Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 6172 OF 1996 Shri Sarjerao Bhaurao Ekal r/o.1172/2, A Ward, Shivaji Peth Kolhapur. .. Petitioner Vs. 1. Shri S.K.Pant Walawalkar Vice President of Zilla Parviksha Va Anurakshan Sanghatana, 1924/25, Balkalyan sankul, Mangalwar Peth, Kolhapur 416 012. 2. Karyadhaksh Zilla Pariviksha Va Anurakshan Sanghatana 3. The Learned Judge, Labour Court, Kolhapur 4. The Learned Member, Industrial Court, Kolhapur. ..Respondents Mr.N.V.Bandiwadekar for Petitioner. Mr.Abhay Nevagi i/by M/s. Paras Kuhad & Associate for Respondent No.1. CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 16th January, 2008 : 16th January, 2008 : 16th January, 2008. ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT . This petition under Article 227 of the Constitution impugns the Judgment and Order dated 9/4/1996 rendered by the learned Member of the Industrial Court at Kolhapur thereby allowing Revision 2 Application (ULP) No.3 of 1995 and consequently the order passed by the Labour Court on 22/12/1992 holding that the Remand Home is an Industry within the meaning of Section 2(j) of the Industrial Dispute Act, 1947 came to be set aside. The Labour Court was further directed to return/dismiss Complaint (ULP) No. 150 of 1994. 2. The present petitioner came to be employed as a Clerk-cum-Typist with effect from 6/1/1990 by Dr.Sarvapalli Radhakrishnan Remand Home, Kolhapur and the said Remand Home was being managed by the Zilla Parviksha Va Anuraksha Sanghatana (District Probation and After Care Association)(for short referred to as the Association). The said Association has its own constitution providing for its aims and objects which include the protection of the children’s rights and their rehabilitation. Undoubtedly, the Remand Home is established for the purpose of development of children who are destitute or orphans and below the age of 16 years are normally admitted to the Remand Home. It appears that disciplinary proceedings were initiated against the petitioner sometimes in the year 1993 by issuing a charge-sheet for the alleged acts of misconduct. The explanation submitted by the petitioner was not found satisfactory and, therefore, a 3 departmental enquiry was conducted, the enquiry officer held the petitioner guilty and the said report was accepted by the Association. Consequently, by an order dated 12/5/1994 the petitioner was dismissed from service by way of punishment. The said order came to be challenged in Complaint (ULP) No. 150 of 1994 filed under Section 28(1) read with Items 1(a) to (g) of Schedule IV of the M.R.T.U. and P.U.L.P. Act, 1971 (for short the Act). In the said complaint the Association filed an application contending that it is not an Industry within the meaning of Section 2(j) of the I.D. Act and, therefore, the complaint was not maintainable. The Association prayed for the said preliminary point to be decided as raised in its application at Exh.12. After hearing both the parties, the said application was rejected by the learned Judge of the Labour Court on 22/12/1994 and as noted earlier the same order was challenged in Revision Application (ULP) No.3 of 1995 which has been allowed by the Industrial Court. 3. The Learned Counsel for the Petitioner referred to the written arguments placed on record and contended that the order passed in Writ Petition No. 2281/1985 by this Court on 7-7-1985 was an order of summary dismissal and, therefore, not being reasoned 4 out, it would not be binding on the Courts. The Learned Counsel had heavily relied upon another decision of this Court in the case of President, Anath President, Anath President, Anath Mahila Mahila Mahila Ashram v/s. Smt.J.G.Ajgaonkar (Writ Petition Ashram v/s. Smt.J.G.Ajgaonkar (Writ Petition Ashram v/s. Smt.J.G.Ajgaonkar (Writ Petition No. No. No. 4513 of 1991, unreported) 4513 of 1991, unreported) 4513 of 1991, unreported) and submitted that the charity trust registered under the Bombay Public Trust Act, 1950 is an "industry" under section 2(j) of the Act, by following the law laid down in the case of Bangalore Bangalore Bangalore Water Supply & Sewerage Board V/s. Rajappa & Water Supply & Sewerage Board V/s. Rajappa & Water Supply & Sewerage Board V/s. Rajappa & Ors. Ors. Ors. (AIR 1978 SC 548). (AIR 1978 SC 548). (AIR 1978 SC 548). As per the Learned Counsel for the Petitioner, the Respondent Association is also a charitable trust registered under the Bombay Public Trust Act, 1950 and it would fall within the ambit of the term "industry". As per the Learned Counsel the Labour Court was right in holding that the Respondent Association is an "industry" as defined under Section 2(j) of the Act and the said finding is duly supported by the subsequent decision of this Court in the case of Smt.J.G.Ajagaonkar Smt.J.G.Ajagaonkar Smt.J.G.Ajagaonkar (supra). (supra). (supra). Consequently, the view taken by the Industrial Court in the impugned order is unsustainable and the petition deserves to be allowed. 