Hindi Vidya Bhawan and Others vs Presiding Officer, School Tribunal, Mumbai and Others

R.M.S. Khandeparkar, J.—Heard. Admit. By consent, heard forthwith. In all these appeals, S/Shri More, AGP for the Respondent No. 2, Shri Karwande, Advocate for the Respondent No. 3, Shri Bapat, Advocate for the Respondent No. 4 waive service and the Respondent No. 1 is a formal party to the proceedings.

Since the common question of law and facts arise in all these appeals, they were heard together and are being disposed of by this common judgment.

All these appeals arise from a common judgment passed by the learned Single Judge on 28th September, 2007 in Writ Petition Nos. 1494 of 2007, 1495 of 2007, 1496 of 2007, 1497 of 2007, 1498 of 2007, 1499 of 2007 and 1500 of 2007 which were filed by the appellants. By the impugned judgment, the petitions were partly allowed in relation to the claim of backwages while rejecting all other contentions raised in the matter. The petitioners were granted relief in the nature of reduction in their liability to pay backwages to the extent of 50% from the date of filing of the appeals before the School Tribunal.

The School Tribunal by the order dated 2nd September, 2004 had held that the School Tribunal has jurisdiction to entertain and try the appeals filed by the respondents claiming to be the employees of the appellants and further by the judgment dated 30th April, 2007 allowed the appeals and held that the terminations orders issued against the respondents No. 3 were bad in law, and therefore, were set aside and further the appellants were directed to reinstate the said respondents in the posts in which they were employed on the date of termination of their services along with payment of full backwages.

The appellant No. 1 is a public charitable trust and runs a school by the name "Hindi Vidya Bhavan", whereas the appellant Nos. 2 and 3 are the Principal and the Secretary of the said school. The respondent No. 1 is a School Tribunal. The respondent No. 2 is the Education Inspector and the respondent No. 3 in all these petitions are the persons who had been engaged for various works in the appellant school, and the respondent No. 4 is the agency through which the said respondent were engaged by the appellants. It is the contention of the appellants that the respondent No. 3 were engaged on contract basis whereas it is the contention on behalf of the said respondents that they are the permanent employees of the appellant-school. The services of the said r respondents were sought to be terminated by issuing respective orders referred to in the judgment passed by the School Tribunal. The action on the part of the appellants in terminating their services was sought to be challenged by filing the appeals before the School Tribunal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, for short "the said Act".

Before the School Tribunal, the appellants raised various objections including the one regarding the lack of jurisdiction to the Tribunal to entertain the appeals in the absence of employer-employee relationship between the parties within the meaning of the said expressions under the said Act and even to decide the issue of existence or absence of such relationship while contending that the jurisdiction of the School Tribunal depends upon undisputed or pre-established employer-employee relationship between the parties. The said contention was sought to be rejected by the order dated 2nd September, 2004 and the Tribunal held that it had jurisdiction to entertain the appeals. The matter proceeded further and by the judgment dated 30th April, 2007 the Tribunal while setting aside the orders of termination of the services of the said respondents directed the reinstatement with full backwages as stated above. The appellants challenged the said orders before learned Single Judge of this Court by way of writ petitions. The said petitions came to be dismissed by the impugned orders, except for modification of the direction as regards the payment of backwages. Hence, these appeals.

