IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 26..11..2007 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No.34589 of 2007 and M.P. No. 1 of 2007 Manuelmony Matriculation School Rep. by its Secretary No. 4 North Mada Street Thiruvanmiyur Chennai .. Petitioner vs. 1. The Principal Labour Court High Court Campus Chennai - 104 2. N.Rajendran .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issue of writ of Certiorari calling for the records relating to the order of the first respondent in I.A. No. 278/2007 in I.D. No. 83 of 2005 dated 15.10.2007 and quash the same as it is against the code of regulation for Matriculation Schools Tamil Nadu. For Petitioner : Mr. K.M.Vijayan, SC for Mr.S.Ravichandran For Respondent : Mr.Pa. Kadirvel, GA ORDER The petitioner is a Matriculation School, represented by its Secretary and the order dated 15.10.2007 passed by the first respondent Labour Court in I.A. No. 278 of 2007 in I.D. No. 83 of 2005 is under challenge in this writ petition. 2. In the said order dated 15.10.2007, the first respondent Labour Court rejected the plea made by the petitioner School Management and held that the Labour Court has jurisdiction to entertain the Industrial Dispute raised by the second respondent under Section 2(A)(2) of the Industrial Disputes Act [for short, 'I.D. Act']. https://hcservices.ecourts.gov.in/hcservices/ 3. I have heard the arguments of Mr.K.M.Vijayan, learned Senior Counsel leading Mr.S.Ravichandran, learned counsel appearing for the petitioner and have perused the records. 4. The writ petition is filed only against the preliminary order passed by the Labour Court and at this stage, it is not necessary to entertain a writ petition under Article 226 of the Constitution of India in view of the self-imposed restriction placed upon this Court. The Supreme Court vide its decision reported in 1975 (2) SCC 661 [Cooper Engineering Limited v. P.P. Mundhe] has held that the Court should not baulk at the proceedings of the Labour Court at every stage and should not stall the proceedings. On this short ground, the writ petition is liable to be dismissed. 5. However, Mr. K.M.Vijayan, learned Senior Counsel leading Mr. S. Ravichandran, learned counsel appearing for the petitioner submitted that it is only discretionary for the Court not to hear cases at the preliminary stage whereas in the present case, the jurisdictional issue goes to the root of the matter and, therefore, they are entitled to raise the issue at this stage. 6. In fact, when the petitioner earlier filed a writ petition before this Court in W.P. No. 15371 of 2005, the same was dismissed vide order dated 05.4.2006. In that petition, the School Management filed a petition seeking for writ of Declaration declaring that the provisions of the I.D. Act are not applicable to the Private Schools run under the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 [for short, 'Private Schools Act']. As against the said order, the petitioner filed appeal being W.A. No. 567 of 2006, which came to be dismissed by a Division Bench of this Court vide judgment dated 25.7.2007 and in paragraph 6 of the judgment, it was observed as follows: Para 6: “Having considered the respective submissions and the scope of the issue involved in the case on hand, we are convinced that by setting aside the order of the learned single Judge and vacating all observations contained therein, the appellant is directed to raise the jurisdictional issue raised in this writ petition before the first respondent itself by filing appropriate pleadings. On such issue being raised, the first respondent is directed to decide the said issue as a preliminary issue before going into the merits of the dispute and pass orders on that preliminary issue within two months from the date of receipt of a copy of this order.” https://hcservices.ecourts.gov.in/hcservices/ Therefore, the learned Senior Counsel stated that since they went before the Labour Court as per the direction of the Division Bench of this Court, they are entitled to agitate the issue even at the preliminary stage. 7. Learned Senior Counsel submitted the following points for consideration: (a) Though the second respondent may be a workman within the meaning of Section 2(s) of the I.D. Act, as he is only a non-teaching staff holding the post of Chief Accountant in the petitioner School, the provisions of the I.D. Act are not applicable to any Private School covered by Section 2(7) of the Private Schools Act. (b) The petitioner School, even though a Matriculation School, is also a School and it is not covered by the Matriculation Code applicable to Matriculation Schools. But it is a Private School in terms of Section 2(7)(c) of the Private School Act. (c) The correctness of the judgment of the learned Judge reported in 2002 W.L.R. 688 [Tamil Nadu Matriculation and CBSE School Teachers' Association v. State of Tamil Nadu and others] holding that the Private Schools Act will not apply to the Matriculation Schools, has been referred to a Division Bench and, therefore, it is not final and binding. (d) The decision of this Court, in identical circumstances, rendered in W.P. (MD) No. 4926 of 2006 [The Manager, S.Chattanatha Karayalar College of Pharmacy. Tenkasi v. The Presiding Officer and another], disposed on 03.10.2007, is applicable only to Private Colleges and there is a difference between