Seth Motishaw Lalbaug Jain Charities v. Bombay General Employees’ Association

12. Our attention is invited to the decision of the Hon'ble of Bangalore Water Supply (supra) and in the case of Shri Gajanan Maharaj Sansthan, Shegaon, Buldhana (supra). Supreme Court in the case of State of U.P. vs. Jai Bir Singh reported in (2005) 5 SCC 1. Paragraph 46 of the Hon'ble Apex Court's decision records that the cases are placed before Hon'ble Chief Justice of India for constituting a suitable larger Bench for reconsideration of the judgment of Apex Court in the case of Bangalore Water Supply (supra). Be that as it may, presently the decision in Bangalore Water Supply (supra) holds the field and the same binds us.

13. In view of the judgment of the Hon'ble Apex Court in the case of Bangalore Water Supply (supra) and Shri Gajanan Maharaj Sansthan, Shegaon, Buldhana (supra), it is to be ascertained by this Court as to whether the Tribunal, upon analysing the pleadings, the evidence on record and after considering various contentions raised by the parties, has applied the appropriate tests indicated in the case of Bangalore Water Supply (supra) and in the case of Shri Gajanan Maharaj Sansthan, Shegaon, Buldhana (supra).

14. We are therefore of the opinion that the observations of the learned Single Judge of this Court (as his Lordship then was) that earlier two decisions rendered by the Learned Single Judges of this Court does not lay down the correct law is well founded. (emphasis added) Accordingly, the Petition is directed to be listed before the Single Judge for appropriate decision.

14. In Shri Gajanan Maharaj Sansthan (supra), the Apex Court referred to the tests laid down in Bangalore Water Supply & Sewerage Board in paragraph 3 of the judgment and thereafter remitted the matter to the Industrial Court for fresh consideration in accordance with law. The Apex Court held that the High Court had conducted enquiry into mere nature of activities carried out by the employees of the Trust and had not considered totality of matter. It would be katkam Page No. 8 of 25 apposite to reproduce paragraphs 3, 4 and 5 of the judgment in Shri Gajanan Maharaj Sansthan (supra) which read thus:

3. The Tribunal did not analyse either the pleadings or the evidence adduced except to narrate the various contentions raised by the parties in passing the award. The High Court, though adverted to the various contentions raised before it and the evidence adduced before the Industrial Tribunal, lost sight of the observation made by this Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213: 1978 SCC (L&S) 215] to the following effect: (SCC pp. 269-70, para 110) “If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is headed by one who wholeheartedly dedicates himself for the mission and pursues it with passion, attracts others into the institution, not for wages but for sharing in the cause and its fulfilment, then the undertaking is not ‘industrial’. Not that the presence of charitable impulse extricates the institution from the definition in Section 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the like. Supposing there is an ashram or order with a guru or other head. Let us further assume that there is a band of disciples, devotees or priestly subordinates in the order, gathered together for prayers, ascetic practices, bhajans, meditation and worship. Supposing further, that outsiders are also invited daily or occasionally, to share in the spiritual proceedings. And, let us assume that all the inmates of the ashram and members of the order, invitees, guests and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning, the bed-making and service, may often be done, at least substantially by the ashramites themselves. They may chant in spiritual ecstasy even as material goods and services are made and served. They may affectionately look after the guests, and, all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace. It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be that they take some small pocket money from the donations or takings of the institution. Nay more; there may be a few scavengers and servants, a parttime auditor or accountant employed on wages. If the substantial number of participants in making available goods and services, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wageless sishyas, it is impossible to designate the institution as an katkam Page No. 9 of 25 industry, notwithstanding a marginal few who are employed on a regular basis for hire. The reason is that in the crucial, substantial and substantive aspects of institutional life the nature of the relations between the participants is non-industrial. Perhaps, when Mahatma Gandhi lived in Sabarmati, Aurobindo had his hallowed silence in Pondicherry, the inmates belonged to this chastened brand. Even now, in many foundations, centres, monasteries, holy orders and ashrams in the East and in the West, spiritual fascination pulls men and women into the precincts and they work tirelessly for the maharishi or yogi or swamiji and are not wage-earners in any sense of the term. Such people are not workmen and such institutions are not industries despite some menials and some professionals in a vast complex being hired. We must look at the predominant character of the institution and the nature of the relations resulting in the production of goods and services. Stray wage-earning employees do not shape the soul of an institution into an industry.”

