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Thirumullapulli Devaswom Vs. Commissioner for Workmen's Compensation (09.11.1978 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1979)ILLJ398Ker
AppellantThirumullapulli Devaswom
RespondentCommissioner for Workmen's Compensation
Cases ReferredSasidharan v. Peter
Excerpt:
- - , that the persons employed in the establishment are mainly engaged in office work is equally important and both conditions are to be satisfied if a devaswom is to be treated as falling within the definition. thus, considering the paramount object of the institution as well as the particular functions it discharges, a devaswom can never be considered as an establishment in which the persons employed are mainly engaged in office work......an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the government may, by notification in the gazette, declare to be a commercial establishment for the purposes of this act, but does not include a factory to which all or any of the provisions of the factories act, 1948 (central act 63 of 1948) apply:6. the definition of commercial establishment, as is clear from the provision, takes in various kinds of institutions. it was conceded by the second respondent, that the portion, which can possibly apply to a devaswom, is the expression 'an.....
Judgment:

D.P. Namboodiripad, J.

1. The petitioner in this case is a Hindu Religious Institution by name 'Thirumullapulli Devaswom' represented, in these proceedings, by its Manager. The first respondent is the Commissioner for Workmen's Compensation and Shop Appellate Authority, Kozhikode and the second respondent is a person, who was an employee under the petitioner-Devaswom.

2. The petitioner initiated disciplinary proceedings against the second respondent and dismissed him from service on 2-5-1973. The second respondent filed an appeal challenging that order before the competent authority in accordance with the provisions of Section 49(2) of the Madras Hindu Religious and Charitable Endowments Act, 19 of 1951, (briefly the Act). The appeal was dismissed. The second respondent challenged that order by O.P. No. 316 of 1975. This Court set aside the orders of the Appellate Authority and remanded the matter for fresh consideration. The Appellate Authority, in its turn, allowed the appeal and remanded the matter to the petitioner for fresh consideration. Petitioner framed afresh Ext. P3 charge against R2. According to the petitioner, there was an enquiry. Thereafter, the petitioner passed Ext. P7 order dismissing the second respondent from service. The second respondent did not choose to challenge Ext. P7 order under Section 49(2) of the Act, as he did on the former occasion. On the second occasion he pursued a different remedy, viz., an appeal under Section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (briefly referred to as the Shops Act). Exhibit P9 is the copy of the appeal memorandum filed by the second respondent before the first respondent--Tribunal, and Ext. P10 is the objection filed by the petitioner-Devaswom. The first respondent passed Ext. P11 order directing the petitioner to reinstate the second respondent, or, in the alternative, to pay an amount of Rs. 5,980, in addition to back wages. It is the correctness of Ext. P11 that is challenged in this original petition.

3. Exhibit P11 is challenged by the petitioner essentially on the ground that Ext. P9 appeal was incompetent, and that the first respondent has no jurisdiction to adjudicate the claim made by the second respondent. The lack of jurisdiction relied on by the petitioner is unfounded upon two propositions, viz., (a) that the petitioner--Devaswom is not an establishment for the purpose of Shops Act, and (b) that even if the Devaswom is an establishment it is entitled to claim exemption provided under Section 3(1)(f) of the Shops Act.

4. Exhibit P11 shows, that the petitioner, who was the respondent in that appeal, specifically relied on the aforesaid contentions regarding the absence of jurisdiction on the part of the first respondent to adjudicate the dispute. The first respondent held, that the Devaswom is an establishment, relying on the decision reported in Superintendent v. Kunhan Kartha (1967) K.L.T. 941. It was conceded before me that, that decision was challenged in a writ appeal, and the decision was not confirmed.