The impugned orders are sought to be assailed on the ground that the School Tribunal under the said Act lacks jurisdiction to entertain the appeal unless the appeal is filed by an employee within the meaning of the said expression under the said Act. Drawing our attention to the definition of the term "employee" under the said Act and the provision of Section 9 thereof, the learned Senior Counsel further submitted that the concerned respondents were not the employees of the appellant-School inasmuch as that they were not appointed by following the necessary procedure in terms of Section 5 of the said Act nor they were appointed in any permanent vacancy in the said school. In view thereof, according to the appellants, the respective respondents cannot claim to be the employees under the said Act, and therefore, they could not have filed the appeals under the said provisions of law before the School Tribunal constituted under the said Act. Once the person approaching the School Tribunal lacks status, of an employee under the said Act, it would be beyond jurisdiction of the School. Tribunal to deal with the issue as to whether such a person can be held to be an employee and being entitled to prefer an appeal u/s 9 of the said Act, and in that regard, attention was sought to be drawn to the provisions of the. Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, for short the "MRTU & PULP ACT", as also to the decision of, the Apex Court in Cipla Ltd. v. Maharashtra General Kamgar Union and others 2001 (89) FLR 163 (SC). The, impugned orders are also sought to be challenged on the other grounds viz. that the Tribunal and the learned Single Judge failed to consider that the materials on record which apparently disclose that the appointments of the concerned respondents were purely on contract basis and not in consonance with Section 5 in a permanent vacancy and, therefore, they have no right to continue to be in the employment of the appellant. Thirdly that the learned Single Judge as well as the Tribunal failed to consider that there was no material on record to disclose that there was any permanent vacancy available at the time the concerned respondents were engaged on contract basis or any time during the period they continued to be in the employment on contract basis, and therefore, there could not have been any claim for permanency on behalf of the said respondents, and fourthly that there was no case made out for grant of any backwages in the absence of necessary pleadings and the proof that the concerned respondents were not gainfully employed elsewhere during the relevant period.

The contention is sought to be refuted on behalf of the respondents while submitting that the School Tribunal will have an ample jurisdiction to decide the issue as to whether there exists employer-employee relationship between the parties before the School Tribunal proceeds with the matter.

Section 9 of the said Act undoubtedly provides that if an employee in a private school is either dismissed or removed from the services or whose employment is otherwise terminated, can file an appeal against such order of termination of services to the School Tribunal. The provision specifically refers to the term "employee" who can prefer an appeal u/s 9 of the said Act. Section 2(7) of the said Act defines the expression "employee" to mean any member of the teaching and non-teaching staff of a recognised school. It is, therefore, apparent on the face of the said provision of law that a person who can approach the School Tribunal with a grievance regarding termination of services by the management of a school has necessarily to be an employee in a school.

The point which arises for consideration is that whether the School Tribunal, in an appeal u/s 9 of the said Act, can decide the issue as to whether the appellant is an employee within the meaning of the said expression under the said Act? It is the contention on behalf of the appellants that the School Tribunal being constituted under the said Act to deal with specific issues as contemplated under the said Act and in relation to the dispute sought to be raised by those who are the employees within the meaning of the said expression under the said Act, existence of the jurisdictional fact which would reveal employer-employee relationship between the parties is absolutely necessary in order to enable the School Tribunal to entertain the appeal under the said Act. Undoubtedly, the jurisdictional fact in that regard would be that the person approaching the Tribunal has necessarily to be an employee within the meaning of the said expression under the said Act. But whenever such a point arises before the Tribunal, can it be said that the School Tribunal constituted under the said Act will have no jurisdiction to deal with the said issue ? Can it be said that the jurisdiction of the School Tribunal u/s 9 of the said Act does not include power to decide the issue regarding the existence or absence of such relationship between the parties to the appeal?

Prior to enactment of the said Act, the service conditions of employees working in private schools were determined by executive orders issued by the State Government from time to time. To provide adequate security and stability to their services, as also to lay down their duties and the code of conduct as also to provide about disciplinary matters of school employees as also to have a quasi-judicial machinery in the form of a Tribunal for making justice speedily available to such employees as also to render them accountable and to ensure their contribution for improvement in the standard of education, that the said Act was enacted. The preamble of the said Act declares that:-

WHEREAS, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the institution and the society in general, effectively and efficiently:

AND WHEREAS, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education;

AND WHEREAS, it is also necessary to make certain supplemental, incidental and consequential provisions; it is hereby enacted in the Twenty-eight year of the Republic of India as follows:

Thus, the said Act has been enacted essentially to regulate the service conditions of the employees of private schools to which the said Act applies. The power to regulate implies power to check and to have effective control over the subject sought to be regulated.