the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Private Schools Act. 8. Taking the last submission that the order of this Court in W.P. (MD) No. 4926 of 2006 (cited supra) will not apply to the present case, the learned Senior Counsel submitted that in that case, this Court did not deal with the similar provisions to Section 28 of the Private Schools Act and it only dealt with similar provisions under Section 24 and, more specifically, with Section 52 of the Private Colleges Act. This Court is unable to agree with the said submission because even in Private Colleges Act, Section 24, which is parimateria with Section 28 of the Private Schools Act, is available. But the learned Senior Counsel stated that under Section 24(3) of the Private Colleges Act, minority institutions are excluded, whereas under the Private Schools Act, there is no such exclusion for any minority institution. 9. The learned Senior Counsel failed to note that Sections 22 to 26 of the Private Schools Act were held in-applicable to minority institution by a Division Bench of this Court in W.P. No. 4478 of 1974, etc. batch cases, disposed on 24.9.1976. When the State went on appeal against the said judgment, the Supreme Court remitted the https://hcservices.ecourts.gov.in/hcservices/ matter for fresh disposal by this Court in the light of the decision reported in (2002) 8 SCC 481 [T.M.A. Pai Foundation and others v. State of Karnataka and others]. But in the same remittal order, the Supreme Court has held that until such time the Court determines the applicability of these provisions, status quo will prevail, which only means that the provisions relating to appeals will not apply to minority institutions. Once it is conceded that the appeal provisions are not applicable to minority institution, then it is clear that the non-teaching staff working in the minority institutions will be allowed to move the provisions of the I. D. Act in the light of the judgment reported in 1987 (4) SCC 691 [Christian Medical College Hospital Employees' Union and another v. Christian Medical College Vellore Association and others]. In fact, in that decision, the Supreme Court while discussing the application of the I. D. Act regarding the said Act, observed in paragraphs 11 and 12 as follows: Para 11: “.... The Act came to be passed in the year 1947 with the object of bringing into existence a machinery for investigation and settlement of industrial disputes between employers and workmen in accordance with the decisions of the International Labour Organisation. The Act provides for a machinery for collective bargaining. The object of industrial adjudication has, therefore, been to be a countervailing force to counteract the inequalities of bargaining power which is inherent in the employment relationship. In one of the commentaries on the Act the need for and the character of industrial adjudication is described as follows: “The law Governing industrial relations is one of the vitally important branches of the law - the legal system on which depends the social and economic security of a very large majority. “The parties to the industrial disputes present an infinite permutations of attitudes” on economics, politics and human relations. General consensus on the methods of resolving them is beyond reach. The core of modern industrial law, therefore, consists of the problems dealing with the conflict arising between the industrial employers and their employees relating to employment and social security. The study of industrial law, therefore, necessarily concerns itself with the struggle of industrial workmen for security. It is the security of job, the minimum standard of living, of his future and that of his children and conversely the fear of insecurity which bedevil the worker. In other words, security is the keystone in dealing with the industrial relations between the industrial employers and their workers. The industrial worker, therefore, is the 'focal point' of any legal enquiry in the https://hcservices.ecourts.gov.in/hcservices/ industrial relations. In the words of Prof. Forkosch, “the sociologist may see the worker as a human being caught in congeries of frustrations, complexes and urges - a mind that cannot cope with the baffling contradictions of the modern society”. “There is”, therefore, as Prof. Otto Kahn-Freund points out “everywhere a constant need for finding a judicium finium regundorum between collective bargaining and legislation of all kinds as instruments for the regulation of conditions of employment - wages and hours, holidays and pensions, health, safety and welfare, and even, increasingly, social security”. [See O.P. Malhotra: The Law of Industrial Disputes, Fourth Edn., Vol. I, (1985) - Introduction, Page XX.] Para 12: Section 2( k ) of the Act defines an 'industrial dispute' as any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. The Act provides for the constitution of works committees in industrial establishments employing 100 workmen or more and they are charged with the duty of removing causes of friction between the employer an d workmen in the day-to-day working of the establishment and promoting measures for securing amity and good relations between them. Industrial peace is most enduring where it is founded on voluntary settlement, and the works committees are entrusted with the duty of providing a machinery