indian law report - allahabad series - sep-oct2006

8/13/2019 Indian Law Report - Allahabad Series - Sep-Oct2006

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3 All] Rajendra alias Rajjo V. State of U.P. 955

APPELLATE JURISDICTIONCRIMINAL SIDE

DATED: ALLAHABAD 09.05.2006

BEFORETHE HONBLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 3356 of2006

Rajendra alias Rajjo ...Applicant (In Jail) Versus

State of U.P. ...Opposite Party

Counsel for the Applicant:Sri K.K. DwivediSri S.P.S. Raghav

Counsel for the Opposite Party:Sri M.L. Jain

A.G.A.

Code of Criminal Procedure-439-Bail Application-offence under section 302read with SC/ST Act-Section 3 (ii) (V)-deceased a poor S.C. boy age 16 years-

murder by way of strangulation-deadbody hanged to give colour of suicide-the occurrence witnessed by the sister ofdeceased Km. Laxmi and Sonu theirstatement recorded by I.O. supportedthe prosecution story-bluntly murderedonly because the deceased refused to cutthe varseen-prosecution story fullycorroborated by medical evidence-held-not to be released on bail.

Held: Para 5

It is opposed by the learned A.G.A. andthe learned counsel for the complainantby submitting that the applicant is mainaccused. He has committed the murderof the deceased. The manner in whichthe deceased was murdered shows ahigh handedness of the applicantbecause all the sisters of the deceasedwere confined in a room. Thereafter, themurder was committed by way ofstrangulation and dead body of thedeceased was hanged to give a

impression that the deceased himselfcommitted the suicide. The allegedoccurrence was witnesses by the sistersof the deceased. The statements of theKm. Laxmi and Sonu have been recordedby the I.O. They have fully supported theprosecution story. The applicant hasconfessed before the police and at hispointing out the rope used in thecommission of the alleged offence wasrecovered. The deceased was poorperson belonged to a scheduled cast. Hewas aged about 16 years. He has nottaken any loan from the applicant. He

was bruetly murdered only because hehas refused to cut the varseem of theapplicant. The prosecution story is fullycorroborated by medical evidence. Thedeceased has received anti morteminjuries and the cause of death wasstrangulation. In such circumstances theapplicant may not be released on bail.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application is filed by theapplicant Rajendra alias Rajjo with a

prayer that he may be released on bail incase crime no. 8 of 2006, under Section302 I.P.C. and Sections 3(ii)(v) of theS.C./S.T.(P.A. Act, P.S. Dauki, DistrictAgra.

2. The prosecution story, in brief, isthat in the present case the F.I.R. has beenlodged by Mahesh Chandra at P.S. Dauki,district Agra on 7.1.2006 at 9.10 p.m. inrespect of the incident which had occurredon 7.1.2006 at about 7.045 p.m. Thedistance of the police station was about 1km from the place of occurrence. TheF.I.R. was lodged only against theapplicant. It is alleged that the deceasedAnil was asked by the applicant to cut thevarseem of his field, but the deceasedrefused, therefore, he was beaten by theapplicant by kicks and fists prior thealleged occurrence. Thereafter, on


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956 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

7.1.2006 at about 7.45 p.m. the applicantentered into the house of the firstinformant. The sisters of the firstinformant were confined in a room andclosed from outside and they wereextended threat for not making hue andcry. Thereafter, the applicant strangulatedthe neck of the deceased by rope who wassleeping in front of the room where hissisters were confined. After committinghis murder he was hanged in a hook. Thealleged occurrence was witnessed by the

sisters of the first informant namelyLaxmi and Sonu from the window andside of the door. At the said time the firstinformant and his brother Munna alsocame there, but the applicant by pushingthem ran away from the place ofoccurrence. The dead body of thedeceased in hanging condition was foundinside the room by the first informant andother. The dead body was taken down andthe room of the sisters was open. Theyalso came out from the room and narrated

the whole story. The first informant wentto the police station along with the dead body of the deceased and lodged theF.I.R.

3. Heard Sri S.P.S. Raghav and SriK.K. Dwivedi learned counsel for theapplicant , learned A.G.A. for the state ofU.P. and Sri M.L. Jain learned counsel forthe complainant

4. It is contended by the learned

counsel for the applicant that there was nomotive for the applicant to commit thealleged offence. The first informant is noteye witness. Even the sisters of the firstinformant namely Laxmi and Sonu hadnot seen the alleged occurrence becauseas per the prosecution version they werealso kept in a closed room. The applicanthas been falsely implicated only on the

basis of the doubt and suspicion. Theapplicant is old man aged bout 60 years.He has never been challaned in anycriminal case. The deceased hadcommitted suicide. The recovery of the

plastic rope has been shown from the fieldof the applicant whereas the same ropewas used in hanging the deceased in aroom. During investigation the statementsof Laxmi and Sonu were not recorded bythe I.O. The deceased had taken a sum ofRs.10,000/- as loan from the applicant and

there was an agreement with the deceasedthat he will work as a labour at the houseof the applicant and labour charges would

be deposited to final payment. Theapplicant demanded the money but thesame was not given and the applicant was

beaten by the deceased. Due to this reasonthe applicant has been falsely implicated.

5. It is opposed by the learnedA.G.A. and the learned counsel for thecomplainant by submitting that the

applicant is main accused. He hascommitted the murder of the deceased.The manner in which the deceased wasmurdered shows a high handedness of theapplicant because all the sisters of thedeceased were confined in a room.Thereafter, the murder was committed byway of strangulation and dead body of thedeceased was hanged to give a impressionthat the deceased himself committed thesuicide. The alleged occurrence waswitnesses by the sisters of the deceased.

The statements of the Km. Laxmi andSonu have been recorded by the I.O. Theyhave fully supported the prosecutionstory. The applicant has confessed beforethe police and at his pointing out the ropeused in the commission of the allegedoffence was recovered. The deceased was

poor person belonged to a scheduled cast.He was aged about 16 years. He has not


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3 All] Ram Kumar Gautam V. State of U.P. and others 957

taken any loan from the applicant. He was bruetly murdered only because he hasrefused to cut the varseem of theapplicant. The prosecution story is fullycorroborated by medical evidence. Thedeceased has received anti morteminjuries and the cause of death wasstrangulation. In such circumstances theapplicant may not be released on bail.

6. Considering the facts andcircumstances of the case and the

submissions made by the learned counselfor the applicant and learned A.G.A. andwithout expressing any opinion on themerits of the case the applicant is notentitled for bail, therefore, the prayer for

bail is refused.

7. According this bail application isrejected.

---------ORIGINAL JURISDICTION

CRIMINAL SIDEDATED: ALLAHABAD 01.05.2006

BEFORETHE HONBLE K.N. SINHA, J.

Criminal Misc. Writ Petition No.4689 of2006

Ram Kumar Gautam ...Petitioner Versus

State of U.P. and others ...Respondents

Counsel for the Petitioner:Sri A.M. Tripathi

Counsel for the Respondents:Sri V.K. Singh

A.G.A.

Code of Criminal Procedure-S-156 (3)-Magistrate being satisfied aboutcognizable offence made out-beingfracture in right hand-directed the

Magistrate to Register and forinvestigation-interference by therevisional court on the ground ofprevious enmity between the parties-held-illegal and not tenable in the eye oflaw-session judge mis interpreted thelaw laid down by this court in GulabChand Upadhyay case reported in 2002(44) ACC-670-court should examine thegenuineness of each complaint on itsown wisdom.

Held: Para 4 and 5

The approach on the fact is quiteerroneous. If there is previous enmitybetween the parties that does not meanthat any offence, committed thereafter,should go un-noticed. There is fracture inthe hand of one injured and it makes outa cognizable offence. Whenever saidapplication under Section 156 (3) Cr.P.C.discloses a cognizable offence, theMagistrate is bound to direct forregistration of the case. The law laiddown in Gulab Chandra case (supra) hasbeen wrongly interpreted. It gives aguide line to the Magistrate. Suppose, in

a murder case, where all the accused areknown and murder takes place in broadday light and on inaction of police, if thecomplainant approaches the Magistrateunder Section 156 (3) Cr.P.C., whetherhis prayer can be thrown away, takingresort to Gulab Chandra case (supra)that offence was committed in broad daylight and accused are known, hence casecould not be registered.

This is absolutely misinterpretation ofthe judgment of this Court by therevisional court and the law laid down

did not permit the court to intepret insuch a way. Any guide line given by thisCourt has to be followed in thecircumstances of the case. There may befalse type of complaint. There may besome complaint of civil nature orotherwise or some complaint in whichthe cognizable offence is patently madeout. The courts should examine thegenuineness of each complaint and in hiswisdom, should pass a proper order. The


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order of the Additional Sessions Judge,Court No.3 Meerut, as passed in therevision, is absolutely illegal and nottenable in the eyes of law.Case law discussed:2002 (44) ACC-670

(Delivered by Honble K.N. Sinha, J.)

1. Heard Sri A.M. Tripathi, learnedcounsel for the petitioner, Sri VivekKumar Singh, learned counsel foropposite party no. 4 to 7 and learned

A.G.A.

