____________
W.P. Nos.20239-17860-17861/2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
14.02.2025
& 04.03.2025
21.02.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
W.P. NOS. 20239, 17860 & 17861 OF 2013
AND
W.M.P. NOS.17670 & 17672 OF 2023
W.P. NO.20239 OF 2013
Punitha Arokiya Annai Thiruthala
Peralaya Uzhiyar Munnetra Sangam
Velankanni, rep. By its President
No.10, Ayyanar Koil Street
Velankanni, Nagapattinam District. .. Petitioner
- Vs –
1. Shrine Basilica of Our Lady
Health Velankanni, rep. By
Its Rector & Parish Priest
Velankanni, Nagapattinam District.
2. The Presiding Officer
Labour Court, Cuddalore. .. Respondents
1
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
W.P. NO. 17860 & 17861 OF 2013
The Management of
Shrine Basilica of our Lady
Of Health Velankanni
Velankanni & Post
Nagapattinam District, rep. By
Its Procurator. .. Petitioner
- Vs –
1. The Assistant Commissioner of Labour
Authority under the Payment of Gratuity Act
Office of the Deputy Commissioner of Labour
Tiruchirappalli – 20.
2. R.Santhanasamy
3. N.Nagamuthu
4. N.Selvaraj
5. V.Rethinam
6. M.Kalimuthu
7. V.Innacimuthu
8. P.Veronikkal
9. P.Subbiah
10. D.Selvam
11. M.Balakrishnan
12. V.Anandavelu
13. G.Dhanaraj
2
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
14. C.Mariammal
15. S.Viswanathan
16. K.Arokiamary
17. K.Pappaiyan
18. S.Stephen Selvaraj
19. S.Vedanayagam
20. P.Gopal
21. M.Jude
22. S.Santhanaraj
23. G.Rathinam
24. Devika
25. Ezhilarasi
26. Magesh
27. Kalaiyarasi
28. V.Ilango
29. R.Mary
30. M.Pattu
31. P.Anjalai
32. M.Michaelsamy
33. A.Santhanasamy
34. A.Doss
35. A.Mariyasoosai
36. S.Michaelsamy
37. S.N.Nagaraj
38. S.Viagulasamy
39. N.Chellamuthu
40. N.Philomina
41. Valli
42. Alamelu
43. V.Subramanian
44. G.Uthirapathi
45. A.Albert Selvaraj
46. Vijaya
3
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
47. Y.Arokiasamy
48. A.Savarimuthu
49. Thamayendhi
50. S.Rathinasamy
51. R.Selvam Arokiasamy
52. John Joseph
53. V.Mayavan
54. V.Joseph
55. Marudamuthu
56. S.Karuppasamy
57. K.S.Jayapal
58. Kamala
59. Arokiya Mary
60. Yesuraj
61. Radha
62. Alagesan
63. Arumugam
64. Deepa .. Respondents
(RR-58 to 64 impleaded as LRs of
Deceased RR-12, 39, 53 & 57 vide
order of this Court of even date in
WMP Nos.17670 & 17672/2023)
W.P. No.20239 of 2013 filed under Article 226 of the Constitution of India
praying this Court to issue a writ of certiorari calling for the records relating to
the impugned award dated 31.5.2013 in I.D. No.54 of 1999 on the file of the 3 rd
respondent and quash the same.
4
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
W.P. Nos.17860 & 17861 of 2013 filed under Article 226 of the
Constitution of India praying this Court to issue a writ of certiorarified mandamus
calling for the records of the 1st respondent in P.G. No.40 to 92 of 2011 and quash
the order dated 29.04.2013 and 25.04.2013 direct the 1st respondent to permit
the petitioner to lead evidence recalling R.W.1, examine further witnesses and
file documents.
For Petitioners : Ms. AL. Gandhimathi, SC, for
M/s. L.Palanimuthu in
WP 20239/13
Mr. P.Raghunathan for
M/s.T.S.Gopalan & Co, in
WP 17860 & 17861/13
For Respondents : M/s. L.Palanimuthu for RR-2 to
11, 13 to 38, 40 to 52 and 54 to
56 in WP 17860 & 17861/13
Mr. P.Raghunathan for
M/s.T.S.Gopalan & Co, for R-1 in
WP 20239/13
RR-12, 39, 53 & 57 - Died
COMMON ORDER
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
While W.P. No.20239/2013 was heard on 14.2.2025 and orders were
reserved on the said date, however, W.P. Nos.17860 and 17861 of 2013 were
listed for hearing on 21.2.2025 and since the larger issue therein was connected
with the issue raised in W.P. No.20239/2013, though only a smaller relief was
sought for in the said writ petitions, in view of the said larger question that falls
for consideration, both the petitions are taken up together for final disposal
through the present common order.
2. For the sake of convenience, the petitioner in W.P. No.20239/2013,
which is the Union, shall be referred to as workmen and the petitioner in W.P.
Nos.17860 and 17861/2013, who is the 1st respondent in W.P. No.20239/2013
shall be referred to as the Management.
3. W.M.P. Nos.17670 and 17672/2023, which have been filed by the
petitioner in W.P. Nos.17860 and 17861/2013 to implead the legal heirs of the
deceased respondents 12, 39, 53 and 57 are ordered as prayed for. Registry is
directed to carry out the necessary amendment to the cause title.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
FACTS IN W.P. NO.20239/2013 :
4. It is the case of the petitioner that it is a Trade Union consisting of about
1000 employees, who are working under the Management of which 250 are
permanent workers and 650 are probationers and all the workmen are working
under the Management for the past more than 30 years.
5. It is the further case of the workmen that Management is under the
control of the Diocese of Tanjore Society and the Rector and Parish Priest of the
Shrine. All the workers are being paid only by the Rector and Parish Priest of
Velankanni. It is the further case of the workmen that in order to render valuable
service to pilgrims who are visiting the respondent shrine from within India and
abroad and also to regulate the movement of the pilgrims and to provide
accommodation to them, quarters are being maintained by the Management for
which the workmen are engaged to do all the works relating to the shrine. It is
the further case of the workmen that not only in the quarters, but also in the
museum, canteen and tonsuring place, several workmen have been employed
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
and are being paid for the work done by them. It is therefore the stand of the
workmen that the workmen are under the control of the Management and the
activities carried on by them for the Management fall well within the definition of
industry.
6. It is the further case of the workmen that they made several claims to
the Management with regard to revision of their wage structure depending upon
the nature of their duties and also made claim for Dearness allowance, House
Rent Allowance, Medical Allowance, Tea Allowance, Night Shift Allowance,
Laundry allowance and Gloves Allowance for conservancy staff and also for
provision of uniforms on regular basis. Inspite of repeated demands made by the
workmen, the same was not considered and, therefore, to espouse their cause,
the Union, on behalf of the workmen, filed claim statement before the
Conciliation Officer, which upon ending in failure and submission of a failure
report, the Government made the reference to the Labour Court, Cuddalore,
referring the industrial dispute in G.O. Ms. No.149, dated 19.2.1999 for
adjudication of the demands of the workmen.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
7. It is the further averment of the petitioner that as against the said
reference the Management filed W.P.No.13034/2009 challenging G.O. Ms. (D)
No.149 dated 19.2.1999 alleging that the shrine is not an industry and that the
employees are not workmen within the meaning of Section 2 (s) of the Industrial
Disputes Act (for short ‘the Act’) and the said writ petition was dismissed on
12.1.2009 against which writ appeal in W.A. No.1733/2009 was filed and by order
dated 28.9.2010, the said writ appeal was also dismissed.
8. Thereafter, the Labour Court, Cuddalore tried the dispute where all the
documents were produced and evidence was let in to show that the
Management is an industry and all the employees are workmen, however,
without properly appreciating the materials, the Labour Court dismissed the
reference vide order dated 31.5.2013 holding that the Management shrine is not
an industry and that there is no industrial dispute as defined under the Act and
that the employees are not workmen within the meaning of Section 2 (s) of the
Act. Aggrieved by the same, the aforesaid writ petition has been filed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
FACTS IN W.P. NOS.17860 & 17861/2013 :
9. It is the case of the Management that persons having faith in Christianity
or belief in serving God, volunteer themselves to serve the Church and that such
persons are provided accommodation and food and a token amount is given as
honorarium to take care of their personal expenses. In short the alleged
workmen are volunteers and not employees and no salary is being paid, but what
is paid is honorarium.
10. It is the further averment of the Management that the workmen filed
application before the Assistant Commissioner of Labour claiming gratuity
contending that their services is nothing but employment and that they are
covered by the Payment of Gratuity Act and applications in P.G. Case Nos. 40 to
92 of 2011 were filed.
11. It is the further averment of the Management that counter statement
was filed claiming that the alleged workmen were not its employees and that
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
they could not be brought under the ambit of the Payment of Gratuity Act and it
was further averred that there was no employer-employee relationship and that
the services rendered by them were voluntary in nature. It was further averred
that the Management paid the alleged workmen half a month honorarium for
each year of service rendered by them as gratis after deducting the loan taken by
them and the balance amount was paid.
12. It is the further averment of the Management that the workmen
examined their witness and filed their proof affidavit and the case was posted for
examination and cross examination of the Management witness on various dates,
but due to certain inconveniences and ensuing church function, the witness could
not be present. Thereafter, the case was adjourned to 17.4.2013, but the
Management was not aware of the hearing date and, therefore, its witness was
not present on which date the adjournment sought for by the Management was
turned down and the evidence of R.W.1, the Management witness was closed
and the case was posted for arguments on 25.4.2013 on which date, a petition
was filed by the Management to reopen the case, but the said petition was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
rejected. Once again on 27.4.2013, another petition was filed by the
Management, on which no order was passed and finally, on 29.4.2013, the
impugned order computing gratuity amounts came to be passed by the authority.
13. It is the further averment of the petitioner that though the
Management has a recourse by way of appeal in terms of Section 7 (7) of the
Payment of Gratuity Act, however, as the impugned order has been passed in
violation of principles of natural justice and denying reasonable opportunity to
the petitioner, the present writ petitions have been filed questioning the
rejection of the petitioner for reopening the case and also ordering payment of
gratuity to the workmen.