4. Mr. Nevagi, the Learned Counsel for the Respondent Association on the other hand had referred to the affidavit in reply filed by the Honorary Secretary of the Association and referred more 5 particularly to the aims, objectives and activities of the Association. It was submitted that though the Association is running a number of institutes, every institute is a separate establishment with separate staff and, therefore, the petitioner employee working for the Remand Home cannot be treated as an employee of any other Institution run by the Association or supervised by it. Mr. Nevagi has placed reliance on the decision of the High Court of Judicature at Gauhati in the case of Ramen Baruah v/s. Presiding Officer, Ramen Baruah v/s. Presiding Officer, Ramen Baruah v/s. Presiding Officer, Labour Labour Labour Court of Assam & anr. (2004 (3)LLN 572). Court of Assam & anr. (2004 (3)LLN 572). Court of Assam & anr. (2004 (3)LLN 572). So far as activities of Remand Home are concerned, Mr. Nevagi pointed out that same are sovereign in nature and the State Government is required to establish such After-care Homes/Special Homes for the Juvenile offenders. In this regard he referred to Section 9 of the Juvenile Justice Act, 1986 and Section 25 and 26 of the Bombay Juvenile Act, 1948 as well as Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 5. The Association in its affidavit in reply has admitted that it was registered under the Provisions of the Bombay Public Trust Act, 1950 and it is managed by the Trustees consisting of some Government officials such as District Collector, Superintendent of Police 6 and others. The Association is required to work in consonance with the Geneva Declaration 1924 and the Childrens Rights as ratified by the U.N.O. in 1960, World Summit and Convention of Childrens Right, 1989, National Charter for Children, 2003 and the Association runs the following establishments; (i) Dr. Sarvepalli Radhakrishnan Nirikshangriha - observation Home for Boys. (ii) Sou. Nalini S.K.Pant Walawalkar Kanya Nirikshangriha - Observation Home for Girls. (iii) Aniket Niketan - Home for Destitute Children. (iv) Vatsalya Balsadan - Shishuriha. (v) Kai. Dr. Ahilyabai Shankarrao Dabholkar Mahila Adhargriha - Rescue Home for Women. (vi) Kanya Balgiha - Juvenile Home for Girls. (vii) Balsangopan Yogja - Foster Care Scheme. (viii) Susanskar Vidyalaya (Primary School). . The affidavit has further admitted that another trust by name Anath Mahila Ashram was merged with the Association as per the order passed by the Deputy Charity Commissioner on 30-3-1993 but from the said date the association has not undertaken any activities of commercial in nature. The activities of the Association are stated to be as under; 7 (a) to run Juvenile Courts, Juvenile Boards for the purpose of admission, observation, probation, release, supervision of the Children who are defined as Juveniles under the Juvenile Justice Act, 1986; (b) Also supervise and execute the orders made by the Court under the Hindu Adoption Act, 1946, Dowry Prevention Act, 1961, etc. (c) to maintain institutions under the Bombay Childrens Act, 1948, Juvenile Justice Act, 1986 and/or the Juvenile Justice Act, 2000. (d) to run observation Homes, Special Homes, After Care Hostels, Orphanage Homes for elderly people etc. . It has been clarified that each of the activities mentioned hereinabove are run separately in the establishment concerned by the Association by engaging respective staff in each of the establishments and the supervision over each of the activities of these establishments is with the Association. Though the various activities run by the association are distinct and separate and inherently different in 8 nature and entails different kinds of activities to be undertaken for running these establishments. So far as the establishment by name Remand Home or Observation Home is concerned, it has been stated that the Remand Home is also called as observation Home and activities of the same are in no way commercial in nature nor it is an economic activity. The main activity of the Remand Home is to supervise and help the Juveniles in order to overcome their delinquency and make them good citizens. The inmates of the remand home are boys and girls who have been caught in petty thefts and other offences and an attempt is made at the said Remand Home to inculcate in them good habits by educating them, teaching them several other activities so that they would be able to become good citizens after their release from the said Remand Home. Essentially, therefore, the function which is undertaken at the said Remand Home is sovereign in nature. There is an overall control of the Government of Maharashtra on the said activity in view of the statutory provisions in Bombay Childrens Act, 1948 and/or the Juvenile Justice Act. 6. Section 25 of the Bombay Children Act, 1948 states that the State Government may establish and maintain industrial schools and other educational 9 institutions for the reception of children and youthful offenders during the period of their after care. As per Section 26 of the said Act, the