2. From the record, it transpires that petitioner Ram Kumar Gautam moved anapplication before the Judicial Magistrate,Mawana, District Meerut, under Section156 (3) Cr.P.C., which was allowed and itwas directed by the Magistrate that S.O.Mawana, District Meerut, shall register acase and investigate. Against the saidorder, a revision was filed by the opposite

party no. 4 to 7 and after hearing the

parties the said revision was allowed,setting aside the order of the Magistrate. Itwas observed that if petitioner so likes, hemay file a complaint.

3. The allegation in the applicationis that opposite parties Pankaj, Manoj,Harish and Om Prakash came along withdanda, gun and iron rod, entered into theshop of the petitioner and badly assaulted

petitioner and his brother. In support ofthis, the injury report was also filed

showing a contusion and from X-ray, afracture was also found. In this way, theoffence goes minimum to the extent ofSection 325 Indian Penal Code, besidesother sections of the India Penal Code.

4. The revisional court heard the parties counsel but the said fact wasignored on the ground that there has been

previous litigation between the parties.The revisional court had traced the historyof the litigations between the parties andcame to the conclusion that Ram KumarGautam was not injured and injury wasreceived at the thumb of Mahesh Gautam.He has also resorted to a judgment of thisCourt in Gulab Chandra UpadhyayaVs. State of U.P. (2002 (44) ACC-670 .The approach on the fact is quiteerroneous. If there is previous enmity

between the parties that does not mean

that any offence, committed thereafter,should go un-noticed. There is fracture inthe hand of one injured and it makes out acognizable offence. Whenever saidapplication under Section 156 (3) Cr.P.C.discloses a cognizable offence, theMagistrate is bound to direct forregistration of the case. The law laiddown in Gulab Chandra case (supra) has

been wrongly interpreted. It gives a guideline to the Magistrate. Suppose, in amurder case, where all the accused are

known and murder takes place in broadday light and on inaction of police, if thecomplainant approaches the Magistrateunder Section 156 (3) Cr.P.C., whetherhis prayer can be thrown away, takingresort to Gulab Chandra case (supra) thatoffence was committed in broad day lightand accused are known, hence case couldnot be registered.

5. This is absolutelymisinterpretation of the judgment of this

Court by the revisional court and the lawlaid down did not permit the court tointepret in such a way. Any guide linegiven by this Court has to be followed inthe circumstances of the case. There may

be false type of complaint. There may besome complaint of civil nature orotherwise or some complaint in which thecognizable offence is patently made out.


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1989 R.D.-304 relied on.1994 R.D.-62 distinguished.1970 R.D.-270 distinguished.

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Sri Abhishek Kumarlearned counsel for the petitioner and SriRahul Sahai appearing for the respondentno.3.

2. With the consent of learnedcounsel for the parties, the writ petition is

being disposed of at the admission stage.

3. The dispute relates to khata no.245 situate in village Sikandarpur DistrictBallia.

4. An objection under Section 9-A(2) of the U.P. Consolidation of holdingsAct (for short the Act) was filed by therespondents which was allowed by theConsolidation Officer vide order dated21.3.2003. Aggrieved, the petitioner

preferred an appeal before the SettlementOfficer Consolidation, Ballia.Subsequently, on an application made bythe petitioner the appeal was transferredto the court of Settlement OfficerConsolidation, District Mau and came to

be decided by order dated 1.2.2006. Therespondents preferred a revision beforeDeputy Director of Consolidation Balliaagainst the order passed by SettlementOfficer Consolidation District Mau. The

petitioner raised an objection regardingthe maintainability of the revision beforethe Deputy Director of ConsolidationBallia on the ground that he had no

jurisdiction and the revision would lieonly before Deputy Director ofConsolidation Mau.

5. The Deputy Director ofConsolidation, Ballia vide order dated10.3.2006 overruled the objection andheld that revision was maintainable beforehim.

6. It has been urged by the learnedcounsel for the petitioner that DeputyDirector of Consolidation Ballia has no

jurisdiction to hear the revision againstthe judgment of the Settlement OfficerConsolidation Mau. Reliance in support

of contention has been placed on adecision of learned Single Judge in thecase of Darbari lal Vs. District DeputyDirector of Consolidation Jalaun 1989RD 304 .

7. In reply it has been urged by thelearned counsel for the respondents thatsince only appeal was transferred fromBallia to Mau to be heard by SettlementOfficer Consolidation Mau, the propertyin dispute was situate in district Ballia, as

such the Deputy Director ofConsolidation Ballia will have jurisdictionto hear the revision. He has placedreliance on the judgment of learned singleJudge in the case of Ram Das Rai Vs.Deputy Director of Consolidation 1994RD 62 and a Division Bench Judgment inthe case of Shitla Prasad Vs. DeputyDirector of Consolidation U.P.Lucknow in camp at Faizabad andothers 1970 RD 270 .

8. I have considered the argumentsadvanced by the learned counsel for the parties and perused the record. In the caseof Darbari Lal (supra) the property indispute was situate in district Jalaun. Theappeal filed against the order ofConsolidation Officer was transferredfrom Jalaun to the Court of SettlementOfficer Consolidation Kanpur. Against


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3 All] Parshuram V. D.D.C., Ballia and others 961

the appellate order passed by SettlementOfficer Consolidation Kanpur, a revisionwas preferred before the Deputy Directorof Consolidation Jaldun at Orai. Objectionagainst the maintainability of the revision

before the Deputy Director ofConsolidation Jalaun at Orai was rejectedand the matter came to this court. Thiscourt after considering the provision ofthe Act and Rules specially Section 48and Rule III held that revisional court ofJalun at Orai will have no jurisdiction to

hear the revision against the order of theappellate authority of Kanpur. The factsof the case of Darbari Lal are identical tothe fact of the present case and the lawlaid down in the said case applies withfull force.

9. In so far as the case of Ram DasRai relied upon by the learned counsel forthe respondents is concerned the same isclearly distinguishable. In the case ofRam Das Rai the Consolidation

Commissioner transferred some appeals pending in the court of Settlement OfficerConsolidation Deoria to Sri Ram ChandraYadav, Settlement officer Consolidation,Gorakhpur with a direction that he wouldhold camp at Deoria and decide theappeals. Against the appellate orderrevision was filed before the DeputyDirector of Consolidation Deoria. Thequestion arose whether the revision would

be maintainable before the DeputyDirector of Consolidation Deoria or

before Deputy Director of ConsolidationGorakhpur. Learned single Judge heldthat the revisions filed before DeputyDirector of Consolidation Deoria weremaintainable. It was held that the order

passed by the ConsolidationCommissioner directing Sri Ram ChandraYadav, Settlement Officer ConsolidationGorakhpur to decide the appeal by

holding a camp at Deoria was a directionwithin meaning of Sub -Section 2 ofSection 42 of the Act and he would bedeemed to be Settlement Officerconsolidation Deoria and for this reason,revision filed before the Deputy DirectorConsolidation Deoria were held to bemaintainable. The facts in so far as

present case is concerned, are entirelydifferent. In the present case, the appealswere transferred to be heard by theSettlement Officer Consolidation Mau.

The facts being clearly distinguishable,the case of Ram Das Rai is of no help tothe respondents. Even otherwise, the ratioof this decision supports the contentionadvanced by learned counsel for the

petitioner.

10. Division bench judgment in thecase of Shitla Prasad Vs. Deputy Directorof Consolidation relied upon by thelearned counsel for the respondents alsohas no application in the facts and

circumstances of the present case. In thecase of Shitala Prasad (supra) revisionalorder was challenged on the ground thatsince the revision was not transferred bythe District Deputy Director ofConsolidation Faizabad to the DeputyDirector of Consolidation Lucknow incamp at Faizabad, it could not be heardand disposed of by him and his judgmentis void for that reason. It was in thecontext of the aforesaid facts, the DivisionBench held that a revision -application

can be made to the Deputy Director ofConsolidation and that all the DeputyDirector of Consolidation in UttarPradesh have jurisdiction to hear therevision-application under Section 48 ofthe Act. Learned counsel for therespondents has urged that in view of theobservation made by division bench anyDeputy Director of Consolidation will


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have jurisdiction to hear a revision-application and thus the revision filed

before Deputy Director of ConsolidationBallia against the order of SettlementOfficer Consolidation Mau would bemaintainable.

11. I am afraid the interpretation being given by the learned counsel for therespondents to the observation made bythe division bench are totallymisconceived. The question before

division bench was as to whether theDeputy Director of Consolidation coulddecide a revision without file beingtransferred to him by the District DeputyDirector of Consolidation. While,rejecting the arguments that Officerhearing a revision - application gets

jurisdiction to hear it by the authority ofthe order of transfer of the case to his file

by the District Deputy Director ofConsolidation, it was observed by thedivision bench as follows;

"This provision read along withvarious notifications issued by the StateGovernment from time to time and theorder of the Director clearly show that arevision-application can be made to a

Deputy Director of Consolidation andthat all the Deputy Director ofConsolidation in Uttar Pradesh have

jurisdiction to hear a revision -application is not conferred by an order

passed under rule 65 (1-A) but by the

provision of the Act mentioned above andthe notifications of the StateGovernment".

