IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 22517 of 2008(E) ------------------------------------ PETITIONER(S): --------------------- JACOB MATHEW, MADATHIL PUTHENPURAYIL, AMAYANNUR, AYARKUNNAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.K.A.MANZOOR ALI RESPONDENT(S): ----------------------- 1. DIRECTOR OF TRAINING, DIRECTORATE OF EMPLOYMENT & TRAINING, DEPARTMENT OF INDUSTRIAL TRAINING (KERALA STATE), THYCAUD, THIRUVANANTHAPURAM - 14. 2. ST.MARY'S INDUSTRIAL TRAINING CENTRE, MANAGING BOARD, REPRESENTED BY MANAGER, ST.MARY'S INDUSTRIAL TRAINING CENTRE, MANNARKKAD, KOTTAYAM DISTRICT. 3. VICAR, ST.MARY'S JACOBITE SYRIAN CHURCH, EX-OFFICIO PRESIDENT, ST.MARY'S INDUSTRIAL TRAINING, CENTRE, MANNARKAD, KOTTAYAM DISTRICT. ADV. SRI.JOHN JOSEPH VETTIKAD FOR R2 SRI.C.JOSEPH JOHNY FOR R2 GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON 03/04/2009 DELIVERED THE FOLLOWING: WP(C) NO. 22517/2008 E APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE ORDER DT. 16/08/96 BY THE MINISTRY OF LABOUR, GOVT. OF INDIA. EXT.P2. COPY OF THE CIRCULAR DT. 4/1/97 BY THE R1. EXT.P3. COPY OF THE JUDGMENT DT. 12/6/2000 IN OP NO. 5202/97. EXT.P4. COPY OF THE ADDITIONAL COUNTER AFFIDAVIT DT. 5/3/2001 FILED IN OP NO. 27697/00. EXT.P5. COPY OF THE CMP NO. 29873/2002 IN OP NO. 27697/00 PRESENTED ON 27/6/2002. EXT.P6. COPY OF THE JUDGMENT DT. 3/7/2002 IN OP NO. 27697/2002. EXT.P7. COPY OF THE CIRCULAR DT. 7/1/2008 BY THE R1. EXT.P8. COPY OF THE REPRESENTATION DT. 25/4/08 BY THE PETITIONER BEFORE THE R2 AND R3. EXT.P9. COPY OF THE REPRESENTATION DT. 3/6/08 BY THE PETITIONER BEFORE THE R2. EXT.P10. COPY OF THE REPRESENTATION DT. 9/6/2008 BY THE PETITIONER BEFORE THE R1. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 22517 of 2008-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2009. JUDGMENT The petitioner in this writ petition is seeking for a direction to respondents 2 and 3 to disburse arrears of salary as enjoined by the proceedings Exts.P1 and P2 issued by the first respondent and the Government of India. 2. Shortly stated, the relevant facts are the following: The petitioner was serving as the Principal of St. Mary’s Industrial Training Centre, Mannarkad under the second respondent from 9.9.1979. The institution is having permanent affiliation with the National Council for Training in Vocational Trades (NCVT). The petitioner is having degree in Science and also B.Sc. Engineering Degree. He was getting only a consolidated allowance of Rs.550/- per month. The issue regarding the payment of adequate remuneration to the staff engaged by private Industrial Training Centres was considered in the 31st meeting of the NCVT held on 30.11.1995. Based on the recommendation, the Government of India passed Ext.P1 directing the State Governments to issue necessary instructions to all the private ITIs which are affiliated to NCVT, to pay their staff a minimum wpc 22517/08 2 of 2/3rd of salary being paid to the faculty/staff members of the Government ITIs with immediate effect. This is dated 16.8.1996. The Director of Training under the State Government accordingly issued P2 circular to all the institutions. 3. The Association of Industrial Training Centres challenged these orders before this court by filing O.P.No.5202/1997 which was dismissed by Ext.P3 judgment. The matter was taken in appeal and before the Apex Court. The judgment of this court was confirmed. The petitioner had earlier approached this court by filing O.P.No.27697/2000 and at that point of time the S.L.P. filed before the Apex Court was pending and there was an order of stay in force. In that view of the mater, the petitioner withdrew the original petition with liberty to move again, if required. This is evident from Ext.P6 judgment. He retired from service on 30.11.2006. 4. After the Special Leave Petition was dismissed, again the first respondent issued Ext.P7 circular to all the institutions to grant the benefits. The petitioner submitted Exts.P8 and P9 representations along with a salary statement. But no action was taken by the second respondent. Thereafter, he filed Ext.P10 representation before the first respondent and has filed this writ petition seeking for various reliefs. 5. In the counter affidavit filed on behalf of respondents 2 and 3, wpc 22517/08 3 mainly it is contended that they are not “other authorities” as defined under Article 12 of the Constitution of India and they are not discharging any statutory functions and are not functioning with the financial aid from the Government and therefore no writ will lie against them. It is further pointed out that the petitioner is not entitled for any monetary reliefs as he has worked on agreed terms. In para 4 of the counter affidavit, they have pleaded ignorance of the recommendation of the NCVT and the acceptance of the recommendation by the Government of India. It is also contended that the Government or the NCVT has no power to fix a minimum scale of pay of teachers of private ITIs like the second respondent. In para 6, a contention is seen raised that the earlier writ petition was withdrawn by the petitioner to get the benefits offered by the respondents in the matter of payment. It is also stated that as he has received the benefits without any protest, he is not entitled for any further reliefs. 