4. The appropriate tests to be adopted are indicated in the aforesaid passage extracted from Rajappa case [(1978) 2 SCC 213: 1978 SCC (L&S) 215]. The High Court has not adverted to this aspect of the matter at all. What it has done is to find out the nature and activities carried on by the employees of the appellant and not the totality of the matter as indicated by the Court.

5. In the circumstances, we have no option but to set aside the order made by the High Court and quash the award and remit the matter to the Industrial Tribunal for fresh consideration in accordance with law. However, inasmuch as the appellant has already given effect to the award made by the Tribunal as affirmed by the High Court, the status as to emoluments shall continue until disposal of the matter by the Industrial Tribunal and subject to its award that may be passed.

15. Thus, as held by the Apex Court in Shri Gajanan Maharaj Sansthan (supra) status of a public charitable trust as industry cannot be decided merely on the basis of the nature of activities carried out by employees and it is necessary to apply all the tests prescribed by the Constitution Bench judgment in Bangalore Water Supply & Sewerage Board (supra).

16. It would therefore be necessary to consider the exact tests which need to be applied for deciding status of a public charitable trust as an katkam Page No. 10 of 25 industry. The Apex Court has considered the issue of status of charitable institutions as industries in paragraphs 102 to 111 of the judgment. The Apex Court has divided charitable institutions into three broad categories in paragraph 104 of the judgment as under:

104. The first is one where the enterprise, like any other, yields profits but they are siphoned off for altruistic objects. The second is one where the institution makes no profit but hires the services of employees as in other like businesses but the goods and services, which are the output, are made available, at low or no cost, to the indigent needy who are priced out of the market. The third is where the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry? (emphasis added)

17. The Apex Court dealt with the first category of charitable institutions by holding in paragraph 106 as under:

106. It is common ground that the first category of charities is disqualified for exemption. If a business is run for production and or supply of goods and services with an eye on profit, it is plainly an industry. The fact that the whole or substantial part of the profits so earned is diverted for purely charitable purposes does not affect the nature of the economic activity which involves the cooperation of employer and employee and results in the production of goods and services. The workers are not concerned about the destination of the profits. They work and receive wages. They are treated like any other workmen in any like industry. All the features of an industry, as spelt out from the definition by the decisions of this Court, are fully present in these charitable businesses. In short, they are industries. The application of the income for philanthropic purposes, instead of filling private coffers, makes no difference either to the employees or to the character of the activities. Good Samaritans can be clever industrialists.

18. So far as the economic activities and occupations of an altruistic character falling in the third category, the Apex Court held in paragraphs 109 and 110 as under: katkam Page No. 11 of 25