12. The aforesaid observation made by the Division Bench has to be read withreference to the facts of the case and incontext of the question which was beingconsidered. If the aforesaid observation

are to be read in the manner as suggested by the learned counsel for the respondentsin that case any Deputy Director ofConsolidation in the entire State of U.P.could seize upon any case and decide ithimself irrespective of the fact whetherthe dispute lies within territorial

jurisdiction of the district where he is posted or not. This would not only beagainst the provisions of the Act butwould also result into total chaos.

13. In view of the aforesaiddiscussions, the two case laws relied upon by the learned counsel for the respondents being clearly distinguishable are of nohelp to him. On the contrary the law laiddown in the case of Darbari Lal withwhich I am in respectful agreementapplies with full force.

14. As a result, the writ petitionstands allowed, the impugned order ofDeputy Director of Consolidation dated

10.3.2006 is hereby quashed. The revisionfiled by the answering respondents beforeDeputy Director of Consolidation Balliais not maintainable and stands dismissed.It would however be open to therespondents to file revision afresh beforethe competent court. Petition allowed.

---------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 25.07.2006

BEFORE

THE HONBLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 23802 of 2005

Smt. Atro Devi and another ...Petitioners Versus

Punjab National Bank and others...Respondents


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3 All] Smt. Atro Devi and another V. P.N.B., and others 963

Counsel for the Petitioners:Sri Vinod SinhaSri S.P. Singh

Counsel for the Respondents:Sri Tarun Verma

Constitution of India, Art. 226-Compassionate appointment-denial onthe ground-the financial condition of theclaimant is soundful-after the death ofbread earner-getting Rs.4198/- towardsmonthly pension-apart from

Rs.5,81,272/- inclusive of terminal duesInsurance-held-unless and until-takinginto consideration the death cum retiralbenefits- the scheme framed by the bankcan not be illegal-can not be interferedunder writ jurisdiction- ratio laid down inSmt. Kanti Srivastavas case-No longer agood law.

Held: Para 7

From a perusal of the scheme, it does notappear that it is arbitrary, however, untiland unless the petitioners are able todemonstrate that taking intoconsideration the death-cum-retrialbenefits would be illegal, his petitioncannot succeed. To buttress hiscontention that such benefits cannot betaken into consideration to adjudge thefinancial condition of the family, hedraws support from the Single Judgedecision in the case of Smt. KantiSrivastava (Supra).Case law discussed: 2004 (6) J.T. 418W.P. 38847/02 decided on 20.5.03

(Delivered by Honble D.P. Singh, J.)

1. Heard Sri Vinod Sinha, learnedcounsel for the petitioners and Sri TarunVerma for the respondents.

2. This petition is directed againstorders dated 18.6.2004 and 5.3.2005whereby the claim for compassionate

appointment has been rejected by therespondents.

3. The husband of petitioner no. 1and father of petitioner no. 2 Sri DharamPal Singh died in harness on 3.3.2003while working as cashier-cum-clerk inPunjab National Bank. The claim forappointment of petitioner no. 2 oncompassionate ground was rejected videorder dated 18.6.2004 mentioning that thefamily was in receipt of the terminal dues

and was receiving family pension etc.However, application was again moved bringing to the notice of the respondentthat the deceased left behind a largefamily including unmarried daughters andthe terminal benefit and the monthly

pension was not sufficient to meet thefinancial requirement, in pursuance ofwhich the petitioner was informed that thematter be treated as closed, thus, the

petition.

4. Learned counsel for the petitionerhas urged that the terminal benefits and pension given at the time of death cannot be taken into consideration for the purpose of adjudging the financial position of the distressed family. Insupport of his contention he has reliedupon a Single Judge decision of this Courtrendered in the case of Smt. KantiSrivastava v. State Bank of India andothers decided on 14.2.2003, (WritPetition No. 35344 of 2001). He has also

urged that looking to the size of thefamily specially the unmarried daughters,the amount said to be paid to the

petitioners was not sufficient to make twoends meet and, therefore, he is entitled toappointment.

5. The concept of compassionateappointment is an antithesis to the normal


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recruitment rules and is saved at the altarof Articles 14 and 16 by reasons ofhumanitarian consideration. The soleobject of compassionate appointment is togive succour to the distressed bereavedfamily of the sole bread earner so thatthey are able to tide over the suddenfinancial crisis. It does not requirereference to decisions of the Apex Courtto say that neither it is a right nor can it betreated an alternative source ofrecruitment. By giving compassionate

appointment, the sole object is tostrengthen the financial position of thefamily which is deprived of the regularsalary earned by the deceased sole breadearner. If otherwise, the family, inspite ofthe demise of the bread winner, isfinancially comfortably placed, the heirsor the dependent cannot seekcompassionate employment as it wouldamount to violation of the sacrosanctobject of the compassionate appointment.Keeping that in view, the claim of the

petitioner is to be examined.

6. Compassionate appointment inthe respondent Bank is governed by ascheme known as Scheme forEmployment of the Dependent of theEmployees who died while working in theBank. One of the most importantingredient for grant of compassionateappointment as mentioned in the schemeis the financial condition of the family. Itis provided in the scheme that the

financial condition of the family would beexamined after considering the family pension, gratuity received, providentfund, compensation by the Bank orWelfare fund, Insurance proceeds etc. It isapparent from the record that the

petitioners received a total sum ofRs.5,81,272/- inclusive of terminal dues,Insurance amount etc. and they are also

getting Rs.4,198/- per month as pensionand they have their own dwelling concretehouse. Though, it is contended that a sumof Rs.2,85,000/- was spent on the medicaltreatment of the deceased employee, the

bank had reimbursed a sum ofRs.1,10,000/- only as vouchers and billsfor the said amount were foundadmissible. No doubt the petitioner has alarge family, but the amount received inlump sum and the monthly pension cannot

be said to be meager.

7. From a perusal of the scheme, itdoes not appear that it is arbitrary,however, until and unless the petitionersare able to demonstrate that taking intoconsideration the death-cum-retiral

benefits would be illegal, his petitioncannot succeed. To buttress his contentionthat such benefits cannot be taken intoconsideration to adjudge the financialcondition of the family, he draws supportfrom the Single Judge decision in the case

of Smt. Kanti Srivastava (Supra).

8. It would be worthwhile to notethat the aforesaid scheme has beenapproved by the Apex Court in PunjabNational Bank v. Ashwani KumarTaneja (2004 (6) J.T. 418). The ratio laiddown in Smt. Kanti Srivastavas case(Supra) was followed by the same learnedSingle Judge in a later decision ofDurgesh Kumar Tiwari v. Chief,General Manager, State Bank of India

decided on 20.5.2003, (Writ Petition No.38847 of 2002) and the Bankchallenged the said decision of DurgeshKumar Tiwari (supra) before the ApexCourt in Civil Appeal No.996 of 2006(Chief General Manager, SBI andothers v. Durgesh Kumar Tiwari) where the said judgment has been held to

be unsustainable in law and has been set


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defendant's counsel. But that applicationtoo has been dismissed by the trial courtvide Annexure No. 7. Thereafter, only the

petitioner approached the revisional courtwhich also did not find favour of the courtand has been dismissed vide Annexure

No. 9.

2. The petitioners on 30.3.2005,which was the 4th date fixed for finalhearing (evidence) in the suit, had movedan application for adjournment. As the

plaintiffs had already taken three earlieradjournments it actually weighed with thetrial court in rejecting the prayer and

passing the impugned order. That date being the 4th occasion, the plaintiff to thesuit as was seeking adjournment ofhearing in the suit it was not allowed inview of the proviso to Order 17 Rule 1C.P.C. as amended vide C.P.C.(amendment) Act, 1999 (operative w.e.f.01.07.2002). The ground taken by the

petitioner for adjournment was that the

plaintiff P.W. 1 had fallen ill and couldnot reach the court to be present for hiscross examination as such. Hisexamination in chief had already beenrecorded earlier. The ground of illness,which had been taken for suchadjournment, was though quite substantial

but the gravity of the same has been out-weighed by the trial court simply keepingin view the referred proviso to Rule 1 ofOrder 17 C.P.C. Subsequent thereto thevery next day (31.3.2005) when the

plaintiff Ram Raj (P.W. 1) appeared before the court and moved an applicationunder Section 151 C.P.C. offering himselffor the cross examination, that prayer hasalso been dismissed by the trial court.Whether or not there were exceptionalreasons or the circumstances beyond thecontrol of the plaintiff on the date whentheir prayer for adjournment was refused,

is a matter of appreciation by the courtwhile granting or refusing such prayer ofa party. In this context in order toappreciate the propriety of the order

passed by the courts below, a reference tothe provisions of Order 17 C.P.C. as awhole, is necessary and it is quoted as

below:-

1. Court may grant time and adjournhearing.- [(1) The Court may, if sufficientcause is shown, at any stage of the suit

grant time to the parties or to any of them,and may from time to time adjourn thehearing of the suit for reasons to berecorded in writing:

Provided that no such adjournment shall be granted more than three times toa party during hearing of the suit.]

