Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No. 1059/2008
Date of decision :26.3.2010
Kanhaiya Lal ... Petitioner
Through : Mr. R.K.Saini and
Mr. Tarun Sharma, Advs.
versus
Union of India & Ors. ..... Respondent
Through : Mr. Mukti Bodh for respondent no.3
with Secretary, RSC in person.
Mr. Sharad Chaturvedi for counsel
for respondent no.2.
CORAM
* HON'BLE MR.JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Kailash Gambhir, J. ( ORAL )
*
1. By this petition filed under Article 226/227 of the
w.p.(c ) No. 1059/2008 Page 1 of 11
Constitution of India, the petitioner seeks quashing of the award dated
30.11.2007 whereby the reference was answered against the
petitioner and in favour of the respondent committee.
2. Brief facts as set out by the petitioner relevant for
deciding the present petition are that the petitioner was working as a
Chowkidar with respondent no.3 Committee from January 1990 and
his services were terminated on 3.7.1999 without following the due
process of law. Consequently , an industrial dispute was raised by the
petitioner where vide order dated 30.10.2006 , the labour Court held
the reference bad in law as not having made by the appropriate
government u/s 2(a) of the I.D Act and therefore the petitioner
approached this court by filing a writ petition bearing no. W.P. (C) No.
18357/06. Entertaining the writ petition, this court set aside the
impugned award and remanded the matter back to the labour court
for an expeditious trial on merit. Thereafter vide order dated
30.11.2007, the labour court held the reference against the petitioner
on the ground that the respondent committee is not an “industry” u/s
2(j) of the I.D Act and the petitioner is not a “workman”. Feeling
aggrieved by the said order the petitioner has preferred the present
petition.
w.p.(c ) No. 1059/2008 Page 2 of 11
3 . Vide order dated 3.3.2010 both the parties were put to the
notice that serious view will be taken by this court if any of them is
found telling falsehood to the court and directions were also given for
the production of the relevant records of the respondent inclusive of
employees wage register, attendance register and salary register
w.e.f. 1990 till 1999. The petitioner throughout has been maintaining
the stand, in the statement of claim filed before the labour court, in
affidavit filed before the labour court and before this court as well,
claiming his appointment with respondent Rajghat Samadhi
Committee w.e.f. January 1990 and his illegal termination from the
post of Chowkidar w.e.f. July 1999 without due observance of any
process of law by the respondent. The respondent management on
the other hand has taken a consistent position that the petitioner
th
workman had joined the respondent w.e.f.18 May 1997 as a daily
wager and has not actually worked with the respondent management
for a period of 240 days preceding the date of his termination. In para
1 of the counter affidavit filed by the respondent, it has taken the
stand that the petitioner worked on the post of the Chowkidar since
September 1997 till July 1999. The respondent also seriously
disputed the applicability of the provisions of the Industrial Disputes
w.p.(c ) No. 1059/2008 Page 3 of 11
Act on the premise that the respondent management cannot be
treated as an industry as envisaged under Section 2(j) of the I.D. Act
as the respondent Rajghat Samadhi Committee is not engaged in any
commercial or industrial activities with any profit making objectives.
As per the respondent, it is an institution discharging governmental
and sovereign functions as enjoined upon the State under Article 49 of
the Constitution of India.
4. Today when this matter was taken up by this court, the
petitioner conceded that he was never in the employment of the
respondent before September, 1997. He also tenders his
unconditional apology for falsely claiming his employment with the
respondent w.e.f. January 1990. He further pleads for taking a lenient
view over his false claim. The respondent on the other hand, based on
the records, reiterates its stand that the petitioner was appointed as a
daily wager w.e.f September 1997 and worked intermittently till July
1999.
