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Judgment
Lokeshwar Singh Panta, J.—The petitioner school is a registered management under the registration of Societies Act. In this writ petition filed through the President of the School Management under Articles 226/227 of the Constitution of India, the petitioner-school seeks a direction for the quashing of the order contained in Annexure P-4 passed by the Presiding Judge of Labour Court in Reference No./Application No. 78 of 1994, whereby a direction to pay a sum of Rs. 12,451/- as arrears of salary to an employee Shri Gulab Chand Sharma u/s 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act'') was made.
The facts may be shortly described,
Petitioner-school has been established at Neen, Post Office Durgapur, Tehsil and District Shimla and is getting grant-in-aid from the State Government. Shri G.C. Sharma respondent herein approached the management of the school and told that he is a B. Sc. graduate and may be appointed as teacher as he wanted to procure four months'' experience certificate of teaching enabling him to get regular Government job. The management asked him to produce his educational qualification certificate which Shri G.C. Sharma had assured that he would definitely produce the same later-on. Shri G.C. Sharma joined the service of the petitioner-school on April 8, 1992. The President of the Management Committee of the petitioner-school issued a letter dated April 12, 1994 to Shri G.C. Sharma asking him to produce his educational qualification certificate on or before April 13, 1994 and in default thereof his services shall stand terminated. The Principal of the petitioner-school informed the President of the Management that Shri G.C. Sharma teacher of the school refused to acknowledge the letter dated April 12, 1994 and further necessary action may be taken. It was on May 21, 1994 that the President of the Management Committee issued another letter No. 903 to Shri G.C. Sharma terminating his services as teacher w.e.f. May 6, 1994.
Shri G.C.Sharma approached the Labour-cum-Conciliation Officer, Shimla raising an industrial dispute with regard to his termination by the Management of the petitioner-school. It appears that no settlement was arrived at and the Conciliation Officer submitted his failure report u/s 12 (4) of the Act to the Labour Commissioner. Himachal Pradesh. The Labour Commissioner declined to refer the dispute the adjudication to the Labour Court on the ground that Shri G.C. Sharma was employed as teacher and is not a workman u/s 2 (s) of the Act vide memorandum December, 1995 marked Annexure P-3 with the writ petition. It appears from the record that before the Labour Commissioner could pass the order on the failure report of the Conciliation Officer, Shri G.C. Sharma approached the Labour Court by means of application dated June 8, 1994 Annexure CX/2 filed u/s 33-C (2) of the Act. In that application, Shri G.C.Sharma claimed that the Management failed to pay his monthly salary from January 1994 to May 21, 1994 amounting to Rs. 15,896/- and interest on that amount at the rate of 18% .
The claim Shri G.C.Sharma was resisted and contested by the Petitioner-school by filing written statement. In preliminary objection, it was alleged that the application of Shri G.C. Sharma in the present form could not lie and as such it was to be dismissed forthwith. On merits, it was contended that Shri G.C. Sharma came to the Management of Petitioner-school and told that he wanted to procure four months'' experience certificate of teaching enabling him to get regular Government job and further that he would not charge anything for this purpose. The Management had asked him to produce his educational qualification certificate before he could be given employment but Shri G.C. Sharma had assured the Management that he would certainly produce his B. Sc. certificate very soon and that he failed to do so. It was alleged that an objection was raised by the Inspector of Government that no teacher shall be employed for teaching science subject if he was not a B. Sc. graduate and Shri G. C. Sharma failed to submit his certificate as promised despite repeated demands and as such the Management was left with no alternative but to terminate his services. It was also contended that the Management had paid him the wages till April 30, 1994 and wages from May 1, 1994 to May 6,1994 were due to be paid to Shri G.C. Sharma and the Management was ready to make the payment. It was prayed that the application filed before the Labour Court was not competent and may be dismissed with costs. The Presiding Judge of Labour Court settled following three issues :
Whether the applicant is entitled to the arrear of wages to the tune of Rs. 15,896/- from the Respondent? OPP
Whether the application is not maintainable as alleged? OPR
Relief.