(2) Cost of adjournment.- In every such case the Court shall fix aday for the further hearing of the suit, and [shallmake such orders as to costs occasionedby the adjournment or such higher costs

as the Court deems fit]:[Provided that,--(a) when the hearing of the suit has

commenced, it shall be continued fromday-to-day until all the witnesses inattendance have been examined, unlessthe Court finds that, for the exceptionalreasons to be recorded by it, theadjournment of the hearing beyond the

following day is necessary,(b) no adjournment shall be granted

at the request at the request of a party,

except where the circumstances arebeyond the control of that party,(c) the fact that the pleader of a party

is engaged in another Court, shall not bea ground for adjournment,

(d) where the illness of a pleader orhis inability to conduct the case for anyreason, other than his being engaged inanother Court, is put forward as a ground


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3 All] Shiv Nath and another V. Bangai 967

for adjournment, the Court shall not grantthe adjournment unless it is satisfied thatthe party applying for adjournment couldnot have engaged another pleader in time,

(e) where a witness is present inCourt but a party or his pleader is not

present or the party or his pleader,though present in Court, is not ready toexamine or cross-examine the witness, theCourt may, if it thinks fit, record the

statement of the witness and pass suchorders as it thinks fit dispensing with the

examination-in-chief or cross-examination of the witness, as the casemay be, by the party or his pleader not

present or not ready as aforesaid.]

3. A perusal of the aforesaid provisions no doubt makes it clear that thestatute provides guidelines not to grantadjournment sought by one party in thematter of hearing of a suit on more thanthree occasions. But at the same time italso does not put complete fetters on the

court's discretion for such grant ofadjournment, in case, the party sufferingon account of such grant of adjournmentcan be compensated by award of costsand there are exceptional reasons orcircumstances beyond the control of that

party seeking adjournment to proceedwith the hearing. Therefore, to say thatthis proviso added to Rule 1 by C.P.C.Amendment Act, 1999, takes away thediscretion of the court to grantadjournment on fourth occasion would be

a wrong interpretation of the Rule. Thus,the number, as provided in the aforesaid proviso, has only limited adjournment andcan be quite safely interpreted to be justdirectory and not mandatory. It is true thatgrant of any adjournment let alone thefirst, second or third adjournment, is not aright of a party. The court grantingadjournment must be satisfied by the

party making such prayer that special andextraordinary circumstances are availablefor grant of adjournment and the court isnot supposed to make a routine order inthis regard. The proviso to Order 17 Rule1 C.P.C. has to be necessarily read downso as not to take away the discretion ofthe court in the extreme hard cases, forinstance, a party may be suddenlyhospitalized on account of some seriousailment or there may be serious accidentor some act of God leading to some

devastation. In such circumstances itcannot be said that though thecircumstances may be beyond control of a

party, further adjournment cannot begranted because of restrictions of threeadjournments, as provided in the provisoto Order 17 Rule 1 C.P.C. The court cangrant adjournment even in cases, whichmay not directly come within the categoryof circumstances beyond the control of a

party, by resorting to the provision ofhigher costs which can also include

punitive costs, in the discretion of thecourt for granting adjournment beyondthree occasions, while considering such

prayer of a party. However, the courtmust have regard to the injustice that mayresult on refusal thereof, with reference tothe particular facts of a case. In thiscontext the case law of Salem Advocate

Bar Assn. Vs. Union of India, (2005) 6 SCC 344 is quite relevant. The law laiddown in para 30 and 31 of the judgment

by the Hon'ble Apex Court squarely

applies to the facts of the present case.

4. The petitioners-plaintiffs'adjournment application had been rejected

by the trial court on 30.3.2005 as P.W. 1Ram Raj, who was in the process of beingcross examined, was not present. It wasnoted that the witness on account ofillness could not reach the court and


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obviously if one witness who was in the process of cross examination is not present on account of his illness such prayer for adjournment should have beenallowed, subject to award of costs. On thevery next day i.e. 31.3.2005 this witnesswas presented before the trial court buthis cross examination was not permittedand the second impugned order was

passed on the petitioners' applicationgiven under Section 151 C.P.C. In view ofthe availability of an exceptional

circumstance, which was beyond controlof the other plaintiff to produce P.W. 1(the other plaintiff) in the witness box on30.3.2005, the prayer seekingadjournment made by the petitionersshould have been granted. Of course, ifthe court finds in the face of it, thereasons of illness given to be false it doeshave a right to reject such prayer but herewhat appears to have actually clicked tothe court for refusing the adjournment isnothing but the provision contained in the

proviso to Rule 1 of Order 17 C.P.C. andthat does not appear to be a just and proper approach and interpretation of thecourt to that provision.

5. In view of the aforesaid, this writ petition is hereby disposed of with adirection to the trial court to permit crossexamination of P.W. 1 Ram Raj on thevery next date when the suit is listed forhearing and thereafter to further proceedto dispose of the case in accordance with

law. Petition disposed of.---------

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 26.05.2006

BEFORETHE HONBLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 5324 of 1997

Shree Satya Narain Tulsi Manas Mandir,Durga Kund, Varanasi ...Petitioner

VersusWorkmen Compensation Commissioner/

Authority under the Minimum Wages Act,1948/ Additional Labour Commissioner,

Varanasi and others ...Respondents

Counsel for the Petitioner:Sri N.B. SaxenaSri M.B. Saxena

Counsel for the Respondents:Sri V.K. ShuklaSri B.N. SinghSri S.C. RaiSri K.C. Sinha

Sri A.C. AgrawalSri Ashok NigamSri Adish AgrawalSri Sanjay GoswamiSri S.K. MauryaSri Dr. R.G. PadiaSri P. PadiaC.S.C.

Minimum Wages Act, 1948, U.P.Minimum Wages Act (U.P. Amendment)

Act 1960, U.P. Minimum Wages Rules1952-readwith Constitution of India Act-14, 21, 38 (2) and 43-Right to getminimum wages-persons working in areligions on charitable institution-engaged at the pleasure of Management-cannot be denied their rights of living alife of human dignity-State Governmentdirected to frame scheme-regulationproviding protection to such working ofsuch religions and charitable institutions.

Held: Para 36


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3 All] S.S.N. Tulsi Manas Mandir V. Workman Compensation Commissioner and others 969

Article 21 of the Const of India isapplicable equally to all such persons,The right to get livelihood, wages tomaintain themselves and their familiesas discussed above, and to get fairwages cannot be denied merely on theground that the establishment orInstitution is a religious or charitableinstitution or that persons who areengaged are Sevadars or employees atthe pleasure of management. Employeesor Sevadars are the persons who havededicated themselves to the service ofDeity and Almighty and in such way,

merely on that ground for cannot bedenied their right of living wages tomaintain themselves or their familiesand to live a life with human dignity,Case law discussed:

AIR 1993 SC-2178, AIR 1986 SC-847, AIR1980 SC-1789, AIR 1985 SC-389, AIR 1951SC-2260, AIR 1983 SC-130, AIR 1981 SC-745,1992 (4) SCC-465, AIR 1984 SC-802, AIR 1986SC-180, AIR 1992 SC-504, 1987 ALJ-728, AIR1954 SC-282, AIR 1961 SC-1402, 1992 LABIC-1621, AIR 1963 SC-2089

(Delivered by Hon'ble S.N. Srivastava, J.)

1. The proceedings under theMinimum Wages Act, 1948 were initiatedagainst the petitioner on the basis of thenotice dated 8.8.1995 and 21,11.1995(Annexures- 1 and 2 to the writ petition).The notice dated 8.8.1995 were alsomentioned in the said notice. On the basisof this notice M. W. Case No. 237/95 (SriR. P. Srivastava, Labour EnforcementOfficer, Varanasi Vs. Shree Satya NaralnTulsi Manas Mandir) was registered

before the respondent no.1 under theMinimum Wages act and the respondentno. 1 issued notice to the petitioner fixing28.11.1995 and directing the petitioner toappear along with all documents andwitnesses in support of his case. Notice(Annexure 1) to the writ petition makes Itclear that all 29 workers In Shree Satya

Narain TulSI Manas Mandir Durga Kund

Varanasi are getting fixed amount ofRs.450/- to 650/- per month except

persons mentioned at Serial Nos. 17 and18, who are being paid a fixed amount ofRs.1050/- per month.

2. After receiving the notice the petitioner filed objection/writtenstatement (Annexure-4 to the petition)raising the question of jurisdiction and theapplicability of the provisions for theMinimum Wages Act.

3. In the written statement filed bythe petitioner, it is stated that Shree Satya

Naraln Tulsi Manas Mandir is a temple ofSanatam Dharm Sect and is a holy placewhere devotees come for darshan and

pujan for their Adhyatmik Santushthi byMurti Puja. No Prasad is sold in thetemple and It IS purely a religious shrineof Hindus and not a commercialestablishment. It was further stated thatthe temple is neither an Industry within

the meaning of U. P. Industrial DisputesAct nor a shop or commercialestablishment within the meaning of U.P.Shop and Commercial Establishment Actand It is a religious and spiritual placewhich has no room for any sort of

business, trade or manufacturing. Variousother fats were also brought through thisobjection/written statement.-

4. Subsequently the petitionermoved an application stating that since

the petitioner temple is not a commercialestablishment and the notification issuedto fix minimum wages for commercialestablishment is not applicable to it nor it

being a scheduled employment the provisions of Minimum Wages Act arenot applicable at all to the petitionerTemple and as such the question whether

provisions of Minimum Wages Act are


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applicable to the petitioner Temple bedecided as a preliminary issue.

