ivil Appeal No 177 NL of 1984
From the Judgment and order dated 591983 of the High Court of Bombay in Special Civil Application No 59 of 1983 Dr YS Chitale and VN Ganpule for the Appellant
GB 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 2s of the 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 101c of the Act but on reaching the conclusion that the appellant was not a workman  as defined in the Act which alone would have converted a dispute into an industrial dispute as defined in section 2k 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 101c 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 101c of the Act could be sought
The first question need not detain us long
In University of Delhi  Anr
vs Ram Nath  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 2j of the Act
Section 2j 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 2j 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
vs R Rajappa  others  before a larger bench of this Court
In that case the decision in University of Delhi  Anr
vs 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
vs Ram Nath supra the learned Judge observed thus The first ground relied on by the Court is based upon the preliminary conclusion that teachers are not workmen  by definition
Perhaps they are not because teachers do not do manual work or technical work
We are not too sure whether it is proper to disregard with contempt manual work and separate it from education nor are we too sure whether in our technological universe edu 608 cation has to be excluded
However that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present
The Court in the University of Delhi proceeded on that assumption viz that teachers are not workmen which we will adopt to test the validity of the argument
 Thus it is seen that even though an educational institution has to be treated as an industry in view of the decision in the Bangalore Water Supply  Sewerage Board etc
vs R Rajappa  others supra the question whether teachers in an educational institution can be considered as workmen still remains to be decided
Section 2s of the Act defines workman  thus 2s 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 46 of 1940 or the 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 ie i to iv mentioned in the definition of workman  in section 2s of the Act
The definition also provides that a workman employed in an industry to do any skilled or unskilled manual supervisory technical or clerical work for hire or reward includes any such person who has been dismissed discharged or retrenched in connection with or as a consequence of an industrial dispute or whose dismissal discharge or retrenchment has led to that dispute
We are concerned in this case primarily with the meaning of the words skilled or unskilled manual supervisory technical or clerical work 
If an employee in an industry is not a person engaged in doing work falling in any of these categories he would not be a workman at all even though he is employed in an industry
The question for consideration before us is whether a teacher in a school falls under any of the four categories namely a person doing any skilled or unskilled manual work supervisory work technical work or clerical work
If he does not satisfy any one of the above descriptions he would not be workman even though he is an employee of an industry as settled by this Court in May and Baker India Ltd vs Their Workmen 1961 II LLJ 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 section 2s as it stood at the relevant time
We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work
In the circumstances the tribunal s conclusion that Mukerjee was a workman is incorrect
The tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers
That however would not necessarily mean that Mukerjee s duties were mainly manual or clerical
From what the tribunal itself has found it is clear that Mukerjee s duties were mainly neither clerical nor manual
Therefore as Mukerjee was not a workman his case would not be covered by the 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 2s 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 
It is no doubt true that after the events leading to the above decision took place section 2s 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 2s 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 2s 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 vs Their Workmen supra precludes us from taking such a view
We therefore hold that the High Court was right in holding that the appellant was not a workman  though the school was an industry in view of the definition of workman  as it now stands
We may at this stage observe that teachers as a class cannot be denied the benefits of social justice
We are aware of the several methods adopted by unscrupulous managements to exploit them by imposing on them unjust conditions of service
In order to do justice to them it is necessary to provide for an appropriate machinery so that teachers may secure what is rightly due to them
In a number of States in India laws have been passed for enquiring into the validity of illegal and unjust terminations of services of teachers by providing for appointment of judicial tribunals to decide such cases
We are told that in the State of Goa there is no such Act in force
If it is so it is time that the State of Goa takes necessary steps to bring into force an appropriate legislation providing for adjudication of disputes between teachers and the Managements of the educational institutions
We hope that this lacuna in the legislative area will be filled up soon
This appeal however fails and it is dismissed
Before we con 612 clude we record the statement made on our suggestion by the learned counsel for the Management Shri GP Pai that the Management would give a sum of Rs 40000 to the appellant in full and final settlement of all her claims
The learned counsel for the appellant has agreed to received Rs 40000 accordingly
We direct the Management to pay the above sum of Rs 40000 to the appellant in six instalment