Section 3 of the said Act specifically provides that the provisions of the said Act would apply to all private schools in State of Maharashtra whether receiving any grant in-aid from the State Government or not. Undoubtedly, the minority schools are exempted from the applicability of the provisions of the said Act. The term "private school" has been defined u/s 2(20) of the said Act to mean a recognised school established or administered by a Management other than the Government or a local authority. The term "recognised" has been defined u/s 2(21) to mean recognised by the Director, the Divisional Board or the State Board, or by any officer authorised by him or by any of such Boards. The term "school" is defined u/s 2(24) to mean a primary school, secondary school, higher secondary school, junior college of education or any other institution by whatever name called including, technical, vocational or art institution of part of any such school, college or institution, which imparts general, technical, vocational art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level. The expression "management" in relation to the school is defined u/s 2(12) to mean in the case of a school administered by the State Government, the Department; in the case of a school administered by local authority that local authority; and in any other case, the person or body of persons, whether incorporated or not and by whatever name called, administering such school.

Section 4 of the said Act deals with the terms and conditions of service of employees of private schools. Sub-section (1) thereof provides that the State Government to make rules prescribing the minimum qualifications for recruitment (including its procedure), duties, pay, allowances, post-retirement and other benefits, and other conditions of service of employees of private schools and for reservation of adequate number of posts for members of the backward classes, however the pay, the rights in respect of leave of absence, age of retirement and post-retirement benefits and other monetary benefits of and employee in the employment of an existing private school on the appointed date were protected. In terms of Sub-section (2), every employee of a private school is governed by the prescribed Code of Conduct. On the violation of any provision of such Code of Conduct, the employee is liable to disciplinary action. Under Sub-section (3), if the scales of pay and allowances, post-retirement and other, benefits of the employees of any private school are less favourable than those provided by the rules made under Sub-section (1), the Director has to direct in-writing to management of such school to bring the same up to the level provided by the said rules within such period or extended period as may be specified by him. Under Sub-section (4), it is provided that failure to comply with any direction given by the Director in pursuance of Sub-section (3) may result in the recognition of the school concerned school being withdrawn, provided that the recognition shall not be withdrawn unless the management of the school concerned has been given a reasonable opportunity of being heard. Sub-section provides that no employee working in a private school shall work in any coaching class. If any employee, in contravention of this provision, works in any coaching class, his services are liable to be terminated by the management, provided that no such order of termination can be issued unless the employee concerned has been given a reasonable opportunity of being heard. Sub-section provides that no employee of a private school should be suspended, dismissed or removed or his services should not be reduced in rank, by the management, except in accordance with the provisions of the said Act and the rules made in that behalf. There are elaborate rules made by the State in exercise of powers vested u/s 4(1) regarding service conditions of employees of private schools.

Section 5 of the said Act deals with the subject relating to certain obligations of management of private schools. Sub-section (1) thereof provides that the management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy and such appointment should be in the manner prescribed. The proviso to Sub-section (1) states that unless such vacancy is to be filled in by promotion, the management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the management shall appoint that person t in such vacancy. Sub-section (2) provides that every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of Sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed. Sub-section (3) provides that if in the opinion of the management, the work or behaviour of any probationer during the period of his probation, is not satisfactory, the management may terminate his services at any time during the said period after giving him one month''s notice or salary of one month in lieu of notice. Sub-section (4) provides that if the services of any probationer are terminated under Sub-section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the proposes of Sub-section (2). In terms of Sub-section (4-A), nothing in Sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provided under the proviso to Sub-section (1). Sub-section (5) provides that the management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person. Section 5 of the said Act therefore enumerates certain obligations of management of private schools regarding filling up of vacancies in private schools, probationary period and termination of services of probationer as well as appointment of temporary employees. It requires the management to follow rules framed in that regard by the Government.

