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Judgment
J.M. Malik, J.—Petitioner''s case pivots around the questions whether he is a `workman'' within the meaning of Section 2(s) of Industrial Disputes Act, 1947 and respondent/management is an `industry'' as per Section 2(j) of the Industrial Disputes Act. Having lost the case before the Labour Court the petitioner has approached this Court with the prayer that the petitioner be ordered to be reinstated with continuity of his previous service with full back wages and Ors. allied benefits.
M/s Sharan Society for S.T.U.P., respondent in this case, is an organisation registered as Non-Government Organisation (in short NGO). The petitioner was appointed as ''Project Supervisor'' in Barakhamba Project w.e.f. 17.06.1996 vide appointment letter dated 24.07.1996. The last drawn wages of the petitioner were Rs. 4,500/- per month. The petitioner vide his letter dated 09.06.1998 demanded Provident Fund membership and requested the respondent/management to regularise his services. The above said actions infuriated the respondent it withheld his salary from July 1999 to Sept 1999 and terminated his services on 30.09.1999 illegally and in violation of Section 25F of Industrial Disputes Act, 1947.
I have heard the counsel for the petitioner at the admission stage. The learned Counsel drew my attention towards an authority reported in Management of Dandakaranya Project, Koreput Vs. Workmen through Rehabilitation Employees Union and other, , wherein, it was held :
Mr. V.R. Reddy, learned Additional Solicitor General appearing for the appellant contends that the rehabilitation project undertaken by the Government of India to rehabilitate the refugees from Pakistan was in discharge of the sovereign function of the Government and, Therefore, cannot be held to be an industry and consequently neither the reference was competent nor the Tribunal had any jurisdiction to examine the demands raised by the employees union. Having examined the aforesaid contention of Mr. Reddy, learned Additional Solicitor General and having scrutinised the materials on record and the nature of duties discharged by the workers and in view of the decision of this Court in Bangalore Water Supply case it is difficult for us to accept the contention raised by learned Additional Solicitor General. Bearing in mind the dominant nature of the activities of the project and the nature of duties discharged by the workers in the project we are of the considered opinion that the Dandakaranya Project is an industry within the meaning of Section 2(j) of the Industrial Disputes Act and the conclusion of the Tribunal in this respect is unassailable.
Parallels cannot be drawn between the facts of this case and the facts of the above said authority. A NGO cannot be equated with Dandakaranya Project.
The indisputable facts of this case are as follows. Respondent society is an NGO social welfare organisation. Affidavit filed by Sh. Rajiv Shaw, a witness of the management goes to show that the respondent / management is engaged in social service and propagating awareness and providing counseling service to HIV / AIDS infected. Again, the respondent/NGO is engaged in rehabilitation of drug addicts and to provide services for educating slum children, medical facilities to commercial sex workers. Moreover, funds are generated through donations from foreign NGOS'' etc. and it is a non-profitable institution. Respondent/NGO is not earning any profits and the funds generated in his favor are purely spent on charitable and for rehabilitation purposes.
Moreover, the petitioner in his cross-examination has not picked up a conflict with the above detailed facts. He has also admitted that management is not engaged in any technical manufacturing activities and the management is a non-profitable institution and it is engaged in rehabilitation and charitable purposes. He has also admitted that functioning of the management is based on the funds received from foreign NGOS''. The petitioner has also admitted that the management does not earn any money or benefit from any work.
In the light of the above said evidence, by no stretch of imagination it can be held that the respondent is an `industry'' within the meaning of Section 2(j) of the Industrial Disputes Act.
I see no flaw in the award passed by the learned Labour Court. He has cited a number of authorities reported in Shakuntla v. Tamanna Special School 2006 (V) AD (Del) 396, Physical Research Laborator v. K.G. Sharma 1997 LLR 401, Project Director, District Literacy Samiti v. Ms. Mamta Shrivastava and Anr. 2005 LLR 995. All these above said authorities go to support the case of the respondent/NGO.
However, the first authority of this High Court neatly dovetails with the facts of this case. In Shakuntla v. Tamanna Special School, (supra), the petitioner was engaged as Helper with job of cleaning. Respondent/NGO was running a Balwadi Project for children. Respondent contended that it was running project on purely paid contribution received from public and by notional payments by parents of slum children. The petitioner was aware of nature of project when he joined. This Court held that from nature of its activities project falls clearly within the exception carved out in Supreme Court judgment of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, . It was further held that nature of activities performed by respondent are clearly distinguishable and source of funding is from sheer charity. Therefore, project cannot possibly be termed as ''industry''.
Moreover, the petitioner has failed to prove that he was a ''workman'' within the meaning of ID Act. First of all, he has failed to prove the alleged appointment letter Ex. WW1/1. He did not produce Mr. Luke Samson, who had affixed his signatures on this letter. The argument raised by the respondent / management before the Labour Court that this is a forged document assumes importance. The said letter shows that the complainant was appointed as ''Project Supervisor'' and his salary was more than Rs. 4,000/-. His case is hit by Section 2(s)(iv) of Industrial Disputes Act.
It is also worth to mention here that it is the workman, who is to carry the ball in proving that he is workman in terms of Section 2(s) of I.D. Act, 1947. This was so held in Surendranagar District Panchayat Vs. Dahyabhai Amarsinh, .
I also came across few authorities, which go to embolden the case of the respondent. In Coir Board, Ernakulam, Cochin and Another Vs. Indira Devi P.S. and Others, , it was held :
...Voluntary welfare organisations organized activities like preparation of spices, masalas, pickles or they would secure small orders from industries for poor women. A small number of persons were employed to assist in the activities. The income earned by these activities was distributed to the women who were given such work. Other voluntary organisations organized tailoring or embroidery classes or similar activities for poor women and provided an outlet for the sale of the work produced by them. These persons would otherwise have found it impossible to secure a market for their products. Such organisations are not organized like industries and they do not have the means or manpower to run them as industries. A large number of such voluntary welfare schemes have had to be abandoned because of the wide interpretation given to the term industry.
Apart from such activities, there may be other activities also which are undertaken in the spirit of community service, such as charitable hospitals where free medical services and free medicines may be provided. Such activities may be sustained by free services, given by professional men and women and by donations. Sometimes such activities may be sustained by using the profits in the paid section of that activity for providing free services in the free section. Doctors who work in these hospitals may work for no returns or sometimes for very nominal fees. Fortunately, philanthropic instinct is far from extinct. Can such philanthropic organisations be called industries? The definition needs re-examination so that, while the workers in an industry have the benefit of industrial legislation, the community as such is not deprived of philanthropic and Ors. vital services which contribute so much to its well-being. Educational services and the work done by teachers in educational institutions, research organisations, professional activities, or recreational activities, amateur sports, promotion of arts - fine arts and performing arts, promoting crafts and special skills, all these and many other similar activities also require to be considered in this context.
Similar view was taken in authorities reported in Shri Gajanan Maharaj Sanathan Vs. Shri Gajanan Karamchari Sangh and Another, and State of U.P. and Others Vs. Arun Kumar Singh, .
In the light of the above discussion, I find that petition is without merit. The same is, Therefore, dismissed in liming.