14. Learned senior counsel appearing for the workmen in W.P.
No.20239/2013 submitted that the court below has not taken into consideration
the documents, viz., Attendance Register, PF Receipts, Identity Cards, etc., issued
to the workmen by the Management, which would clearly show that the
workmen were employed with the Management.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
15. It is the further submission of the learned senior counsel that the court
below failed to consider the fact that the Management squarely falls under the
definition of ‘industry’ as found u/s 2 (j) of the Act, which finds favour from the
various decisions of the Courts. However, without properly appreciating the
same, the court below has erred in holding that the Management is not an
industry and the workmen are not employees within the meaning of Section 2 (j)
and 2 (s) of the Act, which is perverse and erroneous.
16. It is the further submission of the learned senior counsel that the
workmen having been paid by the Management towards wages in respect of their
employment with the Management and proof of such employment having been
established through Provident Fund Receipts, Attendance Register, etc., the
workmen would squarely fall within the wide sweep of Section 2 (s) of the Act.
However, without properly considering the same, the court below had negatived
the contention of the workmen, which is squarely opposed to the materials
available on record.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
17. It is the further submission of the learned senior counsel that the court
below failed to consider that the industrial dispute amongst the workmen with
the employer could be espoused through the Union, which has been done in the
present case, as an industrial dispute would take within its fold any dispute or
difference between the employers and employers, or between employers and
workmen or between workmen and workmen, which is connected with the
employment or non-employment or the terms of employment or the conditions
of labour or any person. It is therefore the submission of the learned senior
counsel that the dispute in the present case relates to wages between the
employees, who are workmen and the employer, viz., the Management, an
industrial dispute would very well lie against the Management.
18. It is the further submission of the learned senior counsel that the
finding of the court below that there is no dispute in the eye of law as the alleged
workmen have not established that they are employees under the Management
as persons, who are alleged to be on the rolls of the Management have not been
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
examined; rather persons, who have since retired or dismissed from service have
been examined, which cannot be the basis to hold that there exists a dispute is
wholly perverse and erroneous as the documents filed by the workmen has
clearly established that the Management is an industry and the dispute is
maintainable and only on account of the victimisation attitude of the
Management, the workmen in employment are not able to give evidence.
19. It is the further submission of the learned senior counsel that the
workmen have been struggling with the Management to get their rightful share
of benefits to which they are statutorily entitled to for the past 15 years, but the
Management is preventing the workmen from getting the benefits, though the
workmen are exploited by getting work out of them without they being
compensated adequately by payment of proper wages. However, without
properly appreciating the aforesaid materials, erroneously the court below has
rejected the industrial dispute holding that there exists no dispute and that the
workmen are not the employees of the Management and that the Management
is not a industry within the meaning of Section 2 (s) of the Act, which is grossly
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
perverse, arbitrary and unsustainable and, accordingly, prays for appropriate
directions.
20. Per contra, learned counsel appearing for the Management, which has
filed the other writ petition contends that the Management is a shrine, which is
formed for a religious purpose and is involved in religious and spiritual activity
and, therefore, the church would not fall within the four corners of Section 2 (s)
of the Act. Placing reliance on the Constitution Bench decision in Bangalore
Water Supply and Sewerage Board – Vs – A.Rajappa & Ors. (1978 (2) SCC 213), it
is the submission of the learned counsel that the activities of the Management
cannot be brought within the ambit of industry and the activities of the workmen,
who are volunteers and merely being paid honorarium cannot attract the
definition of ‘workmen’ u/s 2 (s) of the Act.
21. It is the further submission of the learned counsel that the church
would not fall within the definition of ‘industry’ as defined u/s 2 (j) of the Act. It
is the further submission of the learned counsel that the activity, as a whole, of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
the church has to be taken into consideration to find out whether the
Management would fall within the definition of ‘industry’ as defined u/s 2 (j) of
the Act and the acts of the workmen cannot be taken in isolation to hold that the
works cannot be held to be for religious purpose and fasten the rigour of
employment on the volunteer activity performed by the workmen merely on
account of the fact that honorarium is being paid to the workmen.
22. Insofar as the writ petitions in W.P. Nos.17860 and 17861/2013 are
concerned, it is the submission of the learned counsel that there is stark violation
of principles of natural justice as the Management has not been given
opportunity to place evidence and also examine witnesses, inspite of petition
being filed and the same was dismissed though through the said petition, the
Management had clearly explained the reason for not able to adduce the
evidence and appear for the enquiry. However, without properly appreciating
the same, the Assistant Labour Commissioner had not only dismissed the petition
filed by the Management, but had ordered payment of gratuity to the workmen
inspite of the clear averment of the Management that the workmen were only
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
volunteers and what was paid was only a gratis on the basis of the honorarium
and that they are not entitled to gratuity. Therefore, it is the submission of the
learned counsel that the order of the Assistant Labour Commissioner deserves to
be interfered with by remanding the matter back to the authority for
consideration afresh.
23. Countering the aforesaid submissions, learned counsel appearing for
the workmen submitted that the deeming of the workmen to be volunteers is
grossly erroneous as they have been discharging their work for more than a
decade and a half and they are entitled to all the benefits to which a workman is
entitled to under the labour laws. However, only to circumvent and defeat the
lawful rights of the workmen, they are denied gratuity, as per the provisions of
the Payment of Gratuity Act by stamping their act as voluntary. It is the further
submission of the learned counsel that if the said submission that the works
performed by the workmen are voluntary, there arises no necessity for the
Management to extend any gratis to the workmen by paying 15 days salary per
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
year as honorarium when the workmen are alleged to be volunteers as voluntary
acts of work does not attract any wages or honorarium.
24. It is the further submission of the learned counsel that only to drag on
the proceedings, the Management did not field their witness and when after
adequate opportunity, the authority passed the impugned order, the
Management had come before this Court with the aforesaid claim, which again is
only to drag on the issue further without making any payment to the workmen,
inspite of the long years of service in employment rendered by the workmen with
the Management. Therefore, it is prayed that no interference is warranted with
the order directing payment of gratuity and the plea of the Management that
they have not been afforded opportunity and, thereby there is violation of
principles of natural justice is grossly erroneous and only to defeat the rights of
the workmen and, therefore, prayed for dismissal of the writ petitions.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
25. This Court gave its anxious consideration to the submissions advanced
by the learned counsel on either side and perused the materials available on
record.
26. The pivotal contention advanced and which is rather countered
borders on the applicability of the Industrial Disputes Act to the Management on
the ground that the Church is a religious establishment and is not an industry
within the meaning of Section 2 (j) of the Act and, therefore, the persons, alleged
to have been employed in the church are not workmen within the meaning of
Section 2 (s) of the Act. On the other hand, it is countered by the workmen by
contending that the deduction of Provident Fund and order for payment of
gratuity clearly establishes an employer-employee relationship and, therefore,
the provisions of the Industrial Disputes Act would squarely apply.
27. Before addressing the issue whether any dispute could be raised
against the Management, which is a Church, a religious institution, with regard to
any activity, which is alleged to be part of the activity in the Church, it is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
necessary to advert to the various provisions of law, which have a bearing on
deciding the issue on hand.
28. Section 2 (j) of the Act defines ‘industry’ as under :-
“(j) “industry” means any business, trade, undertaking,
manufacture or calling of employers and includes any calling
service, employment, handicraft or industrial occupation or
avocation of workmen.”
29. Section 2 (ka) of the Act defines “industrial establishment” and the said
definition was amended vide Amendment Act 46 of 1982 with effect from
21.8.1984, which is as under :-
(ka) "industrial establishment or undertaking" means an
establishment or undertaking in which any industry is carried
on:
Provided that where several activities are carried on in an
establishment or undertaking and only one or some of such
activities is or are an industry or industries, then,--
(a) if any unit of such establishment or undertaking
carrying on any activity, being an industry, is severable from
the other unit or units of such establishment or undertaking,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
such unit shall be deemed to be a separate industrial
establishment or undertaking;
(b) if the predominant activity or each of the predominant
activities carried on in such establishment or undertaking or
any unit thereof is an industry and the other activity or each of
the other activities carried on in such establishment or
undertaking or unit thereof is not severable from and is, for
the purpose of carrying on, or aiding the carrying on of, such
predominant activity or activities, the entire establishment or
undertaking or, as the case may be, unit thereof shall be
deemed to be an industrial establishment or undertaking;”
30. Section 2 (s) of the Act defines ‘workman’ as under :-
“5*[(s) "workman" means any person (including an
apprentice) employed in any industry to do any manual,
unskilled, skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of employment be
express or implied, and for the purposes of any proceeding
under this Act in relation to an industrial dispute, includes any
such person who has been dismissed, discharged or retrenched
in connection with, or as a consequence of, that dispute, or
whose dismissal, dischasrge or retrenchment has led to that
dispute, but does not include any such person--
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or
the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957); or
(ii) who is employed in the police service or as an officer or
other employee of a prison; or
(iii) who is employed mainly in a managerial or
administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.”
31. The whole claim of the workmen is premised on the fact that the
Management is an industrial establishment and squarely covered by the
definition of ‘industry’ as defined u/s 2 (j) and, therefore, the services rendered
by the workmen squarely fall within the contours of the definition of ‘workman’
under Section 2 (s) of the Act and, therefore, they would be covered by the
labour laws and are, therefore, entitled to raise an industrial dispute in
accordance with the provisions of the Act.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
32. It is to be pointed out even before the dissection of the case that
though by Act 46 of 1982, the definition of ‘industry’ u/s 2 (j) has been amended
vide Act 46 of 1982, however, the same is yet to be notified by the Central
Government for enforcement till date and, therefore, the old definition of Section
2 (j) still holds the field.
33. The definition of ‘industry’ has been deliberated upon in a large
number of decisions and succinctly in Bangalore Water Supply & Sewerage
Board – Vs – A.Rajappa & Ors. (1978 (2) SCC 213), it has been spelt out as
under:-
10. “So, the long and short of it is, what is an industry ?
