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Judgment
Justice, T. Raja
There are twenty one writ petitions originally filed on the file of this Court challenging two Government Orders in G.O. No. 1533, Labour dated July 20, 1988 notifying the intention to include the employment in coaching academics in Part I of the Schedule of the Minimum Wages Act, 1948 and the consequential G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 fixing minimum wages for the said employment as null and void. One W.P. No. 37794/2003 has been de-linked by this Court. Barring this one writ petition, all the writ petitions are taken up for common disposal. With the consent of all the parties, Common Order is passed. Brief facts leading to the filing of the writ petitions are as under:
The writ petition in W.P. No. 4353/2001 has been filed by the Society of the Franciscan Sisters of St. Joseph, represented by its Vice President stating that the petitioner Society is a religious, charitable and educational society, registered under the Societies Registration Act and after being established, it is running some primary and nursery schools apart from matriculation schools.
Therefore, the learned counsel for the petitioners submits that all the institutions run by the Society are non-profit organisation and are situated in remote areas, covering the students of poor and downtrodden and all the schools are governed by the Tamil Nadu Private Schools (Regulation) Act, 1973 and common labour laws cannot be applied to the educational institutions. While so, the first respondent ought not to have issued G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 fixing minimum wages for the said employment in petitioner''s institution. While exercising the power conferred u/s 27 of the Minimum Wages Act, 1948, the State Government has wrongly issued G.O. No. 1533, Labour dated July 20, 1988 and included several primary educational institutions under the Act, running on commercial line in part I. Adding further, the learned counsel for the petitioners submits that the intention of the State Government in issuing G.O. No. 1533, Labour dated July 20, 1988 is vague and ambiguous, because it says that this Government Order will be made applicable only to the schools running on commercial lines. So far as the petitioners Institutions/ schools are concerned, they are running on charitable motive. Therefore, by issuing G.O. No. 1533, Labour dated July 20, 1988 and subsequent G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003, the Government cannot fix minimum wages even for the petitioners employed in the educational institutions, run by the petitioners Society. All the institutions are not carrying on business on commercial line, as they are all charitable institutions. Elaborating his arguments, the learned counsel for the petitioners submits that various later enactments like Industrial Disputes Act, Payment of Gratuity Act, Shops and Establishments Act do not include the teachers, as they are neither workmen nor employees. He also relied upon a Judgment of the Apex Court in Ahmedabad Pvt. Primary Teachers'' Association v. Administrative Officer and Others AIR 2004 SC 1426 : (2004) 1 SCC 755 : LNIND 2004 SC 46 : 2004-I-LLJ-596 for the proposition that no teacher is an employee and the State Government is incompetent to bring the teachers under the Fixation of Minimum Wages Act. He also relied upon a decision of the Apex Court in Haryana Unrecognised Schools Association v. State of Haryana AIR 1996 SC 1208 : (1996) 4 SCC 225: LNIND 1996 SC 778 : 1996-II-LLJ-639, wherein the notification issued by the Government of Punjab and Haryana fixing the minimum rate of wages to the petitioners in Educational Institutions has been struck down by ruling that the teachers of educational institutions cannot be brought within the purview of Minimum Wages Act. He pleaded further that the judgments of the Apex Court given under Article 141 of the Constitution of India, is nothing but declaration of law and the same will be equally applicable to the case of the petitioners. On that basis, the learned counsel for the petitioners prayed for quashing both the abovesaid Government Orders.
Adopting the abovesaid argument by the learned counsel appearing for the petitioners in other writ petitions in W.P. No. 4975/2004, Mr. P.M. Subramaniam, Mr. K. Soundararajan, the learned counsel appearing for the petitioner in W.P. No. 5159/2004 and Mr. P. Chandrasekaran, learned counsel appearing for the petitioner in W.P. No. 6858/2004 prayed this Court for allowing the writ petitions and they have also pressed into service the Judgment of the Apex Court Ahmedabad Pvt. Primary Teachers'' Assn. v. Administrative Officer and Others (supra), judgment of the Apex Court in Airfreight Ltd. v. State of Karnataka and Others AIR 1999 SC 2459 : (1999) 6 SCC 567 : LNIND 1999 SC 644 : 1999-II-LLJ-70 and one another judgment of the High Court of Judicature, Jharkhand Chacha Nehru Vidyapith v. Authority Under M.W.A. (2001) 1 LLN 1193 : LNIND 2001 Jhar 62 : 2001 -I-LLJ-1439.
But, however, opposing the abovesaid arguments, Mr. S. Gomathinayagam, learned Additional advocate General appearing for the respondents, elaborately made his arguments. While dealing with the Judgment of the Apex Court in the case of Haryana Unrecognised Schools Association v. State of Haryana (supra), he has made a submission stating that so far as the teachers are concerned, the Government Orders could not be held applicable, but at the same time, in respect of non-teaching staff are concerned, he has relied upon the Judgment of the Division Bench of Jharkhand High Court, Chacha Nehru Vidyapith v. Authority Under M.W.A. (supra) and contended that the two Government Orders viz., G.O. No. 1533, Labour dated July 20, 1988 and G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 can be very well held valid in respect of the application of provisions of Minimum Wages Act for payment of minimum wages to the non-teaching staff. This submission also has not been answered by any one of the learned counsel appearing for the petitioners.