State Government may, by notification in the Official Gazette, declare any particular place as an Observation Home for the purposes of this Act. As per Section 28 of the Act, for the control and management of every Approved Centre or After care Home or Hostel established and maintained by the State Government, a Superintendent and a Committee of Visitors shall be appointed by the State Government and such Superintendent and Committee shall be deemed to be the managers thereof for the purposes of this Act. Whereas Section 28(2) states that every Approved Institution and After care Home or Hostel, recognised by the State Government shall be under the management of a governing body or managing body, the members of which shall be deemed to be the managers of the institution for the purposes of this Act. As per Section 31(1) of the Act, the State Government if dissatisfied with the conditions, rules, management or superintendence of (an Approved Institution or recognised After-care Home or Hostel) may at any time by notice served on the managers of the Institution or Home or Hostel declare that the recognition thereof is withdrawn as from a date specified in the notice and on such declaration the withdrawal of the recognition 10 shall take effect and the Institution or Home shall cease to be an Approved Institution or Home. 7. Section 9 of the Juvenile Justice Act, 1986 provides for the establishment of Juvenile Homes by the State Government whereas Section 10 provides for the establishment of special Homes and Section 11 provides for Observation Homes. Section 12 states that the State Government may by rules made under the Act provide for the establishment or recognition of After care organisations and the powers that may be exercised by them for effectively carrying out their functions under this Act. 8. The Juvenile Justice Act, 2000 is more comprehensive and as per Section 8 therein the State Government may establish or maintain Observation homes and as per Section 9 it may establish and maintain either by itself or under an agreement with voluntary organisations, special homes in every district or a group of districts, as may be required for reception and rehabilitation of juvenile in conflict with law under the Act. Obviously, the term "the Juvenile in conflict with law under this Act" means the Juvenile offenders under the Act. 11 9. The Larger Bench of the Supreme Court in the case of Bangalore Water Supply Sewerage Board (supra) Bangalore Water Supply Sewerage Board (supra) Bangalore Water Supply Sewerage Board (supra) undoubtedly held that the charitable institution would be an industry as defined under the Industrial Disputes Act and proceeded to clarify about some such institutions which would be beyond the ambit of term "industry". It stated that where the establishment is oriented on human mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution, would not fall within the ambit of term "industry". Remand Homes, Special Homes or After-care hostels for the Juveniles in conflict with law are some such activities which fall within the category mentioned by the Supreme Court which is oriented on the human mission fulfilled by men who work not because they are paid wages but because they share the passion for the cause of the Juveniles and it is their mission at large to contribute for the reformation, education, apprehending all these Juveniles in conflict with law. I do not accept the submissions made by the Learned Counsel for the Petitioner that the earlier order passed by this Court on 7-7-1985 hereby dismissing Writ Petition No. 2281/1985 cannot be relied upon. The said Order reads as under:- 12 "Heard Advocates. Considered the affidavit filed by Respondents. The view taken by the Industrial Court does not call for any interference under Article 227 of the Constitution. Summarily dismissed." 10. It is thus clear that this Court had applied its mind to the reasoning set out by the Industrial Court in the impugned Judgement as well as the affidavit filed by the Respondents herein. It cannot be, therefore, accepted that the said order does not have binding effect on the subordinate Courts. Having regards to the nature of activities and its purpose as a Remand Home or After Care Hostel in which the Petitioner was employed and which was under the administration of the Association, it cannot fall within the ambit of term "industry" as defined under Section 2(j) of the Industrial Disputes Act. It was not permissible for the Labour Court to set out its own reasoning to take the different view than the view taken by this Court in Writ Petition No. 3381/1985 and infact the said order was binding on the Labour Court. The Industrial Court in its revisional powers under Section 44 of the MRTU & PULP Act, 1971 rightly stepped in and corrected the manifest error committed by the 13 Labour Court. 11. For the reasons set out hereinabove, this petition fails and the same is hereby dismissed. Rule is discharged with no order as to cost. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]