Civil Writ Petition No. 9995 of 2005 {1} In the High Court of Punjab and Haryana at Chandigarh Civil Writ Petition No. 9995 of 2005 Date of Decision:August 31, 2009 Diocese of Amritsar of the Church of North India and others ---Petitioners versus Buta Anayat Masih and others ---Respondents Coram: HON'BLE MR. JUSTICE K.KANNAN *** Present: Ms. Abha Rathore,Advocate, for the petitioners Mr.Kumar Vishav Aggarwal, Advocate, for the respondents 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported i the digest? Yes *** K.KANNAN, J.(Oral) I. Dispensation before Labour Court 1. The writ petition challenges the ex parte award issued by the Labour Court, Amritsar upholding the claim of the person in his status as workman for reinstatement, continuity of service and back wages. Before the Labour Court, the workman examined himself to say that he had joined Civil Writ Petition No. 9995 of 2005 {2} the management on 8.1.1985 as an Evangelist on the monthly salary of Rs. 2000/- and worked as such up to 27.10.1995. The termination of service, notice, charge-sheet and enquiry, according to him, were bad in law. The management was proceeded ex parte and the Labour Court accepted the reference and the contention of the workman on the basis of evidence and granted the reliefs, mentioned above. 2. The application for setting aside the ex parte award had been filed beyond the period of 30 days and after the publication of the award and hence the application was rejected. The writ petition has come to to be filed by the Diocese. II.Preliminary objections relating to maintainability of writ petition 3. The Diocese has several substantive objections but on the preliminary objection raised by the learned counsel for the respondent that the writ petition itself is not maintainable, it has to be clarified even at the outset that there cannot be any objection to the proposition that the Labour Court shall not have the jurisdiction to set aside the ex parte order after the expiry of 30 days from the date of award and after the publication of the award. Such a view is on the basis that the labour court become functus officio after the pronouncement of the award and when the award is published in the Government Gazette. The lack of jurisdiction that the labour court might have, cannot be applied also to a High Court dealing with the issue whether the award passed by the labour court was in the eye of law valid or not. 4. The objections put on behalf of the Diocese through counsel have been even on substantial issues whether a person, admittedly an Evangelist, can be said to be a workman; whether the Diocese employing Civil Writ Petition No. 9995 of 2005 {3} persons even on salary for doing work in the Church can qualify for the definition of “industry” under the Industrial Disputes Act; whether the workman had discharged his burden of having worked for 240 days to complain of non-compliance of Section 25 F of the Industrial Disputes Act. Since the validity of the award itself is in question, this Court cannot be prevented from examining whether the award is sustainable in law or not. I reject, therefore, the contention raised on behalf of the respondent that the writ petition is not maintainable. III. Substituted service, unless ordered by Court, cannot done by bailiff. 5. The first contention on behalf of the Diocese was that the proceedings taken by the labour court in setting the Diocese ex parte themselves in contravention of relevant provisions relating to service enjoined under the Industrial Dispute (Punjab) Rules, 1958. The contention was that the bailiff who sought to effect service at the Church was reported to have served the summons on a person working at the Church and since he misbehaved and abused the bailiff, the service could not be personally effected and he therefore, affixed the summons at the door of the Church. The labour court acted on such report affixed by the bailiff and treated the service as sufficient. Learned counsel Ms. Abha Rathore would refer to Rules 18 and 20 that set out the procedure for service of summons or notices, read as under:- “18. Service of summons or notice:- Subject to the provisions contained in rule 29, any notice summons, process or other issued by a board, Court, labour court, Tribunal or an arbitrator, empowered to issued such notice, summons, process or order Civil Writ Petition No. 9995 of 2005 {4} may be served either personally or by registered post and where it is not practicable to effect service in any of the manners aforesaid, the notice, summons, process or order as the case many be, shall be served by affixing a copy thereof on the outer door or some other conspicuous part of the house or the place where the party upon whom service is to be effected, ordinarily, resides or carries on business or personally works for gain.” 20(2) Where there are numerous persons as parties to any proceeding before a board, Court, Labour Court or Tribunal or an Arbitrator and such persons are not members of any trade union or association, the Board, Court, Labour court, Tribunal or Arbitrator, as the case may be , shall, where personal service is not practicable, cause of service of any notice to be made/by affixing the same at or near the main entrance of the establishment concerned.” 