IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-2-2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.13022 and 13025 of 2000 The Youngmen's Christian Association Registered under the Indian Societies Registration Act rep. By its General Secretary No.1, E.V.R. Road, Puthur, Trichy 17. .. Petitioner in both petitions vs 1.The Presiding Officer Labour Court Trichy .. 1st Respondent in both petitions 2.A.Soosai .. 2nd Respondent in WP 13022/2000 3.Sundar .. 2nd Respondent in WP 13025/2000 Writ petitions filed under Article 226 of the Constitution of India praying for a writ of certiorari to call for the records of the first respondent in its Award dated 19.8.1999 and made in I.D.Nos.397 and 400/95 and quash the same. For Petitioner : Mr.R.Parthiban For Respondents : Mr.K.M.Ramesh for R2 in WP 13022/2000 Mr.A.Sirajudeen for R2 in WP 13025/2000 COMMON ORDER The petitioner in both the writ petitions is the same party namely The Youngmen's Christian Association at Tiruchirapalli. They came forward to challenge the two awards passed by the first respondent Labour Court in I.D.Nos.397/95 and 400/95 in these two writ petitions respectively. https://hcservices.ecourts.gov.in/hcservices/ 2.Pending the writ petitions, this Court granted interim relief including the deposit of certain amounts to the credit of the IDs before the Labour Court. 3.In respect of the contesting respondent A.Soosai (ID 397/95), he was engaged as a driver for the ambulance run by the petitioner association, and in respect of Sundar (ID No.400/95), he was engaged as an attender in the hostel run by them. When they were terminated from service, they raised an industrial dispute before the Government Labour Officer, and subsequently the matter was taken to the Labour Court. Before the Labour Court, there were six such workmen, and all the six IDs were tried together. But, it is now stated that in respect of the other four workmen they have settled their claims, and what now remains is the Award relating to I.D.Nos.397/95 and 400/95. 4.Before the Labour Court, on behalf of the workmen, 33 documents were filed, and they were marked as Exs.W1 to W33. On the side of the petitioner management, 10 documents were filed, and they were marked as Exs.M1 to M10. The contesting respondent Soosai examined himself as WW6, and the other contesting respondent Sundar examined himself as WW4. On the side of the petitioner management, Mr.L.Janaraj who was the President of the Association, was examined as MW1. 5.The only contention raised by the management before the Labour Court was that the petitioner organisation will not come within the meaning of industry in terms of Sec.2(j) of the Industrial Disputes Act, and it is a charitable and philanthropic organisation. Before the Labour Court, the President of the petitioner association who deposed as MW1, was cross-examined. In his cross-examination, it was elicited that the shops let out by them, were used for commercial purposes, and in the hostel run by them, there are 55 occupants with 28 rooms, and the Inspector of Labour has prosecuted them for not maintaining the records as per the labour enactment, and they are also getting rents for the rooms let out, and even for the ambulance, rent was collected for its usage. 6.Therefore, the Labour Court by placing reliance upon the judgments of the Supreme Court held that it is an "industry" within the meaning of Sec.2(j) of the I.D. Act and that the workmen are entitled to maintain the dispute. Thereafter, on going through the facts of the dispute the Labour Court held that the termination of service of these two contesting respondents did not arise. Even on the plea of financial restraint, the management had failed to produce documents to substantiate the same, and in view of that fact, the services of these workmen were not required. The Labour Court also found that the workmen had worked for more than 12 years, and no disciplinary action was taken against them before they were sent out. In that view of the matter, it had passed the impugned common award directing the reinstatement of the workmen with back wages and continuity of service. 7.Mr.R.Parthiban, learned Counsel for the petitioner submitted that the finding of the Labour Court that it is an industry within https://hcservices.ecourts.gov.in/hcservices/ the meaning of Sec.2(j) of the Act is contrary to the judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board Vs. A.Rajappa and Others reported in AIR 1978 SUPREME COURT 548. The Counsel placed reliance upon paragraph 132 of that judgment to reiterate the point that when the goal of the institution is charitable or philanthropic, the fact that some scavengers served or employed will not make it an industry, and that this aspect was not considered by the Labour Court. The passage relied on by the learned Counsel for the petitioner is extracted hereunder:- "132.The heart of trade or business or analogous activity is organisation with an eye on competitive efficiency, by hiring employees, systematising processes, producing goods and services needed by the community and obtaining money’s worth of work from employees. If such be the nature of operations and employer-employee relations which make an enterprise an industry, the motivation of the employer in the final disposal of products or profits is immaterial. Indeed the activity is patterned on a commercial basis, judged by what other similar undertakings and commercial adventures do. To qualify for exemption from the definition of "industry" in a case where there are employers and employees and systematic activities and production of goods and services, we need a totally different orientation, organisation and method which will stamp on the enterprise the imprint of commerciality. Special emphasis, in such cases, must be placed on the central fact of employer- employee relations. If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is headed by one who whole-heartedly dedicates himself for the mission and pursues it with passion, attracts others into the institution, not for wages but for sharing in the cause and its fulfilment, then the undertaking is not "industrial". Not that the presence of charitable impulse extricates the institution from the definition in Section 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the like. Supposing there is an Ashram or Order with a guru or other head. Let us further assume that there is a band of disciples, devotees or priestly subordinates in the Order, gathered together for prayers, ascetic practices, bhajans, meditation and worship. Supposing, further, that outsiders are also invited daily or occasionally, to share in the spiritual proceedings. And, let us assume that all the inmates of the Ashram and members of the Order, invitees, guests and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning, the bed-making and service, may often be done, at least substantially by the Ashramites themselves. They may chant in spiritual https://hcservices.ecourts.gov.in/hcservices/ ecstasy even as material goods and services are made and served. They may affectionately look after the guests, and, all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace. It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be that they take some small pocket money from the donations or takings of the institution. Nay more; there may be a few scavengers and servants, a part-time auditor or accountant employed on wages. If the substantial number of participants in making available goods and services, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wage-less sishyas, it is impossible to designate the institution as an industry, notwithstanding a marginal few who are employed on a regular basis for hire. The reason is that in the crucial, substantial and substantive aspects of institutional life the nature of the relations between the participants is non-industrial. Perhaps, when Mahatma Gandhi lived in Sabarmati, Aurobindo had his hallowed silence in Pondicherry, the inmates belonged to this chastened brand. Even now, in many foundations, centres, monasteries, holy orders and Ashrams in the East and in the West, spiritual fascination pulls men and women into the precincts and they work tirelessly for the Maharishi or Yogi or Swamiji and are not wage- earners in any sense of the term. Such people are not workmen and such institutions are not industries despite some menials and some professionals in a vast complex being hired. We must look at the predominant character of the institution and the nature of the relations resulting in the production of goods and services. Stray wage-earning employees do not shape the soul of an institution into an industry." 8.The contention raised by the petitioner is found answered by the passage found in paragraph 133 in the very same judgment, which is as follows:- "133.It now remains to make a brief survey of the precedents on the point. One case which is germane to the issue is Bombay Panjrapole. A Bench of this Court considered the earlier case-law, including the decisions of the High Courts bearing on humane activities for the benefit of sick animals. Let there be no doubt that kindness to our dumb brethren, especially invalids, springs from the highest motives of fellow feeling. In the land of the Buddha and Gandhi no one dare argue to the contrary. So let there be no mistaking our compassionate attitude to suffering creatures. It is laudable and institutions dedicated to amelioration of conditions of animals deserve encouragement from the State and affluent philanthropists. But these considerations have no bearing on the crucial factors which invoke the application of the definition in the Act as already set out elaborately by us. "The manner in which the activity in question is organised or arranged, https://hcservices.ecourts.gov.in/hcservices/ the condition of the cooperation between the employer and the employee necessary for its success and its object to render material service to the community" is a pivotal factor in the activity-oriented test of an "industry". The compassionate motive and the charitable inspiration are noble but extraneous. Indeed, medical relief for human beings made available free by regular hospitals, run by Government or philanthropists, employing doctors and supportive staff and business-like terms, may not qualify for exemption from industry. Service to animals cannot be on a higher footing than service to humans. Nor is it possible to contend that love of animals is religious or spiritual any more than love of human beings is. A panjrapole is no church, mosque or temple. Therefore, without going into the dairying aspects, income and expenditure and other features of Bombay Panjrapole one may hold that the institution is an industry. After all, the employees are engaged on ordinary economic terms and with conditions of service as in other business institutions and the activities also have organisational comparability to other profit-making dairies or Panjrapoles. What is different is the charitable object. What is common is the nature of the employer-employee relations. The conclusion, notwithstanding the humanitarian over tones, is that such organisations are also industries. Of course, in Bombay Panjrapole the same conclusion was reached but on different and, to some extent faulty reasoning. For, the assumption in the judgment of Mitter, J. is that if the income were mostly from donations and the treatment of animals were free, perhaps such charity, be it a hospital for humans or animals, may not be an industry. We agree with the holding, not because Panjrapoles have commercial motives but because, despite compassionate objectives, they have business-like orientation and operation. In this view, Section 2(j) applies." If it is seen in this angle, then the finding of the Labour Court cannot be found to be either perverse or without materials. 9.Mr.K.M.Ramesh appearing for the second respondent in WP No.13022/2000 also brought to the notice of the Court that whether the very same YMCA Society which is running an Higher Secondary School (Sports School), was covered by the definition "industry" as per the provisions of the I.D. Act came up for consideration before a Division Bench of this Court. The judgment of the Division Bench in YMCA College Sports, Higher Secondary School (Sports Wing) Vs. The Presiding Officer, Principal Labour Court and Another is reported in (2007) II LLJ 780. In that case, the Division Bench after referring to the Bangalore Water Supply and Sewerage Board's case (cited supra) held that YMCA even running a Sports School amounts to an industry covered by the provisions of the I.D. Act. Therefore, the attempt made by the petitioner to challenge the findings of the Labour Court with reference to the issue relating to the industry has to be necessarily rejected. https://hcservices.ecourts.gov.in/hcservices/ 10.On the question of merits, a perusal of the affidavit does not show any serious challenge to the findings recorded by the Labour Court. Even otherwise, as rightly pointed out by the Labour Court, the petitioner had failed to prove to the satisfaction of the Labour Court that the non-employment of these two workmen was necessitated due to economic factors. The Labour Court found that none of the materials was produced before it to come to such conclusion. When the stand of the management regarding economic reasons leading to the dispensation of the services of the workmen, was rejected, this Court under Article 226 cannot reverse those findings in the absence of any credible records produced before the Labour Court. 11.In the light of the above, both the writ petitions are misconceived, and they lack in merits and accordingly stand dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv To: The Presiding Officer Labour Court,Trichy 1 CC TO Mr.K.M.Ramesh, Advocate, Sr 8483 1 cc to Mr.R.Parthiban, Advocate, Sr 8769 WP Nos.13022 and 13025 of 2000 CK (CO) RH (22.2.10) https://hcservices.ecourts.gov.in/hcservices/