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PETITIONER: MISS A. SUNDARAMBAL

       Vs.

RESPONDENT: GOVERNMENT OF GOA, DAMAN AND DIU & ORS.

DATE OF JUDGMENT27/07/1988

BENCH: SEN, A.P. (J) BENCH: 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".

HEADNOTE:      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]

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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]

JUDGMENT:      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

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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

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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

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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.

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         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

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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. 613