109. We now move on to economic activities and occupations of an altruistic character falling under the third category.

110. The heart of trade or business or analogous activity is organisation with an eye on competitive efficiency, by hiring employees, systematising processes, producing goods and services needed by the community and obtaining money's worth of work from employees. If such be the nature of operations and employer-employee relations which make an enterprise an industry, the motivation of the employer in the final disposal of products or profits is immaterial. Indeed, the activity is patterned on a commercial basis, judged by what other similar undertakings and commercial adventures do. To qualify for exemption from the definition of “industry” in a case where there are employers and employees and systematic activities and production of goods and services, we need a totally different orientation, organisation and method which will stamp on the enterprise the imprint of commerciality. Special emphasis, in such cases, must be placed on the central fact of employer-employee relations. If a philanthropic devotion is the basis for the charitable foundation or establishment, the institution is headed by one who whole-heartedly dedicates himself for the mission and pursues it with passion, attracts others into the institution, not for wages but for sharing in the cause and its fulfilment, then the undertaking is not “industrial”. Not that the presence of charitable impulse extricates the institution from the definition in Section 2(j) but that there is no economic relationship such as is found in trade or business between the head who employs and the others who emotively flock to render service. In one sense, there are no employers and employees but crusaders all. In another sense, there is no wage basis for the employment but voluntary participation in the production, inspired by lofty ideals and unmindful of remuneration, service conditions and the like. Supposing there is an Ashram or Order with a guru or other head. Let us further assume that there is a band of disciples, devotees or priestly subordinates in the Order, gathered together for prayers, ascetic practices, bhajans, meditation and worship. Supposing, further, that outsiders are also invited daily or occasionally, to share in the spiritual proceedings. And, let us assume that all the inmates of the Ashram and members of the Order, invitees, guests and other outside participants are fed, accommodated and looked after by the institution. In such a case, as often happens, the cooking and the cleaning, the bed-making and service, may often be done, at least substantially by the Ashramites themselves. They may chant in spiritual ecstasy even as material goods and services are made and served. They may affectionately look after the guests, and, all this they may do, not for wages but for the chance to propitiate the Master, work selflessly and acquire spiritual grace. It may well be that they may have surrendered their lucrative employment to come into the holy institution. It may also be that they take some small pocket money from the donations or takings of the katkam Page No. 12 of 25 institution. Nay more; there may be a few scavengers and servants, a parttime auditor or accountant employed on wages. If the substantial number of participants in making available goods and services, if the substantive nature of the work, as distinguished from trivial items, is rendered by voluntary wage-less sishyas, it is impossible to designate the institution as an industry, notwithstanding a marginal few who are employed on a regular basis for hire. The reason is that in the crucial, substantial and substantive aspects of institutional life the nature of the relations between the participants is non-industrial. Perhaps, when Mahatma Gandhi lived in Sabarmati, Aurobindo had his hallowed silence in Pondicherry, the inmates belonged to this chastened brand. Even now, in many foundations, centres, monasteries, holy orders and Ashrams in the East and in the West, spiritual fascination pulls men and women into the precincts and they work tirelessly for the Maharishi or Yogi or Swamiji and are not wage-earners in any sense of the term. Such people are not workmen and such institutions are not industries despite some menials and some professionals in a vast complex being hired. We must look at the predominant character of the institution and the nature of the relations resulting in the production of goods and services. Stray wage-earning employees do not shape the soul of an institution into an industry.

19. The Apex Court thereafter referred to the judgment in D.N. Banerji vs P.R. Mukherjee and Ors.8, and has discussed the triple test in paragraph 140 as under:

140. “Industry', as defined in Section 2(j) and explained in Banerji, 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 organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.” 8 1953 SCR 302 katkam Page No. 13 of 25

20. The Constitution Bench then prescribed the dominant nature test in paragraph 143 as under:

143. The dominant nature test: “(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not ‘workmen’ as in the University of Delhi case [University of Delhi v. Ramlfath, (1964) 2 SCR 703: AIR 1963 SC 1873: (1963) 2 Lab LJ 335] or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur will be the true test. The whole undertaking will be ‘industry’ although those who are not ‘workmen’ by definition may not benefit by the status. (b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by government or statutory bodies.

(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).

(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.”

21. Before proceeding further, it must be observed that in State of Uttar Pradesh vs Jai Bir Singh[9], a reference has been made to the Larger Bench for reconsideration of judgment in Bangalore Water Supply & Sewerage Board. However, decision of the said reference is still awaited. The Division Bench was made aware of pendency of such reference and it has held in the order dated 12 December 2018 that at present, the decision in Bangalore Water Supply & Sewerage Board would bind this Court. Accordingly, I proceed to apply the tests laid down in Bangalore Water Supply & Sewerage Board to examine whether the Petitioner can be treated as an industry.

22. The Petitioner-Trust is established in the year 1925 and is registered as a Public Trust under the provisions of the Maharashtra Public Trusts Act, 1950. According to Petitioner-Trust, following are the objectives of the Trust.

