K.V. Unnikrishnan v. Kozhikode Samuthiri Raja, Trustee, Shri Thirunavaya Navamukunda Temple Devaswom; Shri Shanmugh an Parayakudath, President, Shri Thirunavaya Ayyappa Kshethra Samithi; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 2[ND] DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943** ## **WP(C) NO. 5829 OF 2011** ## **PETITIONER:** **K.V.UNNIKRISHNAN, S/O. THAYYAN KUVELA VALAPPIL VEEDU, NADUVATTOM P.O., KUTTIPURAM - 679552.** **BY ADVS.** **SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH** ## **RESPONDENTS:** - **1 KOZHIKODE SAMUTHIRI RAJA, TRUSTEE SHRI.THIRUNAVAYA NAVAMUKUNDA TEMPLE DEVASWOM, THIRUNAVAYA P.O., B.V.ANGADY (VIA), MALAPPURAM DISTRICT - 676505.** - **2 SHRI.SHANMUGHAN PARAYAKUDATH, PRESIDENT SHRI.THIRUNAVAYA AYYAPPA KSHETHRA SAMITHI, THIRUNAVAYA P.O., B.V.ANGADY VIA, MALAPPURAM DISTRICT-676505** - **3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **SMT.SHAHNA KARTHIKEYAN SRI.M.P.SREEKRISHNAN G.P.SRI.K.M.FAISAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) 5829/2011 2 ## **JUDGMENT** When the Government refers a dispute for adjudication to the Industrial Tribunal in exercise of the powers under Section 10 (1) (d) of the Industrial Disputes Act, 1947, can the Tribunal hold that the reference is invalid, incompetent and incapable for adjudication? This is the short question that arises for consideration in this writ petition. 2.The petitioner was appointed as the Temple Manager of Sree Thirunavaya Ayyappa Kshethram, Thirunavaya on 06.12.2005 on a monthly salary of Rs.4,000/-. The appointment was made by the President of the Thirunavaya Ayyappa Kshethra Samithi. Later, pursuant to the order of the Hindu Religious and Charitable Endowments Commissioner, the administration of the temple was entrusted with the Kozhikode Samoothiri Raja, the Trustee of Sree Thirunavaya Navamukunda Temple Devaswom and the petitioner was denied employment from 07.10.2007. The petitioner, therefore, approached the District Labour Officer who referred the matter to the Government and the Government as per Ext.P1, referred the dispute for W.P.(C) 5829/2011 3 adjudication to the Industrial Tribunal, Palakkad ('Tribunal', for short) in exercise of the powers under Section 10 (1) (d) of the Industrial Disputes Act, 1947 (for brevity, 'the Act'). The issue referred in Ext.P1 for the adjudication of the Industrial Tribunal was as follows:- _“Whether the denial of employment to Shri.K.V. Unnikrishan, Manager by the management of Shri. Thirunavaya Ayyappa Temple is justifiable? If not what relief he is entitled to?”_ 3. Pursuant to the reference, the dispute was numbered as I.D. No.28/2009. The petitioner submitted his claim statement and the Kozhikode Samoothiri Raja, the 1[st] respondent (hereinafter referred to as the '1[st] management') and the President of the Thirunavaya Ayyappa Kshethra Samithi, the 2[nd] respondent (2[nd] management) submitted their written statements. In the written statement filed by the 2[nd] management, they supported the averments of the complainant/writ petitioner. Whereas, the 1[st] management contended _inter alia_ that, the Thirunavaya Temple is covered under the Madras Hindu Religious and Charitable Endowments Act (hereinafter referred to as the 'HR&CE Act') and the dispute against the temple can be resolved only by the Deputy W.P.(C) 5829/2011 4 Commissioner under the said Act and the Tribunal has no jurisdiction to adjudicate such dispute under the I.D. Act. 4. Since the jurisdiction of the Tribunal to decide the dispute referred for adjudication was raised by the 1[st] management, the Tribunal considered the same as preliminary issue. Placing reliance on a Division Bench decision of this Court in **Cherinjumpathy Thampuratty** _v_ . **State of Kerala [2004(3) KLT 303]** , it was contended by the 1[st] management that the Government has no power to refer a dispute between an employee and a temple governed by the provisions of the HR&CE Act to the Industrial Tribunal under Section 10(1)(d) of the Act. The Tribunal, by Ext.P2 Award, found that the parties do not satisfy the definition of workman and industry under the Act. The Tribunal also took note of the fact that the complainant had already invoked the jurisdiction of the HR & CE Commissioner by filing Ext.W2 complaint. Rejecting the contention of the complainant that once a dispute is referred for adjudication, the Tribunal has to answer the reference and cannot order that the reference is invalid or incompetent, the Tribunal held that all the W.P.(C) 5829/2011 5 disputes referred by the Government under Section 10(1) of the Act may not be industrial disputes, as the parties may not be an industry or workman and such matters can be decided only by the Tribunal. The Tribunal thus answered the preliminary issue and passed Ext.P2 award holding that the reference is invalid, incompetent and not capable for adjudication under the Act. 5. Ext. P2 award is impugned in the writ petition. The main contention of the petitioner is that, once the Government refers a dispute for adjudication to the Tribunal in exercise of powers under Section 10 (1) (d) of the Act, the Tribunal cannot refuse to decide the reference and has to answer the reference. It is also contended that the 1[st] management having not challenged Ext. P1 reference before any Court of law, they cannot challenge the validity of reference before the Tribunal. Therefore, the petitioner seeks to quash Ext.P2 award and prays for a direction to the Tribunal to take up Ext.P1 reference and to decide the same on merits. 6. Heard Sri. Kodoth Pushparajan, the learned counsel for the W.P.(C) 5829/2011 6 petitioner and the learned Government Pleader. According to Sri.Pushparajan, once the Government refers a dispute for adjudication to the Tribunal, the Tribunal cannot refuse to decide the reference and order that the reference is invalid or incompetent. 