Though a judgment of His Lordship MR. M.Y. EQBAL (while His Lordship then was sitting in Jharkhand High Court) in Chacha Nehru Vidyapith v. Authority Under M.W.A. (supra) has come handy to answer the issue raised in the present writ petitions, it is useful to refer the ratio laid down by the Division Bench of the High Court of Judicature, Jharkhand as under 2001-I-LLJ-1439 at p. 1442:
"8.....The question now falls for consideration is whether the employees of the educational institutions other than the teachers are also excluded from the purview of the definition of employee u/s 2 (i) of the Act. At this stage, it is worth to mention here that in the case of Haryana Unrecognised Schools Association v. State of Haryana (supra) the Apex Court has not held that all the employees of educational institutions are excluded rather question raised and decided was only in respect of teachers of educational institutions.
As noticed in the instant case, the claimant on whose behalf application for minimum wages were filed are none else but junior clerk, peon, mali, maid-servant and rickshaw-pullers. Admittedly, these employees are doing unskilled, semiskilled or skilled work. The employees of these categories working in the employment of any educational institution certainly come within the purview of the Act and they are entitled to get minimum wages time to time fixed under the Act."
The above observation deserves respectful acceptance by this Court as well. Therefore, non-teaching staff, who are in the employment of educational institutions are certainly come within the purview of the Minimum Wages Act and therefore, they are entitled to get minimum wages fixed from time to time under the Act.
As per the above said Judgment, non-teaching employees of a school are entitled for minimum wages but the teachers are held not covered under the Act. On the basis of the ratio laid down in the abovementioned Judgment, the learned counsel for the petitioners prayed for allowing the writ petitions. A useful reference can be had from the judgment in Miss. A. Sundarambal v. Government of Goa, Daman and Diu and Others 1989-1-LLJ-61.
While dealing with the object of the Minimum Wages Act, the Honourable Apex Court in the Constitution Bench decision in the case of Bhikusa Yamasa Kshatriya and Another v. Sangamner Akola Taluka Bidi Kamgar Union and Others 1963-I-LLJ-270, held as follows:
"The object of the Act is to prevent exploitation of the workers, and for that purpose it aims at fixation of minimum wages which the employers must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which by reason of Act."
No doubt, the case of the petitioners has to be allowed only in respect of the applicability of the provisions of the Minimum Wages Act against the educational institutions in respect of non-teaching staff only. But, in respect of teachers, as the ratio laid down by various Judgments of the Apex Court, clearly laid down that the provisions of the Minimum Wages Act cannot be applied to bring the petitioners under the provisions of the Act, I am of the view that both these Government Orders can be held partly valid, only in respect of non-teaching staff, but not against the teachers working in the schools.
It is also relevant to mention one another argument advanced by the learned Additional Advocate General that the purpose and the object for which these two Government Orders have been introduced is only to safeguard the teachers at the hands of the employers of the private educational institutions, therefore, when Section 5 of the Minimum Wages Act, 1948 gives enormous power to the appropriate Government, these two Government Orders viz. G.O. No. 1533, Labour dated July 20, 1988 and G.O. (2D) No. 34, Labour & Employment, dated May 5. 2003, have been issued. Though the Government Order No. 1533 was issued in the year 1985, the subsequent notification could not be issued in view of not following the procedure u/s 5 of the Minimum Wages Act, 1948 to enable the Government to go into the question of minimum wages or salary given to the teachers and non-teaching staff working in the educational institutions. Subsequently, the State Government was not in a position to issue proper notification in the Official Gazette so as to effect the said Government Order. However, when the second Government Order was issued, nothing affected by G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003, the petitioners have challenged not only G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 but they have also challenged the original Government Order in G.O. No. 1533, Labour dated July 20, 1988.
During these period from 1988 till the consequential G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 was issued on May 5, 2003, since the petitioners schools have not been put to any prejudice, this Court cannot find fault with the petitioners in not challenging the first G.O. No. 1533, Labour dated July 20, 1988.
Therefore, the question of delay in fifing the writ petitions cannot be held against the petitioners. In any event, as rightly submitted by the learned counsel appearing for the petitioner, since the issue has been made clear by the Apex Court in the judgments mentioned above, as I mentioned earlier, the Judgment laid down by the Apex Court under Article 141 of the Constitution of India declaring the law, has got binding force, hence the question raised in all the writ petitions is answered against the latches, as the delay in filing writ petition cannot postpone the implementation of the Judgments by the Apex Court.
It is also relevant to borrow some of the words from the judgment of Haryana Unrecognised Schools Association v. State of Haryana (supra) and the same is extracted as under 1996-II-LLJ-639 at p. 643:
" 9....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 construed as skilled or unskilled manual 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 care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching..."
So, in view of the above reasoning, both the Government Orders in G.O. No. 1533, Labour dated July 20, 1988 and G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003 are liable to be quashed. In the result, the writ petitions are partly allowed in respect of Teachers working in the petitioners'' schools by partly quashing the Government Orders in G.O. No. 1533, Labour dated July 20, 1988 and G.O. (2D) No. 34, Labour & Employment, dated May 5, 2003. It is needless to mention that only the Teaching staff working in the schools cannot be brought under the ambit of Minimum Wages Act, 1948. No costs. Connected WPMPs are closed.