6. The Rules provide for personal service on the addressee and if it is not practicable to effect service, the Board, Court, Labour Court, Tribunal or Arbitrator could effect service by fixture of summons at conspicuous part of the house or place where service is to be effected. The choice of effecting service by fixture cannot be exercised by the bailiff on his own volition. If there was mis-behavior by the person to whom the notice or summons was meant and could not be effectively served, could at best only return the summons givingthe cause for return of summons without service. The Court could then, if it is satisfied on the basis of the reasons for return, directed the affixture of summons. The procedure adopted by the bailiff in effecting substituted service and for the court to Civil Writ Petition No. 9995 of 2005 {5} treat it a sufficient service, in my opinion, is erroneous and it cannot constitute a valid service. The direction setting the Diocese ex parte , was, therefore, clearly wrong. Since the issues relating to merits of the award assumes greater importance, I do not want to be deterred on a peripheral issue whether there has been a valid service or not. IV Diocese, whether an industry-depends on facts 7. The specific contention made on behalf of the Diocese was that it was not an “industry”. The attempt of the learned counsel appearing for the Diocese was that the decision of the Hon'ble Supreme Court in Banglore Water Supply amd Sewerage Board v. A. Rajeppa and others reported in 1978 Lab. I.C. 467 (SC), the Constitution Bench gave expensive interpretation to the expression “industry” used under the Industrial Disputes Act and brought in to fold any systematic activity, organised by cooperation between employer and the employee for the production/or and distribution of goods and services to satisfy human wants and wishes as coming within the definition, industry. This judgment itself according to the learned counsel for the petitioners, marks out an exception in paragraph 161. Para 161 clause (a) in the judgment states as follows.:- (a) where (i)systematic activity, (ii) organized by co-operation between employer and employee( the direct and substantial element is chimerical) (iii) of the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e. Making on a large scale prasad or food) prima facie, there is an Civil Writ Petition No. 9995 of 2005 {6} industry in that enterprise.”(underlining mine) 8. The exception which the judgment marks out is the services calculated to serve human wants and wishes which are not spiritual and religious. Learned counsel for the respondent, however, argues that religious institutionss that carry systematic activity of employing work men to get the services to the devotees would qualify as an industry. Learned counsel Shri Kumar Vishav Aggarwal referred to the judgment of Jagbir Singh and others vs. State of Himachal Pradesh and others reported in 1999(2) LLJ 80 wherein the case dealt with Baba Balak Nath Temple Trust which had engaged daily rated workers for carrying on the activity of construction, development and maintenance of building and properties of the trust including that of temple, running of langer, canteen maintenance of mini museum etc. There was no dispute in that case that the trust was having sufficient activities which included construction activities of the temple also. Shri Devadeveshwar Sansthan, Parvati and Kothrud vs. Sushila Raghu Kadu reported in 2002(4) LLJ (Suppl.) 28 was a decision of Bombay High Court which held that in another case of trust maintaining temple and also carrying on the activity of sugarcane juice stall meant as an industry. In Sri Nathji Bhandar and another vs. State of West Bengal and others reported in 2004 (4) LLJ(Suppl.)529, the Calcultta High court dealt with a case of an establishment which carried on work in connection with Nathdwara temple and on a factual consideration that the activity in which the persons were engaged was not religious, held that it was an industry. In para 10 of the judgment reference was made that the activities of the temple were not for any spiritual benefit but was being run as a commercial proposition. The instance of trust running an Civil Writ Petition No. 9995 of 2005 {7} educational institution or hospital engaged