Both the parties led oral and documentary evidence before the Labour Court. The Labour Court returned the finding on issue No. 1 in favour of Shri G.C. Sharma and allowed his prayer. Shri G.C. Sharma was held entitled for total amount of Rs. 12,451/- on account of arrears of salary for the months of February to May 1994. Against issue No. 2 it was observed that the Management chose not to argue or even whisper with regard to this issue as there was total want of evidence, lack of pleadings and paucity of proof to claim any such finding in favour of the Management and returned finding against the Management. Consequently, the Labour Court gave the award against the petitioner school directing it to pay the award amount to Shri G.C. Sharma within 40 days from the date of award i.e. April 3, 1996 failing which employee shall be entitled to interest at the rate of 12% per annum from that day till the final payment was made to him. The award of the Labour Court has been challenged by the Petitioner-school in this Writ Petition.
Shri G.C. Sharma filed written statement to the writ petition and stated that he was engaged by the Management of the petitioner-school for doing clerical work and in the absence of particular teacher, the Management sometimes used to send him to the classes to control the students. It was pleaded that he was not even graduate when he was engaged by the Management of the Petitioner-school, therefore, there was no question of his being engaged as teacher by the Management. It was denied that he misrepresented the Management of the school that he was B. Sc. graduate and wanted to obtain experience of teaching enabling him to get regular Government job. He prayed that the findings arrived at by the Labour Court are findings of fact and this Court shall not interfere with these findings in the writ jurisdictions He prays that the writ petition shall be dismissed with costs.
We have heard learned Counsel for the parties and perused the material record.
Mr. G.D.Verma, learned Counsel for the Petitioner-school strenuously urged that the impugned award is nullity being made without jurisdiction as Shri G. C. Sharma was employed as B.Sc. teacher on his request and worked in the same capacity, as such he was not a ''workman'' covered under the definition of Section 2 of the Act. He next contended that the learned Labour Court could not have entertained the application of Shri G. C. Sharma u/s 33-C (2) of the Act without a valid reference being made u/s 10 (1) by the State Government and that the proceedings u/s 33-C (2) of the Act is in the nature of execution Sharma. In support of this submission, he placed strong reliance on the decisions of the Supreme Court in Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, ; Municipal Corporation of Delhi Vs. Ganesh Razak and Another, and Fabril Gasosa v. Labour Commissioner and Ors., (1997-I-LLJ-872) (SC).
Mr. Kuldip Singh, learned Counsel appearing on behalf of Shri G.C. Sharma urged that the Labour Court has arrived at finding of fact, which should not be disturbed by this Court in its certiorari jurisdiction. He contended that Shri G.C. Sharma was employed for doing clerical work and not as teacher and on some occasions he was asked by the Management to attend the classes and, therefore, substantial part of the duties performed by him as Clerk will bring him within the definition of ''workman'' as contained in Section 2 (s) of the Act. He also contended that the Management of the Petitioner-school has failed to prove before the learned Labour Court that Shri G.C. Sharma was employed as B.Sc. teacher and, as such, the award is based upon sound appreciation of the evidence and shall not be disturbed in these proceedings. He further contended that instead of challenging the competency of the jurisdiction of the Labour Court to try issue No. 2, the Management of the Petitioner-school went to trial, submitted to its jurisdiction and when a decision was given against it by the Labour Court, it for the first time, challenged its jurisdiction to try that issue in this Court which is not permissible under law. In support of his submission, he relied upon in Sohan Singh and Others Vs. General Manager, Ordnance Factory, Khamaria, Jabalpur and Others,
From the pleadings of the parties and the rival contentions of the learned Counsel, the sole question that arises for consideration in this writ petition whether Shri G.C. Sharma was a ''Workman'' employed in the Petitioner-school or ''Teacher'', in our opinion depends upon whether the main and principal duties carried out by him are those of a nature carried out by a Clerk or those of teaching the students. If Shri G.C. Sharma was mainly doing the teaching work and employed as such, it has to be held that he was employed as teacher. Thus, what is to be seen is the nature of substantial pont of the work which Shri G.C. Sharma had to perform. The test of substantial nature of employment has usually beer applied by the Court to find out as to whether a particular employee was a workman or not. It may be convenient here to read the definition of workman as given in Section 2 (s) of the Act, which is as under:-
"2(s) ''workman'' means any person (including an apprentice) employed in any Industry to do any manual, unskilled, skilled, technical, operational clerical, or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings 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) xxxx xxxx
(ii) xxxx xxxx
(iii) xxxx xxxx
(iv) who, being employed in a supervisory capacity, draws wages exceeding one: thousand six 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."