(i) To receive donations and gifts either in money or in kind form general public either by public subscription or by private gifts as per usage of Swetambar Murtipujak Jain Religion;

(ii) To utilise Dev-Dravya in making donations for the repair and building of Jain Swetambar Temples; and

(iii) To receive and spend monies for religious and charitable purposes as per customs and usages of Swetambar Murtipujak Jain Religion.

23. According to the Petitioner, the Trust is established for religious and spiritual purposes. On the other hand, it was the case of the Respondent-Union that the Trust owns a large number of movable and immovable properties in Mumbai and had employed about 35 employees including watchman, cleaners, sweepers, poojaries, clerical staff, cashiers etc. According to Respondent-Union, the Trust owns a dharamshala at 212-L Panjrapole Street, Mumbai, and a Jain Temple at 212-L Panjrapole Street, Mumbai. In the said properties, there are 70 residential rooms and 15 shops. There are also additional 50 rooms in the dharamshala. The Trust also has large hall. The Trust gives not only the hall but also furniture and utensils on rent. It would be apposite to reproduce the pleadings in the complaint in this regard:

2. The Union states that Seth Motishaw Lalbaug Jain Charities, Bombay is a very old Trust and the registered office is situated at 212-L, Panjarapole Street, Bombay 400 004. It own several immovable properties which are let out on rent and earns large income. It has immovable properties at 109/117, C.P. Tank Road, Bombay-400004, a Dharamshala at 212, L, Panjarapole Street, Bombay and also a Jain Temple at 212-L, Panjarapole Street, Bombay. In the said properties there are about 70 residential rooms arid 15 shops which are rented out to outsiders on rent. The Trust has Dharamshala building at 212-L, Panjarapole Street, with about 50 rooms katkam Page No. 15 of 25 which are let out on daily charges and also a big hall which provides dormitary type of accommodation, and fees are charged on daily basis by the Trust. The Hall, furniture, utensils are hired out for purpose of marriage, dinners, etc. on substantial fees and charges. It has also a Wadi at 107/117, which is let out on hire for marriages, meetings, and there are theee halls which also also let out on hire for similar purposes. They are also let out on hire at time of elections as polling booths. In the Wadi, the Trust lets out furnitures, according to the quality and quantity of utensils hired. It has also let out a huge building consisting of 4 stories on substantial rent or license fees which are renewed from time to time to Jain Udyog Griha which uses the premises for carrying on its activities of making food articles etc. The Trust also sells large quantities of rice, almond, saffron, sandlewood, incase sticks, gold or silver varakh, etc. at substantial prices to outsiders regularly. Large amounts by way of pugree are collected when tenancies of tooms and shops are transferred, and credited in Bhandar or by way of donations received in different names. It has also a temple at 212-L, Panjarapole for prayers. For all the above purposes of renting, hiring out moveable and immoveable properties and looking after the same for collecting rents, other charges for letting out halls, furniture, utensils, etc. the Trust employs about 12 watchman. 12 cleaners, peons, etc. 7 Punjaris, 4 sweepers and some members of clerical staff and cashiers. The watchmen are employed for collecting rent from the tenants and hirers of properties of the Trust whether on monthly or daily basis for keeping the account of the moveable properties such as utensils, furnitures, etc. and for looking after the said properties. Similarly, cleaners, sweepers, peons, clerical staff etc. are also employed for the various purposes connected with the activities of the Trust. The activities of the Trust are of regular systematic and permanent nature and are carried on like trade or businees and are analogus to trade of business. Punjaris are engaged for preparing puja and worship of the duties, and activities connected therewith. The Trust is a very old and well established and prosperous Trust and earn large income from the properties owned by it and from other sources also. The Trust maintains and income and expenditure under various heads like 1) The Big Lal Baug, 2) The Small Lal Baug, 3) the Temple etc. Expenses of the management including salaries of the staff are divided and debited to these accounts. Trusts also receives donations from the people. Trust invests the funds in various securities and earn interest, dividends, etc. The workmen concerned in the present dispute have put in long years of service varying from temporary to those with 35 years' service or more but are extremely poorly paid. There are no settlements and awards in respect of the terms and conditions of service of the workmen concerned in this dispute.