Section 2(j) defines it:
'industry' means any business, trade, undertaking,
manufacture or calling of employers and includes any
calling, service, employment, handicraft, or industrial
occupation or avocation of workmen :
Let us put it plain. The canons of construction are trite that
we must read the statute as a whole to get a hang of it and a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
holistic perspective of it. We must have regard to the historical
background, objects and reasons, international thoughtways,
popular understanding, contextual connotation and suggestive
subject-matter. Equally important, dictionaries, while not
absolutely binding, are aids to ascertain meaning. Nor are we
writing on a tabula rasa. Since Banerji [1953] S.C.R. 302
decided a silver jubilee span of years ago, we have a heavy
harvest of rulings on what is an 'industry' and we have to be
guided by the variorum of criteria stated therein, as far as
possible, and not spring a creative surprise on the industrial
community by a stroke of freak originality.
* * * * * * *
13. A look at the definition, dictionary in hand, decisions in
head and Constitution at heart, leads to some sure
characteristics of an 'industry', narrowing down the twilit zone
of turbid controversy. An industry is a continuity, is an
organized activity, is a purposeful pursuit-not any isolated
adventure, desultory excursion or casual, fleeting engagement
motivelessly undertaken. Such is the common feature of a
trade, business, calling, manufacture-mechanical or
handicraft-based- service, employment, industrial occupation
or avocation. For those who know English and are not given to
the luxury of splitting semantic hairs, this conclusion argues
itself. The expression 'undertaking' cannot be torn off the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
words whose company it keeps. If birds of a feather flock
together and noscitur a sociis is a commonsense guide to
construction, 'undertaking' must be read down to conform to
the restrictive characteristic shared by the society of words
before and after. Nobody will torture 'undertaking in Section
2(j) to mean meditation or musheira which are spiritual and
aesthetic undertakings. Wide meanings must fall in line and
discordance must be excluded from a sound system. From
Banerjee to Sajdar Jung and beyond, this limited criterion has
passed muster and we see no reason, after all the marathon of
argument, to shift from this position.”
34. In the light of the definition with regard to ‘industry’ and ‘workman’ as
provided under the Act as also the various interpretations that have passed on
the same through very many decisions, the relevant decisions, which have a
bearing on the present issue could be adverted to before turning the attention of
this Court to the issue raised in the present petitions.
35. In Bangalore Water Supply case (supra), the Constitution Bench of the
Supreme Court was entrusted with the task of untangling the web of judicial
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
thought with regard to clearing the cloud about the concept of ‘industry’ as
defined under the Industrial Disputes Act and in the said context, authoring the
judgment for the majority, Krishna Iyer, J. (as His Lordship then was), held as
under :-
“1. The rather zigzag course of the landmark cases and the
tangled web of judicial thought have perplexed one branch of
Industrial Law, resulting from obfuscation of the basic concept
of 'industry' under the Industrial Disputes Act, 1947 (for short,
the Act). This bizarre situation, 30 years after the Act was
passed and industrialization had advanced on a national scale,
could not be allowed to continue longer. So, the urgent need
for an authoritative resolution of this confused position which
has survived indeed, has been accentuated by-the judgment
of this six-member bench in Safdar Jung Management of
Safdar Jung Hospital, New Delhi, v. Kuldip Singh Sethi
MANU/SC/0378/1970 : (1970)IILLJ266SC , if we may say so
with deep respect, has led to a reference to a larger bench of
this diehard dispute as to what an 'industry' Under Section 2(j)
means.
2. Legalese and logomachy have the genius to inject
mystique into common words, alienating the laity in effect
from the rule of law. What is the common worker or ordinary
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
employer to do if he is bewildered by a definitional dilemma
and is unsure whether his enterprise- say, a hospital,
university, a library, a service club, a local body, a research
institute, a pinjarapole, a chamber of commerce, a Gandhi
Ashram-is an industry at all? Natural meaning is nervous of
acceptance in court where the meaning of meanings is lost in
uncertain erudition and cases have even cancelled each other
out while reading meaning. I do not think," said Diplock L.J.,
that anywhere, except in a court of law, it would be argued
with gravity that a Dutch barn or grain and fodder stores or
any ordinary farm buildings are properly described as
repositories. A Gloucestershire farmers would say they were
farm buildings and would laugh at their being called
'repositories'." in the same spirit, Stamp J. rejected the
argument that the carrying on of the business of a
crematorium involved the "subjection of goods or materials to
any process" within Section 271(1)(c) of the Income Tax Act
1952 as a distortion of the English language.... I protest
against subjecting the English language, and more particularly
simple English phrase, to this kind of process of philology and
semasiology." Maxwell on 'The Interpretation of Statutes'
12th Edn. by P. St. J. Langan pp. 81-82.
Esoterica is anathema for law affecting the common man
in the commerce of life, andso the starting point for our
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
discussion is the determination to go by the plain, not the
possible, sense of the words used in the definition, informed
by the context and purpose of the statute, illumined by its
scheme and setting and conceptually coloured by what is an
industry at the current developmental stage in our country. In
our system of precedents our endeavour must be, as urged by
counsel, to reconcile prior pronouncements, if possible, and to
reconsider the question altogether, if necessary. There are no
absolutes in law since life, which it serves, is relative. What is
an industry in America or the Soviet Union may not be one in
India and even in our Country what was not an industry
decades ago may well be one now. Our judgment here has so
pontifical flavour but seeks to serve the future hour till
changes in the law or industrial culture occur.
3. Law, especially industrial law, which regulates the rights
and remedies of the working class, unfamiliar with the
sophistications of definitions and shower of decisions, unable
to secure expert legal opinion, what with poverty pricing them
out of the justice market and denying them the staying power
to withstand the multi decked litigative process, de facto
denies social justice if legal drafting' is vagarious, definitions
indefinite and court rulings" contradictory. Is it possible, that
the legislative chambers are too preoccupied with other
pressing business to listen to court signals calling for
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
clarification of ambiguous clauses ? A careful, prompt
amendment of Section 2(j) would have pre-empted this docket
explosion before tribunals and courts. This Court, perhaps
more than the legislative and Executive branches, is deeply
concerned with law's delays and to devise a prompt delivery
system of social justice.
4.. Though the tailoring of a definition is the sole forensic
job in this batch of appeals, dependent on which, perhaps, a
few thousand other cases await decision, the cycloramic
semantics of the simple word 'industry' and the judicial gloss
on it in a catena of cases, have led to an avoidable glut of
labour litigation where speedy finality and working criteria are
most desirable. And this delay in disposal of thousands of
disputes and consequent partial paralysis in the industrial life
is partly blamable on the absence of a mechanism of
communication between the court and the law-making
chambers.
* * * * * * *
13. A look at the definition, dictionary in hand, decisions in
head and Constitution at heart, leads to some sure
characteristics of an 'industry', narrowing down the twilit zone
of turbid controversy. An industry is a continuity, is an
organized activity, is a purposeful pursuit-not any isolated
adventure, desultory excursion or casual, fleeting engagement
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
motivelessly undertaken. Such is the common feature of a
trade, business, calling, manufacture-mechanical or
handicraft-based- service, employment, industrial occupation
or avocation. For those who know English and are not given to
the luxury of splitting semantic hairs, this conclusion argues
itself. The expression 'undertaking' can not be torn off the
words whose company it keeps. If birds of a feather flock
together and noscitur a sociis is a commonsense guide to
construction, 'undertaking' must be read down to conform to
the restrictive characteristic shared by the society of words
before and after. Nobody will torture 'undertaking in Section
2(j) to mean meditation or musheira which are spiritual and
aesthetic undertakings. Wide meanings must fall in line and
discordance must be excluded from a sound system. From
Banerjee to Sajdar Jung and beyond, this limited criterion has
passed muster and we see no reason, after all the marathon
of argument, to shift from this position.
14. Likewise, an 'industry' cannot exist without co-
operative endeavour between employer and employee. No
employer, no industry; no employee, no industry-not as a
dogmatic proposition in economics but as an articulate major
premise of the definition and the schema of the Act, and as a
necessary postulate of industrial disputes and statutory
resolution thereof.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
* * * * * * *
17. The relevant constitutional entry speaks of industrial
and labour disputes (Entry 22 List I Schedule VII). The
Preamble to the Act refers to 'the investigation and
settlement of industrial disputes'. The definition of industry
has to be decoded in this background and our holding is
reinforced by the fact that industrial peace, collective
bargaining, strikes and lock-outs, industrial adjudications,
works committees of employers and employees and the like
connote organised, systematic operations and collectivity of
workmen co-operating with their employer in producing goods
and services for the community. The betterment of the
workmen's lot, the avoidance of out-breaks blocking
production and just and speedy settlement of disputes
concern the community. In trade and business, goods and
services are for the community not for self-consumption.
* * * * * * *
20. We may start the discussion with, the leading case on
the point, which perhaps may be treated as the mariner's
compass for judicial navigation B. N. Banerji v. R. P.
Mukherjee and Ors. 1954) S.C.R. 302. But before setting sail,
let us map out briefly the range of dispute around the
definition. Lord Denning in Automobile Proprietary Ltd.
observed :
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
It is true that 'the industry' is defined; but a definition is
not to be read in isolation. It must be read in the context of
the phrase which it defines, realising that the function of a
definition is to give precision and certainty to a word or
phrase which would otherwise be vague and uncertain-but not
to contradict it or supplant it altogether.
Hotel and Catering Industry Training Board v. Automobile
Proprietary Ltd. (1968) 1 W.L.R. 1526.
A definition is ordinarily the crystallisation of a legal
concept promoting precision and rounding off blurred edges
but, alas, the definition in Section 2(j), viewed in retrospect,
has achieved the opposite. Even so, we must try to clarify.
Sometimes active interrogatories tell better than bland
affirmatives and so marginal omissions notwithstanding, we
will string the points together in a few questions of which we
have been addressed.
* * * * * * *
23. Now let us itemise, illustratively, the risers springing
from the competing submissions, so that the contentions may
be concretised.
1. (a) Are establishments, run without profit
motive, industries ?
(b) Are Charitable institutions industries ?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
(c) Do undertakings governed by a no-profit-no-
loss rule, statutorily or otherwise fastened, fall within
the definition in Section 2(j) ?
(d) Do clubs or other organisations (like the
Y.M.C.A.) whose general emphasis is not on profit-
making but fellowship and self-service, fit into the
definitional circle ?
(e) To go to the core of the matter, is it an
inalienable ingredient of 'industry' that it should be
plied with a commercial object ?