The case set up before the Labour Court by the Petitioner-school was that Shri G.C. Sharma was employed as B.Sc. teacher and he joined in the same capacity and worked as such and his services were terminated for want of educational qualification. Admittedly, both the parties have chosen not to place on record the appointment letter of Shri G.C.Sharma. However, the parties led oral evidence and the Petitioner-school also produced some documents before the Labour Court establishing its stand that Shri G.C. Sharma joined as teacher and worked in the same capacity and also received consolidated salary of teacher. The documents were joining report of Shri G. C. Sharma dated April 8, 1992 marked ''x'', copy of his leave application dated March 24, 1994 Ext. R-1 and photostat copies of the names of the employees and their status employed in the school marked Exts. R-l to R-4. A bare perusal of these documents unmistakably shows that Shri G.C. Sharma never worked as Clerk but as teacher and drawn fixed salary of Rs. 3,300/-per month which was later Q increased to Rs. 3,886/- per month in that capacity. The other teachers were also getting the same salary whereas the clerk and peon employed by the petitioner -school were paid lesser wages. Shri G.C. Sharma has not substantiated his claim that he was substantially appointed as Clerk and was performing ancillary duties of teacher with the Petitioner-school.
Mr. Kuldip Singh, learned Counsel appearing on behalf of Shri G.C. Sharma argued that the Labour Court has arrived at finding of fact, which should not be disturbed by this Court in its certiorari jurisdiction. We have not made any attempt to re-appreciate the evidence and disturb the finding of fact arrived at by the Labour Court allowing the monetary claim of Shri G.C. Sharma, but to decide the main question whether Shri G.C. Sharma was workman and the Labour Court had the jurisdiction to entertain and decide his application for arrears of salary, we are not precluded from referring the evidence produced by the parties before the Labour Court. We have dealt with the various aspects of the matter in the earlier part of the judgment and we are of the considered opinion that Shri G.C. Sharma was employed as teacher and the conclusions arrived at by us are based upon the evidence referred to above in the earlier part of the judgment. It is settled by the Supreme Court in Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others, that an educational institution has to be treated as an ''industry'', teachers in an educational institution cannot be considered as ''workmen''. Thus the Labour Court had no Jurisdiction to entertain and decide the application of Shri. G.C.Sharma filed u/s 33-C (2) of the Act for the recovery of money because he was not a workman as defined u/s 2 (s) of the Act. If the Labour Court has made the award without jurisdiction, this Court is not barred from exercising the extraordinary jurisdiction enshrined in Articles 226,227 of the Constitution of India. The contention of the learned Counsel for Shri. G.C. Sharma that this Court shall not interfere with the award of the Labour Court in the writ jurisdiction is not tenable.
We have decided this writ petition on the first question of law holding the engagement of Shri. G.C Sharma as teacher in the Petitioner school, therefore, we do not consider it necessary to record our findings on other points raised by the learned Counsel for the parties.
In the result, the writ petition is accordingly allowed The impugned award of the Labour Court is a nullity being made for want of jurisdiction, is hereby quashed. However, the parties shall bear their own costs.