1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 27 OF 2010. Mr. Noor Alam Mohammed Yaruddin. ..Petitioner. v/s. M/s. Murga Giran Mosque Trust. ..Respondent. .... Mr. H. Kumar Vaidyanathan, for Petitioner. Mr. I.A. Saiyed, for Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 15TH FEBRUARY 2010. P.C. By this writ petition, the petitioner workman has challenged the award passed by the Twelfth Labour Court, Mumbai, dated 24th June 2009, dismissing Reference (IDA) No.23 of 2005. 2. According to the petitioner, in the year 1984, he was appointed as a Helper by the respondent which is a trust registered under the provisions of the Bombay Public Trusts Act, 1950, and was required to do the work of cleaning the mosque premises, collecting rents of shops and depositing the same in the bank, for which he was paid a salary of Rs.1,600/- per month. 3. According to the petitioner, he was working for the 2 respondent trust from 6.00 a.m. to 9.00 p.m. daily and was also residing in the trust premises. However, when he requested the respondent trust to increase his wages, his services were orally terminated with effect from 26th July 2003 without notice. According to the petitioner, the respondent trust wrongly alleged in its written statement that the petitioner was also carrying on business. He has relied on a photostat copy of a certificate issued by one of the trustees of the trust dated 12th January 2001, certifying that the petitioner was working with the trust since the year 1994 on a monthly salary of Rs.1,300/- per month and that he has no income apart from the amount of Rs.1,300/- received by him for working as a Khadim in the Mosque. According to the petitioner, the respondent trust was receiving rent of Rs.1,000/- per month from four shops and Rs.8,000/- per month from two shops. Since the respondent trust is registered under the Shops and Establishment Act, the provisions of Minimum Wages Act, 1948 are applicable. The respondent trust also received donations from outsiders and worshipers every month and the said money is deposited in the bank of the trust account. Since the said trust is receiving the said donations and also rent from shops, the respondent trust is an Industry under section 2(j) and he is a 3 workman under section 2(s) of the Industrial Disputes Act, 1947. 4. The allegations of the petitioner are denied by the respondent trust. According to the respondent trust, its main object is to maintain the mosque and not to give shops on rent. The mosque is not making any profit but collecting the rents only with a view to pay the taxes of the local authority. The donations received were not fixed and the donations are dependent on the will of the donors. It is submitted that the petitioner has not provided the correct figures of rent/compensation received from the six shops as can be seen from the balance sheet and accounts maintained by the trust as per the provisions of the Bombay Public Trusts Act, 1950 and produced before the Labour Court. According to the respondent trust, the petitioner was working only for two hours a day in the mosque for which he was paid Rs. 1,500/- per month and rest of the time, he was having his own business of selling caps, handkerchiefs, lungies, etc., in addition to his business in front of a Mosque situated at Mira Road. It was therefore, submitted that the respondent trust is not an Industry as per the provisions of the Industrial Disputes Act, 1947 and though the petitioner was working with them for about two hours daily, he cannot be termed as workman as defined under the 4 Industrial Disputes Act, 1947. 5. The statement of the petitioner in his examination-in- chief that the respondent trust is getting rent of Rs.1,000/- per month from the four shops and Rs.8,000/- per month from the other two shops, is belied by the balance-sheet and accounts produced by the respondent trust which shows that the trust has received only Rs.11,492/- in a year towards the rent from which they have paid Municipal assessment taxes of Rs.8,924/-. Again, the statement of the petitioner in his examination-in-chief that he was working for the respondent from 6.00 a.m. to 9.00 p.m. daily and he was not doing any business as alleged by the respondent trust, is belied by his admission during his cross-examination that he was doing business in front of the mosque maintained by the respondent trust, as well as in front of the Mira Road Mosque. Though to cover up, the petitioner added that he was attending the mosque also, during the business hours by temporary closing his business, the petitioner has admitted that the total sale transaction in his business outside the mosque maintained by the respondent trust was to the tune of Rs.400/- to Rs.500/- per day. Interestingly, though the petitioner's case in his evidence was that he was earning only Rs.1,300/- to Rs.1,600/- per month by 5 working from 6.00 a.m. to 9.00 p.m. in the mosque maintained by the respondent trust and had no other income from any other source, admitted in his cross-examination, that in the year 1997, he has purchased an ownership flat at Mira Road for Rs.2,75,000/- and he also paid every month Rs.1,200/- to Rs.1,300/- towards the maintenance to his children who were residing with his divorced wife. In fact, the petitioner also produced before the Labour Court various receipts (twelve in number) showing that he was paying Rs.10,000/- and Rs.15,000/- per month to the builder named in the said receipts since the year 1997. In view thereof, it is evident that the petitioner has given false evidence before the Labour Court which falsehood stood completely exposed in his cross-examination. 6. After considering the evidence as well as the submissions made by the parties and also the case laws cited by both the parties, the Labour Court has held that the main object of the respondent trust is to maintain the mosque and not to give shops on rents. The balance sheet produced by the respondent trust clearly shows that there is no profit to the trust and they are collecting the rent only with a view to pay the taxes of the local authorities. In view of the nature of the activities carried on by 6 the respondent trust, there is no material to show that the respondent trust be termed as an ‘Industry’. After considering that the petitioner was doing the work of cleaning for the respondent trust only for one/two hours per day and was admittedly doing business of selling caps, handkerchiefs, etc. in front of the mosque and further admittedly, he used to pay an amount of Rs.10,000/- to Rs.15,000/- to the builder since the year 1997 for purchase of a flat at Mira-Road in the year 1997 and was also paying an amount of Rs.1,200/- to Rs.1,300/- towards the maintenance of his children who were residing with his divorced wife, the Labour Court has held that the petitioner has failed to prove his case that he was working for the respondent trust from 6.00 a.m. to 9.00 p.m. Therefore, the contents of the photostat copy of the certificate purportedly issued by an ex-trustee of the respondent trust, was also not accepted. The Labour Court has therefore, held that the first party trust is not an industry as per the provisions of the Industrial Disputes Act, 1947 and the petitioner also cannot be termed as a workman as defined under the Industrial Disputes Act, 1947. The Labour Court has therefore, also concluded that the petitioner has created a false dispute against the respondent trust. 7. Considering the fact that the petitioner has given false 7 evidence before the Labour Court, knowing the same to be false and in view of the aforestated reasoning of the Labour Court, I am of the view that the award passed by the Labour Court cannot be faulted in any respect and needs no interference under Article 226 of the Constitution of India. 8. The writ petition is therefore, dismissed. However, there will be no order as to costs. [ S.J.KATHAWALLA, J. ]