2. (a) Should co-operation between employer and
employee be direct in so far as it relates to the basic
service or essential manufacture which is the output of
the undertaking ?
(b) Could a lawyer's chambers or chartered
accountant's office, a doctor's clinic or other liberal
profession's occupation or calling be designated an
industry ?
(c) Would a University or college or school or
research institute be called an industry ?
3. (a) Is the inclusive part of the definition in
Section 2(j) relevant to the determination of an
industry ? If so, what impact does it make on the
categories?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
(b) Do domestic service drudges who slave without
respite-become 'industries' by this extended sense ?
4. Are governmental functions, strictosensu,
industrial and if not, what is the extent of the
immunity of instrumentalities of government?
5. What rational criterion exists for a cut-back on
the dynamic potential and semantic sweep of the
definition, implicit in the industrial law of a progressive
society geared to greater industrialisation and
consequent concern for regulating relations and
investigating disputes between employers and
employees as industrial processes and relations
become more complex and sophisticated and workmen
become more right-conscious ?
6. As the provision now stands, is it scientific to
define 'industry' based on the nature-the dominant
nature of the activity, i.e. on the terms of the work,
remuneration and conditions of service which bond the
two wings together into an employer-employee
complex?
* * * * * * *
30. Let us get down to the actual amplitude and
circumscription of the statutory concept of 'industry'. Not a
narrow but an enlarged acceptation is intended; This is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
supported by several considerations. Chandrasekhara Aiyar, J.
observes :
Do the definitions of 'industry', 'industrial dispute'
and 'workman' taken in the extended significance, or
exclude it ? Though the word 'undertaking' in the
definition of 'industry' is wedged in between business
and trade on the one hand and manufacture on the
other, and though therefore it might mean only a
business or trade undertaking, still it must be
remembered that if that were so, there was no need to
use the word separately from business or trade. The
wider import is attracted even more clearly when we
look at the latter part of the definition which refers to
"calling, service, employment, or industrial occupation
of avocation of workmen". "Undertaking" in the first
part of the definition and 'industrial occupation or
avocation in the second part obviously mean much
more than what is ordinarily understood by trade or
business. The definition was apparently intended to
include within its scope what might not strictly be
called a trade or business venture.
So 'industry' overflows trade and business. Capital,
ordinarily assumed to be a component of 'industry', is
an expendable item so far as statutory 'industry' is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
concerned. To reach this conclusion, the Court referred
to 'public utility service' [Section 2(n)] and argued:
A public utility service such as railways, telephones
and the supply of power, light or water to the public
may be carried on by private companies or business
corporations. Even conservancy or sanitation may be
so carried on, though after the introduction of local
self-government this work has in almost every country
been assigned as a duty to local bodies like our
Municipalities or District Boards or Local Boards. A
dispute in these services between employers and
workmen is an industrial dispute, and the proviso to
Section 10 lays down that where such a dispute arises
and a notice Under Section 22 has been given, the
appropriate Government shall make a reference under
the Sub section. If the public utility service is carried on
by a corporation like a Municipality which is the
creature of a statute, and which functions under the
limitations imposed by the statute, does it cease to be
an industry for this reason ? The only ground on which
one could say that what would amount to the carrying
on of an industry if it is done by a private person
ceases to be so if the same work is carried on by a local
body like a Municipality is that in the letter there is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
nothing like the investment of any capital or the
existence of a profit earning motive as there generally
is in a business. But neither the one nor the other
seems a sine qua non or necessary element in the
modern conception of industry.
* * * * * * *
32. The contention that charitable undertakings are not
industries is, by this token, untenable.
* * * * * * *
37. The limiting role of Banerji must also be noticed so
that a total view is gained. For instance, 'analogous to trade
or business' cuts down 'undertaking', a word of fantastic
sweep. Spiritual undertakings, casual undertakings, domestic
undertakings, war waging, policing, justicing, legislating, tax
collecting and theare, prima facie, pushed out. Wars are not
merchantable, nor justice saleable, nor divine grace
marketable. So, the problem shifts to what is analogous to
trade or business'. As we proceed to the next set of cases we
come upon the annotation of other expressions like 'calling'
and get to grips with the specific organisations which call for
identification in the several appeals before us.
* * * * * * *
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
I. 'Industry', as defined in Section 2(j) and explained in
Bauerji, has a wide import.
(a) Where (i) systematic activity, (ii) organized by
co-operation between employer and employee, (the
direct and substantial element is chimerical)(iii) for 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 e.g. making, on a
large scale, prasad or food), prima facie, there is an
'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint private or
other sector.
(c) The true focus is functional and the decisive test
is the nature of the activity with special emphasis on
the employer-employee relations.
(d) If the organisation is a trade or business it does
not cease to be one because of philanthropy animating
the undertaking.
II. Although Section 2(j) uses words of the widest
amplitude in its two limbs, their meaning cannot be magnified
to overreach itself.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
(a) 'Undertaking' must suffer a contextual and
associational shrinkage as explained in Banerji and in this
judgment, so also, service, calling and the like. This yields the
inference that all organized activity possessing the triple
elements in I (supra), although not trade or business, may still
be 'industry' (provided the nature of the activity, viz. the
employer-employee basis, bears resemblance to what we find
in trade or business. This takes into the fold of 'industry'
undertakings, callings and services adventure 'analogous' to
the carrying on of trade or business'. All features, other than
the methodology of carrying on the activity viz. in organizing
the co-operation between employer and employee may be
dissimilar. It does not matter, if on the employment terms
there is analogy.
III. Application of these guidelines should not stop short of
their logical reach by invocation of creeds, cults or inner sense
of incongruity or other sense of motivation for or resultant of
the economic operations. The ideology of the Act being
industrial peace,regulation and resolution of industrial
disputes between employer and workmen, the range of this
statutory ideology must inform the reach of the statutory
definition. Nothing less, nothing more.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
The consequences are (i) professions, (ii) Clubs (iii)
educational institutions (iiia) co-operatives, (iv) research
institutes (v) charitable projects and (vi) other kindred
adventures, if they fulfil the triple tests listed in I (supra),
cannot be exempted from the scope of Section 2(j)
A restricted category of professions, clubs, co-operatives
and even Gurukulas and little research labs, may qualify for
exemption if in simple ventures substantially and going by the
dominant nature criterion substantively, in single simple
ventures, no employees are entertained but in minimal
matters, marginal employees are hired without destroying the
non-employee character of the unit.
If in a pious or altruistic mission many employ themselves,
free or for small honoraria, or likely return mainly by sharing
in the purpose or cause, such as lawyers volunteering to run a
free legal services clinic or doctors serving in their spare hours
in a free medical center or ashramites working at the bidding
of the holiness, divinity or like central personality and the
services are supplied free or at nominal cost and those who
serve are not engaged for remuneration or on the basis of
master and servant, relationship, then, the institution is not
an industry even if stray servants, manual or technical, are
hired. Such eleemosynary or like undertakings alone are
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
exempt-not other generosity, compassion, developmental
passion or project.”
36. The aforesaid decision has withstood the onslaught of judicial scrutiny
over many decades, but has since found reluctance relating to acceptance by a
two Judge Bench of the Apex Court in Coir Board, Ernakulam, Cochin & Ors. – Vs
– Indira Devi P.S. & Ors. (1998 (3) SCC 259). The doubt has been casted after two
decades, however, even after a passage of more than two decades and a half
from the date when the said doubt was raised, the said decision has not been
overturned till date and is still holding its field and, therefore, this Court is still
guided and bound to follow the said decision.
37. However, even before the aforesaid decision, the Andhra Pradesh High
Court in Tirumala Tirupati Devasthanam – Vs – Commissioner of Labour
(MANU/AP/0197/1977) had occasion to consider a similar issue, wherein,
dissecting various decisions, which were brought to its notice, it was held as
under :-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
“It is convenient to consider the objections which are in
the nature of preliminary objections in the first instance.
1. Locus standi. It is argued by Sri Koteswara Rao, learned
Counsel for the 3rdrespondent, that the petitioner has no locus
standi to question the order of the Registrar registering the
union as a trade union under the Trade Unions Act, as the
petitioner is not in any way affected by such registration and
is not aggrieved by the order of the Registrar. We are not
inclined to agree with this submission. The petitioner is the
employer of the employees who have formed themselves into
a union and got it registered under the Trade Unions Act. The
very object of such registration is to enable them to deal as a
body with the employer. By registering themselves as a trade
union they get several benefit and advantages vis-a-vis the
employer. It is seen from the records that immediately after
the registration was granted, the union wrote to the
petitioner for recognition of the union and sent several
reminders. At a particular stage the Commission of Labour
also wrote to the petitioner stating that the petitioner should
accord recognition to the union without any further delay
under intimation to the office. It may also be noted that by
registering the union there is an implied decision by the
Registrar that the employer is carrying on a trade or business
or an industry and the employees are, therefore, workmen
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
under the Act. Such a decision is one which is definitely
against the interest of the petitioner whose contention is that
it is not carrying on a trade, business or industry. In
Venkateswara Rao v. Government of Andhra Pradesh
MANU/SC/0020/1965 : [1966]2SCR172 , it was held that
though ordinarily the petitioner who seeks to file an
application under Article 226 of the Constitution is one who
has a personal or individual right in the subject-matter of the
petition, the personal right need not be in respect of a
proprietary interest. The person, who has been prejudiced by
an act or omission of an authority may challenge it even
though he has no proprietary of even fiduciary interest in the
subject-matter thereof. In Ragina v. Liverpool Corporation ex
parte Liverpool
Taxi Fleet Operators' Association 1972 2 Q.B. 299, it was
held that a "person aggrieved" included any person whose
interests may be prejudicially affected by what is taking place.
It does not include a mere busy body who is interfering in
things which do not concern him.; but it included any person
who has a genuine grievance because something has been
done or may be done which effects him. The learned Counsel
for the 3rd respondent relied upon the decision in K.R.W.
Union v. Registrar, Trade Unions MANU/WB/0119/1967
:(1968) ILLJ 335 Cal, where it was held that a rival trade union
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
has no sufficient interest in the matter of registration of
another union and could not be said to have been prejudiced
in any way except by way of the introduction of a competitor.