5. I have heard learned counsel for the parties at
considerable length and gone through the records produced by the
respondent in the court pursuant to the directions given by this court
vide order dated 3.3.2010. So far the finding of the learned Labour
w.p.(c ) No. 1059/2008 Page 4 of 11
Court is concerned, I find myself in agreement with the same that
the monument constructed in the fond remembrance of the Father of
the Nation, Mahatama Gandhi, cannot be termed as an “Industry” for
any profitable purposes but the same is like a shrine and the
Committee constituted under the Rajghat Samadhi Act 1951 to
administer and maintain the said Samadhi is not discharging any
kind of commercial or industrial activities. Hence, I do not find any
infirmity or perversity in the said finding of the labour Court. The
Statement of Objects and Reasons of the Samadhi Act 1951 clearly
state that the object of the Bill was to ensure proper maintenance,
preservation and administration of the Rajghat Samadhi, the Shrine
built in the memory of the Father of the Nation. It also states that the
Committee should do all things reasonable and necessary to ensure
that the Rajghat Samadhi is properly maintained, controlled and
administered and proper arrangements are made for the watch and
ward of the Samadhi and to organize and regulate periodical functions
at the Samadhi such as Friday Prayers and Gandhi Jayanti and to
control access to the Samadhi. Section 4 of the said Act describes the
composition of the Committee whereas, Section 5 defines powers and
duties of the Committee. These sections of the said Act are
reproduced as under:
w.p.(c ) No. 1059/2008 Page 5 of 11
“4. Composition of the Committee.-
(1) The Chairman shall consist of the following members,
namely:--
(a) The president of the municipal committee within the local
limits of whose jurisdiction the Samadhi is situated, ex-officio;
(b) Three officials nominated by the Central Government;
(c) Three non-officials nominated by the Central Government;
(d) Two members of Parliament nominated by the Speaker.
(2) The Central Government may appoint any person
referred to in sub-section (1) or any other person to be the
Chairman of the Committee, and if any other person is so
appointed, he shall be deemed to be a member of the Committee
within the meaning of sub-section (1).
(3) All persons nominated by the Central Government to be
members of the Committee shall hold office during the pleasure of
the Central Government.
5. Powers and duties of the Committee.
Subject to such rules as may be made under this Act,
the powers and duties of the committee shall be--
(a) To administer the affairs of the Samadhi and to keep
the Samadhi in proper order and in a state of good repair; (b) To
organise and regulate periodical functions at the Samadhi;
(c) To do such other things as may be incidental or conducive to
the efficient administration of the affairs of the Samadhi.”
As would be evident from the object and reasons of the said Act
coupled with the aforesaid provisions that the prime functions of the
said Committee are to organize and regulate periodical functions at
the Samadhi and to administer and conduct the affairs of Samadhi so
w.p.(c ) No. 1059/2008 Page 6 of 11
that the same is kept in proper order. There is no such activity which
can be called either “commercial” or “industrial” activity carried out
by the Members of the Committee in due discharge of their duties.
Hence, profit making is entirely out of question as the visits to the
Samadhi by each and every one are without any payment and open
to all.
6 . Looking into the nature of the activities being carried on
by the Members of the respondent Committee who ought to have been
entrusted with the job of carrying on the religious and spiritual duties
of prayers and periodical functions to spread the ideals of Mahatama
Gandhi cannot be construed as an activity of such a nature to attract
the „Triple Test‟ as laid down in Banglore Water Supply &
Sewerage Board Vs. A. Rajappa AIR 1978 SC 548 to bring the
respondent management within the ambit of the definition of
„Industry‟ under Section 2(j) of the I.D. Act. Counsel for the petitioner
has also not laid much stress to impinge the said findings of the
learned Labour Court, but in the alternative sought to impress upon
this court to invoke the extra ordinary powers of writ jurisdiction to
direct the respondent management to take the petitioner workman
back into the service from the date of his alleged termination.
7 . It is quite agonizing and antagonizing at the same time to
w.p.(c ) No. 1059/2008 Page 7 of 11
find that the petitioner who worked as a chowkidar for a period of
about two years to act as a sentinel of the Samadhi of the Father of
the Nation, who led us to achieve “Swaraj” sacrificing his life for the
cause of a free India without compromising his cherished ideals of
truthfulness, non-violence and peace could not emulate and imbibe
the said principles himself. The petitioner by taking a false stand of
claiming his employment with the respondent from the year 1990 till
1999 has not only committed an act of perjury with the court but in
fact has committed a greater sin with his own soul.
8 . The paradox which this court is now confronted with is
that the petitioner who was a chowkidar and was rendered
unemployed should be proceeded with for committing perjury or
should be pardoned following the much revered principles of
Mahatama Gandhi, as the petitioner was mercilessly turned out of
the employment by the respondent without following the due
process of law. Perusal of the records produced by the respondent
clearly shows that the petitioner had worked on the post of chowkidar
as a daily wager w.e.f. September, 1997 till 1999 and then suddenly
he was thrown out from the employment without any rhyme or
reason. Certainly the petitioner had worked for more than 240 days
in continuous service preceding the date of his termination and had
w.p.(c ) No. 1059/2008 Page 8 of 11
the establishment of the respondent committee been treated as an
industry, this court would have certainly granted either the relief of
reinstatement with back wages or some amount of compensation in
lieu thereof to the petitioner. But, now as this court has taken a view
that the provisions of I.D. Act would not be applicable to the instant
case, therefore, the relief of reinstatement with grant of back wages
would not be available to the petitioner. However, entertaining the
alternative prayer of the petitioner this court while exercising extra
ordinary jurisdiction directs the respondent to pay a sum of
Rs.35,000/- to compensate the petitioner for his illegal termination of
service without following the due process of law.
