Miss
A. Sundarambal Vs. Government of Goa,
Daman and Diu & Ors [1988] INSC 189 (27 July 1988)
Sen,
A.P. (J) Sen, A.P. (J) Eradi, V. Balakrishna (J)
CITATION:
JT 1987 (2) 101
ACT:
Labour
law-Industrial Disputes Act. 1947-Sections 2(s) and 2(j)-"Industry"
and "workmen"-educational institution being industry", whether
teachers employed therein would be "workmen".
HEAD NOTE:
The
appellant was a school teacher and her services were terminated by the
Management. She made several efforts in getting the order of termination
cancelled but without success. Ultimately she raised an industrial dispute
before the Conciliation officer under the Act. The conciliation proceedings
failed and the conciliation officer reported accordingly to the Government. The
Government considered the question of referring the matter for adjudication
under section 10 of the Act But on reaching the conclusion that the appellant
was not a 'workman' as defined in the Act. it declined to make a reference.
The
appellant filed a writ petition before the High Court for issue of. a Writ of
Mandamus requiring the Government to make a reference under section 10(1)(c) of
the Act to a Labour
Court to determine
the validity of the termination of her services. The High Court dismissed the
petition holding that the appellant was not a workman. This appeal by special
leave is against the Judgment of the High Court.
Dismissing
the appeal, this Court, ^
HELD:
1.1 Even though an educational institution has to be treated as an industry the
teachers employed by educational institutions whether the said institutions are
imparting primary, secondary, graduate or post graduate education cannot be
called as 'workmen' within the meaning of section 2(s) of the Act. Imparting of
education which is the main function of teachers cannot be considered as
skilled or unskilled manual work or supervisory work or technical work or
clerical work. Imparting of education is in the nature of a mission or a noble
vocation. A teacher educates children, he moulds their character, builds up
their personality and makes them fit to become responsible citizens. Children
grow under the care of teachers. The clerical work, if any they may do, is only
incidental to their principal work of teaching. [608B-C; 610A-C] 605
1.2 If
an employee in an industry is not a person engaged in doing work falling in any
of the categories as mentioned in Section 2(s) of the Act, he would not be a
workman at all even-though he is employed in an industry. It is not possible to
accept the suggestion that having regard to the object of the Act, all
employees in an industry except those falling under the four exceptions (i) to
(iv) in section 2(s) of the Act should be treated as workmen. The acceptance of
this argument will render the words 'to do any skilled or unskilled manual,
supervisory, technical or clerical work' meaningless. A liberal construction as
suggested would have been possible only in the absence of these words. [609C-D;
611C-E] Bangalore Water Supply & Sewerage Board, etc. v. R. Rajappa &
others, [1978] 3 S.C.R. 207, relied on. (2) University of Delhi & Anr. v. Ram Nath, [1964] 2
SCR 703 and May and Baker (India) Ltd. v.
Their Workmen, [1961] 11 L.L.J. 94 referred to.
2.
Teachers as a class cannot be denied the benefits of social justice. It is
necessary to provide for an appropriate machine y so that teachers may secure
what is rightly due to them. In a number of States in India laws have been passed for enquiring
into the validity of illegal and unjust terminations of service of teachers by
providing for appointment of judicial tribunals to decide such cases.
It is
time that State of Goa takes necessary steps to bring into
force legislation providing for adjudication of disputes between teachers and
the Managements of educational institutions. [611F-G] [At the instance of this
Court, the Management of the School agreed to pay the appellant Rs.40,000 which
this Court directed to be paid in 6 monthly instalments commencing from
September, 1988.] [612B]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 177 (NL) of 1984.
From
the Judgment and order dated 5.9.1983 of the High Court of Bombay in Special
Civil Application No. 59 of 1983 Dr. Y.S. Chitale and V.N. Ganpule for the
Appellant.
G.B. Pai,
Parveen Kumar and Vivek Ghambir for the Respondents.
606
The Judgment of the Court was delivered by VENKATARAMIAH, J. The short question
which arises for consideration in this case is whether a teacher employed in a
school falls within the definition of the expression 'workman' as defined in
section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as
'the Act').
