed as a watchman by the management of Paramekkavu M.F.A. No. 107 of 2010 :9: Devaswom, Thrissur. The Industrial Tribunal had repelled the preliminary objection of the appellant Devaswom and found that the workman is entitled to reinstatement. The learned Single Judge dealing with the issue held inter-alia as follows: “Industrial Disputes Act 1947, S.2(k) & (j) -- A temple as such does not come within the definition of industry -- The body of management who are entrusted with the duties of looking after the properties of a religious institution stands on a different footing and comes under the Act. A temple as such cannot come within the definition of industry. Nor can that come as an industrial establishment or undertaking as envisaged under S.2(ka) of the Industrial Disputes Act. Temples are associated with religious activities, for satisfying the spiritual needs of believers. But as referred to earlier, the body of the management who are entrusted with the duties of looking after the properties of a religious institution stands on a different footing. The Industrial Disputes Act is a pre-independent statute, and even if perhaps the statute makers may not have intended to bring in an all encompassing definition, so M.F.A. No. 107 of 2010 :10: long as there is no specific exclusion, interpretation, should be on the basis of the plain meaning gatherable, and text of the statute. Devaswom literarily means the properties of Deva, viz. the God. The properties require to be appropriately managed. Though Deva (God) could never be equated to an employer, the properties received by him as gifts when invested for any purpose including generating wealth, loses the exclusive sanctity which it might originally enjoy. What is managed by Devaswom Authority, is the wealth of the deity, which has come to their hand. It may be for the benefit of community, but that also is not very relevant. An establishment has thus got itself created to manage the wealth, viz. Devaswom properties. The controller of the Estate, interestingly becomes the controller of the affairs of the God as well though the accretion of wealth always is thanks to the presence of the deity. The statutes could be equated to that of a minor. Thus the 'All powerful' comes within the tutelage of the Manager, as next friend. Therefore, the essential religious activities pertaining to the Pooja and rituals alone need to be separated from the industrial activities, all others coming under the Industrial Disputes Act. As to the category who are to be so M.F.A. No. 107 of 2010 :11: segregated from the Industrial Disputes Act, is not an issue coming up for consideration here.” 10. The question which arises for consideration is whether the appellant should be permitted to raise the contention that the first respondent's claim cannot come under the purview of the Workman's Compensation Act, on the strength of the principle laid in the judgment of the Division Bench in Cherinjumpatty Thampuratty v. State of Kerala and some of the observations in the judgment of the learned Single Judge in Paramekkavu Devaswom v. Ramachandran (2004(3) KLT 553). 11. We would think that there is no merit in the contention of the appellant. The decision of the Division Bench was referred in the context of the question as to whether a reference is competent under the Industrial Disputes Act in respect of the temple administration. In that context the Division Bench proceeded to hold that the Government had no power to refer the dispute between an employee and a temple governed by the provisions of the Hindu Religious and Charitable Endowments Act 1951. It was found that M.F.A. No. 107 of 2010 :12: the dispute was not an industrial dispute and the activities was truly of a religious nature and the dispute, if any is to be resolved by the authorities constituted under the special enactment. It was found that the Tribunal has no jurisdiction. 12. The learned Single Judge proceeded to take the view that 'though Deva (God) could never be equated to an employer, the properties received by him as gifts when invested for any purpose including generating wealth, loses the exclusive sancity which it might originally enjoy.' 13. As far as the Workmen's Compensation Act is concerned, Section 3 provides for compensation to a workman (after the amendment it is substituted as an employee with effect from 18.1.2010). If a personal injury or death is caused by accident arising out of and in the course of his employment, compensation is to be paid by the employer. 14. The word 'employer' is defined in Section 2(d)(e) as follows: “employer” includes any body of persons M.F.A. No. 107 of 2010 :13: whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer, and, when the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, means such other person while the workman is working for him”. 15. Section 4 of the Workmen's Compensation Act is the substantial provision dealing with various categories of injuries and death, for which the method of calculating the amount is also provided. Nothing is pointed out either in the definition of 'employer' or 'employee' in the Workman's Compensation Act to detract from a finding that an authority like the appellant is excluded from the purview of the definition of the word 'employer', if it is otherwise found to be an employer. There is also nothing to indicate that a person like the second respondent cannot be treated as an employer, if on facts, otherwise, the description of the word 'employer' is satisfied. Nothing is pointed out in Section 3 to claim the benefit of any exemption from the purview of the Act by the M.F.A. No. 107 of 2010 :14: appellant or even by the second respondent. In short, if a workman dies or suffers injuries arising out of and in the course of his employment, the welfare legislation proceeded to provide for a forum and also fix the compensation payable. It is not the requirement of the law that a workman should be one within the meaning of the Industrial Disputes Act. We need not be go into the question whether there is any industrial activity which is being carried out in a temple, which was a question which was considered by the Division Bench. In these circumstances, we repel the contention of the appellant that in view of the provision of the Hindu Religious and Charitable Endowments Act 1951, a person cannot be treated as an employee/ workman under the Workmen's Compensation Act. 16. As far as the second question is concerned, learned counsel for the applicant/first respondent submits that there is no substantial question law raised in this regard. The substantial questions of law raised by the appellant are as M.F.A. No. 107 of 2010 :15: follows: “(i) Whether a Temple employee is a workman coming under the definition of 2(6) of the Industrial Disputes Act, 1949? (ii) Whether a Temple coming under the purview of the Hindu Religious and Charitable Endowment Act 1951 is governed by the provisions of the Industrial Disputes Act 1949 and whether the Commissioner has jurisdiction to deal with the matter? (iii) Is the Court below justified in allowing the claim without adjudicating the issue regarding the maintainability of the claim?” 17. Second respondent is the President, Parapumthally Ambalam Ulsava Committee. The case of the appellant is that the appellant has specifically taken the stand that the employment is by the second respondent and claim is to be made against that party. We notice that the second respondent has chosen not to participate in the proceeding, even before this Court. The case of the appellant is that there is no employer-employee relationship between the employees of the temples. There are 1200 temples coming under M.F.A. No. 107 of 2010 :16: the appellant, it is contended. It is contended, that there cannot be an employer-employee relationship between the persons employed by the temples through their President/ Management and the appellant. The role of the appellant is as stated in the provisions of the Act and each temple is stated to be a seperate unit and the salary of the employees of the temple is paid from the offerings of the temples concerned, it is pointed out. The authority of the appellant is essentially as supervisory, it is contended. 18. It is no doubt true that when the applicant was examined, there was no cross-examination, as such. But we would think that in the facts of this case, we cannot allow the impugned order to stand as such and the matter may require re-consideration in view of the question raised. We cannot brush aside the contention of the appellant merely due to the lack of felicity in drafting the questions of law raised by the appellant. 19. We would think on the point as to whether the applicant was justified in treating the appellant as its employer, the matter has to be redone. M.F.A. No. 107 of 2010 :17: 20. Accordingly we set aside the impugned order and remit the matter back. The Commissioner will redo the matter within a period of six months from the date of production of a copy of this judgment before it. The M.F.A is disposed of as above. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/