They shall pay Rs 6000 on 191988 Rs 6000 on 1101988 Rs 6000 on 1111988 Rs 6000 on 1121988 Rs 6000 on 111989 and Rs 10000 on 121989
There is no order as to costs
GN Appeal dismissed


Summary:
On receiving secret information that smuggled diamonds had been kept by petitioners Nos 1 and 2 in the premises of Ms Gems Impex Corporation Bombay petitioner No 3 which firm was being managed by Petitioners Nos 1 and 2 the Customs officers searched the premises and found large quantities of unaccounted diamonds precious stones pearls gold manufactures Indian currency etc
The petitioners showed their inability to produce evidence of legal acquisition of the goods except to state that they had purchased these locally on cash payment
The cash books however revealed no such payment
Various incriminating documents were also found
On these facts the Customs officers formed a prima facie belief under section 110 read with section 123 of the that the unaccounted diamonds were smuggled goods and seized them
In his statement recorded under section 108 of the Act petitioner No 2 produced certain notes issued by four dealers saying that some quantity of diamonds had been given to the petitioners on approval basis
The said dealers when questioned under section 108 stated that they had issued anti dated and fake notes in order to help the petitioners
The explanation given by the petitioners having been found unacceptable a show cause notice was issued  to the petitioners who were called upon to explain as to why the goods be not confiscated and penalty imposed
In reply the petitioners stated that the goods were Iying with them on approval basis and relied on affidavits of other diamond merchants and persons
These transactions were however not entered in the books of accounts of the dealers and persons who filed the affidavits
545 The Collector of Customs by his order directed release of jewellery but ordered absolute confiscation of various officer goods including the diamonds and also imposed heavy penalties under section 112 of the Act
An appeal to the Collector of Customs under 128 of the Act failed
The Customs Excise  Gold Control Appellate Tribunal confirmed the order of confiscation in respect of diamonds
The Tribunal held that seizure of diamonds was in the reasonable belief that these are smuggled goods and consequently the onus of proof according to section 123 of the Act was on the petitioners which they had failed to discharge
The Tribunal however reduced the penalties imposed under section 112
The petitioners challenged the Tribunal s order before the High Court of Delhi under Article 226
Moreover on an application filed by the petitioners under section 130 of the Act the Tribunal referred two questions to the Bombay High Court
The reference pending in the Bombay High Court was transferred by the supreme Court to the Delhi High Court and both the Writ Petition and the reference were heard and disposed of together
The contentions raised before the High Court and reiterated before this Court were 1 that there was no material before the Customs officer to form the reasonable belief that seized goods were smuggled goods and the seizure was bad in law and therefore the provisions of section 123 of the Act did not apply 2 that assuming that the onus was upon the petitioners they had amply discharged the said burden by tendering affidavits 3 that there was no profit element in smuggling the diamonds and hence no presumption should be inferred against the petitioners and 4 that the conclusions of the fact finding body or statutory authority must be arrived at after giving fair opportunity to the party
Dismissing the Special Leave Petition it was  HELD l Section 123 of the Act itself recognises that diamonds have great potential for smuggling into India and that is why it is mentioned in sub section 2 of section 123 of the Act and onus placed on the person from whose possession these are recovered
552C 2 The High Court rightly found that there was evidence lo presume that the goods in question were smuggled
A large quantity of diamonds was found in the possession of the petitioners
No trustworthy evidence documentary or oral was produced in favour of the petitioners as to its legal acquisitionimportation or possession
551G 546 3 In this case there was certainly a nexus between the available material and the formation of the belief that the goods were liable to confiscation
The existence of the material was justiciable but not the sufficiency
553A B 4 The conclusions arrived at by the fact finding bodies the Tribunals or the statutory authorities on the facts cannot be interfered with where the fact finding body or authority has acted reasonably upon the view which can be taken by any reasonable man
Courts will be reluctant to interfere in such a situation
Where however the conclusions of the fact finding authority are based on no evidence then the question of law arises and that may be looked into by the Courts
553E F 5 The High Court rightly found the affidavits as merely bald statements to come to the conclusion that by filing the affidavits the burden had not been discharged
554B 6 A fair opportunity has two justiciable elements
The first is that an opportunity of hearing must be given and the second is that the opportunity must be reasonable
Whether a person has a fair hearing can be gone into by the Court and the Court s conscience must be satisfied that an Administrative Tribunal charged with the duty of deciding a dispute has conformed to the principles of natural justice
Judged by the aforesaid two aspects the High Court was right that a reasonable and fair hearing was afforded to the petitioners
555A C Shanti Lal Mehta vs Union of India  State of Gujarat vs Mohan Lal Jitamalji Porwal  MA Rasheed vs State of Kerala   The Barium Chemicals Ltd  Anr
vs The Company Law Board and ors
  Ms Mehta Parikh  Co vs Cl
T Bombay   Pukhraj vs DR Kohli 1962 Suppl 3 SCR 866 Rabindra Kumar Dev vs State of Orissa   Bal Kissen Kejriwal vs Collector of Customs Calcutta  ors AIR 1962 Cal 460 referred to