The
appellant, Miss A. Sundarambal, was appointed as a teacher in a school
conducted by the Society of Franciscan Sisters of Mary at Caranzalem, Goa. Her services were terminated by the Management by a
letter dated 25th
April, 1975. After she
failed in her several efforts in getting the order of termination cancelled she
raised an industrial dispute before the Conciliation officer under the Act. The
conciliation proceedings failed and the Conciliation officer reported
accordingly to the Government of Goa, Daman
and Diu by his letter dated 2nd May, 1982. On receipt of the report the
Government considered the question whether it could refer the matter for
adjudication under section 10(1)(c) of the Act but on reaching the conclusion
that the appellant was not a 'workman' as defined in the Act which alone would
have converted a dispute into an industrial dispute as defined in section 2(k)
of the Act, it declined to make a reference. Thereupon, the appellant filed a
writ petition before the High Court of Bombay, Panaji Bench, Goa for issue of a
writ in the nature of mandamus requiring the Government to make a reference
under section 10(1)(c) of the Act to a Labour Court to determine the validity
of the termination of her services. The said writ petition was registered as
Special Leave Application No. 59 of 1983. That petition was opposed by the
respondents. After hearing the parties concerned, the High Court dismissed the
writ petition holding that the appellant was not a workman by its judgment
dated 5th September,
1983. Aggrieved by the
judgment of the High Court, the appellant has filed this appeal by special
leave.
Two
questions arise for consideration in this case; (1) whether the school, in
which the appellant was working, was an industry, and (2) whether the appellant
was a 'workman' employed in that industry. It is, however, not disputed that if
the appellant was not a 'workman' no reference under section 10(1)(c) of the
Act could be sought.
The
first question need not detain us long. In University of Delhi & Anr. v. Ram Nath, [1964] 2
S.C.R. 703 a bench consisting of three learned judges of this Court held that
the University of Delhi, which 607 was an educational institution and Miranda
House, a college affiliated to the said University, also being an educational
institution would not come within the definition of the expression 'industry'
as defined in section 2(j) of the Act.
Section
2(j) of the Act states that 'industry' means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service,
employment, handicraft, or industrial occupation or avocation of workmen. Gajendragadkar,
J., (as he then was) who decided the said case, held that the educational
institutions which were predominantly engaged in teaching could not be
considered as industries within the meaning of the said expression in section
2(j) of the Act and, therefore, a driver who was employed by the Miranda House
could not be considered as a workman employed in an industry. The above
decision came up for consideration in Bangalore Water Supply & Sewerage
Board, etc. v. R. Rajappa & others, [1978] 3 S.C.R. 207 before a larger
bench of this Court. In that case the decision in University of Delhi & Anr.
v. Ram Nath, (supra) was overruled. Krishna Iyer, J. who delivered the majority
judgement observed at Page 283 of the Report thus:
"(a)
Where a complex of activities, some of which qualify for exemption, others not,
involves, employees on the total undertaking, some of whom are not 'workmen' as
in the University of Delhi case or some departments are not productive of goods
and services if isolated, even then, the predominant nature of the services and
the integrated nature of the departments as explained in the Corporation of Nagpur,
will be true test.
The
whole undertaking will be 'industry' although those who are not 'workmen' by
definition may not benefit by the status." The learned Judge, however,
observed that while an educational institution was an industry it was possible
that some of the employees in that industry might not be workmen.
At
page 261 of the Report with reference to the case of University of Delhi & Anr.
v. Ram Nath, (supra) the learned Judge observed thus:
"The
first ground relied on by the Court is based upon the preliminary conclusion
that teachers are not 'workmen' by definition. Perhaps, they are not, because
teachers do not do manual work or technical work. We are not too sure whether
it is proper to disregard, with contempt, manual work and separate it from
education, nor are we too sure whether in our technological universe, edu- 608 cation
has to be excluded. However, that may be a battle to be waged on a later
occasion by litigation and we do not propose to pronounce on it at present. The
Court, in the University of Delhi, proceeded on that assumption viz. that teachers are not
workmen, which we will adopt to test the validity of the argument." Thus
it is seen that even though an educational institution has to be treated as an
industry in view of the decision in the Bangalore Water Supply & Sewerage
Board, etc. v. R. Rajappa & others, (supra) the question whether teachers
in an educational institution can be considered as workmen still remains to be
decided.