in doing some systematic activity employing workman cannot be seen as providing illustration to Diocese employing an Evangelist. Even the question whether a Board or an institution is an industry cannot be always seen in isolation. It shall be seen in the context of its diverse activities. In this case, learned counsel appearing for the workman would urge that the Diocese runs several establishments for profit such as hospitals, education institutions etc. Diocese might qualify as an industry, as illustration obtained through the judgment of Calcutta High Court in the case of Sri Nathji Bhandar and another vs. State of West Bengal and others in relation to running of hospital or educational institution. In this case, the activity in which the Diocese was engaged qua the respondent was as an Evangelist . If the case is put through acid test through the decision of the Hon'ble Supreme Court in Banglore Water Supply amd Sewerage Board v. A. Rajeppa and others , it can not survive since the workman's activity is spiritual and religious. The issue as to how a Board /establishment of a Church shall be seen as an industry or not has come through some other decisions relating to service as offered by the Churches themselves. V. An evangelist is not a 'workman' 9. Whether the Diocese was an industry or not can be tested from the view point of how a person had been employed. Even on the express averment of the person claiming to be a workman, he had been appointed as an Evangelist on 8.1.1985. Learned counsel for the Diocese has submitted that an Evangelist working in a Church cannot be a workman within the definition of Section 2(s) of the Industrial Disputes Act. Similar situation arose in the case of Miss. M.R. Damon, Mission Civil Writ Petition No. 9995 of 2005 {8} Superintendent, Kodaikanal and another vs. Rev. M.M. Raja Dass and another reported in 2003(2) LLJ 730. The Madras High Court held that the Pastor of the Church cannot be considered to be a 'workman' in which reference was also made to a decision in Davis vs. Presbyterian Church of Wales, 1986 (1) AII E 705, The House of Lords answered the question as to the status of a Pastor, who was being paid wages by posing a question as to what is the duty of a Pastor and what are the activities meant to be. The House of Lords held that “a Pastor is called and 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. If his manner of serving god is not acceptable to the Church the services of the Pastor can be brought to an end by the Church in accordance with the rules, then . The law will ensure that a pastor is not deprived of his salaried pastrorate save in accordance with the provisions of book of rules but an Industrial Tribunal cannot determine whether a reasonable Church would sever the link between minister and congregation”. These observations of the House of Lords coming through the judgment of the Madras High Court , in my view brings the answer squarely to the question which is raised in this case. The attempt of the learned counsel for the workman was indeed ingenious in demanding that he was doing clerical job. An evangelist has only spiritual functions to perform. The dictionary( Oxford Dictionary Thesaurus and Word power Guide, Indian edition, 2004 ) gives the meaning of “Evangelise” as to convert, and “evangelist” as a person who seeks to convert others to the Christian faith. I hold therefore, the claimant /evangelist was not a 'workman'. Civil Writ Petition No. 9995 of 2005 {9} VI Other issues not required to be considered. 10.The other issues are merely academic. The workman claims to be a workman and had worked for more than 240 days, he refers to the commencement of employment as 8.1.1985 and that his services were terminated on 27.10.1995. Learned counsel for the Diocese sought to contend that there was no proof that he had completed 240 days of service prior to the alleged date of termination. The contention was that the workman had been terminated on 1.2.1995 the for the 12 months preceding, he had not worked for 240 days. I do not want to enter into the issues whether the workman had completed 240 days or not. 11. There was also an objection taken with reference to the back wages that was awarded to the workman and the acceptance of the reference being made nearly four years after the termination had taken place. They have no relevance having regard to decision taken that a person who is an Evangelist cannot be a 'workman' and a Diocese cannot be an 'industry' to claim the benefit under the Industrial Disputes Act. The award passed by the labour court, in my opinion, is without jurisdiction and it is set aside. VII. Disposition 12. The writ petition is allowed. However, there shall be no directions as to the costs. (K.KANNAN) JUDGE August 31, 2009 PARAMJIT