Section 6 of the said Act deals with the subject relating to obligations of Head of a private school. Sub-section (1) thereof states that if the Head of a private school or any person duly authorised by him in that behalf makes unauthorised alterations in the date of birth of any student recorded in the General Register of the school or gives a school leaving certificate with the date of birth different from that recorded in the General Register; or admits any student from an unrecognised educational institution without a written order of the Deputy Director; or gives accelerated promotion to, or detains any student, either of his own accord or at the instance of the Management, in contravention of the Rules made in that behalf; or the employee of a private school is dismissed or removed or his services are otherwise terminated on account of misconduct, gross negligence of duties, moral turpitude, misappropriation of school money or material, negligence or misconduct or both in connection with the examinations or creation of communal disharmony; then the Director may, after malting such enquiries as he thinks fit, by an order in writing debar the Head or such authorised person or such employee from holding that post for a period of five years from the date of the order. If after the said period of five years, the Head or such authorised person or such employee is found to have committed any of the acts aforesaid again, then he may, after giving him a reasonable opportunity of being heard, be permanently debarred by the Director from holding such post in any private school. Sub-section (2) provides that after making any order under Sub-section (1), the Director shall cause the name of such Head or authorised person or employee to be entered in a Black List Register maintained for the purpose, and communicate the name of the Head or such person or employee to all the Managements of private schools in the State.

Section 7 of the said Act deals with the subject regarding procedure for resignation by employees of private schools. It provides that if any employee intends to resign his post in any private school, at any time after the appointed date, he shall draw up a letter of resignation in duplicate and sign both the copies of that letter and put the date thereon and he may then forward one copy to the Management by registered post and keep the other copy with him.

Section 8 of the said Act deals with the subject of Constitution of School; Tribunals. It provides that the State Government shall, by notification in the Official Gazette, constitute one or more Tribunals to be called "School Tribunals" and define the jurisdiction of each Tribunal in such notification. A Tribunal shall consist of one person only to be appointed by the State Government. No person shall be qualified to be appointed as a Presiding Officer of a Tribunal unless he is holding or has held a judicial office not lower in rank than that of Civil Judge (Senior Division); he has practised as an Advocate or Attorney for not less than seven years; or he is holding or has held an office not lower in rank than that of Under Secretary to Government, Assistant Commissioner of Labour or Deputy; Director of Education in the State. It also speaks of other provisions relating to Tribunal, remuneration and other conditions of service of the Presiding Officer and regarding expenditure for such Tribunals.

Section 9 of the said Act deals with the right of appeal to Tribunal to employees of private school. Sub-section (1) thereof provides that notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school, who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or who is superseded by the Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal constituted u/s 8; provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976. Sub-section (2) thereof provides that such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be. Sub-section (3) provides that notwithstanding anything contained in Sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. Sub-section (4) provides that every appeal shall be accompanied by a fee of Five hundred rupees which shall not be refunded and shall be credited to the Consolidated Fund of the State. Section 9 of the said Act therefore, elaborately deals with the right of appeal as also the powers of the Tribunal to condone the delay in filing the appeal as also the circumstances in which the persons who can file such appeals under the said Act.

Section 10 of the said Act deals with the general powers and procedure of Tribunal. Sub-section (1) thereof provides that for the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an appellate Court under the Code of Civil Procedure, 1908, and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose and such other powers as are conferred on it by or under the said Act. Sub-section (2) thereof provides that the Presiding Officer of the Tribunal shall decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sittings. Sub-section (3) provides that every appeal shall be made by the Tribunal to decide an appeal within three months from the date on which it is received by the Tribunal, if the Tribunal is unable to dispose of any appeal within this period, it shall put on its record the reason for the same. Section 10 of the said Act therefore, specifically provides that the powers vested in the appellate Court under the CPC also are available to the Tribunal while dealing with the appeals filed under the said Act, and such powers include operation of the order challenged under the appeal.