It is not a prejudice which the law can take cognisance of. In
our view the position of an employer who objects to the
registration of a trade union with whom it has thereafter to
deal with cannot be equated to the position of a rival trade
union. The learned Counsel also draw our attention to the
recent decision of the Supreme Court in M.A. Jain v. State of
Haryana MANU/SC/0540/1976 : [1977]2SCR361 , where it
was held that there must be a judicially enforceable right as
well as a legally protected right before one suffering a legal
grievance can be said to be aggrieved only when a person is
denied a legal duty to do something or to abstain from doing
something. In that case the appellants asked for a writ of
mandamus directing the State of Haryana to appoint them to
the posts of Additional District and Sessions Judge. The High
Court had recommended their names for appointment under
Article 233 of the Constitution, but the recommendation was
not accepted by the Government. The Supreme Court held
that the appointment of the District Judge is the exclusive
jurisdiction of the Government after consultation with the
High Court and the Governor is not obliged to accept the
recommendation. In those circumstances it was held that
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
there was no judicially enforceable right in the petitioners for
being appointed as District Judges and as they were not
denied the legal right they could not be said to be aggrieved.
We do not consider that this decision has any application to
the facts of the present case. It is true that the petitioner has
prayed for the issue of a writ of mandamus directing the
Registrar of Trade Unions not to enforce the provisions of the
Trade Unions Act in respect of the 3rd respondent. But there is
also a prayer for cancelling the registration under the Trade
Unions Act. In effect the petition is one both for a writ of
mandamus as well as a writ of certiorari or a writ in the
nature of such a writ questioning the order of the Registrar (as
strictly certiorari may not be the proper writ as the impugned
order is not a judicial or quasi-judicial order). It is, however,
well-established that the powers of the High Court are not
confined to issuing writs which strictly come within the
categories mentioned in Article226 of the Constitution (which
are merely illustrative) having regard to the wide expression
"direction or order". It is now well-settled that the High Court
in exercise of its powers under Article 226 can issue any order
or direction setting aside an illegal order made by any
authority whether it is administrative, judicial or quasi-
judicial. It cannot be said that the petitioner has no locus
standi to question the order of registration of the union by the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
Registrar when according to it such an order is contrary to the
provisions of the Trade Unions Act. We, therefore, reject the
contention that the petitioner has no locus standi to file the
writ petition.
2. Other adequate remedies available.--Another
contention that is raised is that the writ petition should not be
entertained as the petitioner has other adequate remedies.
* * * * * * *
9. In State of Bombay v. Hospital Mazdoor Sabha
MANU/SC/0200/1960 :(1960)ILL J251SC , the Supreme Court
held that a hospital run by the Government is an "industry"
within the meaning of the Industrial Disputes Act. While
holding that the activities of the Government which can be
properly described as regal or sovereign activities are outside
the scope of Section 2(j) of the Industrial Disputes Act, it was
held that the activities undertaken by the Government in the
interests of socio-economic progress of the country as
beneficial measures are not exempted from the operation of
the Act. It was pointed out that in construing the wide words
used in Section 2(j) it would be erroneous to attach undue
importance to attributes associated with business or trade in
the popular mind in days gone by.
10. In Nagpur Corporation v. Its Employees
MANU/SC/0126/1959 : (1960)ILL J523SCthe Supreme Court
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
pointed out that the definition of the "industry" in the Act is
very comprehensive. The regal functions described as primary
and inalienable functions of State though statutorily
delegated to a corporation are necessarily excluded from the
purview of the definition. But such regal functions shall have
no legislative power, administration of law and judicial power.
It was held that if a department of municipality discharges
many functions, some pertaining to industry as defined in the
Act and others non-industrial activities, the predominant
function of the department shall be the criterion for the
purposes of the Act. The Supreme Court considered each
department of the corporation separately and held that the
number of departments of the corporation constitutes an
"industry" within the meaning of the Industrial Disputes Act.
11. In A.T.I. Research Association v. State of Bombay
MANU/SC/0207/1960 :(1960) IILL J720SC , it was held that the
Ahmedabad Textile Industry's Research Association carried on
an activity which clearly comes within the definition of the
word "industry". It was observed that it is difficult to state
definitely or exhaustively the attributes which would make an
activity an undertaking. Under Section 2(j) on the ground that
it is analogous to trade or business. It can be said, as a
working principle, the manner in which the activity in question
is organised or arranged, the condition of the co-operation
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
between the employer and employee necessary for its success
and its object to render material service to the community can
be regarded as some of the features which are distinctive of
activities to which Section 2(j) of the Industrial Disputes Act
applies. It was held that the Research Association would not
be regarded as a purely educational institution.
* * * * * * *
13. In University of Delhi v. Ramanath
MANU/SC/0143/1963 : (1963)IILL J335SC , the question for
consideration was whether the Delhi University is an industry
within the meaning of the Industrial Disputes Act. It was held
that the work of imparting education is not an industry
because essentially the creation of a well educated, healthy
young generation, which is the sole aim of education, cannot
be compared with what may be described as an industrial
process. Any problem connected with teachers and their
salaries are outside the purview of the Act. Dealing with the
other subordinate staff such as peons, drivers, etc., it was
observed that these subordinate staffs plays such a minor
subordinate and insignificant part that it would be
unreasonable to allow this work to lend its industrial colour to
the principal activity of the University which is imparting
education. It would be unreasonable to regard the work of
imparting education as industry only because its minor,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
subsidiary and incidental work may seem to partake of the
character of service which may fall under Section 2(j) of the
Industrial disputes Act.
* * * * * * *
20. All the above cases were considered and discussed at
length, in the recent decision of the Supreme Court in
Workmen, Indian Standards Institution v. Indian Standards
Institution MANU/SC/0552/1975 : (1976)ILL J33SC . After an
exhaustive consideration and on an analysis, the Supreme
Court held by majority that the activities of the India
Standards Institution fall within the category analogous to
trade or business and must be regarded as "industry" as
defined Section 2(j) of the Industrial Disputes Act. It was held
further that an activity can be regarded as an industry, if
there is relationship of employer and employees and former is
engaged in "business", trade, undertaking, manufacture or
calling of employer's and the latter, "in any calling, service,
employment, handicraft or industrial occupation or
avocation". Though "undertaking" is a word of large import, it
must be read as meaning an undertaking analogous to trade
or business. In order that an activity may be regarded as an
undertaking analogous to trade or business, it must be
"organised or arranged in a manner in which trade or business
is generally organised or arranged". It must rest on co-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
operation between employer and employees who associate
together with a view to production, sale or distribution of
material goods or material services. It is entirely irrelevant
whether or not there is profit motive or investment of capital
in such activity. It is also immaterial whether its objects are
charitable or that it does not make profits. The Act also
contemplates cases of industrial disputes where the
Government or a local authority or a public utility service may
be the employer. It also makes no difference that the material
services rendered by the undertaking are in public interest.
* * * * * * *
22. The Tirumala Tirupathi Devasthanam consists of a
group of religious institutions in Tirumalai and Tirupathi. They
are together regarded as one religious institution for the
purposes of Charitable and Religious Endowments Act. The
main function of the Devasthanam is to arrange for the
worship in its temples and to enable the pilgrims from all
parts of India to visit temples and offer their prayers. It is,
therefore, essentially a religious institution. Having regard to
the enormous income, which this Devasthanam derives, it
utilises the income for various educational and religious
purposes. It has established several educational institutions
and also it is one of the prime donors of the Venkateswara
University. In order to cater to the thousands of pilgrims
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
especially to the temple of Tirumalai, the Devasthanam also
runs several canteens, dispensaries, etc. It has necessarily to
provide for transport of the pilgrims, which it was undertaking
on its own till recently. It has departments dealing with supply
of electricity and water, not only to the pilgrims but to the
members of the staff, Archakas, etc., and to the quarters
constructed in Tirumala for the benefit of the pilgrims. Even
though, having regard to the enormous flow of pilgrims
throughout the year the Devasthanam has to maintain several
departments, there can be no doubt that the essential
character of the institution is that of a religious institution.
We cannot, therefore, regard the Devasthanam generally as
an industry within the meaning of Trade Unions Act or within
the meaning of Industrial Disputes Act.
* * * * * * *
29. In Workmen v. Madras Pinjrapole 1962-II
MANU/TN/0031/1963, it was observed that where the
activity is in its essence, religious or spiritual, for instance a
temple or church, it could not be seriously contended that
they were industries. Individual units of organisation, like a
dairy farm, run by the institution might however constitute an
"industry" though the society itself may not be one. Only
broad guiding principles could be enunciated, but the actual
decision would have to depend upon the evidence in each
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
case. Similarly in Travancore Devasthanam Board v. State of
Kerala MANU/KE/0062/1963 : (1963)IILL J218Ker , it was held
that Maramat section of Travancore Devaswom Board
functioning under the Travancore-Cochin Hindu Religious
Institutions Act (XV of 1950) is an industry. It was held that
the Maramat department is principally engaged for the
construction of buildings habitually undertaken by the
Travancore Devaswom Board, and its object was to render
material service by improving the social and economic
conditions of the Hindu community. Though the definition of
"industry" Section 2(j) does not include regal or soverign
function of the State the Board was not discharging any
functions in relation to the works Department.”
38. In the aforesaid decision, the Andhra Pradesh High Court has clearly
spelt out that the individual characteristics of the operation carried on would be
the determinable factor in finding out whether the said function would fall within
the scope of industry, though on an overall view, the institution may be of
religious character and would be termed a religious institution. In fine, the said
decision is in line with the decision in Bangalore Water Supply case.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
39. Similar issue was considered by the Andhra Pradesh High Court in Sri
Varaha Lakshmi Narasimhan Swamy Vari Devasthanam – Vs – State of AP &
Ors. (MANU/AP/0316/2019), wherein the Court had occasion to consider
whether a temple rendering religious and spiritual services to the pilgrims, who
visit the temple to worship the Presiding deity in the temple could be considered
as a religious institution or an industry and in the said context, it has been held as
under :-
“Applying the aforesaid tests, if the dispute on hand is
considered, it is to be held that Sri Varaha Lakshmi Narasimha
Swamy Vari Temple, which is declared as an endowment
under Section 6(a)(ii) of the Endowments Act and registered
under Section43 of the Endowments Act, whose primary
object is to render spiritual services to its pilgrims visiting the
Temple from all over the country to offer worship to the
presiding Deity of the Temple which is religious activity and
having regard to the said predominant activity of the Temple,
it is to be held that the petitioner Temple/Endowment as a
whole cannot be regarded as an industry.”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
40. The lead judgment of this Court on the aforesaid issue sprouts from
the case in Workmen employed in Madras Pinjrapole – Vs – Management of the
Madras Pinjrapole (AIR 1963 Mad 89), wherein this Court had laid down the
ratio that where the activity in its essence is religious or spiritual in a temple or a
church, it could not be considered as an industry. However, the decision in the
said case was watered down by the decision in Bangalore Water Supply case
(supra) and, therefore, the said ratio would not be available to be adoptable in
the present case.