5. The respondent no. 1 by theimpugned order dated 4.2.1992 turneddown the objection of the petitioner whileobserving that all the issues need bedecided together while delivering finalverdict.

6. Heard Sri Mool Behari Saxena,learned counsel for the petitioner and Sri

Bhupendra Nath Singh, learned counselappearing for Opposite party no.3, Dr.Ashok Nigam, learned Addl. SolicitorGeneral of India and Sri K.C. Sinha,learned Asstt. Solicitor General of India,appearing for Union of India, Sri AdishAgarwal, Addl. Advocate Generalassisted by Sri Sanjai Goswami and SriS.K. Maurya, learned Standing counsel,and Dr. R.G. Padia, Senior Advocateassisted by Sri Prakash Padia who assistedthe Court in this matter.

7. The question for consideration asframed by this Court by means of orderdated August 29,2002 may be excerpted

below.

"Whether the employees ofReligious/Charitable Institution/Establishment are the employees

protected under the Minimum Wages Actor any other statutory enactment in thematter of wages and if not, whether a

citizen of India employed in any religiousor charitable Institution/Establishment isentitled to protection in the matter ofwages under Article 21 of theConstitution of India?

8. The present proceeding under theminimum Wages Act were triggered afterissue of notice (Annexure 1 to the

petition). This notice presupposed the petitioner Sri Satya Narain Tulsi ManasMandir as a factory/firm under theMinimum Wages Act and the case cameto be registered on the basis of the saidnotice.

9. Learned counsel for the petitioner began his argument by submitting thatShree Satya Narain Tulsi Manas Mandiris a temple of Sanatan Dharam Sect and itis a religious place where devotees throng

for darshan and pujan and that it is neithera firm/factory nor a shop or commercialestablishment. It is further submitted thatno commercial activities are carried onwithin the temple precincts and the

persons who have been shown In the listattached to the notice dated 8.8.1995 asthe employees of the Establishment are infact 'Sevadars' who have been kept tofacilitate worship and Pujan of the idols

by the devotees who pay a visit to thetemple and as such the provisions of

Minimum Wages Act are not applicableto the petitioner. It was further submittedthat the question of jurisdiction was raised

by the petitioner before the respondentno.1 and the order passed by him to theeffect that the question of jurisdictioncould be raised after the evidence isclosed, cannot be sustainable. He furthersubmitted that admittedly, the petitioner isa temple and persons have been engagedas Sevadar to maintain the temple and tofacilitate darshan and pujan of the idols

established in the temple by the devoteesand, therefore, the entire proceedingsagainst the petitioner under the MinimumWages Act are without Jurisdiction. Hefurther submitted/argued that therespondent no. l has acted illegally andwith material irregularity in the matter byrefusing to decide the question ofJurisdiction as to whether the proceedings


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against the petitioner under the MinimumWages Act are maintainable as a

preliminary issue.10. Sri B.N. Singh, learned counsel

for the respondent no. 3 argued that thequestion whether the petitioner is afactory/Firm or a shop or commercialestablishment could only be determined

by leading evidence and the order passed by the respondent no.1 directing thisquestion to be decided only after evidenceis closed, is absolutely in accordance with

aw. The learned counsel did not disputethat the petitioner is a temple belonging toVaishnav sect and idols are kept thereinfor worship by the devotees but since acounter has been set up and tickets aresold to the devotees it shall be consideredto be a shop or commercial establishmentand the persons engaged by the petitionerare the employees of commercialestablishment. He further urged that thewrit petition should be dismissed as theorder passed by the respondent no. l

directing to adduce evidence was perfectly valid. According to him, nodecision is required on the applicationfiled by the petitioner at this stage.

11. After hearing learned counsel forthe parties, it is necessary to consider therelevant provisions of the MinimumWages Act, 1948, U.P. Minimum Wages(U.P. Amendment) Act, 1920, U.P.Minimum Wages Rules, 1952 and U.P.Dookan Aur Vainjya Adhishthan

Niyamavali, 1963.

Section 2(e) of the Minimum WagesAct, 1948 which defines "employer" is

being reproduced herein below:-

"2(e) "employer" means any personwho employs, whether directly or throughanother person, or whether on behalf of

himself or any other person, one or moreemployees in any scheduled employmentin respect of which minimum rates ofwages have been fixed under this Act, andincludes, except in sub-section (3) ofSection 26-

(i) ..................

12. Scheduled employments arementioned in Schedule II of thenotification dated 31.3.1978 issued underSection 22-F of the Minimum Wages Act

and published in U.P. GazetteExtraordinary dated 31.3.1978.Employment in shops and Employment inany Commercial Establishment arementioned at serials no. 36 and 47respectively in Schedule II Par 1.Thenotification dated 18.1.1992 provides forminimum rate of wages in respect of theemployees employed in (i) commercialestablishment in U.P. and (ii) Shops inU.P.

13. Section 2 (4) of the, UttarPradesh Dookan Aur Vanljya AdhisthanAdhiniyam, 1962 defines Commercialestablishment' which means any premises,not being the premises of a factory, or ashop, wherein any trade, or incidental orancillary thereto, is carried on for profitand includes a premises wherein,Journalistic or printing work, or businessof banking, insurance, stocks and shares,

brokerage or produce exchange is carriedon, or which is used as theatre, cinema, or

for any other public amusement orentertainment or where the clerical andother, establishment of a factory, to whomthe provisions of the Factories Act 1948,do no apply, work. Similarly Section 2(16) defines \ shop' means any premiseswhere any wholesale or retail trade or

business is carried n, or where servicesare rendered to customers, and includes,


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all offices, godowns or warehouses,whether in the same premises or not,which are used in connection with suchtrade or business.

14. The definition of commercialestablishment makes it clear that it must

be connected with trade, businessmanufacture or any work connected withthe same. Similarly it is clear from thedefinition of shop that any premiseswhere any wholesale or retail trade or

business is carried on or where servicesare rendered to customers in a shop.

15. The expression" Wages" whichis defined in section 2 (h) of the MinimumWages Act means all remuneration,capable of being expressed in terms ofmoney, which would be payable to a

person employed in respect of hisemployment or of work done in suchemployment and the word "employee" asdefined in section 2(i) means any person

who is employed for hire or reward to doany work, skilled or unskilled, manual orclerical, in a scheduled employment inrespect of which minimum rates of wageshave been fixed; and includes an out-worker to whom any articles or materialsare given out by another person to bemade up, cleaned, washed, altered,ornamented, finished, repaired, adopted orotherwise processed for sale for the

purposes of the trade or business of thatother person.

16. Now in the above background itis to be seen whether from the pleadingsof the parties, Shree Satya Narayan TulsiManas Mandir is a commercialestablishment or a shop. According to the

pleadings of the petitioner in the petitioner's establishment about 29 persons are working and they are getting

wages as mentioned in the list-appendedalongwith the notice-dated 8.8.1995.From the pleadings of the parties it isestablished that the petitioner is involvedin the activities relating to SanatanDharma sect of Hindu religion.

17. From the perusal of the counter-affidavit filed on behalf of therespondents, it appears that the workmenwere engaged by the petitioner to lookafter the premises of the Manas Mandir,

sale of books, issuing the tickets andcollection of fare, checking of tickets andtheir collection etc. It further appears thatthe main source of income of the

petitioner is from the sale of books, saleof tickets of exhibition and rent realizedfrom the shops and Bank.

18. The petitioner urged that the saleof tickets for entering in the temple

premises where moving idols of variousdeities are kept as well as sale of religious

books are part of religious activities formaintenance of Radha Krishna LeelaJhanki which is run by the Thakur DasSurekha Charitable Fund. It IS not run for

profit but for propagation of religious andcultural heritage of Hindu religion. Rupeeone charged from the devotees is not for

public amusement or entertainment butfor the maintenance of the Jhanki and

payment of electricity charges as withoutthis the Jhanki can not continue further.The books published by the Thakur Das

Surekha Charitable Fund are availableand distributed free of cost and foroutsiders the expenses of sending the

books by registered post are chargedotherwise the books are published andmade available to the public on the basisof no profit and no loss. The moneyreceived from the entry charges and rentof the shops etc. is utilized to meet out the


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heavy expenses of the maintenance of thetemple without any move of profit. The

petitioner has stated in paragraph 13 ofthe rejoinder affidavit that the workersengaged in the petitioner's establishmentare there with the sense of their religiousduty and not for earning of theirlivelihood and they are given all thefacilities. The petitioner has denied theallegation of denial of leave, earned orsick or casual, to the workers. It has beenstated that the total yearly earning of the

temple is approximately Rs.50,000/- forwhich proper account is maintained.