Section 11 of the said Act deals with the powers of Tribunal to give appropriate reliefs and directions. Sub-section (1) thereof provides that on receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in Section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal. Sub-section (2) provides that where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law including any rules made under the said Act, contract or conditions of service for the time being in force or was otherwise illegal or improper, in the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management to reinstate the employee on the same post or on a lower post as it may specify; to restore the employee to the rank which he held before reduction or to any lower rank as it may specify; to give arrears of emoluments to the employee for such period as it may specify; to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months'' salary (pay and allowances, if any) if he has been in the service of the school for ten years or more and six months'' salary (pay and allowances, if any) if he has been in service of the school for less than ten years, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case. Sub-section (3) provides that it shall be lawful for the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employees any emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee direct. Sub-section (4) provides that any direction issued by the Tribunal under Sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.

Section 12 of the said Act provides that the decision of Tribunal to be final and binding.

Section 13 of the said Act provides for penalty to Management for failure to comply with Tribunal''s directions.

Section 14 of the said Act excludes the appearance of legal practitioner from the proceedings before the Tribunal, except with the special permission of the Director or the Tribunal.

Section 15 of the said Act deals with the subject of transfer of pending appeals to Tribunal.

Section 16 of the said Act deals with the rule making power of the Government. Sub-section (1) thereof provides that the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of the said Act. Sub-section (2) thereof provides in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) the minimum qualifications for recruitment of. employees of private schools (including its procedure); (b) their scales of pay and allowances; (c) their post-retirement and other benefits; (d) the other conditions of service of such employees including leave, superannuation, re-employment and promotion; (e) the duties of such employees and Code of Conduct and disciplinary matters; (f) the manner of conducting enquiries; and (g) any other-matter which is required to be or may be prescribed. Sub-section (2A) thereof; provides that the power to make rules under clauses (a) to (d) conferred by sub-j section (2) shall include the power to give retrospective effect to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the interest of any person to whom such rule may be applicable. Sub- section (3) provides that all rules made under the said Act shall be subject to the conditions of previous publication. Sub-section (4) provides that every rule made under the said Act shall be laid, as soon as may be, after it is made before each House of the State Legislature, while it is in Session for a total period of thirty days, which may be comprised in one Session or in two or more successive Sessions, and if, before the expiry of the session immediately following the Session or the successive Sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under the said rule.

As seen above, Section 5 of the said Act deals with the powers as well as the obligation of the management of the private schools in the matter of recruitment and confirmation of the school employees. Section 4 deals with the service conditions applicable to the school employees. The said Act, thus, has been brought into force to regulate recruitment as well as the conditions of service of employees in the private schools. It is essentially with a view to provide such employees some security and stability of service to enable them to discharge their duties towards the pupils and the institution and the society in general, effectively and efficiently. The legislature in its wisdom found expedient in the public interest to lay down the duties and functions of such employees with a view to ensure that they become accountable to the management and they contribute for improving the standard of education. The provisions of law comprised under the said Act relating to the school employees and their service conditions, though in brief, encompasses all the necessary aspects of the employer-employee relationship between the school management and the school employees. Considering all these aspects, can it be said that u/s 9 of the said Act, the jurisdiction of the Tribunal will be restricted to the issue as to whether the termination order of an employee of a school is bad in law or not? In order to decide the point relating to validity of order of termination of service, it would essentially require to inform about the nature of relationship between the parties to appeal. This would require to find out the status of the appellant in the employment at the school. This, obviously would need adjudication of rights of the parties to the employment in the school, which in turn would include the adjudication of the claim of the appellant in that regard. While dealing with the said issue, the Tribunal, therefore, will have obviously to decide the issue as to whether the appointment was validly made in terms of Section 5 of the said Act or not? Whether it satisfied the provisions of law comprised u/s 4 of the said Act. The adjudication of the said issue would essentially cover the point relating to existence or absence of the relationship of employer-employee between the parties and, obviously, therefore, it will be within the jurisdiction of the School Tribunal to decide as to whether the person approaching the School Tribunal is an employee within the meaning of the said expression under the said Act.