41. In Hindu Religious Endowments, Madras – Vs – Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt (MANU/SC/0136/1954), the Apex Court had occasion
to consider whether the offerings of food tothe idol at the particulars hours of
the day and the periodical ceremonies performed in a certain way involving
expenditure of money or employment of priests and servants or the use of
marketable commodities would make them secular activities partaking of a
commercial or economic character, the Supreme Court, held as under :-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
“20. The contention formulated in such broad terms
cannot, we think, be supported. In the first place, what
constitutes the essential part of a religion is primarily to be
ascertained with reference to the doctrines of that religion
itself.
If the tenets of any religious sect of the Hindus prescribe
that offerings of food should be given to the idol at particular
hours of the day, that periodical ceremonies should be
performed in a certain way at certain periods of the year or
that there should be daily recital of sacred texts or oblations
to the sacred fire, all these would be regarded as parts of
religion and the mere fact that they involve expenditure of
money or employment of priests and servants or the use of
marketable commodities would not make them secular
activities partaking of a commercial or economic character; all
of them are religious practices and should be regarded as
matters of religion within the meaning of article 26(b).”
42. The aforesaid decisions have culled out the instances where religious
institutions would partake the character of industry as defined u/s 2 (j) of the Act
and when the facts of the case showcase the said scenario, then the activities
carried on by the religious institutions, be it a Temple, Church, Mosque,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
Monastery, etc., would squarely be engulfed into web of an industrial
establishment so as to be called the said activity, as industry.
43. The web spun around the definition of the term ‘industry’, though is
put in issue time and again before the courts, more especially by religious
establishments, by taking specific plea that religious activities cannot be brought
within the ambit of the term ‘industry’ and, therefore, the provisions of the
Industrial Disputes Act are not applicable to them, however, the myth has been
set at naught way back in the decision in Bangalore Water Supply case (supra) by
the Apex Court, which view is in line with the view arrived at by the Andhra
Pradesh High Court in Tirumala Tirupathi Devasthanam case (supra). Though the
said view of the Constitution Bench had been doubted by the Bench of the Apex
Court in Coir Board case (supra) way back in the year 1998, yet, the decision of
the Constitution Bench still continues to hold the field and, therefore, this Court
is necessarily guided by the decision in Bangalore Water Supply case, and the
ratio laid down therein would be the determinant factor in arriving at a decision
in the present case.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
44. The relevant portion of the decision in Bangalore Water Supply case
has already been extracted supra, in which Krishna Iyer, J., (as His Lordship then
was), speaking for the majority, which view has withstood the judicial onslaught
till date, has framed the three test formula, which clearly spells out that all
organised activity possessing the triple elements codified therein, although not
trade or business, may still be ‘industry’ provided the nature of the activity, viz.,
the employee-employee basis bears resemblance to what is found in trade or
business.
45. The above decision unequivocally presents the triple tests, which
should be satisfied so as to bring an establishment within the definition of
‘industry’. In fact, the aforesaid decision clearly spells out the manner in which a
religious institution should be looked at, viz., the Church herein. Therefore,
keeping in mind the broad and specific tests, which have been prescribed by the
Constitution Bench in Bangalore Water Supply case, this Court will now
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
endeavour to find out whether the Management fulfils the prescription provided
in the above tests to be brought within the ambit of ‘industry’.
46. The definition of ‘industry’ and ‘workman’ have already been extracted
above, which have been dealt with in extenso in the aforesaid decisions. In
Bangalore Water Supply case, it has been succinctly stated that “an ‘industry’
cannot exist without co-operative endeavour between employer and employee.
No employer, no industry; no employee, no industry – not as a dogmatic
proposition in economics but as an articulate major premise of the definition and
the scheme of the Act, and as a necessary postulate of industrial disputes and
statutory resolution thereof”.
47. From the above it is evident that for an ‘industry’ to thrive, both
employer and employee have to co-exist, which alone could enable the proper
running of the industry. It is the claim of the Management that the alleged
workmen are volunteers, who have been doing service, which is for a religious
purpose and, therefore, there cannot be brought within the ambit of ‘workman’
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
nor could the Church be termed to be an ‘industry’ for the purposes of enabling
the provisions of the Act against the Church.
48. In this regard, at the risk of repetition, para-30 of the decision in
Bangalore Water Supply case requires to be noted, which is reproduced
hereunder :-
“30. Let us get down to the actual amplitude and
circumscription of the statutory concept of 'industry'. Not a
narrow but an enlarged acceptation is intended; This is
supported by several considerations. Chandrasekhara Aiyar, J.
observes :
Do the definitions of 'industry', 'industrial dispute'
and 'workman' taken in the extended significance, or
exclude it? Though the word 'undertaking' in the
definition of 'industry' is wedged in between business
and trade on the one hand and manufacture on the
other, and though therefore it might mean only a
business or trade undertaking, still it must be
remembered that if that were so, there was no need to
use the word separately from business or trade. The
wider import is attracted even more clearly when we
look at the latter part of the definition which refers to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
"calling, service, employment, or industrial occupation
of avocation of workmen". "Undertaking" in the first
part of the definition and 'industrial occupation or
avocation in the second part obviously mean much
more than what is ordinarily understood by trade or
business. The definition was apparently intended to
include within its scope what might not strictly be
called a trade or business venture.
So 'industry' overflows trade and business. Capital,
ordinarily assumed to be a component of 'industry', is
an expendable item so far as statutory 'industry' is
concerned. To reach this conclusion, the Court referred
to 'public utility service' [Section 2(n)] and argued:
A public utility service such as railways, telephones
and the supply of power, light or water to the public
may be carried on by private companies or business
corporations. Even conservancy or sanitation may be
so carried on, though after the introduction of local
self-government this work has in almost every country
been assigned as a duty to local bodies like our
Municipalities or District Boards or Local Boards. A
dispute in these services between employers and
workmen is an industrial dispute, and the proviso to
Section 10 lays down that where such a dispute arises
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
and a notice Under Section 22 has been given, the
appropriate Government shall make a reference under
the Sub section. If the public utility service is carried on
by a corporation like a Municipality which is the
creature of a statute, and which functions under the
limitations imposed by the statute, does it cease to be
an industry for this reason ? The only ground on which
one could say that what would amount to the carrying
on of an industry if it is done by a private person
ceases to be so if the same work is carried on by a local
body like a Municipality is that in the letter there is
nothing like the investment of any capital or the
existence of a profit earning motive as there generally
is in a business. But neither the one nor the other
seems a sine qua non or necessary element in the
modern conception of industry.”
49. Therefore, the issue should not be seen from the cynical view of the
Management; rather Section 2 (j) should be seen in the wider terms with
particular reference to the nature of work discharged by the alleged workmen,
who claim for the said alleged works they receive remuneration, which is
inclusive of provident fund.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
50. It is the case of the workmen that they were provided with employee
identify cards, which have been marked as Exs.W-16 series and they are subject
to recovery of provident fund towards which they have submitted Exs.W-17 to W-
19 series, which are the employees provident fund account slips, issued in
respect of certain workmen. The Management have not refuted the said exhibits.
However, the whole case of the Management revolves upon the activity that it is
doing, viz., a religious activity, in which the pilgrims who come to visit the Church
are guided and taken care of by the workmen and the work discharged by the
workmen, being in relation to a religious activity, the church would not fall within
the ambit of ‘industry’ as defined u/s 2 (j) of the Act.
51. The decision in Bangalore Water Supply case, which has been
extracted supra, clearly spells out that the nature of activity is the determinable
factor, while determining whether the entity would fall under the ambit of
‘industry’. It is to be pointed out that the workmen herein are not assigned any
religious task like the Pastor, who manages the religious affairs of the church.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
The workmen are entrusted with the task of maintenance of not only the church,
but also the canteen and also the residential accommodation, which are run for
the benefit of the pilgrims. Therefore, it is claimed by the Management that the
running of the canteen and residential accommodation are intrinsically
connected with the religious activity carried on by the Church and, therefore, the
Church would not fall within the definition of ‘industry’.
52. At the risk of repetition, a careful perusal of the triple test, as coined in
Bangalore Water Supply case, clearly envisages following :-
“140.
I. 'Industry', as defined in Section 2(j) and explained in
Bauerji, has a wide import.
(a) Where (i) systematic activity, (ii) organized by
co-operation between employer and employee, (the
direct and substantial element is chimerical)(iii) for 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 e.g. making, on a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
large scale, prasad or food), prima facie, there is an
'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is
irrelevant, be the venture in the public, joint private or
other sector.
(c) The true focus is functional and the decisive test
is the nature of the activity with special emphasis on
the employer-employee relations.
(d) If the organisation is a trade or business it does
not cease to be one because of philanthropy animating
the undertaking.”
53. There is a clear prescription in the aforesaid decision that firstly the act
should be a systematic activity; secondly it is organised by co-operation between
employer and employee; and thirdly for 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, e.g.
making, on a large scale Prasad or food).
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
54. The Pastor or the Parish Priest/Father of the church, as the case may
be, who sermons the religious gathering of people in the Church about religion
and the ways to attain eternal bliss and salvation could fall within the parameter
of a person satisfying the human wants and wishes particularly with reference to
celestial bliss and the act of offering of any Prasad or food, which is closely
connected with the offerings made to the deity could be said to be connected
with a religious activity. Any other person, like the workmen herein, who are
entrusted with the task of keeping the premises of the church neat and tidy as
also the canteen and indulging in the preparation of food for the pilgrims, which
is being sold in the canteen and also maintaining the residential quarters for
housing the pilgrims on payment basis, cannot be said to be persons, who are
doing religious activity and the work discharged by them cannot be said to be
work, which would have any close nexus or association with a religious activity.