24. The Petitioner-Trust did not dispute the fact that it owns number of properties. It is also not disputed that some of the properties including shops are given on rent. It is however contended before me that the rooms in dharamshala are let out to Jain Sadhus and Munees katkam Page No. 16 of 25 on extremely nominal rent when they visit Mumbai city and the object is not to earn profit. It is also contended that letting out some of the properties including shops is again at a very nominal rent and that the entire income received through such rent is ultimately applied to the religious activities.

25. I have gone through the pleadings and evidence on record. The witness of the Respondent-Union in his deposition led evidence of ownership of 52 tenements in one building, 7 tenements in the second building and 15 tenements in the third building by the Trust. The witness deposed that all those tenements were let out on rent. The witness further deposed that there is an additional fourth building which was completely rented out to one tenant. The witness further deposed that all the tenants are not Jain. The witness further deposed that for letting out rooms in dharamshala, the Trust used to charge Rs.10/- plus Re.1/- service charge. The witness further deposed that the Trust used to charge for lockers in the dharamshala at the rate of Re.1/- per day and Rs.2/- per mattress per passenger per day. The witness further deposed that the Hall was let out for marriage purposes even to outsiders (non-Jains). He also gave account of the rentals charged by the Petitioner-Trust for furniture and utensils. The witness gave evidence that he used to collect rent in respect of shops and tenements by issuing receipts. The witness also gave evidence about sale of coconuts offered by the devotees as well as sale of rice and other items during bhandara. The witness was subjected to detailed crossexamination. However, in the cross-examination, there is no damage in deposition with regard to the activities of the Trust in letting out large number of premises. katkam Page No. 17 of 25

26. I have also gone through the evidence of Mr. Vinod Purushottamdas Shah examined on behalf of the Trust. During his cross-examination, he admitted that 52 rooms in dharamshala were being let out even to travelers on daily basis. He also admitted letting out of hall for non-religious purposes.

27. The learned counsel appearing for parties have also taken me through the balance-sheets of the Petitioner-Trust which show substantial income generated through dharamshala and rent. The income earned through dharamshala and rent exceed Rs.3,00,000 in some of the years. This amount is in respect of the year 1990, when Rs. 3,00,000 used to be a sizeable sum.

28. Thus, though the Petitioner-Trust has claimed that it is set up purely for religious purposes, the evidence on record thus suggests that it earns large income through renting out of properties and other movables. In my view therefore, the Trust would fall into the first out of the three categories dealt with by the Apex Court in paragraph 104 of Bangalore Water Supply and Sewerage Board (supra). The Petitioner-Trust thus earns profits, but utilizes them for altruistic objectives. The Apex Court has held that if a business is run for production or supply of goods and services with an eye of profit, it is plainly an industry and mere utilization of substantial part of the profits for charitable purpose would not affect the nature of economic activity. In the present case also, the 35 employees employed were not concerned with the objects of the trust. They were working like any other workmen in an industry. They were not mere volunteers rendering philanthropic duties. They worked for salary and wages. katkam Page No. 18 of 25

29. As held by the Constitution Bench in Bangalore Water Supply and Sewerage Board, an enquiry needs to be conducted as to whether persons engaged by the Trust to perform its various activities are mere volunteers or like any other employees, who work for gain without having any concern with the religious or charitable activities of the Trust. Before conducting such enquiry, it must be borne in mind that every religious, spiritual or charitable organization is likely to have volunteers. If volunteers perform majority of activities of the Trust and very few servants or an auditor or an accountant are/is employed on wages, the predominant character of the institution would not be that of an industry. On the other hand, if substantial portion of activities of a charitable organization are carried out through employees and only some of the activities are carried out through volunteers, the activity carried out through employees would assume the characteristic of an industry. Therefore, predominant character of the institution and nature of relations between trust and the persons working for the trust towards production of goods and services is the real test. If the goods or services produced at the behest of charitable organization are through mere volunteers, mere presence of few wage-earning employees would not change the soul of the institution into an industry as held in Bangalore Water Supply and Sewerage Board (supra).