It cannot be disputed that the said Act is a special statute. But it is not restricted to any or few particular issues nor the adjudicatory power of the "Tribunal is restricted to limited issues of termination of services of the school employees. It covers all the issues relating to service conditions of such employees. Being so, the jurisdiction of the Tribunal under the said Act cannot be presumed to be limited or restricted to decide the issues solely relating to the termination of the services of the employees, when status as such is not disputed.

While Section 9 of the said Act ensures the school employees about right to appeal, the Section 10 speaks of general powers and procedure of the Tribunal and the Section 11 provides for powers to the Tribunal to give appropriate reliefs and directions in the matter brought before it. The Section 9(1) provides that notwithstanding anything contained in any law or contract for the time being in force any employee in a private school, who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management or who is superseded by the Management while making an appointment to any post by promotion, and who is aggrieved, shall have a right of appeal and may appeal against any such order or supersession to the Tribunal. The Scheme of the said Act clearly reveals that it is a complete legislation in relation to the service conditions of the school employees. Such service conditions will include the terms of employment. The terms of employment would imply the functions and duties attached to every post in the school and the contract with every person employed to occupy such posts. Obviously, therefore, whether a person is employed in terms of statutory provisions under the said Act or not, would be within the jurisdiction of the School Tribunal. Evidently, therefore, the issue can arise as to whether the person employed is an employee within the meaning of the said expression under the said Act or not, and the same will have to be decided by the Tribunal.

The decision of the Apex Court in Cipla''s case (supra) has no application to the case in hand. The Apex Court in Cipla''s case (supra) in the paragraph 8 thereof had clearly ruled that:-

If the case putforth by the workmen is that they have been directly employed by the appellant Company but the contract itself is a camouflage and, therefore, needs to be adjudicated is a matter which can be gone into by appropriate Industrial Tribunal or Labour Court. Such question cannot be examined by the Labour Court or the Industrial Court constituted under the Act (MRTU & PULP Act). The object of the enactment is, amongst other aspects, enforcing provisions relating to unfair labour practices.

It was further held that even Section 32 of the MRTU & PULP Act does not give such power to the Tribunal.

The Apex Court has clearly observed that the object of the enactment needs to be taken into consideration while dealing with the point as to whether the Tribunal constituted under the said Act has limited jurisdiction or such a jurisdiction includes power to deal with all the connected issues arising in the matters before it. As far as the Labour Court under MRTU & PULP Act is concerned, it has been held by the Apex Court that the jurisdiction of the Industrial Tribunal or the Labour Court u/s 32 of the MRTU & PULP. Act does not give wider jurisdiction to deal with the incidental issues and the scope of either Section 28 or Section 7 of the MRTU & PULP Act is restricted to those issues which are specifically enumerated under the said provision of law.

