Devasthan vs State Of Maharashtra Through Its
2010 Latest Caselaw 154 Bom

                                               1                           WP 656/1997




                                                                           
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION  




                                                   
                     WRIT PETITION NO.656 OF 1997


    Shri Vatavriksha Swami Maharaj             ]




                                                  
    Devasthan, Akkalkot, through               ]
    its Chairman Shri. K.S. Ingle              ]    Petitioner

                Vs.




                                       
    1. State of Maharashtra through its
                           ig                  ]
      Secretary to the Ministry of Industry,   ]
      Labour & Welfare, Mantralaya,            ]
      Mumbai - 400 032                         ]
                         
                                               ]
    2. The Commissioner of Labour              ]
      Maharashtra State, having                ]    Respondents
      Office at Commerce Centre,               ]
       


      Tardeo, Mumbai                           ]
                                               ]
    



    3. The Assistant Commissioner of           ]
      Labour, Solapur                          ]
                                               ]





    4. The Shop Inspector,                     ]
      Nagar Parishad, Akkalkot                 ]


    Mr. G.S. Godbole, Advocate for the petitioner.





    Mr. C.R. Sonawane, AGP for
    Mr. Mandar Soman i/by Mr. A.A. Kumbhakoni, Advocate for respondent. 


                            Coram   :  B.H. Marlapalle &
                                       U.D. Salvi, JJ.

                            Date     :  16th November, 2010




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                                                 2                             WP 656/1997




                                                                              
    JUDGMENT (Per B.H. Marlapalle, J.) :

1. This petition questions the order dated 22nd July 1996 passed by

the Commissioner of Labour, State of Maharashtra as the

prescribed authority under Section 7(3) of The Bombay Shops and

Establishments Act, 1948 ("the Act" in short) thereby holding that

the petitioner is a commercial establishment within the meaning

of Section 2(4) of the said Act and consequently required to be

registered under Section 7 therein. While granting rule, the order

impugned was stayed by this Court on 6th February 1997 and the

stay order continued all along.

2. The petitioner is a Devsthan/Math at Akkalkot in Solapur District

and is a trust registered under the provisions of Bombay Public

Trust Act on 19th December 1953. As per the trust deed, the main

objects of the trust are charitable and religious in nature and

secondly that it does not carry on any business, trade or

profession or any work connected therewith or incidental or

ancillary to any such activities.

3. It appears that the respondent no.4 visited the trust and by his

letter dated 30th January 1996 called upon its Chairman to obtain

registration as a commercial establishment under Section 7(1) of

3 WP 656/1997

the Act. The trust was aggrieved by the said communication and

therefore it approached the Deputy Commissioner of Labour

(Shops) in the Office of the Commissioner of Labour, Mumbai, by

its letter dated 5th February 1996 and opposed the view taken by

respondent no.4. Consequently the Commissioner of Labour

appears to have exercised his powers under Section 7(3) of the

Act and passed the impugned order.

4. On receipt of the said order, the petitioner submitted its

representation dated 9th August 1996 to the Commissioner of

Labour, Mumbai and raised a grievance that before the impugned

order was passed, it did not receive any notice nor was it heard

so as to carry out an enquiry under Section 7(3) of the Act. As

there was no response from any of the respondents, this petition

by way of last resort came to be filed.

5. Mr. Godbole, learned counsel for the petitioner has raised two

fold grounds namely :

(a) That while passing the impugned order, the principles of

natural justice have not been followed in as much as while

conducting the enquiry under Section 7(3) of the Act, the

Labour Commissioner did not issue any notice to the

4 WP 656/1997

petitioner and the petitioner was not heard. The rule of

Audi Alteram Partem has not been followed and that itself

is a sufficient ground to set aside the order and remand the

case for fresh decision to the prescribed authority, and

(b) Even otherwise the petitioner cannot be called a commercial

establishment as defined under Section 2(4) of the Act and it

is also not an establishment within the meaning of Section

4(8) therein.

6. Mr. Godbole referred to the objects of the trust as set out in

the scheme for the management and administration of the

petitioner- Devsthan and as approved by the Assistant Charity

Commissioner on 4th July 1995 under Section 50-A(2) of the

Bombay Public Trust Act, 1950. It was further submitted that the

residential accommodation provided to the devotees cannot be

termed as a commercial activity and the devotees are provided

free meals. There is no motive of profit in any of the religious

and charitable activities undertaken by the petitioner including

the schools and balwadi's. In support of these contentions, Mr.

Godbole has relied upon the following decisions :

5 WP 656/1997

(i) State of Andhra Pradesh v/s M/s H. Abdul Bakhi and Bros.,

AIR 1965 Supreme Court, 531,

(ii) State of Gujarat vs. M/s Raipur Manufacturing Co., AIR 1967

Supreme Court 1066;

(iii) V. Sasidharan vs. M/s Peter & Karunakar and others, II

L.L.J., 385.

(iv) Augustine Mathai vs. Appellate Authority, 1992 II, L.L.J, 780

and

(v) Narendra Keshrichand Fuladi another vs. State of

Maharashtra and Girdhar s/o Laxman Bundele, 1985(1) Bom.

C.R. 460.

7. Mr. Godbole also relied upon the earlier order dated 15th July

1987 passed by the Deputy Commissioner of Labour (Shops),

Mumbai, wherein the said authority held that the petitioner could

not be termed as a shop or a commercial establishment as

defined under the Act and therefore it was not required to obtain

registration thereunder.