30. Thus, in order to dissociate itself from being treated as an industry, the Petitioner-Trust must establish that the 35 workers it used to engage at relevant point of time were only marginal employees to look after minimal matters of the Trust without destroying nonindustry character thereof. It is contended on behalf of the Trust that the main spiritual and religious activities of the Trust are carried katkam Page No. 19 of 25 through the volunteers. Evidence of CW[3] is strenuously pressed into service to buttress the contention that atleast 50 to 100 volunteers perform the activities of the Trust. Evidence of CW[3] is also relied upon to demonstrate that 50 to 100 volunteers worked when the bhandara is opened and that therefore, “most of the work” in Petitioner-Trust is done by volunteers who are committed to same cause as that of the Petitioner-Trust. It is contended that “most of the temple work” is done by devotees and not by paid staff. It is therefore contended that the Petitioner-Trust squarely fits into the third category identified by the Constitution Bench in Bangalore Water Supply and Sewerage Board. It is also contended that engagement of workers is only towards necessity and that necessity cannot be confused with an activity. What is necessary to be performed as incidental acts through employees does not mean that those acts become activity of the Trust.

31. However, if the totality of evidence is taken into consideration, it is seen that though the religious, spiritual or temple activities may be performed by Petitioner-Trust mainly through devotees/volunteers, there is another systematic activity perennially undertaken by the Trust of managing its properties. Even if the activity of renting properties is treated as analogous and not the main activity of the Trust, the heart of such analogous activity is with an eye on competitive efficiency, by hiring employees, systematising the process, and obtaining money's worth of work from employees. There is no iota of evidence that any of the volunteers look after the activity of management of properties. If one looks at the predominant character of the Trust and the nature of its relations with the employees in producing the services of managing its properties and renting them out, it is clear that what the Trust katkam Page No. 20 of 25 carries out is a systematic activity and its employees are not stray wage-earners. They do shape the soul of the Trust into an industry.

32. The properties of the Trust are so vast that it cannot be contended that what is performed by the Petitioner-Trust towards management of those properties is looking after mere minimal matters. If Petitioner-Trust only had a temple, and spiritual and religious activities in the temple were being managed by non-workers or volunteers, and few sweepers, watchmen, accountant, etc. were engaged to perform minimal acts or necessary acts, the activity of the Trust would continue to be that of spiritual and charitable nature not attracting the status as industry. However, in the present case, the 35 workers were not engaged by Petitioner-Trust for looking after the minimal matters of the temple. The said employees looked after systematic activity of management of properties by the Trust and this activity was admittedly not looked out by any of the volunteers. The activity of the management of its vast properties would definitely assume a character of industry notwithstanding the fact that the Petitioner is registered as a charitable Trust.

33. It is strenuously contended by Mr. Sharma that income generated through the Trust properties are not profits and that minimal amounts were charged for utilization of dharamshala rooms or marriage hall or utensils. However, as held by the Apex Court in paragraph 140 of the Bangalore Water Supply and Sewerage Board (supra), mere absence of profit motive or gainful object is irrelevant even in respect of a charitable organization. The true focus needs to be on function and the decisive test is the nature of activity with special emphasis on “employer-employee relations”. If the organization is a katkam Page No. 21 of 25 trade or business, it does not cease to be one because of philanthropic activities. In my view therefore, mere absence of profit motive would not take out Petitioner-Trust out of its status as industry. If the true functional test is applied together with decisive test of nature of activity by giving special emphasis to employer-employee relations, the inescapable conclusion that emerges is that the Petitioner is an industry in relation to its activity of managing its vast properties.