19. Shri B. N. Singh has contendedthat the petitioner is a 'commercialestablishment' and in this context thedefinition of 'commercial establishment'as contained in Uttar Pradesh Dookan AurVanijya Adhishthan Adhiniyam will haveto be looked Into. The said at envisagesthat commercial establishment is a

premises wherein any trade, business,

manufacture or any work in connectionwith, or incidental or ancillary thereto iscarried on for profit. From the aforesaiddefinition, it is clear that Manas Mandir isnot a premises wherein any trade,

business or manufacturing work is carriedon for profit and it is a place for religiousactivities wherein idols of different deitiesare kept for Puja and darshan by thedevotees, religious books are distributedfree of cost and Re.1/- is charged as entryfree from the devotees for proper

maintenance and management of thetemple and not for any profit. No materialis available on record to establish thatthere was any profit-oriented motive Inestablishing the Manas Mandir or inestablishing the moving idols of thedeities. Thus, it does not transpire that the

petitioner is a commercial establishmentas defined under the U.P. Dookan Aur

Vanijya Adhishthan Adhiniyam, 1962 andas such, the notice issued to the petitioner

by the Opp. party no.1 is withoutJurisdiction and the entire proceedinginitiated on that basis is also without any

basis and is liable to be quashed.

20. It was also canvassed by thelearned counsel for the Opp. parties thateven though the workers are engaged incharitable or religious activities, they arealso the citizens of India and they have

every right to live with dignity. Article 21of the Constitution of India alsoguarantees their livelihood and they arealso entitled to get such wages to keeptheir pot boiling. Merely because they areengaged in religious activities in religiousestablishment, they cannot be denied their

basic right of earning livelihood and inconsequence, cannot be allowed to beexploited and they too are entitled to basichuman right and to get minimum wagesfrom the earnings of religious and

charitable institutions like temples,mosque and churches. In the aboveconspectus, it falls to the Government toinitiate steps in order to secure themdecent living and minimum wages.

21. After hearing both the counselfor the parties, issue for determinationcropped up if employees of religious orcharitable Institutions/Establishment areemployees not protected under theMinimum Wages Act or any other

statutory provisions in the matter ofwages and if not whether a citizen ofIndia employed in any religious orcharitable Institutions/Establishment isentitled to protection in the matter ofwages under Article 21 of theConstitution of India. As a necessaryconsequence, notices were issued to Stateof U. P. as also the Union of India. Sri


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S.C. Rai, the learned Addl. ChiefStanding Counsel accepted notice on

behalf of State of U.P. and learned SeniorStanding counsel accepted notice on

behalf of Union of India. Learned Addl.Chief Standing Counsel representing theState of U.P. and learned Senior Standingcounsel for Union of India sought time forinstructions in the matter and they wereaccorded four weeks' time to file theirrespective counsel affidavits. Both thecounsel sought further time on 22.10.2002

and therefore 26.11.2002 was fixed forfurther hearing. On 26111 Nov 2002 boththe counsel were granted one month's andno more time to file, counter affidavit orto take appropriate steps in this regard. On11.8.2003/ learned Addl. Chief StandingCounsel made a statement before theCourt that he has received instructions notto file any counter affidavit or resist theissues involved in the writ petition. Healso read out copy of the letter issued bythe Labour Secretary dated 10.1.2003,

which was placed on record. Sri K.C.Sinha, learned Assistant Solicitor Generalof India filed a short counter affidavit onthe question.

The text of short counter affidavit ascontained in para 3 thereof is that theminimum wage is a concurrent subject ofIII List, Seventh Schedule of Constitutionof India and under the statutory provisionsof the Minimum Wages Act, 1948, boththe Central and the State Government are

the appropriate Government to fix, reviseand enforce minimum wages of theworkers engaged in the scheduledemployments under their respective

jurisdictions and therefore, inimplementing provisions of the Act, therole of the Central Government is ofadvisory in nature as both CentralGovernment and the State Government

implement the Act independent of eachother. In para 6 of the short counteraffidavit, the specific averment is that theCentral Government is the appropriateGovernment under Minimum Wages Actonly in relation to any scheduledemployment carried on or by under theauthority of the Central government or aRailway administration, or in relation toMines, Oil Fields or Major Ports or anyCorporation established by a Central Act.For remaining employments, the State

Government is the appropriateGovernment. In para 7 of the shortcounter affidavit, the averment is thatreligious institutions do not standincluded in the schedule of employmentsin the Central Sphere and ultimately, ithas been prayed that necessary direction,if any, be given to the State of U.P. to addany new employment in the Schedule ofemployments within the sphere of StateGovernment. It was in the above

backdrop that the case was again heard.

Having gone through all this tedium, Iheard Sri Adish Agarwal, learned Addl.Advocate General, learned Counsel forthe Opp. Parties and also Dr. R.G. Padia,learned Senior Advocate, who enteredappearance to assist the Court in thematter on the request of the Court andalso Dr. Ashok Nigam, learned Addl.Solicitor General of India who assistedthe Court.

22. In view of the fats stated and

borne out from the pleadings of the parties, it is to be seen whether the petitioner is an employer within thedefinition of the Minimum Wages Act,1948 and the persons working in ShreeSatya Narayan Tulsi Manas Mandir are inthe scheduled employment. From a

punctilious reading of the notificationsissued by the Government from time to


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time under the Minimum Wages Act;1948, U.P. Minimum Wages(Amendment) Act, and U.P. MinimumWages Rules, 1952 it is found that there isno notification providing forcategorization of the workers engaged byShree Satya Narayan Tulsi Manas Mandiror any religious or charitable Trust orMath, Mandir etc.

23. As stated supra, a question of pivotal importance begs consideration in

the above conspectus and it is whether theworkers who are engaged In variousCharitable/ Religious Establishments viz.in Temples, Maths, Monasteries etcwithin the fold of Hindu Religion havealso a constitutional right to be givenminimum wages notwithstanding the factthat Minimum Wages Act and the Rulesframed thereunder are not intended forapplication for the reason that theseinstitutions cannot be said to be ashop/commercial establishment or

industry? In connection with thisquestion, I feel called to deal with thisaspect on the admitted fact that theworkers mentioned in Annexure 1 to thenotice are working in the charitable andreligious establishment of the petitioner

but are not getting wages sufficient tokeep the life meaningful, complete andworth living i.e. something more thansurvival of animal existence. I am toldacross the bar that in majority of religiousand charitable institutions,

notwithstanding the fact that huge incomeis flowing to their coffer from thedevotees, the condition of the workersemployed in such institutions is verydismissal and they are keeping a

precarious existence as the MinimumWages Act is not applicable by reason ofthe fact that such institutions do not fallwithin the ambit of definition of a Shop or

commercial establishment or industry.Most of these workers like Opposite partyno. 3 get very exiguous amount, which istoo meager and incapable of protectingtheir own lives and the lives of 'theirfamily members.

24. It is engrafted in Article 21 ofthe Constitution that no person shall bedeprived of his life or personal libertyexcept in accordance with the procedureestablished by law. It is also essential to

refer to Articles 37 38 39 and 43embodied in Part IV of the Constitution ofIndia. Article 38 of the Constitution is

being excerpted below for readyreference.

"Article 38. State to secure a socialorder for the promotion of welfare of the

people-(1) The State shall strive to promote

the welfare of the people by securing and protecting as effectively as it may a social

order in which Justice, social, economicand political shall inform all theinstitutions of the national life.

(2) The State shall, in particular,strive to minimize the inequalities inincome, and endeavour to eliminateinequalities in status, facilities andopportunities, not only amongstindividuals but also amongst groups of

people residing in different areas orengaged in different vocations."

39. Certain principles of policy to be followed by the State:-

(a) That the citizens, men and womenequally, have the right to an adequatemeans of livelihood;

(b) x x x x x x x(c) That the operation of the economic

system does not result in the


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concentration of wealth and means of production to the common detriment;

(d) x x x x x(e) That the health and strength of

workers, men and women, and thetender age of children are not abusedand that citizens are not forced byeconomic necessity to enteravocations unsuited to their age orstrength; "

"43. living wage, etc, for workers.-

The State shall endeavour to secure, bysuitable legislation or economicorganization or in any other way, to allworkers, agricultural, industrial orotherwise, work, a living wage, conditionsof work ensuring a decent standard of lifeand full enjoyment of leisure and socialand cultural opportunities and, in

particular, the State shall endeavour to promote cottage industries on anindividual or co-operative basis in ruralareas."

Article 38 (2) of the Constitutionspecifically mandates that the State shall,in particular, strive to minimize theinequalities in income and endeavor toeliminate inequalities in status, facilitiesand opportunities, not only amongstindividuals but also amongst groups of

people residing in different areas orengaged in different vocations. Similarly,Article 43 mandates that the State shallendeavour to secure, by suitable

legislation or economic organization or inany other way, to all workers,agricultural, Industrial or otherwise, worka living wage, conditions of workensuring a decent standard of life and fullenjoyment of leisure and social andcultural opportunities. For the workersemployed in shops and commercialestablishments the State has already

provided minimum wages Act andvarious other welfare legislations but forthe workers who are engaged and workingin charitable and religious institutions andare bleeding themselves for the upkeep ofthe institutions and for gratifying thespiritual urges of the public at large and innumber of cases such hapless workerskeep themselves on tenterhook round theclock or in the minimum 12 to 8 hours aday, the State seems to be still obliviousof their suffering and has not made any

legislation for their welfare as yet.

