# Shree Marwari Seva Sangh Varanasi v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 855
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-22
- **Case number:** Civil Misc. Writ Petition No. 43367 of 2008
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-marwari-seva-sangh-varanasi-v-state-of-u-p-and-others-41246
- **Pages:** 3

## Headnote

Constitution of India Article 226-writ of
certiorari quashing of notification dated
24.02.2006-column 2 serial no. 24-by
which for the first time charitable
'Dharmashala' except no charges or
charge
upto
Rs.5/-brought
within
purview of income tax-parity claimed of
institutions run by charitable trust-held-
Dharmashala may have object of charity
but its employees are not governed by
said
object-provisions
of
minimum
wages equally applicable -cannot seek
exemption from tax-petition dismissed.

Held: Para 8

Even Charitable hospitals have been
included in the definition of industry by
virtue of decision rendered by the Apex
Court in A.1.R. 1978 S.C. 548 Banglore
Water Supply and Sewerage board Vs. A
Rajappa and others. This decision still
holds good, therefore, Dharmashala run
by the society may be for charity and
engaged in providing social services and
means
as
stated
above,
but
its
employees are not governed by the
objects of the society and minimum
wages are required to be paid to them.
Those objects are of the society running
Dharmashala and not of its employees,
therefore, in my opinion, Dharmashala is
also an industry and notification can be
issued by the Government for bringing it
within the schedule employment and
minimum wages can be fixed according
to the procedure prescribed under the
Minimum Wages Act.
Case law discussed:
A.1.R. 1978 S.C. 548

## Text

3 All] Shree Marwari Seva Sangh Varanasi V. State of U.P. and others
855
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 43367 of 2008

Shree Marwari Seva Sangh, Varanasi

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

Counsel for the Petitioner:
Sri. Sunil Tripathi
Sri. Amitabh Trivedi

Counsel for the Respondents:
S.C.

Constitution of India Article 226-writ of
certiorari quashing of notification dated
24.02.2006-column 2 serial no. 24-by
which for the first time charitable
'Dharmashala' except no charges or
charge
upto
Rs.5/-brought
within
purview of income tax-parity claimed of
institutions run by charitable trust-held-
Dharmashala may have object of charity
but its employees are not governed by
said
object-provisions
of
minimum
wages equally applicable -cannot seek
exemption from tax-petition dismissed.

Held: Para 8

Even Charitable hospitals have been
included in the definition of industry by
virtue of decision rendered by the Apex
Court in A.1.R. 1978 S.C. 548 Banglore
Water Supply and Sewerage board Vs. A
Rajappa and others. This decision still
holds good, therefore, Dharmashala run
by the society may be for charity and
engaged in providing social services and
means
as
stated
above,
but
its
employees are not governed by the
objects of the society and minimum
wages are required to be paid to them.
Those objects are of the society running
Dharmashala and not of its employees,
therefore, in my opinion, Dharmashala is
also an industry and notification can be
issued by the Government for bringing it
within the schedule employment and
minimum wages can be fixed according
to the procedure prescribed under the
Minimum Wages Act.
Case law discussed:
A.1.R. 1978 S.C. 548

(Delivered by Hon'ble. Rakesh Tiwari, J.)

1. Heard counsel for the petitioner.

2. According to the counsel for
petitioner, " Shree Marwari Seva Sangh"
the petitioner is a registered society
managing "Dharmshala" and rendering
services for stay etc. to the pilgrims,
passengers,
old
people
and
their
attendants without taking any charge from
them and there is no business or
commercial activities in the Dharmashala.
The source of income of the society is
donations from charity minded persons
and its income is also exempted under
section 80 G(5) of the Income Tax Act,
1961.

3. For the first time, by notification
dated 30.12.1994 appended as annexure11 to the writ petition, minimum wages
were
fixed
for
employment
in
Dharmashala except those charging no
rent or charging upto Rs.5/- per day as
rent, were exempted from the purview of
aforesaid notification.

4. It is stated that since no charge/
rent is being realised by the petitioner for
rendering aforesaid services, it belongs to
the exempted category. The petitioner
Dharmashala was inspected on 27.5.2008
and against the inspection note dated
27.5.2008 under the Minimum Wages
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
856
Act,
1948,
the
petitioner
filed
a
representation dated 2.7.2008 to Labour
Enforcement Officer, Varanasi which is
appended as annexure-10 to the writ
petition, inter alia that the society is a
charitable society which provide services
to the public like free fooding to saints,
poors, students and helpless down trodden
people of the society, extend all sort of
free services in case of famine, other
epidemic diseases and other causalities,
free medical facilities and arrangements
for temporary and permanent stay to
pilgrims , old people etc., therefore, it is
not covered under U.P. Dookan Avam
Vanijya Adhishthan Adhiniyam, 1962.