9 . Mahatma Gandhi, a man worshipped not only by this
country but by the world stood for his cannons of truth and non
violence even in the dark times of freedom struggle. He said:-
“Morality is the basis of things and truth is the substance of all
morality”
But it is this morality, which today, when the winds of materialism and
capitalism are blowing in our society, seems cast in a shadow of
despair. It is no doubt true that falsehood is easy and truth difficult,
but that does not entail that the virtue of truthfulness be worn like a
w.p.(c ) No. 1059/2008 Page 9 of 11
garment, worn and removed at our own will. It would not be wrong to
say that in the time of universal deceit today, speaking the truth
seems like a revolutionary act. The soil of this nation is soaked with
the blood, toil and principles of the Father of the Nation, and the
Samadhi is the repository of his great soul reminding us never to
forget the path of ideals he so painstakingly carved for us. The
petitioner by falsely deposing has not only failed this court but also all
that that great soul stood for.
10. Hence, taking a compassionate view, so far the conduct of
the petitioner of his audacity as he lied through his teeth, as an
exceptional case, this court would not recommend any action of
initiating perjury proceedings against him and would rather direct
the petitioner to offer his daily prayers for at least two hours for a
period of one month to seek atonement for committing the sin of
being untruthful to the Court of Law. The petitioner shall also render
assistance in cleaning the area of the said Samadhi and its
surroundings during the said period.
11. So far the payment of compensation amount of Rs.35,000/-
is concerned, the same would be released only after the petitioner
reports to the Secretary of the respondent committee everyday for a
period of one month w.e.f 29.3.2010 to comply with the above
w.p.(c ) No. 1059/2008 Page 10 of 11
direction and after the Secretary feels satisfied that the petitioner is
repentant for his actions.
In view of the above the petition stands disposed of.
March 26, 2010 KAILASH GAMBHIR,J
mg
w.p.(c ) No. 1059/2008 Page 11 of 11
W.P.(C) No. 1059/2008
Date of decision :26.3.2010
Kanhaiya Lal ... Petitioner
Through : Mr. R.K.Saini and
Mr. Tarun Sharma, Advs.
versus
Union of India & Ors. ..... Respondent
Through : Mr. Mukti Bodh for respondent no.3
with Secretary, RSC in person.
Mr. Sharad Chaturvedi for counsel
for respondent no.2.
CORAM
* HON'BLE MR.JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Kailash Gambhir, J. ( ORAL )
*
1. By this petition filed under Article 226/227 of the
w.p.(c ) No. 1059/2008 Page 1 of 11
Constitution of India, the petitioner seeks quashing of the award dated
30.11.2007 whereby the reference was answered against the
petitioner and in favour of the respondent committee.
2. Brief facts as set out by the petitioner relevant for
deciding the present petition are that the petitioner was working as a
Chowkidar with respondent no.3 Committee from January 1990 and
his services were terminated on 3.7.1999 without following the due
process of law. Consequently , an industrial dispute was raised by the
petitioner where vide order dated 30.10.2006 , the labour Court held
the reference bad in law as not having made by the appropriate
government u/s 2(a) of the I.D Act and therefore the petitioner
approached this court by filing a writ petition bearing no. W.P. (C) No.
18357/06. Entertaining the writ petition, this court set aside the
impugned award and remanded the matter back to the labour court
for an expeditious trial on merit. Thereafter vide order dated
30.11.2007, the labour court held the reference against the petitioner
on the ground that the respondent committee is not an “industry” u/s
2(j) of the I.D Act and the petitioner is not a “workman”. Feeling
aggrieved by the said order the petitioner has preferred the present
petition.
