IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 3.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.11513 of 2001 The District Educational Officer Sankari Education District Sankari, Salem District. .. Petitioner Vs. 1. S.Veerappan 2. The Presiding Officer Labour Court Salem. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorari to call for the records relating to the award passed by the second respondent in I.D.No.154 of 1997, dated 18.5.2000 and quash the same. For Petitioner : Mr.K.H.Ravikumar Government Advocate For Respondent : Mr.Nazarulla for 1st respondent ORDER The petitioner is the District Educational Officer, Sankari Education District, Sankari, Salem District. Aggrieved by the award passed by the second respondent/Labour Court, Salem in I.D.No.154 of 1997, dated 18.5.2000, the present writ petition has been filed. The Labour Court, by the impugned award, directed the reinstatement of the first respondent with continuity in service with 40% of the back-wages. 2. The writ petition was admitted on 21.6.2001 and the petitioner was directed to deposit the back-wages ordered by the Labour Court within two weeks from the date of receipt of a copy of the said order. Subsequently, the petitioner filed a petition for extension of time and since the first respondent did not object, time was extended. Finally, this Court, on 3.10.2002, found that 40% of the back-wages works out to Rs.57,684/- and the same was already deposited by the petitioner. Thereafter, since the first respondent had taken out a petition for vacating the interim order and also for payment of last drawn wages in terms of Section 17-B of the Industrial Disputes Act, a comprehensive interim order came to be passed. This Court made interim stay https://hcservices.ecourts.gov.in/hcservices/ absolute on condition that in addition to the amount already deposited, the petitioner shall pay a sum of Rs.38,000/- and continue to pay Rs.1,100/- being the last drawn wages to the first respondent starting from 1.11.2002. The first respondent was also directed to withdraw Rs.40,000/- without any security and the balance of Rs.38,000/- was directed to be deposited in Fixed Deposit in a Nationalised Bank as the Labour Court may desire. The first respondent was also given liberty to withdraw quarterly interest. 3. It is seen from the records that the first respondent was employed as a Night Watchman on daily wages by proceedings dated 30.9.1982. He was initially posted at the Kokkarayanpettai Government High School. Thereafter his services were terminated during July, 1984. Once again the first respondent was engaged as a Night Watchman on a temporary basis in the newly opened Government High School at M.Chettypatty and he worked there from 14.11.1984. His services, after a period of four years, were terminated on 5.6.1988. 4. The first respondent, after making representation, raised a dispute before the Government Labour Officer and on the strength of the failure report given by the said Officer, he filed a claim statement before the Labour Court. His claim statement was taken on file as I.D.No.154 of 1997. In response to the notice issued by the Labour Court, the petitioner/Department filed a counter statement dated (Nil) January, 1998. The contention raised by the petitioner/Department was that the running of a school is not an "industry" covered by Section 2(j) of the Industrial Disputes Act and in any event, since the first respondent was engaged in two spells purely on temporary basis, he is not entitled to any relief by the Labour Court. 5. Before the Labour Court, on the side of the workman three documents were filed and marked as Exs.W1 to W3 and on the side of the department, 8 documents were filed and they were marked as Exs.M1 to M8. Since the documents were marked by consent, no oral evidence was let in by the parties. 6. With reference to the contention that the activity of the Department which is a wing of the Government will not be covered by the provisions of the Industrial Disputes Act, the Labour Court came to the conclusion that such a contention is not acceptable in the light of the Larger Bench judgment of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.Rajappa, [1978] 1 LLJ 349. In that case, the Supreme Court overruled the earlier judgment of the Supreme Court in University of Delhi v. Ram Nath, AIR 1963 SC 1873 and held that education can be and is, in its institutional form, an industry. 7. With reference to the broken service, the Labour Court held that since the workman was terminated from the earlier school and subsequently appointed in another school, it cannot be held to be any break in service. He has been working without any break in service https://hcservices.ecourts.gov.in/hcservices/ and such breaks were not proved before the Labour Court with any materials. Even otherwise, the term "continuous service" has been defined under Section 25-B of the Industrial Disputes Act which includes even a broken service. In the present case, the workman have put in sufficient service so as to be covered by the term "retrenchment" within the meaning of Section 2(oo) of the Industrial Disputes Act. 8. On the question of delay in raising the dispute, the Labour Court held that the delay by itself cannot be a ground to reject the relief and since the workman has been terminated without due notice or without any enquiry, the delay can also be condoned. In that view of the matter, the Labour Court directed reinstatement with continuity in service with 40% of the back-wages. 9. Mr.K.H.Ravikumar, learned Government Advocate contended that the award of the Labour Court is liable to be interfered with on two grounds, viz., that the Department of Education cannot be an "industry" within the meaning of Section 2(j) of the Industrial Disputes Act and since the termination is of a temporary employee, the Labour Court cannot grant any relief. He has also alternatively submitted that in view of the inordinate delay in raising the dispute, the relief should have been denied to the first respondent. 10. Coming to the last submission, it must be stated that the question of delay or a person being temporary can only have the bearing on the question of back-wages. Insofar as there is a clear finding that before the services of the first respondent were retrenched no notice pay or due compensation was given, it is an invalid termination. Normally, the relief of reinstatement with back-wages can be ordered. But while granting back-wages, the Court also can take into account the nature of employment, viz., adhoc, daily wages or temporary as well as the delay in raising the dispute as held by the Supreme Court in Rajasthan Lalit Kala Academy v. Radhey Shyam, [2008] 13 SCC 248. In the present case, the Labour Court, having found that there was an inordinate delay, has denied the workman 60% of the back-wages. 11. With regard to the other contention that it is not an "industry", it is too late in the day for the petitioner to contend in the light of the decision of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A.Rajappa, cited supra. In the light of the above, there is no case made out. Accordingly, this writ petition is dismissed. However, there will be no order as to costs. In view of the dismissal of the writ petition, the first respondent is entitled to withdraw the amount lying in https://hcservices.ecourts.gov.in/hcservices/ deposit to the credit of the industrial dispute before the Labour Court together with interest, if any accrued thereunder. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar sasi To: 1. The District Educational Officer Sankari Education District Sankari, Salem District. 2. The Presiding Officer Labour Court Salem. +1 C.C. to M/s.K.V.Shanmughanathan, Advocate – SR NO.14647 +1 C.C. to Government Pleader, High Court, Madras – SR No.14625 W.P.No.11513 of 2001 RSM(CO) https://hcservices.ecourts.gov.in/hcservices/