34. It cannot be contended by any stretch of imagination that spiritual and religious activity is the only activity or substantial part of activity of Petitioner and that the other activity of managing properties is just an incident or minimal activity. To illustrate, if a charitable trust is formed in respect of a temple, which has couple of rooms inside the temple, and the Trust manages those rooms by engaging sweepers or cleaners to clean those rooms and also permits the rooms to be used for residence by devotees on payment of nominal amounts, the activity of managing those couple of rooms would not constitute a systematic activity of the Trust or a major function performed by it. In such case, it becomes just a necessary and minimal act while not affecting the overarching spiritual, religious and philanthropic activity of the Trust. In the present case, this is not the position. Petitioner-Trust owns and manages vast properties comprising of dharamshala with several rooms, buildings with several halls, marriage hall etc. All of them are let out for reward. The magnitude of property is so large that deployment of staff becomes necessary. The relation between the Trust and the staff so employed has nothing to do with religious or spiritual activity of the Trust. The staff members do not work because they share the religious or spiritual spirit of the Trust. The staff so employed work purely for reward of monthly wages. They have nothing to do katkam Page No. 22 of 25 with the objects of the Trust. They are treated in the present case as pure employees. Thus, if the decisive test of nature of activity, with emphasis of employer-employee relation, is applied, the activity of the Petitioner-Trust needs to be treated as industry.

35. In my view therefore, the Petitioner-Trust would satisfy the first category of charitable institution discussed in paragraph 104 of the judgment in Bangalore Water Supply & Sewerage Board (supra).

36. Mr. Sharma has strenuously contended that mere earning of rent from immovable properties would not convert activity under Trust as an industry. He has strenuously relied on judgment of Madras High Court in the Management of K.R.M. Estate, Thanjavur (supra). In the case before the learned Single Judge of the Madras High Court, the appointment of the workmen therein was found to be stray who was hired for collecting lease from the tenants for carrying out objects of the Trust. The Trust itself was set up with the objective of management of the properties. In the facts of that case, the Madras High Court held that the activity was not commercial or for-profit motive. In the present case however, there are large scale employees hired by Petitioner for wages for carrying out its systematic activity of managing its vast properties.

37. Mr. Sharma has also relied upon judgment of learned Single Judge of Allahabad High Court in Radhasoami Satsang Sabha (supra). In that case, the Petitioner therein was a agricultural farm which was set up with the objective of religious purposes. However in that case, the High Court has merely remanded proceedings for fresh decision on the issue of industry. katkam Page No. 23 of 25

38. Perusal of the impugned judgment and order of the Industrial Tribunal would indicate that it has taken into consideration the activity of letting out the properties by the Trust including shops, godowns, marriage hall. The Court took into consideration that one of the buildings was let out to a Jain Bhojanalay, Jain Clinic and Library. That there were about 100 tenants of the Petitioner-Trust. The employment of the employees was essentially to look after the affairs of those properties. The Industrial Court went into the balance-sheets and statements of accounts, which also indicates that the activity of sale of some of the articles such as fruits, sweets, etc to outsiders. The Court took note of auction of some of the articles conducted by the Petitioner-Trust. The Court noted that the activities were of continuous nature and for execution of those activities, the employees were engaged. The Court noted that the watchmen were employed for protecting the properties of the Trust, who were also performing the activity of rent collection. The sweepers were found to be employed for ensuring cleanliness in the properties, which are let out.

39. Thus, the case involves employment of workers not for carrying out religious activities of the Trust, but to assist it in the systematic activities of renting out large number of properties in the city of Mumbai. Therefore, applying the tests in Bangalore Water Supply & Sewerage Board (supra), it is difficult to hold that the workmen employed by the Petitioner-Trust shared passion for the cause or made any contributions to the objects of the Trust. They are employees like that of any other industry. In my view therefore, no interference is warranted in the findings recorded by the Industrial Tribunal with regard to status of Petitioner-Trust as an industry. katkam Page No. 24 of 25

40. Nothing is argued before me so far as merits of the claims/ demands sanctioned by the Industrial Tribunal are concerned. The only issue urged before me on behalf of the Petitioner-Trust is with regard to the status of the Trust as industry. Since the said issue is decided against the Petitioner-Trust, the Writ Petition will have to be necessarily dismissed.

41. This Court places on records appreciation for valuable assistance rendered by the Amicus Curiae Mr. Arshad Shaikh and Ms. Neeta Karnik.

42. Accordingly, the Petition is dismissed without any order as to costs. (SANDEEP V. MARNE, J.) katkam Page No. 25 of 25