Section
2(s) of the Act defines 'workman' thus:
"2(s).
'workman' means any person (including an apprentice) employed in any industry
to do any skilled or unskilled manual, supervisory, technical or clerical work
for hire or reward, whether the terms of employment be expressed or implied,
and for the purposes of any proceeding under this Act in relation to an
industrial dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, or as a consequence of, that dispute, or
whose dismissal, discharge or retrenchment has led to that dispute, but does
not include any such person (i) who is subject to the Army Act, 1950 (46 of
1940), or the Air Force Act, 1950 (45 of 1950), or the Navy (Discipline) Act,
1934 (34 of 1934);
or
(ii) who is employed in the police service or as an officer or other employee
of a prison; or (iii) who is employed mainly in managerial or administrative
capacity; or (iv) who, being employed in a supervisory capacity, draws wages
exceeding five hundred rupees per mensem or exercises, either by the nature of
the duties attached to the office or by reason of the powers vested in him,
functions mainly of a managerial nature." 609 In order to be a workman, a
person should be one who satisfies the following conditions:
(i) he
should be a person employed in an industry for hire or reward;
(ii) he
should be engaged in skilled or unskilled manual, supervisory, technical or
clerical work; and
(iii) he
should not be a person falling under any of the four clauses, i.e., (i) to (iv)
mentioned in the definition of 'workman' in section 2(s) of the Act. The
definition also provides that a workman employed in an industry to do any
skilled or unskilled manual, supervisory, technical or clerical work for hire
or reward includes any such person who has been dismissed, discharged or
retrenched in connection with, or as a consequence of, an industrial dispute,
or whose dismissal, discharge or retrenchment has led to that dispute.
We are
concerned in this case primarily with the meaning of the words 'skilled or
unskilled manual, supervisory, technical or clerical work'. If an employee in
an industry is not a person engaged in doing work falling in any of these
categories, he would not be a workman at all even though he is employed in an
industry. The question for consideration before us is whether a teacher in a
school falls under any of the four categories, namely, a person doing any
skilled or unskilled manual work, supervisory work, technical work or clerical
work. If he does not satisfy any one of the above descriptions he would not be
workman even though he is an employee of an industry as settled by this Court
in May and Baker (India) Ltd. v. Their Workmen., [1961]
(II) L.L.J. 94. In that case this Court had to consider the question whether a
person employed by a pharmaceutical firm as a representative (for canvassing
orders) whose duties consisted mainly of canvassing orders and any clerical or
manual work that he had to do was only incidental to his main work of canvassing
could be considered as a workman as defined in the Act. Dealing with the said
question Wanchoo, J. (as he then was) observed thus:
"As
'workman' was then defined as any person employed in any industry to do any
skilled or unskilled manual or clerical work for hire or reward. Therefore,
doing manual or clerical work was necessary before a person could be called a
workman. This definition came for consideration before industrial tribunals and
it was consistently held that the designation of the employee was not of great
moment and what was of importance was the nature of his duties. If the nature
of the duties is manual or clerical, then the person must be held to be a
workman. On the other hand if manual or clerical work is only a small part of
the duties of 610 the person concerned and incidental to his main work which is
not manual or clerical, then such a person would not be a workman. It has,
therefore, to be seen in each case from the nature of the duties whether a
person employed is a workman or not, under the definition of that work as it
existed before the amendment of 1956. The nature of the duties of Mukerjee is
not in dispute in this case and the only question therefore is whether looking
to the nature of the duties it can be said that Mukerjee was a workman within
the meaning of S. 2(s) as it stood at the relevant time. We find from the
nature of the duties assigned to Mukerjee that his main work was that of
canvassing and any clerical or manual work that he had to do was incidental to
his main work of canvassing and could not take more than a small fraction of
the time for which he had to work. In the circumstances the tribunal's
conclusion that Mukerjee was a workman is incorrect. The tribunal seems to have
been led away by the fact that Mukerjee had no supervisory duties and had to
work under the directions of his superior officers.