8. The Deputy Commissioner of Labour (Shops) from the office of

Commissioner Labour, Mumbai and the Shop Inspector from the

6 WP 656/1997

office of the Assistant Commissioner of Labour at Solapur have

filed affidavits in reply, so as to oppose the petition. As per the

Deputy Commissioner while passing the impugned order, various

documents as well as the reports submitted by respondent no.4

were considered and the office of Assistant Labour Commissioner,

Solapur had reported that at the relevant time, the petitioner had

employed 35 employees for maintenance of the temple, book

selling, keeping accounts etc. and it was running two independent

Dharmashalas with about 200 rooms. Each room was charged

anywhere from Rs.50/- to Rs.200/- per day. In addition, the

petitioner provided lockers to the devotees by charging them and

meals which were not free. Hence, the trust has been rightly

classified as a commercial establishment. Dealing with the earlier

order dated 15th July 1987, which has been relied upon by the

petitioner, it has been contended that it is not known from the

record as to how the said order came to be passed and even if it

is deemed to have been passed, it was possible that at the

relevant time, the petitioner trust was not doing on any

commercial activities.

7 WP 656/1997

As per the affidavit filed by respondent no.4, the petitioner-

trust has constructed 250 rooms (Bhakti Niwas) and it is running

three dining halls with about 20 employees. Bhakti Niwas is

rented out for marriage ceremonies by charging Rs.5,000/-. It is

also running two nursing schools and a primary school with

teachers and other supporting staff. It sells religious books on

subsidised prices and it also offers free meals for the poor.

However, for all these activities, there were about 60 employees

on the rolls of the petitioner. It also stated that the meals to the

devotees are provided at Rs.10/- per meal and it also received

donations in sumptuous amounts. It is further pointed out that

on account of the opposition by the petitioner to obtain

registration under Section 7(1) of the Act, the appropriate

authority decided the issue and passed the impugned order under

Section 7(3) of the Act. The affidavit emphasises that the

petitioner has been rightly categorised as a commercial

establishment and therefore is required to obtain the registration

under the Act. Mr. Sonawane, AGP in his argument has adopted

these averments.

8 WP 656/1997

9. Section 7(3) of the Act reads as under :

"In the event of any doubt or difference of opinion between an employer and the Inspector as to the category to which an establishment should belong, the Inspector shall

refer the matter to the prescribed authority which shall, after such inquiry as it thinks proper, decide the category and such establishment and its decision shall be final for the purposes

of this Act."

Thus an enquiry is contemplated to be held by the prescribed

authority on the reference made to him by the Inspector.

Conducting an enquiry would also include calling upon the party to

submit its response to the report submitted by the Inspector and

provide an opportunity to submit documents give a hearing before

any final order is passed. Such an order is treated to be final for

the purpose of the Act, which means the only remedy available

against the order would be to approach this court in a writ petition.

The order to be passed under Section 7(3) has therefore serious

ramifications and the party affected or against whom such an order

is passed ought to be issued a notice in the process of conducting

an enquiry by the prescribed authority. Admittedly this has not been

done in the instant case and at the earliest opportunity available,

9 WP 656/1997

the petitioner by its letter dated 9th August 1996 pointed out to the

Commissioner of Labour that the impugned order was passed

exparte and it was denied an opportunity of hearing as was

requested by the earlier letter dated 5th February 1996. On these

grounds alone, in our opinion, the order impugned is required to be

set aside, so as to provide a fresh enquiry to be undertaken by the

prescribed authority under Section 7(3) of the Act. During such an

enquiry, the petitioner will have to produce all the records pertaining

to its different activities, the employees salary register, attendance

register and the yearly accounts (income and expenditure). The

motive of profit, in our view is immaterial. When this is a welfare

peace of legislation and has been enacted for regulating the

conditions of the work and employment in the shops and

establishments in the State of Maharashtra. We are also aware that

in the State of Maharashtra, similar Devsthans been registered as

trusts and they are running their charitable and religious/devotional

activities, in an organised manner and deriving income from such

activities. It is therefore, necessary to conduct an enquiry under

Section 7(3) of the Act keeping in mind not only the case of the

petitioner but all similarly placed Devsthans/trusts which have not

10 WP 656/1997

yet been registered under the Act and undoubtedly if such trusts are

noticed, each one of them, will have to be also heard along with the

petitioner while undertaking a denovo enquiry.

10. In the premises, this petition succeeds partly and the same is

allowed. The impugned order of dated 22nd July 1996 is hereby

quashed and set aside. The petitioner's case for an enquiry

under Section 7(3) of the Act is remanded to the prescribed

authority and we direct the said authority to conduct a denovo

enquiry on the lines stated hereinabove and after hearing the

petitioner and other ... establishments if any, pass the fresh order.

This shall be done as expeditiously as possible and preferably

within a period of six months. All issues are left open. Rule is

made absolute accordingly. This order does not prevent the office

of the Assistant Commissioner of Solapur to undertake fresh

inspection of the petitioner-establishment and submit a report to

the Commissioner of Labour within one month from today and a

copy of such report will also be made available to the petitioner.

11. Rule is made absolute accordingly but without any order as to

costs.

11 WP 656/1997

12. Writ to go to the Commissioner of Labour, Tardeo, Mumbai and

Assistant Commissioner of Labour, Solapur forthwith.

    (U.D. Salvi, J)                                 (B.H. Marlapalle, J.)