Section 7 of the MRTU & PULP Act deals with the duties of the Labour, Court and it provides that it shall be the duty of the Labour Court to decide complaints relating to unfair labour practices described in item 1 of Schedule IV and to try offences punishable under the MRTU & PULP Act. Section 28 of the MRTU & PULP Act deals with the procedure for dealing with complaints relating to unfair labour practices. Section 26 clarifies that under the MRTU & PULP Act, unless the context requires otherwise, unfair labour practices mean any of the practices listed in Schedules II, III and IV. Section 30 of the MRTU & PULP Act deals with the powers of Industrial and Labour Courts and Sub-section, (1) thereof provides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, in that case the Court may pass orders of the nature specified thereunder. Section 32 of the MRTU & PULP Act provides that "notwithstanding anything contained in this Act, the Court shall have the power to decide all matters arising out of any application or a complaint referred to it for the decision under any of the provisions of this Act." Considering all these provisions, the Apex Court had clearly ruled that the jurisdiction of the Tribunal or the Court under the MRTU & PULP Act is restricted to the issues which can be dealt with under the MRTU & PULP Act and not beyond that. It does not give power to deal with the incidental issues. It is also to be noted that the preamble to MRTU & PULP Act clearly provides that it is an Act to prove for the recognition of trade unions for facilitating collective bargaining for certain undertakings, to state their rights and obligations, to confer certain powers on unrecognised unions, to provide for declaring certain strikes and lock-outs as illegal strikes and lock-outs, to define and provide for the prevention of certain unfair labour practices, to constitute courts as independent machinery for carrying out the purposes of according recognition to trade unions and for enforcing the provisions relating to unfair practices, and to provide for matters connected with the purposes aforesaid, that the statute had been enacted. Being so, the functions of the bodies or the authorities constituted under the said Act are also specified under the provisions of law and they cannot travel beyond the scope of functions and power bestowed upon them under the provisions of the said Act. That is not the case in relation to the School Tribunal which is required to deal with all the issues relating to the service conditions of the employees of the schools to which the Act applies. Once it is not in dispute that the said Act applies to a particular institution, considering the object and the provisions of the said Act and taking into consideration the decision of the Apex Court, the law laid down by the Apex Court in Cipla''s case (supra), it cannot be said that the ratio of the decision in Cipla''s case (supra) can be straightway applied to the matters arising under the said Act. Hence, in our considered opinion, the decision in Cipla''s case (supra) will have no application to the case in hand.

Once we hold that the Tribunal will have jurisdiction to decide the issue regarding employer-employee relationship between the parties, it would be necessary for the Tribunal to deal with the rival contentions in order to ascertain whether the concerned respondents are the employees of the appellant-school within the meaning of they said expression under the said Act.

Perusal of the order dated 2nd September, 2004 nowhere discloses any adjudication of the said issue, nor it refers to any material on record to ascertain whether the concerned respondents are the employees within the meaning of the said expression under the said Act. Adjudication of the said issue would not mean a mere conclusion to be arrived at without analysis of the materials. Before arriving at a finding as to whether the concerned respondents are the employees within the meaning of the said expression under the said Act or not, it would be necessary for the School Tribunal to analyse all the materials on record placed by both the parties in that regard and to arrive at the logical conclusion on the issues sought to be raised in the matter. It is only thereafter that all other issues would be required to be tried. Since the basic issue having not been tried or decided by the Tribunal in the manner in which it was required to be tried and decided, and the learned Single Judge having failed to consider the same and having proceeded to dispose of the matter, in our considered opinion, neither the judgment of the School Tribunal nor that of the learned Single Judge can be sustained and both are liable to be set aside and the matter is required to be remanded to the School Tribunal to deal with the said issue in accordance with the provisions of law and bearing in mind the observations made hereinabove, and further to proceed to decide other issues if they are found to be necessary to be decided in the matter.

In the result, therefore, the appeals succeed. The impugned orders are hereby quashed and set aside. The matters are remanded to the School Tribunal to decide the matter afresh bearing in mind the observations made hereinabove. Considering the fact that the appeals relate to the year of 2000, the School Tribunal is expected to dispose of the matters as expeditiously as possible and in any case on or before 31st December, 2008, after giving proper opportunity of being heard to both the parties. As regards the amount which has been deposited pursuant to the interim order passed in these appeals, the Registry is directed to invest the said amount in any nationalised bank and the same shall remain invested till the disposal of the appeals and the same shall be subject to the final outcome of the appeals.

We make it clear that we have not expressed any opinion as regards the other points sought to be raised in the matters, and all these issues are kept open.

Liberty to the parties to file supplementary pleadings and to place the necessary materials on record in support of their contentions.

The appeals accordingly are allowed in above terms with no order as to costs.