55. In the present case, the court below had negatived the claim of the
workmen by pointing out that a paltry sum, around Rs.10/- per person alone is
collected for the purpose of accommodation in a quarters, in which six to seven
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
persons are accommodated and, therefore, the said accommodation cannot be
said to be an act of trade or business activity to bring the church within the scope
of ‘industry’.
56. Likewise, the court below has, in the same stretch, held that the church
is offering food to the pilgrims by collecting money for it by fixing the price of the
food which is payable by the consumer, viz., the pilgrim. Though such a finding
has been recorded by the court below, yet, touching upon the admission of
M.W.1 that the canteen is a self-service canteen and that it cannot give food free
of cost, as it is located in a small town and pilgrims from all over the world visit
the church, without any rhyme or reason held that there is nothing wrong in
collecting the price of the food from the pilgrims. It is the duty of the court below
to find out the nature of activity and the work discharged by the workmen and
the court cannot give any finding touching upon the difficulties of the church by
holding that only the difficulties makes the church charge the amount for the
food consumed by the consumers. The court is not required to enter into the
difficulties faced by the church to decide whether the activity is to be considered
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
as a religious activity; rather the duty of the court below is to find out the nature
of activity based on the activity done by the workmen and not on the basis of the
difficulties faced by the church.
57. Further, it is to be pointed out that merely because of the town in
which the church is located being small, the church is providing food to the
pilgrims at a cost, cannot be the determinative basis to hold that the activity is
clothed with a religious purpose. There is no religion involved in providing food
to the pilgrims, that too at a cost, by employing persons to prepare the food. If
such an finding is recorded, then every shop in and around the vicinity of the
church could claim the very same privilege and plead that it would not fall within
the ambit of ‘industry’ as provided u/s 2 (j). The factor, which is to be considered
is the calling of the employers which includes any calling service, employment,
handicraft or industrial occupation or avocation of workmen. The church, for
providing food to the persons, who visit the Church, employs persons for
preparing the same and collects fee for the said service and that being the case,
the service rendered by the workmen in such preparation cannot be brought
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
within the ambit of spiritual or religious nature, which alone stands excluded. It
is not the case of the Management that the workmen employed are not utilised
for the said purpose. The contention is only with regard to the said workmen
rendering the service which is religious in nature, which, as stated above, cannot
be clothed with either spirituality or religious in nature.
58. Further, it is to be pointed out that the food, which is given in the
canteen is not Prasad, as Prasad is a portion of the food, which is presumed to
have been offered to the deity and which is given in small quantities for the
devotees to attain salvation and eternal bliss. However, in the present case, it is
even the admitted case of the parties that the food, which is given to the pilgrims
is charged and is specifically prepared for them, which would not bring the food
within the ambit of ‘Prasad’, which is a specific preparation offered to the deity.
59. Further, it is to be pointed out that Prasad is a portion of the food
which is believed to have been partaken by the deity upon offering and which is
thereafter given to the devotees and any food, which is sold under the head of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
Prasad cannot be taken to be Prasad in the literal sense. In the present case, it is
not the case of the church that the food offered is Prasad, which is given to the
devotees; rather, it is the specific case of the Management that the food is
prepared and provided on payment, though at concessional rates to the pilgrims,
which cannot fall within the meaning of Prasad. In such a backdrop, the
workmen employed in the task of preparation of food cannot be said to be
performing any religious duty so as to exclude them form the purview of the
provisions of the labour laws.
60. Similarly, accommodation is provided to the pilgrims at a paltry sum,
which has also weighed with the court below to hold that it is not a profit motive
activity and that it is only run for the benefit of the pilgrims which would fall
within the periphery of religious activity and, therefore, the church cannot be
brought within the ambit of ‘industry’. The said finding recorded by the court
below is also erroneous and is against the test laid down in Bangalore Water
Supply case, wherein, in unequivocal terms, it has been held by the Constitution
Bench that mere absence of profit motive or gainful objective is irrelevant, be the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
venture in the public, joint, private or other sector. True it is that the pilgrims are
accommodated in the quarters on sharable basis and the charges towards such
accommodation are less and is shared by the persons occupying the room and
that it is run for the benefit of the pilgrims and not with any profit motive in
mind. But the said act does not in any manner have any colour of religion or
spirituality imbibed in it so as to exclude the church from the ambit of ‘industry’.
When something is provided on chargeable basis, moreso, when it does not have
any religious activity associated with it, the said activity could only be termed to
be an ‘industry’ and it cannot escape the rigours of Section 2 (j). When the
church has lent out the quarters for occupation of the pilgrims, though at a
meagre cost, but the said accommodation is not having any religious purpose or
spiritual in nature, but it is only for the benefit of the pilgrims for their stay,
merely because the church is associated in the said task cannot take it away from
the rigours of it being called an ‘industry’ for the said purpose.
61. The stay of the pilgrims in the quarters by paying a paltry sum is only to
benefit them by providing a stay as a comfort to visit the church and it cannot be
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
construed as an essential ingredient in a religious activity, as the religious activity
to attain eternal bliss is only upon their visit to the church for the sermons. It is
also to be pointed out that not all the pilgrims coming to the church are
accommodated in the quarters of the church; there are pilgrims, who get
themselves accommodated in other places of stay in and around the church for
want of space within the church. Could those accommodations be left out of the
rigours of ‘industry’ as provided in Section 2 (j) of the Act by holding that the stay
of the pilgrims is for visiting the church. Giving any such reasoning would not
only be against the intent of the Act, but would rob all the persons employed in
such establishments of the benevolence which has been conferred on them
through the Act.
62. The canteen and accommodation and such allied matters, including
the maintenance of the church, though associated with the church, but cannot be
said to have any iota of spirituality or religion in it to take it outside the scope of
Section 2 (j). There is no element of celestial bliss or spirituality involved in such
acts, which are provided by the Management to the pilgrims for comfort as
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
celestial bliss and spirituality is generally not associated with comfort, as there
are many persons, who come for enjoyment purposes other than celestial bliss
and spirituality. Merely because the church attracts pilgrims from worldwide, it
cannot be held that all the pilgrims who come to the church are only for religious
and spiritual purposes. There could be scores of individuals, who come for the
purpose of entertainment and amusement to visit the church out of curiosity and
on an archaeological expedition rather than on spiritual and religious expedition.
Such of those persons cannot be weeded out from the persons, who come to the
church for celestial bliss and spirituality and such being the case, giving a
restricted connotation by excluding the church from the ambit of ‘industry’, when
activities other than spiritual and religion are involved in the running of the
church would not take the said activities out of the rigour of the labour laws, as
any such restricted interpretation would be nothing but a clear attempt to
deprive the persons employed therein from relishing the benevolence of the said
provisions.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
63. In fact, one other important aspect, which is evident from the order of
the court below is the fact that while the canteen is within the church complex,
the accommodation houses are opposite the church. Further, there is no whisper
that the food offered in the canteen is Prasad, but it is the specific case of the
Management that food is provided to the pilgrims on a chargeable basis.
Therefore, when amounts are collected from the pilgrims for each and every
personal activity, all such activities cannot be dragged into the vortex of religion
to hold that the aforesaid activities of the church cannot be brought within the
purview of ‘industry’ to the exclusion of its workmen.
64. One other reason that had weighed in the mind of the court below to
negate the claim of the workmen is that the workmen, who are presently
employed have not been examined and the examination of the workmen, who
had since retired cannot be sufficient to hold the church to be an ‘industry’.
65. It is to be pointed out that the workmen, who have been examined are
retired persons and there is no dispute from the Management with regard to the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
same. In fact, the Management had not raised any claim with regard to the
veracity of their deposition. When the Management had not disputed the
veracity of the evidence tendered by the workmen and had not raised any
quarrel with regard to the previous employment with the church, merely because
workmen presently in the employ of the church have not been examined cannot
be a reason to throw out the case of the workmen. The rejection of the case of
the workmen on the basis of the evidence having been tendered by workmen
who are not presently in the employment of the church is wholly whimsical and
unfathomable and is a pure error of application of law and, therefore, the said
finding cannot be allowed to sustain.
66. True it is that unlike the Hindu Religious and Charitable Endowments
Act, there is no law governing the church and the employees employed therein.
Such being the case, the term ‘industry’ as found u/s 2 (j) has to be given a wide
import so that the persons employed in such religious institutions, but who are
not involved in any religious and spiritual activity would stand squarely covered
under the definition of workman as found u/s 2 (s) of the Act.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
67. The entire findings of court below have gone on an erroneous tangent
by the court below holding that there is no element of commercial character
involved in any of the activities of the church. Though reference has been made
to the decision in Bangalore Water Supply case, however, without properly
appreciating the ratio laid down therein, the court below had traversed an
erroneous path to hold that church is not an industry and that the industrial
dispute is not maintainable by the workmen.
68. Further, one other aspect, which has been lost sight of by the court
below, but one, which is of more evidentiary value and would stare writ large on
the face of the respondents is the fact that provident fund has been deducted in
respect of the persons, who were engaged. It is to be pointed out that provident
fund is deducted only in respect of employees and it would not stand extended to
volunteers and, therefore, in the light of the aforestated document, which has
been marked by the workmen, it would clearly establish that the persons, who
are employed by the Church are workmen, who would squarely be covered by
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
the definition of ‘workman’ u/s 2 (s) of the Act and in the light of the discussion
made above, the nature of work discharged by the said workman not being
spiritual or religious in nature, they would be entitled to be benevolence
conferred on them under the Industrial Disputes Act and they would be well
within their right to agitate their rights by raising an industrial dispute.
69. However, erroneously, on the above premise, the court below had
held that since the respondent is neither an industry nor there being any actual
industrial dispute there is no necessity to consider the wage revision and other
allowances and uniform for the workmen employed therein. However, in view of
the discussion made above, this Court having held that the activities performed
by the workmen brings the church within the ambit of ‘industry’, insofar as the
said activities not being religious or spiritual, necessarily, the church insofar as
the said activities performed by the workmen are concerned would come within
the purview of ‘ industry’ and, therefore, the provisions of the Industrial Disputes
Act would be squarely applicable to the case on hand and, therefore, this Court
holds that the workmen would be entitled for wages, various allowances and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
uniforms and the industrial dispute raised in this regard is maintainable and
adjudicatable by the Labour Court. Accordingly, W.P. No.20239/2013 deserves to
be allowed for the reasoning aforesaid.