w.p.(c ) No. 1059/2008 Page 2 of 11
3 . Vide order dated 3.3.2010 both the parties were put to the
notice that serious view will be taken by this court if any of them is
found telling falsehood to the court and directions were also given for
the production of the relevant records of the respondent inclusive of
employees wage register, attendance register and salary register
w.e.f. 1990 till 1999. The petitioner throughout has been maintaining
the stand, in the statement of claim filed before the labour court, in
affidavit filed before the labour court and before this court as well,
claiming his appointment with respondent Rajghat Samadhi
Committee w.e.f. January 1990 and his illegal termination from the
post of Chowkidar w.e.f. July 1999 without due observance of any
process of law by the respondent. The respondent management on
the other hand has taken a consistent position that the petitioner
th
workman had joined the respondent w.e.f.18 May 1997 as a daily
wager and has not actually worked with the respondent management
for a period of 240 days preceding the date of his termination. In para
1 of the counter affidavit filed by the respondent, it has taken the
stand that the petitioner worked on the post of the Chowkidar since
September 1997 till July 1999. The respondent also seriously
disputed the applicability of the provisions of the Industrial Disputes
w.p.(c ) No. 1059/2008 Page 3 of 11
Act on the premise that the respondent management cannot be
treated as an industry as envisaged under Section 2(j) of the I.D. Act
as the respondent Rajghat Samadhi Committee is not engaged in any
commercial or industrial activities with any profit making objectives.
As per the respondent, it is an institution discharging governmental
and sovereign functions as enjoined upon the State under Article 49 of
the Constitution of India.
4. Today when this matter was taken up by this court, the
petitioner conceded that he was never in the employment of the
respondent before September, 1997. He also tenders his
unconditional apology for falsely claiming his employment with the
respondent w.e.f. January 1990. He further pleads for taking a lenient
view over his false claim. The respondent on the other hand, based on
the records, reiterates its stand that the petitioner was appointed as a
daily wager w.e.f September 1997 and worked intermittently till July
1999.
5. I have heard learned counsel for the parties at
considerable length and gone through the records produced by the
respondent in the court pursuant to the directions given by this court
vide order dated 3.3.2010. So far the finding of the learned Labour
w.p.(c ) No. 1059/2008 Page 4 of 11
Court is concerned, I find myself in agreement with the same that
the monument constructed in the fond remembrance of the Father of
the Nation, Mahatama Gandhi, cannot be termed as an “Industry” for
any profitable purposes but the same is like a shrine and the
Committee constituted under the Rajghat Samadhi Act 1951 to
administer and maintain the said Samadhi is not discharging any
kind of commercial or industrial activities. Hence, I do not find any
infirmity or perversity in the said finding of the labour Court. The
Statement of Objects and Reasons of the Samadhi Act 1951 clearly
state that the object of the Bill was to ensure proper maintenance,
preservation and administration of the Rajghat Samadhi, the Shrine
built in the memory of the Father of the Nation. It also states that the
Committee should do all things reasonable and necessary to ensure
that the Rajghat Samadhi is properly maintained, controlled and
administered and proper arrangements are made for the watch and
ward of the Samadhi and to organize and regulate periodical functions
at the Samadhi such as Friday Prayers and Gandhi Jayanti and to
control access to the Samadhi. Section 4 of the said Act describes the
composition of the Committee whereas, Section 5 defines powers and
duties of the Committee. These sections of the said Act are
reproduced as under:
w.p.(c ) No. 1059/2008 Page 5 of 11
“4. Composition of the Committee.-
(1) The Chairman shall consist of the following members,
namely:--
(a) The president of the municipal committee within the local
limits of whose jurisdiction the Samadhi is situated, ex-officio;
(b) Three officials nominated by the Central Government;
(c) Three non-officials nominated by the Central Government;
(d) Two members of Parliament nominated by the Speaker.
(2) The Central Government may appoint any person
referred to in sub-section (1) or any other person to be the
Chairman of the Committee, and if any other person is so
appointed, he shall be deemed to be a member of the Committee
within the meaning of sub-section (1).
(3) All persons nominated by the Central Government to be
members of the Committee shall hold office during the pleasure of
the Central Government.
5. Powers and duties of the Committee.
Subject to such rules as may be made under this Act,
the powers and duties of the committee shall be--
(a) To administer the affairs of the Samadhi and to keep
the Samadhi in proper order and in a state of good repair; (b) To
organise and regulate periodical functions at the Samadhi;
(c) To do such other things as may be incidental or conducive to
the efficient administration of the affairs of the Samadhi.”
As would be evident from the object and reasons of the said Act
coupled with the aforesaid provisions that the prime functions of the
said Committee are to organize and regulate periodical functions at
the Samadhi and to administer and conduct the affairs of Samadhi so
w.p.(c ) No. 1059/2008 Page 6 of 11
that the same is kept in proper order. There is no such activity which
can be called either “commercial” or “industrial” activity carried out
by the Members of the Committee in due discharge of their duties.
Hence, profit making is entirely out of question as the visits to the
Samadhi by each and every one are without any payment and open
to all.