6. It is not disputed that the second respondent Training Centre is affiliated to NCVT. Ext.P1 circular will show that the Government of India accepted the recommendation to provide a minimum salary to the teachers of private ITIs which are affiliated to NCVT. This was implemented in the State by Ext.P2 circular by the Department of Industrial Training. It is also informed to them that the norm regarding payment of salary is a pre- wpc 22517/08 4 condition for getting permanent affiliation. The challenge against these orders was repelled in Ext.P3 judgment. After elaborately considering the contentions, this court in para 7 of the judgment held that the recommendation made by the NCVT was after discussion with the representatives of the employers and employees in the 31st meeting held on 31.11.1995 and therefore, the management, after having agreed, cannot go back. Regarding the obligation of the management, it was held thus: “In the present case, the State has issued necessary circulars or orders directing the private management to pay at least 2/3rd of the salary given to the Government Teachers. Petitioners cannot shirk from their duties to pay the salary as directed by the Government. As held by the Supreme Court, petitioners are running institutions imparting education on the public. Public are availing of the benefit of education from the institutions. Hence, they are bound to pay salary as directed by the Government. This court is competent to direct the private educational institutions to pay salary at the same rate which has been issued to Government institutions.” Therefore, it is too late in the day to raise a contention by the respondents that Exts.P1 and P2 are not binding on them and they are unaware about the developments, etc. In the light of the dictum laid down as above, the contention that the respondents are not liable to implement Exts.P1 and P2 wpc 22517/08 5 cannot be accepted and hence I reject the same. They are bound to pay salary as directed to be paid by Exts.P1 and P2. The fact they were aware about Ext.P3 judgment is clear from the averments in para 3 of Ext.P4, the additional counter affidavit filed by the management in O.P.No.27697/2000. The plea taken is that against Ext.P3 judgment as affirmed in Writ Appeal No.1501/2000, S.L.P. is pending before the Apex Court and the Apex Court had stayed the further proceedings as directed in Ext.P1. Therefore, the averment in para 4 of the counter affidavit herein, that the respondents are not aware of the recommendations of NCVT to the Government as regards the salary of the employees of private ITIs is without any substance. Once the proceedings have been upheld by this court and by the Apex Court, the same is binding on respondents 2 and 3 and therefore they are bound to pay the salary to the petitioner as directed in Exts.P1 and P2. After the Apex Court judgment, by Ext.P7 they were directed to implement the orders regarding salary. The right of the petitioner to receive such salary cannot therefore be denied and it is declared that he is entitled for such benefits. 7. Then the further question is whether in this writ petition, this court can direct the respondents to disburse the amount. The contention raised is that the second respondent does not come within the term “other authorities” under Article 12 of the Constitution of India. That they are wpc 22517/08 6 affiliated to the NCVT is not denied. In fact, the very same contention was considered and rejected in Ext.P3 judgment, relying upon the decision of the Apex Court in K. Krishnamacharvulu and others v. Sri Venkateswara Hindu College of Engineering and another (AIR 1998 SC 295). It was held that since the institution is imparting education, an element of public interest is there in the performance of their duties. Accordingly, the right of the teachers to get parity of the pay scales is protected. Following the above dictum laid down by the Apex Court, it was held that the petitioners are running institutions imparting education on the public and the public are availing of the benefit of education from the institutions and hence they are bound to pay salary as directed by the Government. Since this judgment stands affirmed by the Division Bench and the Apex Court, the respondents cannot now shirk their responsibility to pay salary as directed by the Government. While imparting education, they are really exercising the Governmental functions. Since public interest is involved and as they are imparting education, they are discharging public duties. In that view of the matter, this court will be justifying in issuing a writ of mandamus to enforce the claim. As held in Ext.P3 judgment, payment of minimum salary to the staff in an institution imparting education is in the interest of public. The wpc 22517/08 7 public are availing of the benefit of education from the institution. It is well settled that in such circumstances, a writ of mandamus could be issued to compel the institution like respondents 2 and 3 to abide by the directions issued by the authorities like the State. In fact, under Article 226 of the Constitution of India, when any citizen or person suffer a wrong, the High Court will step in protect him, even if the wrong is done by the State, its instrumentality or authorities, body of individuals, societies which are incorporated or not or even an individual. It is also well settled that the right of the person that is infringed, may be under the Constitution or any other Act validly made, or other binding executive orders. Exts.P1 and P2 clearly provides for payment of minimum salary to persons like the petitioner. Therefore, that has become part of the service conditions of the teachers and Principals of these private institutions. That the institution is affiliated to the NCVT and controlled by the first respondent, is not denied. In that view of the matter, they cannot adopt an adamant stand that they are not bound to pay salary. In the result, the writ petition is allowed. There will be a direction to respondents 2 and 3 to disburse the amount claimed as per Ext.P9, within a wpc 22517/08 8 period of one month from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/