5. Consequently, the question whether the concerned Devaswom is an establishment for the purpose of the Shops Act has to be considered. The preamble to the Shops Act shows, that the statute was enacted to consolidate and amend the law relating to the regulation of conditions of work and employment in shops and commercial establishments in the State of Kerala. According to Section 2(8) 'establishment' means a shop or a commercial establishment. The expression 'shop' is defined in Section 2(15), and it is conceded by the second respondent that the Devaswom cannot be considered as a shop. The expression 'commercial establishment' is defined in Section 2(4) as follows:

2 (4)--'commercial establishment' means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 (Central Act 63 of 1948) apply:

6. The definition of commercial establishment, as is clear from the provision, takes in various kinds of institutions. It was conceded by the second respondent, that the portion, which can possibly apply to a Devaswom, is the expression 'an establishment or administrative service in which the persons employed are mainly engaged in office work', occurring in the definition clause. The second respondent did not contend that the Devaswom is an 'administrative service' made mention of in the expression extracted above. So, the only question that falls for decision is whether a Devaswom is an establishment in which the persons employed are mainly engaged in office work. To satisfy that expression, the two conditions necessary are: (a) there is an establishment, and (b) in the establishment the persons employed are mainly engaged in office work. The petitioner has got a case, that a Devaswom is not an establishment. The learned Counsel for the second respondent drew my attention to the decision reported in Karunakaran Nair v. Authority under Payment of Wages Act (1971) K.L.T. 661, wherein it was held that, the word ' establishment ' has to be understood in a wider sense, I do not wish to express a final opinion on that aspect, because, by merely establishing that a Devaswom is an 'establishment' it does not fall within the definition under Section 2(4). The second condition, which I referred to above, viz., that the persons employed in the establishment are mainly engaged in office work is equally important and both conditions are to be satisfied if a Devaswom is to be treated as falling within the definition. The expression 'an establishment in which the persons employed are mainly engaged in office work' would necessarily indicate that the definition can apply only if certain facts are established. The purpose for which an institution is established, the normal function it has to discharge, etc., are points to be taken into consideration to decide whether the persons employed by that institution are mainly engaged in office work. 'Devaswom' is a compendious expression taking in a temple, its property, its management, etc. Certain employees of a temple will have to discharge duties which are exclusively concerned with the performance of religious rites in accordance with Sastras, the traditions of the temple, custom, etc. There may also be office bearers, who are concerned with the administration of the temple, which is essentially a non-religious matter. Thus, there may be officers for collection of income, maintenance of accounts, supervision of staff, etc. Though these are not strictly the discharge of any religious function it shall not be forgotten that these functions are discharged for the purpose of the proper performance of the religious rites in the temple. The number of employees in a Devaswom may vary according to its size and reputation. Every person employed by a Devaswom normally discharges functions pertaining to the proper functioning of the temple, the paramount object of which is to maintain the place of worship in proper condition for the benefit of the devotees. As already referred to, there may be several employees of a Devaswom, who have nothing to do with any office work and who are exclusively concerned with the discharge, of religious functions. Hence, the mere fact that certain employees are directed to discharge non-religious or administrative functions does not mean that the persons employed by the Devaswom are 'mainly engaged in office work' within the meaning of the definition. Thus, considering the paramount object of the institution as well as the particular functions it discharges, a Devaswom can never be considered as an establishment in which the persons employed are mainly engaged in office work.

7. Recently this Court had occasion to consider whether a Lawyers' Firm is an establishment for the purpose of the Shops Act in Sasidharan v. Peter & Karunakaran (1978) K.L.T. 613. This Court, after considering the scope of the definition 'establishment', especially in relation to the expression 'mainly engaged in office work', held as follows:

Taking into account such activities of a lawyer-firm which occupy most part of its time and labour, we do not think it can be said that it is 'an establishment, where the persons are mainly engaged in office-work.

If that is the position of a Lawyer-firm, for the purposes of the Shops Act, I think, there are stronger reasons to hold, that a temple can never be considered as an 'establishment', in which the persons employed are mainly engaged in office work. The first respondent was in error in holding that the dispute between the petitioner and the second respondent can be decided under the relevant provisions of the Shops Act.

8. In view of my finding that a Devaswom is outside the purview of the Shops Act, it is not necessary for me to consider whether the petitioner is entitled to claim exemption under Section 3(1)(f) of the Shops Act.

9. In the result, Ext. P11 order is hereby set aside and the appeal filed by the second respondent before the first respondent, which led to Ext. P11 order, is dismissed as not maintainable. The original petition is allowed. I make no order as to costs.


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