6 . Looking into the nature of the activities being carried on
by the Members of the respondent Committee who ought to have been
entrusted with the job of carrying on the religious and spiritual duties
of prayers and periodical functions to spread the ideals of Mahatama
Gandhi cannot be construed as an activity of such a nature to attract
the „Triple Test‟ as laid down in Banglore Water Supply &
Sewerage Board Vs. A. Rajappa AIR 1978 SC 548 to bring the
respondent management within the ambit of the definition of
„Industry‟ under Section 2(j) of the I.D. Act. Counsel for the petitioner
has also not laid much stress to impinge the said findings of the
learned Labour Court, but in the alternative sought to impress upon
this court to invoke the extra ordinary powers of writ jurisdiction to
direct the respondent management to take the petitioner workman
back into the service from the date of his alleged termination.
7 . It is quite agonizing and antagonizing at the same time to
w.p.(c ) No. 1059/2008 Page 7 of 11
find that the petitioner who worked as a chowkidar for a period of
about two years to act as a sentinel of the Samadhi of the Father of
the Nation, who led us to achieve “Swaraj” sacrificing his life for the
cause of a free India without compromising his cherished ideals of
truthfulness, non-violence and peace could not emulate and imbibe
the said principles himself. The petitioner by taking a false stand of
claiming his employment with the respondent from the year 1990 till
1999 has not only committed an act of perjury with the court but in
fact has committed a greater sin with his own soul.
8 . The paradox which this court is now confronted with is
that the petitioner who was a chowkidar and was rendered
unemployed should be proceeded with for committing perjury or
should be pardoned following the much revered principles of
Mahatama Gandhi, as the petitioner was mercilessly turned out of
the employment by the respondent without following the due
process of law. Perusal of the records produced by the respondent
clearly shows that the petitioner had worked on the post of chowkidar
as a daily wager w.e.f. September, 1997 till 1999 and then suddenly
he was thrown out from the employment without any rhyme or
reason. Certainly the petitioner had worked for more than 240 days
in continuous service preceding the date of his termination and had
w.p.(c ) No. 1059/2008 Page 8 of 11
the establishment of the respondent committee been treated as an
industry, this court would have certainly granted either the relief of
reinstatement with back wages or some amount of compensation in
lieu thereof to the petitioner. But, now as this court has taken a view
that the provisions of I.D. Act would not be applicable to the instant
case, therefore, the relief of reinstatement with grant of back wages
would not be available to the petitioner. However, entertaining the
alternative prayer of the petitioner this court while exercising extra
ordinary jurisdiction directs the respondent to pay a sum of
Rs.35,000/- to compensate the petitioner for his illegal termination of
service without following the due process of law.
9 . Mahatma Gandhi, a man worshipped not only by this
country but by the world stood for his cannons of truth and non
violence even in the dark times of freedom struggle. He said:-
“Morality is the basis of things and truth is the substance of all
morality”
But it is this morality, which today, when the winds of materialism and
capitalism are blowing in our society, seems cast in a shadow of
despair. It is no doubt true that falsehood is easy and truth difficult,
but that does not entail that the virtue of truthfulness be worn like a
w.p.(c ) No. 1059/2008 Page 9 of 11
garment, worn and removed at our own will. It would not be wrong to
say that in the time of universal deceit today, speaking the truth
seems like a revolutionary act. The soil of this nation is soaked with
the blood, toil and principles of the Father of the Nation, and the
Samadhi is the repository of his great soul reminding us never to
forget the path of ideals he so painstakingly carved for us. The
petitioner by falsely deposing has not only failed this court but also all
that that great soul stood for.
10. Hence, taking a compassionate view, so far the conduct of
the petitioner of his audacity as he lied through his teeth, as an
exceptional case, this court would not recommend any action of
initiating perjury proceedings against him and would rather direct
the petitioner to offer his daily prayers for at least two hours for a
period of one month to seek atonement for committing the sin of
being untruthful to the Court of Law. The petitioner shall also render
assistance in cleaning the area of the said Samadhi and its
surroundings during the said period.
11. So far the payment of compensation amount of Rs.35,000/-
is concerned, the same would be released only after the petitioner
reports to the Secretary of the respondent committee everyday for a
period of one month w.e.f 29.3.2010 to comply with the above
w.p.(c ) No. 1059/2008 Page 10 of 11
direction and after the Secretary feels satisfied that the petitioner is
repentant for his actions.
In view of the above the petition stands disposed of.
March 26, 2010 KAILASH GAMBHIR,J
mg
w.p.(c ) No. 1059/2008 Page 11 of 11