25. Articles 14 of the Constitution ofIndia make it clear that the workers in theemployment of such institutions cannot bediscriminated against simply on thegrounds that they are employed inreligious and charitable institutions whichwere founded not with the motive ofearning profits but for religious andcharitable purposes. Considering the

provisions of Article 21, 38 (2) and 43 of

the Constitution of India, the view isirresistible that such workers are alsoentitled to get-minimum wages as right tolife under Article 21 of the Constitution ofIndia. Article 43 of the Constitution ofIndia also makes it clear and does notmake any discrimination while stating "toall workers, agricultural, industrial orotherwise and all such workers areentitled to get a living wage. The word'living wage' contained in Article 43means the wages by which a worker can

maintain his life to live with dignity withall other facilities as contained andimplicit in Article 21 as held by theSupreme Court in various decisions.While Interpreting 'living wage' to secureto all workers a living wage, conditions ofwork ensuring a decent standard of lifeand full enjoyment of leisure and socialand cultural opportunities, anybody could


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come to the conclusion that living wagemeans at least minimum wage. It has beenheld in various pronouncements by theSupreme Court that fundamental rightsand directive principles of State Policy arecomplementary and supplementary toeach other. Paragraphs 138 and 141 of the

judgment in the case of UnnikrishnanK.P. v. State of Andhra Pradesh 1 are

being quoted below:

"138. This Court has also been

consistently adopting the approach thatFundamental Rights and DirectivePrinciples are supplementary andcomplementary to each other and that the

provisions in Part III should be interpretedhaving regard to the preamble and theDirective Principles of the State policy.The initial hesitation to recognize the

profound significance of Part IV has beengiven up long ago. We may explain.While moving for consideration theinterim report on Fundamental Rights,

Sardar Vallabhai Patel described both therights mentioned in parts III and IV asFundamental Rights- one justiciable andother non-justiciable. In hissupplementary report, he sated:

"There were two parts of the report;one contains Fundamental Rights whichwere justiciable and the other part of thereport refers to Fundamental Rights whichwere not justiciable but were Directives."

26. This statement indicates thesignificance attached to DirectivePrinciples by the founding fathers. Yetanother decision on the point is MinervaMills v. Union of India 2. It is true that inthe State of Madras v. Champakam

1 AIR 1993 SC 21782 AIR 1980 SC 1789

Darairajan3

fundamental rights wereheld pre-eminent vis-a-vis Directive

principles but since then there has been a perceptible shift in this Court's approachto the inter-play of Fundamental Rightsand Directive Principles.

"141. It is thus well established bythe decisions of this Court that the

provisions of Part III and IV aresupplementary and complementary toeach other and that Fundamental Rights

are but a means to achieve the goalindicated in Part IV. It is also held thatFundamental Rights must be construed inthe light of the Directive Principles. It isfrom the above standpoint that questionno. 1 has to be approached."

27. The case of Francis Corlie v.Union Territory of Delhi 4 was the firstcase in which right to life was interpreted.It says that right to life includes the rightto live with human dignity. Hon. Supreme

Court has now settled in number of casesthat right of livelihood is a right to liveand let all other live with human dignityand all that goes along-with it, namely,the bare necessities of life such asadequate nutrition, clothing and shelterover the head and facilities for reading,writing and expressing oneself in diverseforms freely moving about and mixingand commingling with fellow human

beings. It further states that right to lifeincludes the right to the basic necessities

of life and also the right to carry on suchfunctions and activities as constitute the bar minimum expression of the human-self. Every act, which offends against orimpairs human dignity would constitutedeprivation of this right to live and it

3 AIR 1951 SC 22604 AIR 1981 SC 745


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would have to be in accordance withreasonable, fair and just procedureestablished bylaw which stands the test ofother fundamental rights. It was held inthis case \. by the Supreme court thatthese are necessary components ofArticles 14 and 21 of the Constitution ofIndia.

28. Right of livelihood has further been defined in A.I.R. 1984 S.C., 802;A.I.R. 1986 S.C. 180 and 1992 (IV)

S.C.C. 465 . In the case of Olga Tellis v.Municipal Corporation right to life has been further defined in paragraphs 32 and33 of the judgment. Relevant extractsfrom paragraphs 32 and 33 are beingquoted below: -

32.......... If the right to livelihood isnot treated as a part of the constitutionright to life, the easiest way of depriving a

person of his right to life would be todeprive him of his means of livelihood to

the point of abrogation. ......"33. Article 39(a) of theConstitution, which is a directive

principle of State policy, provides that theState shall, in particular, direct its policytowards securing that the citizens, menand women equally, have the right toadequate means of livelihood. Article 41,which is another directive principle,

provides, inter-alia, that that State shall,within the limits of its economic capacityand development, make effective

provision for securing the right to work incases of unemployment and all theundeserved want. Article 37 provides thatthe directive principles, though notenforceable by any court, are neverthelessfundamental in the governance of thecountry. The principles contained in Arts.39(a) and 41 must be regarded as equalfundamental in the understanding and

interpretation of the meaning and contentof fundamental rights. If there is anobligation upon the State to secure to thecitizens an adequate means of livelihoodand the right to work, it would be sheer

pedantry to exclude the right to livelihoodfrom the content of the right to life. TheState may not, by affirmative action, becompellable to provide adequate means oflivelihood or work to the citizens. But,any person, who is deprived of his right tolivelihood except according to just and

fair procedure established by law, canchallenge the deprivation as off endingthe right to life conferred by Article 21."

The above case also laid down the lawthat any person who is deprived of hisright to livelihood except according to justand fair procedure established by law, canchallenge the deprivation as offending theright to life conferred by Article 21.

29. There are various other

pronouncement of the Supreme Court inwhich this principle was followedsubsequently in all such cases. In D.S.Nakara V5. Union of India (A.I.R. 1983S.C., 130), the Supreme Court held that ifan under privileged also are clamouringfor their rights and are seeking theintervention of the Court with touchingfaith and confidence in the Court, theJudges of the Court have a duty to redeemtheir constitutional oath and do justice noless to the pavement dweller than to the

guests of the Five Star hotel.

30. The Supreme Court in LingappaPochanna V5. State of Maharashtra(A.I.R. 1985 S.C., 389) has laid down thelaw relating to distributive justice toachieve a fair division of wealth amongthe members of society based upon the

principle' from each according to his


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capacity, to each according to his needs'.Distributive justice comprehends morethan achieved lessening of inequalities bydifferent taxation, giving debt relief ordistribution of property owned by onemany who have none by imposing ceilingon holdings, both agricultural and urban,or by direct regulation of contractualtransactions by forbidding certaintransactions and, perhaps, by requiringothers. It also means that those who have

been deprived of their properties by

unconscionable bargaining should herestored their property. All such laws maytake the form of forced re-distribution ofwealth as a means of achieving a fairdivision of material resources among themembers of society or there may belegislative control of unfair agreements.In State of Himachal Pradesh v. UmedRam (A.I.R. 1986 S.C. 847) the SupremeCourt has further elaborated that rightunder Article 21 embraces not only

physical existence of life but the quality

of life and denial of that right would bedenial of the life as understood in itsrichness and fullness by the ambit of theConstitution. Right to live with dignity isa fundamental right as held by ApexCourt in Maneka Gandhi v. Union ofIndia 5. Article 38 (2) was regarded asanother constitutional imperative. InMohini Jain v. State of Karnataka theSupreme Court has further repeated that"right to life" is the compendiousexpression for all those rights, which the

courts must enforce because they are basic to the dignified enjoyment of life. Itextends to the full range of conduct,which the individual is free to pursue. Theright to education flows directly fromright to life. The right to life under Article21 and the dignity of an individual cannot

5 AIR 1978 SC-597

be assured unless it is accompanied by theright to education. From the above it isclear that right to earn wages to maintainhuman dignity with all such connectedmatters in a dignified manner is part ofright to life. It is further held thatdepriving a person of his right tolivelihood amounts to depriving him ofhis right to life.

31. India is a signatory to theUniversal Declaration of 1948. Article 25

of the Universal Declaration, 1948, whichalso provides such right to citizen ofIndia.

32. It has come on record throughthe means of affidavit that the petitionerearns huge money during certain period ofthe year and that money is used andappropriated by the management and theoffice bearers or the petitioner to theiruse. Each and every person working in areligious and charitable institution,

whether he is an ordinary worker or anoffice bearer, is the custodian to protectthe property of the establishment. Eventhe Chairman, Secretary, Trustees of suchinstitutions are workers in similar wayand have been engaged to protect the

property of the institution and to followthe aims and objects for which theinstitution has been established. TheMahants, Secretaries and heads of suchreligious and charitable institutions arelike other workers who have also been

engaged to achieve the same goal. Thewealth collected or received by thereligious and charitable institutions is to

be distributed in a rationale manner to protect the life and livelihood of theworkers and their family members.