5. It is urged that by notification
dated 30.12.1994 Dharmashala was for
the first time included in the schedule
employment. It was revised vide draft
notification dated 4.2.2000 appended as
annexure 12 to the writ petition. By the
notification
dated
4.2.2000,
26
employments have been included in the
schedule
employment
in
which
Dharmashala is included at serial no. 24.
It is stated by the counsel for petitioner
that due to clerical mistake in the draft
notification, exemption was not given to
the Dharmashalas as was given in the
notification dated 30.12.1994 and this
mistake continued in the final notification
dated
24.2.2006
also
including
Dharmashala
in
the
schedule
employments
without
granting
any
exemption.

6. It is urged that in similar situation
a notification dated 31.1.1991 in respect
of schools has also been issued in which
exemption had been granted to private
coaching
classes,
private
schools
including nursery school and private
technical institutions. This notification
has been appended as annexure 13 to the
writ petition. The relevant extract of
exemption given in the notification dated
31.1.1991 is as under:

"In exercise of the powers under
clause (a) of sub section (1) of Section 3
read with clause (ii) of sub section (1) of
section 4 of the minimum Wages Act,
1948 (Act 11 of 1948) and after
consulting the Advisory Board and having
considered the objections and suggestions
received in respect of the proposals
published by Government Notification No.
2903/XXXVI-3-21
(M.W.)-83,
dated
August 13, 1990, the Government is
pleased to fix the minim rates of wages for
employees employed in the employment in
Private
Coaching
Classes,
Private
Schools including Nursery School and
Private Technical Institutions in Uttar
Pradesh other than (a) a Madarsa run by
Muslom community where no fee or a
nominal fee is being charged from the
students, (b) a Private school run by any
religious or charitable institution where
no fee or a nominal fee is being charged,
from the students, (c) a Balbadi run by the
U.P. Council for Child welfare and (d) a
recognized
Private
school
receiving
government aid. "

7. From the reading of extract of the
aforesaid notification, it appears that
certain educational institutions belonging
to minority community and religious or
charitable institutions as well as governed
or aided by State for welfare for children
belonging to weaker section of the society
only which are charging nominal fee or
no fee have been exempted from class of
establishment to which the Act applies.
The
exemption
clause
shows
that
government
is
sincere
towards
propagating education amongst poor and
3 All] Triveni Engineering & Industries Ltd. V. State of U.P. and others
857
down trodden students who are unable to
get proper education, in primary or
coaching institutions.

8. Even Charitable hospitals have
been included in the definition of industry
by virtue of decision rendered by the
Apex Court in A.1.R. 1978 S.C. 548
Banglore Water Supply and Sewerage
board Vs. A Rajappa and others. This
decision still holds good, therefore,
Dharmashala run by the society may be
for charity and engaged in providing
social services and means as stated above,
but its employees are not governed by the
objects of the society and minimum
wages are required to be paid to them.
Those objects are of the society running
Dharmashala and not of its employees,
therefore, in my opinion, Dharmashala is
also an industry and notification can be
issued by the Government for bringing it
within the schedule employment and
minimum wages can be fixed according to
the procedure prescribed under the
Minimum Wages Act.

9. Counsel for the petitioner has
failed
to
place
any
document
to
substantiate his submission that report
submitted by the committee constituted
for comparative study of minimum wages,
was not placed in the meeting of the
Advisory Board and minimum wages was
fixed without consultation with Advisory
Board or that there was any clerical
mistake in not granting exemption to the
petitioner. Therefore, parity cannot be
sought
with
the
notification
dated
31.1.1991 in which exemption has been
granted to private coaching classes,
private schools including nursery school
and private technical institutions, for
benefit of education to next generation.
The notification dated 31.1.1991 is for the
benefit of society at large by the
Government as it also includes Balbadi
run by the U.P. Council for Child welfare
and recognized Private school receiving
government aid. It cannot be compared
with Dharmashala and there is no
violation of Article 14 of the Constitution.

10. For the reasons stated above, no
case is made out for quashing the
schedule
employment
"Dharmashala"
notified in column 2 at serial no. 24 of
Schedule-1 of impugned notification
dated 24.2.2006 and the inspection note
dated 27.5.2008.

11. The writ petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2008

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 13135 of 2002

Triveni Engineering & Industries Limited

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

Counsel for the Petitioner:
Sri. Dilip Singh.
Sri. S.P. Singh.

Counsel for the Respondents:
Sri. Siddtarth
S.C.

Constitution of India Article 226-Back
wages-lower Court award challenged-on
the ground-petitioner being Registered
Company running seasonal Industry for
manufacturing crystal sugar through
"vacuum pan process"-workman never
worked after 1992-93-in terms of award