7. It is trite that an order of reference made by the Government under Section 10 (1) of the Act is only an administrative act and not a judicial or a quasi judicial act. When the Government refers a dispute for adjudication to the Tribunal, the Government do not adjudicate the merits of the dispute. The reference is pursuant to the opinion of the Government as to the existence or apprehension of an industrial dispute on the basis of materials before it. Though the Tribunal gets jurisdiction to adjudicate the dispute on reference, mere reference of dispute will not always confer jurisdiction on the Tribunal to exercise its judicial function. If the jurisdiction is disputed, the Tribunal will have to decide the question of jurisdiction as preliminary issue before proceeding to adjudicate the dispute on merits. The Constitution Bench of the Apex Court in **State of Madras** _**v**_ **. C.P. Sarathy and another [AIR 1953 SC** W.P.(C) 5829/2011 7 ## **53]** held thus:- _“14.... No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award"._ Where, any question regarding the jurisdiction as to the existence of an industrial dispute, or the question as to whether the parties are industry or workman as the case may be within the meaning of the Act are raised, that has to be considered as a preliminary issue and the determination of that issue will decide the validity of the reference. If the Tribunal finds that it has no jurisdiction to adjudicate the reference or the reference is incapable for adjudication, that finding answers the reference in such case. The contention of the petitioner that, once the Government refers a dispute for adjudication to the Tribunal, the Tribunal cannot refuse to decide the reference is therefore without any merit. 8. The next contention of the petitioner is that since the 1[st] management has not challenged Ext.P1 reference before any Court of law, they cannot challenge the validity of reference before the Tribunal. I W.P.(C) 5829/2011 8 find no merit in this contention also. Before the Tribunal, the parties will get opportunity to adduce evidence to show that no dispute exists, or, parties are not workman or industry, and therefore, the reference made is invalid. Where no evidence is required to be considered, the validity of the reference may also be examined in a proceedings under Art.226 of the Constitution. When the jurisdiction of the Tribunal to adjudicate the reference is raised as a preliminary issue, the Tribunal is bound to decide the said question before proceeding to adjudicate the dispute on merits and the answer to that issue will decide validity of the reference. The validity of reference need not be challenged in any separate proceedings and the same can be raised before the Tribunal in the dispute referred for adjudication. 9. In **Cherinjumpathy Thampuratty** (supra), this Court held that the Government has no power to refer a dispute between an employee and a temple governed by the provisions of the HR&CE Act to the Industrial Tribunal under Section 10(1)(d) of the Act. It is not in dispute that the temple in question is governed by the provisions of the HR&CE W.P.(C) 5829/2011 9 Act. It is also admitted that the petitioner had already invoked the jurisdiction of the HR & CE Commissioner by filing Ext.W2 complaint. In the said decision, this Court held :- _“5.We are of the view the Industrial Tribunal, Palakkad has no jurisdiction to decide the dispute between the employee of a temple and Devaswom governed by the provisions of the H.R. & C.E. Act. The appointment and conditions of service of the employees are as provided under the rules framed under S.100(2)(y) of the H.R. & C.E. Act. S.49 of the Act provides for taking disciplinary action against the employees for good and sufficient reasons. Deputy Commissioner and Commissioner have also got powers under S.49(2) and (3) of the Act to deal with the disciplinary proceedings initiated against an employee of a temple coming under the provisions of the H.R. & C.E. Act. When Special Provision are provided under the H.R. & C.E. Act to take disciplinary action against an employee of a temple, and the remedy has also been provided thereunder, the Government have no jurisdiction or power to refer the dispute to the Industrial Tribunal. Further, Industrial Tribunal has also no jurisdiction to resolve those disputes when the power is conferred on the Commissioner under the provisions of the H.R. & C.E. Act. The temple managed by the petitioner Trustee would not fall within the definition of S.2(j) of Industrial Disputes Act. The dispute between the temple employee and the temple management is not an industrial dispute which falls under the definition of S.2(k) of the Act. The activities carried on in a temple is purely of a religious nature. The temple has to function in an atmosphere different from that of an industrial and_ W.P.(C) 5829/2011 10 _commercial undertakings. The dispute, if any, between the temple employee and the temple management has therefore to be resolved by the authority constituted under special enactment, H.R.& C.E. Act and the Rules framed thereunder. The Industrial Tribunal has therefore no jurisdiction to resolve the disputes between the temple employee and the temple management"._ The dispute regarding the denial of employment to the petitioner by the Trustee of the Temple is to be resolved by the authority constituted under the HR & CE Act and the rules framed thereunder. The Tribunal was right in coming to the conclusion that Ext.P1 reference made by the Government is invalid. I find no reason to interfere with Ext.P2 award and accordingly, the writ petition is dismissed. No order as to costs. **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) 5829/2011 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1:TRUE COPY OF THE REFERENCE ORDER PASSED BY THE GOVERNMENT DATED 3.6.2009.** - **P2:TRUE COPY OF THE AWARD PASSED BY THE INDUSTRIAL TRIBUNAL, PALAKKAD DATED 20.7.2010 IN I.D.NO.28/2009.** ## **spc/**