That,
however, would not necessarily mean that Mukerjee's duties were mainly manual
or clerical.
From
what the tribunal itself has found it is clear that Mukerjee's duties were
mainly neither clerical nor manual. Therefore, as Mukerjee was not a workman,
his case would not be covered by the Industrial Disputes Act and the tribunal
would have no jurisdiction to order his reinstatement.
We,
therefore, set aside the order of the tribunal directing reinstatement of Mukerjee
along with other reliefs." The Court held that the employee Mukerjee
involved in that case was not a workman under section 2(s) of the Act because
he was not mainly employed to do any skilled or unskilled manual or clerical
work for hire or reward, which were the only two classes of employees who
qualified for being treated as 'workman' under the definition of the expression
'workman' in the Act, as it stood then. As a result of the above decision, in
order to give protection regarding security of employment and other benefits to
sales representatives, parliament passed separate law entitled the Sales
Promotion Employees (Conditions of Service) Act, 1976.
It is
no doubt true that after the events leading to the above decision took place
section 2(s) of the Act was amended by including persons doing technical work
as well as supervisory work. The question for consideration is whether even
after the inclusion of the above two classes of employees in the definition of
the expression 611 'workman' in the Act a teacher in a school can be called a
workman We are of the view that the teachers employed by educational
institutions whether the said institutions are imparting primary, secondary,
graduate or post graduate education cannot be called as 'workmen' within the
meaning of section 2(s) of the Act. Imparting of education which is the main
function of teachers cannot be considered as skilled or unskilled manual work
or supervisory work or technical work or clerical work. Imparting of education
is in the nature of a mission or a noble vocation. A teacher educates children,
he moulds their character, builds up their personality and makes them fit to
become responsible citizens. Children grow under the care of teachers. The
clerical work, if any they may do, is only incidental to their principal work
of teaching. We agree with the reasons given by the High Court for taking the
view that teachers cannot be treated as 'workmen' as defined under the Act. It
is not possible to accept the suggestion that having regard to the object of
the Act, all employees in an industry except those falling under the four
exceptions (i) to (iv) in section 2(s) of the Act should be treated as workmen.
The acceptance of this argument will render the words 'to do any skilled or
unskilled manual, supervisory, technical or clerical work' meaningless. A
liberal construction as suggested would have been possible only in the absence
of these words. The decision in May and Baker (India) Ltd. v. Their Workmen, (supra) precludes us from taking
such a view.
We,
therefore, hold that the High Court was right in holding that the appellant was
not a 'workman' though the school was an industry in view of the definition of
'workman' as it now stands.
We may
at this stage observe that teachers as a class cannot be denied the benefits of
social justice. We are aware of the several methods adopted by unscrupulous
managements to exploit them by imposing on them unjust conditions of service.
In order to do justice to them it is necessary to provide for an appropriate
machinery so that teachers may secure what is rightly due to them. In a number
of States in India laws have been passed for enquiring
into the validity of illegal and unjust terminations of services of teachers by
providing for appointment of judicial tribunals to decide such cases. We are
told that in the State of Goa there is
no such Act in force. If it is so, it is time that the State of Goa takes
necessary steps to bring into force an appropriate legislation providing for
adjudication of disputes between teachers and the Managements of the
educational institutions. We hope that this lacuna in the legislative area will
be filled up soon.
This
appeal, however, fails and it is dismissed. Before we con- 612 clude we record
the statement made on our suggestion by the learned counsel for the Management,
Shri G.P. Pai that the Management would give a sum of Rs 40,000 to the
appellant in full and final settlement of all her claims. The learned counsel
for the appellant has agreed to received Rs 40,000 accordingly. We direct the
Management to pay the above sum of Rs 40,000 to the appellant in six instalment.
They shall pay Rs 6,000 on 1.9.1988, Rs 6,000 on 1.10.1988, Rs 6,000 on
1.11.1988, Rs 6,000 on 1.12.1988, Rs 6,000 on 1.1.1989 and Rs 10,000 on
1.2.1989.
There
is no order as to costs.
G.N.
Appeal dismissed.
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