70. Insofar as W.P. Nos.17860 and 17861/2013 are concerned, the dispute
borders on the entitlement of the workmen to receive gratuity. The Labour Court
had awarded gratuity to the workmen on the basis of the evidence available
before it, though it is impugned herein on the ground of violation of principles of
natural justice.
71. The main ground of attack on the impugned order relating to payment
of gratuity to the workmen is on the ground that the Management was precluded
from letting in evidence, as the opportunity granted by the court below could not
be utilised by the Management for certain reasons, which have been detailed
before the court below, which, however, was not taken into consideration, while
rejecting the case of the Management.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
72. As already discussed above, the church is not governed by any specific
law and the general laws alone are applicable, which is unlike the Hindu Religious
and Charitable Endowments Act, in which the Rules therein provides for payment
of gratuity.
73. In E.Gopal & Ors. – Vs – Arulmigu Dhandayuthapaniswamy Temple &
Ors. (2013 (3) CTC 689 :: MANU/TN/2475/2012), the issue relating to payment of
gratuity in respect of employees of the said temple fell for consideration before a
Full Bench of this Court and applying the decision in Bangalore Water Supply
case, the Full Bench went on to hold that though payment of gratuity is provided
under the Payment of Gratuity Act, which is a Central enactment as also under
the Pension Rules, which is a State enactment, however, the Central enactment,
viz., the Payment of Gratuity Act being more beneficial and further the Central
enactment will prevail over the State enactment, where both the provisions of
law operates, the retiring employee was held to be entitled to opt for gratuity
under the Payment of Gratuity Act and in the said context held as under :-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
“20. In Bangalore Water Supply & Sewerage Board case
(cited supra), while analysing the question whether Charitable
Institutions are Industries, laid down three categories (already
extracted above) and we are concerned with the second
category, where the institution makes no profit but hires the
services of employees as in other like business. To fall under
the second category as laid down by the Hon'ble Supreme
Court one has to see whether the charitable employer is
exactly like a commercial minded employer and there is
relationship of employer and employee as like that of the
industries. In the present case, though the Management may
state that they fall under the third category to the effect that
the establishment is oriented on a humane mission fulfilled by
man who work, not because they are paid wages, but because
they share the passion for the cause and derive job
satisfaction from their contribution, from the materials on
record and the documents produced by either side, we are not
inclined to accept that the respondent Devasthanam fall under
the third category. From the orders passed by the authorities
below, there is no dispute that there is employer and
employee relationship between the Management and the
appellants/employees and the employees are paid wages
according to the work done and they are entitled to leave as
per the Rules. From the part of the employees the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
Devasthanam is not a charity and it is only an establishment
working for profit. It is also brought to our notice that the
temples in question were paying salary in Crores of rupees to
the employees, which fact is not in dispute. The other
decisions relied on and extracted by us viz., Administrator, Shri
Jagannath's case, The Management of SIET College, Sri
Venkataramana Temple Sri Hale Mariyamma Temple, etc.,
(cited above) would only pave a way to the conclusion that the
Religious Institutions would also be attracted by the term
"establishment" under the Payment of Gratuity Act and it
would not stop within the meaning prescribed to the
"establishment" defined under the Tamil Nadu Shops and
Establishments Act.
* * * * * * *
28. A doubt has been raised regarding entitlement of
gratuity, when the employees are paid pension as one could
not be entitled for two. This doubt has to go in view of the
following pronouncements of the Apex Court.
In Som Prakash Rekhi v. Union of India
MANU/SC/0582/1980 : (1981) 1 SCC 449, Justice Krishna Iyer,
while examining the overriding effect of Section 14 of the Act
along with similar provisions contained in other Acts, observed
as follows:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
“66. We live in a welfare State, in a
'socialis'-republic, under a Constitution with profound
concern for the weaker classes including workers (Part
IV). Welfare benefits such as pensions, payment of
provident fund and gratuity are in fulfillment of the
directive principles. The payment of gratuity or
provident fund should not occasion any deduction from
the pension as a 'set-off'. Otherwise, the solemn
statutory provisions ensuring provident fund and
gratuity become illusory. Pensions are paid out of
regard for past meritorious services. The root of
gratuity and the foundation of provident fund are
different. Each one is a salutary benefaction statutorily
guaranteed independently of the other. Even assuming
that by private treaty parties had otherwise agreed to
deductions before the coming into force of these
beneficial enactments they cannot now be deprivatory.
It is precisely to guard against such mischief that the
non obstante and overriding provisions are engrafted
on these statutes.”
(Emphasis added)
29. In Sudhir Chandra Sarkar v. TISCO Ltd.,
MANU/SC/0208/1984 : (1984) 3 SCC 369, while holding that
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
payment of gratuity is a statutory liability cast on the
employer, the Hon'ble Supreme Court observed as follows:-
“15. The fundamental principle underlying gratuity
is that it is a retirement benefit for long service as a
provision for old age. Demands of social security and
social justice made it necessary to provide for payment
of gratuity. On the enactment of Payment of Gratuity
Act, 1972 a statutory liability was cast on the employer
to pay gratuity.
16. Pension and gratuity coupled with contributory
provident fund are well-recognised retiral benefits.
These retrial benefits are now governed by various
statutes such as the Employees' Provident Fund and
Miscellaneous Provisions Act, 1952, the Payment of
Gratuity Act, 1972. These statutes were legislative
responses to the developing notions of fair and
humane conditions of work, being the promise of Part
IV of the Constitution.”
(Emphasis added)
30. In MCD v. Dharam Prakash Sharma
MANU/SC/1136/1998 : (1998) 7 SCC 221, the Hon'ble
Supreme Court has categorically held that though there is
provision for payment of gratuity under the Pension Rules,
that will not disentitle the employees from the payment of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
gratuity under the Payment of Gratuity Act. While holding so,
the Hon'ble Supreme Court observed as follows:-
“2... The mere fact that the gratuity is provided for
under the Pension Rules will not disentitle him to get
the payment of gratuity under the Payment of Gratuity
Act. In view of the overriding provisions contained in
Section 14 of the Payment of Gratuity Act, the
provision for gratuity under the Pension Rules will have
no effect. Possibly for this reason, Section 5 of the
Payment of Gratuity Act has conferred authority on the
appropriate Government to exempt any establishment
from the operation of the provisions of the Act, if in its
opinion the employees of such establishment are in
receipt of gratuity or pensionary benefits not less
favourable than the benefits conferred under this Act.
Admittedly MCD has not taken any steps to invoke the
power of the Central Government under Section 5 of
the Payment of Gratuity Act.
In the aforesaid premises, we are of the considered
opinion that the employees of the MCD would be
entitled to the payment of gratuity under the Payment
of Gratuity Act notwithstanding the fact that the
provisions of the Pension Rules have been made
applicable to them for the purpose of determining the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
pension. Needless to mention that the employees
cannot claim gratuity available under the Pension
Rules.”
74. A decision of the Full Bench of the Karnataka High Court in Shri
Mookambika Temple, Kollur – Vs – Raviraja Shetty & Ors. (W.A. No.1756/2015
(L-PG) Dated 01.08.2019), on a similar issue has also come to the judicial notice
of this Court in which the Full Bench on the basis of the Rules pertaining to the
Karnataka Hindu Religious and Charitable Endowment Rules vis-a-vis the Payment
of Gratuity Act held that there being a provision under the Karnataka Hindu
Religious and Charitable Endowment Rules, payment of gratuity would be
governed by the said Rules and the Payment of Gratuity Act cannot be enforced.
The said view was given by the Full Bench on the ground that the Karnataka
Hindu Religious and Charitable Endowments Act and Rules is a special enactment
and it will have an overriding effect over the Payment of Gratuity Act, which is a
general enactment. Though the said decision runs counter to the decision of the
Full Bench of this Court in Dhandayuthapaniswami case, however, the aforesaid
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
decision only has persuasive value and is not binding on this Court, while
Dhandayuthapaniswami case is binding on this Court.
75. When this Court has categorically held that the nature of activity,
which is put in issue before this Court, which is undertaken by the workmen in
the Church, would bring the church within the ambit of ‘industry’ as defined u/s 2
(j) of the Act, necessarily, the workmen under the Management of the Church
would be entitled to raise an industrial dispute by invoking the provisions of the
Industrial Disputes Act and, therefore, the reference made by the Government is
just and proper. Therefore, the workmen would be entitled to claim wages and
other benefits in consonance with the provisions of the Industrial Disputes Act by
invoking the relevant provisions of the Act and the Labour Court/Tribunal is
bound to decide the same on its own merits and in accordance with law.
76. On the aforesaid analogy, the workmen would be entitled to seek for
gratuity under the Payment of Gratuity Act, as they are employees under the
Church and, therefore, the authority, viz., the Assistant Commissioner of Labour
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
was right in ordering payment of gratuity and the said computation cannot be
said to be erroneous and the same does not require any interference at the
hands of this Court.
77. In the result, the impugned order which is the subject matter in W.P.
No.20239/2013 is set aside and the matter is remanded to the Labour Court,
Cuddalore, to consider the industrial dispute raised by the workmen, which has
been referred to it with regard to wage revision, uniform, etc., in accordance with
law as expeditiously as possible. Insofar as W.P. Nos.17860 and 17861/2013 filed
by the Management of the Church are concerned, the said writ petitions are
dismissed for the reasons aforesaid. In the circumstances of the case, there shall
be no order as to costs.
04.03.2025
Index : Yes / No
GLN
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
To
1. The Presiding Officer
Labour Court, Cuddalore.
2. The Assistant Commissioner of Labour
Authority under the Payment of Gratuity Act
Office of the Deputy Commissioner of Labour
Tiruchirappalli – 20.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
W.P. NOS.20239, 17860
& 17861 OF 2013
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
____________
W.P. Nos.20239-17860-17861/2013
Pronounced on
04.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/03/2025 07:52:07 pm )