33. In these circumstance, I directthe State to make certain scheme for such


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religious and charitable institutions andframe regulation in the scheme to provide

protection to such workers. The State hasevery duty to enforce the constitutionalrights of the workers of such institutionsas applicable to other Establishments i.e.commercial establishment. The work"otherwise" mentioned In Article 43 ofthe Constitution, contained in DirectivePrinciples, read with Article 21 of theConstitution fully covers the case of suchworkers.

34. The above discussion gives birth to consideration of the precisequestion as to what are the rights ofemployees or Sevadars, or Imams etc.who are charged with theduties/responsibilities to upkeep theestablishment or to perform Pooja ofDeity in a temple, managed either by theTrustees, Committee, Manager or Savaitsas the case may be, and whether in thematter of offerings to the Deity or the

income flowing from such trust, temple,they can lay claim to surplus income orofferings to a use other than bettermentand maintenance /upkeep of the Trust etc.and employees/workers are entitled to getwages.

35. Having scanned the matter in allits entirety, and after hearing the learnedcounsel for the parties, my conclusionslean in favour of the view that theofferings or income from such

Temple/charitable Trust, etc. is anoffering/income meant for deity andAlmighty and in this connection, suchtrustee, Savaits etc. have not personalclaim to appropriate such offering andincome according to their own choice. Inmy view they are also in the service ofDeity or Almighty at par with the otheremployees or Sevadars engaged in the

service of Almighty and the Deity and bythis reckoning, merely because, they areSavait or Mahants etc. or at the helm ofthe affairs in the Management of suchestablishments, they have no overridingclaim or personal rights to theofferings/gifts/Daan received by thetemple or charitable or religiousestablishment or its use except for theupkeep and maintenance of suchTrust/Temple/Establishment/Institutionsvis-a-vis other employees and Sevadars.

No doubt, a Poojari performs Pooja toAlmighty and for service so rendered byhim entitles him to receive remunerationwhether it is from the offerings or incomederived from such Charitable Trust,establishment etc. but the service sorendered by him does not invest him witha Fight to claim more and more from the

property which does not belong to him inindividual capacity but is dedicated orgifted or offered to Almighty or Idol andthe same cannot be appropriated as a

personal property. of anyone of theservants of Almighty, or Poojari orSavaits of a temple. He may have

personal interest of beneficial characterfor the cause of temple, religious orcharitable establishment but he cannotclaim his personal rights to receiveofferings made to idol or Almighty. By noreckoning, such offerings could beutilised or appropriated for his use exceptthat the same can be utilised foraccomplishing and furthering the alms

and objects of the Charitable Trust,temples ete. The persons who are engaged by the management or persons Involvedin the management are working on behalfof the Devotees in a similar way asSevadars and other persons Involved andthey are also entitled at par' withSavalt/members of the Trust who areinvolved for whole time in the service of


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temple and they have also got same rightsof livelihood like Sevadars and otheremployees.

36. Article 21 of the Const of Indiais applicable equally to all such persons,The right to get livelihood, wages tomaintain themselves and their families asdiscussed above, and to get fair wagescannot be denied merely on the groundthat the establishment or Institution is areligious or charitable institution or that

persons who are engaged are Sevadars oremployees at the pleasure of management.Employees or Sevadars are the personswho have dedicated themselves to theservice of Deity and Almighty and in suchway, merely on that ground for cannot bedenied their right of living wages tomaintain themselves or their families andto live a life with human dignity,

37. In the above conspectus, it isnow established that though service

conditions of the employees of religiousand charitable establishments are notgoverned by any statutory rules, lookingto the fact that these people are committedto their works in religious and charitableestablishment and service to the entiresociality selflessly and have beendevoting their time to the service of themankind, a humanistic approach is calledfor towards their plight and predicament.It is settled that under Article 21 of theConstitution of India, the rights to live

takes within its sweep the right tolivelihood and by this reckoning they arealso entitled to such emoluments so as tokeep the pot boiling for himself and hisfamily members. The above view pointreceives reinforcement from variousdecisions including the decision of theWorkmen represented by Secretary v.the Management of Reptakos Brett &

Co. and another, AIR 1992 SC 504 , Inwhich five norms of fixation of minimumwages have been delineated I.e. foodrequirement, clothing requirement, othermisc. expenses including fuel, lightingetc. besides the above, the right to geteducation and maintain health of thechildren has also been recognized to betaken into account for constituting livingwages. As observed in AIR 1992 SC 504(supra), a living wage/minimum wageshave been promised to the workers under

the Constitution. Further, a socialist framework to enable the working people inIndia a decent standard of life, has been

promised by the 42 nd Amendment byadding word 'socialism in the Preamble.The workers are hopefully lookingforward to achieve the said ideal. The

promises are piling up but the day offulfillment is nowhere in sight. In the lightof the above observations, it cannot bedisputed that every citizen whetheremployee of a religious or charitable

establishment or otherwise is entitled toget living wages. It is now well settled byseveral pronouncements of Apex Court aswell as this Court that religious activities,which are Integral part of religion, cannot

be interfered with but the matters, whichare not integral part of religious activities,can be regulated by legislation or by anyscheme.

38. A decision rendered by aDivision Bench of Allahabad High Court

in Vikram Narain Singh v. State of U.P.1987 AU 728 . Yet another decision inwhich similar matter came up forconsideration before the Apex Court is thedecision rendered in Raja Vir KishoreDeo v. State of Orissa in whichConstitution Bench of Apex court heldOrissa Act No. 11 of 1995 valid. In theJudgment, the rights of management of


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temple, which were vested in Raja of Puriand his ancestors, were taken away. In thesaid decision, the Supreme Court held thatthe Act so enacted has not taken away theright of Raja of Puri as Sewaks and it alsodoes not affect religious rights of Raja.This Judgment also pronounces that all

persons in the management are Savaitslike its employees and any one engaged inthe service and performance and up-keepof the temple/trust etc. person has no rightto use the offerings of devotees personally

except in the Interest of all the personsand the interest of temple or religiousinstitutions. Another Constitutional Benchdecision is Commissioner HinduReligious Endowments (Madras) v. SriLakshmindra Thirtha Swamiar, 1954., SC282, In which the Constitution a Bench in

para 22 of the decision, observed thatfreedom of religion in our Constitution isnot confined to religious beliefs only; itextends to religious practices as wellsubject to the restrictions which the

constitution Itself has laid down underArticle 26 (b). Therefore, a religiousdenomination or organization enjoyscomplete autonomy in the matter ofdeciding as to what rites and ceremoniesare essential according to the tenets of thereligion they hold and no outsideauthority has any jurisdiction to interferewith their decision in such matters. It wasfurther observed by the Apex Court thatthe scale of expenses to be incurred inconnection with these religious

observances would be a matter ofadministration of property belonging tothe religious denomination and can becontrolled by secular authorities inaccordance with any law laid down by acompetent legislature, for it could not bethe injunction of any religion to destroythe institution and its endowments byincurring wasteful expenditure on rites

and ceremonies. Another ConstitutionBench decision of the Apex court inDarhgah Committee, Ajmer andanother v. Syed Hussain Ali and othersreported in AIR 1961 Supreme Court1402 , also lends countenance to the viewthat the matters of religion include even

practices which are regarded by thecommunity as part of its religion. In orderthat the practices in question should betreated as a part of religion they musthowever be regarded by the said religion

as its essential and integral part, otherwiseeven purely secular practices which arenot an essential or an integral part ofreligion are apt to be clothed with areligious form and may make a claim for

being treated as religious practices.

39. This Court is also of the viewthat the State cannot interfere with theintegral part of the religious functions butsuch matters like payment of MinimumWages or other welfare scheme for the

Sevaks/workers in the employment ofTemple or other religious and CharitableEstablishments can well be regulated.

40. My view is fortified by certaincases, which I consider germane to l r--thecontroversy involved in this petition, may

be noticed. One such question relating toan employee working in a temple whetherhe was entitled to get gratuity was on thetapis in Administrator, ShreeJagannath Temple v. Jagannath

Padhi6

. A division bench consisting ofHon. B.L. Hansaria then C.J. and Sri A.Pasayat, gave vent to the followingobservation:

"It does not have foundation on anylegal liability, but upon a bounty

6 1992 LAB IC 1621


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streaming from appreciation andgraciousness. Long service carries with itexpectation of an appreciation from theemployer and a gracious financialassistance to tide over post retrialdifficulties. Judged In that background,we feel that it would be unconscionable tokeep temple out of the purview of the Act,more particularly when opposite party no.l, a low paid employee has served thetemple for a very long span of time."

41. In the light of above observationthat every citizen whether employees ofany Religious and Charitableestablishment/Institution which includes,Math, Monastery ete. are entitled to getliving/minimum wages, it is held thatOpposite party no.3 and all employeesworking in the Establishment of the

petitioner are entitled to get minimumwages from the date the dispute wasraised. The petitioners are liable to paythe same fort

indian law report - allahabad series - sep-oct2006

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