for the settlement of disputes. Section 12 of the Act provides for the appointment of Conciliation Officers in order to negotiate between the managements and their workmen and to bring about settlement if possible. If the conciliation proceedings fail, the Conciliation Officer has to make a report to the appropriate Government accordingly. A reference to an Industrial Tribunal of a dispute under Section 10 of the Act is made where both parties to an industrial dispute apply for such reference or where the appropriate Government considers it expedient so to do. An award of a Tribunal may be in operation for a period of one year subject to the provisions of Section 19 of the Act. The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the https://hcservices.ecourts.gov.in/hcservices/ imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such rights. The Industrial Tribunals or Labour Courts constituted under the Act are presided over by persons having judicial experience such as a person who is or has been a Judge of the High Court or who has been for a period not less than three years a District Judge or an Additional District Judge or a person who has not less than five year's service as Presiding Officer of a Labour Court constituted under any law for the time being in force or who holds a degree in law of a University established by law in any part of India and is holding or has held an office not lower in rank than that of Assistant Commissioner of Labour under the State Government for not less than ten years. The Presiding Officer of a Labour Court should also possess substantially the same qualifications and they are set out in Section 7 of the Act. Section 9-A of the Act, which is one of the sections the applicability of which to a minority educational institution is questioned, provides that no employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule to the Act shall effect such change without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or within twenty-one days of giving such notice, except in certain cases which are mentioned in the proviso thereto. This section was introduced since there was a persistent demand that notice should be given whenever it was proposed to make any change in the conditions of service of the workmen. Section 11-A of the Act confers powers on the Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge of dismissal of workmen. It provides that where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudicational proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. On the basis of the materials on record, the Tribunal is empowered https://hcservices.ecourts.gov.in/hcservices/ to pass an appropriate order under Section 11-A of the Act. Section 33 of the Act provides that the conditions of service etc. of the employees should remain unchanged under certain circumstances during pendency of proceedings before an arbitrator or a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute. It further provides that no employer shall in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. If the conditions of service relate to any matter not connected with the dispute or if the misconduct of the workman is not connected with the dispute the management should seek the approval of the authority concerned and comply with the other conditions mentioned in the proviso to Section 33(2) of the Act. Section 33(3) of the Act provides that in the case of protected workmen the express permission of the authority concerned should be obtained before any such action is taken. Section 33-A of the Act provides for the making of an application before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal for appropriate relief if Section 33 of the Act is contravened. Thus it is seen that the Act is one which is enacted as a social security measure in order to ensure welfare of labour and it falls within one or the other of Entry 22 - Trade Unions; industrial and labour disputes, Entry 23 - social security and social insurance; employment and unemployment and Entry 24 - welfare of labour including conditions of work, provident funds, employer's liability, workmen's compensation, invalidity and old age pensions and maternity benefits in the List III of the Seventh Schedule to the Constitution of India. The Act generally applies to all industries irrespective of the religion or caste to which the parties belong. It applies to industries owned by the Central and the State Governments too. Any decision given by the Industrial Tribunal or a Labour Court under the Act is subject to judicial review by the High Court under Article 226 of the Constitution of India and an appeal to this Court under Article 136 of the Constitution of India. The Labour Court, the Industrial Tribunal, the High Court and this Court while dealing https://hcservices.ecourts.gov.in/hcservices/ with matters arising out of the Act have to deal with them objectively. The smooth running of an educational institution depends upon the employment of workmen who are not subjected to victimisation or any other kind of maltreatment. The conditions of service of workmen in all institutions including minority educational institutions have to be protected in the interest of the entire society and any unfair labour practice, such as 'hiring and firing', termination or retrenchment of the service of a workman on irrational grounds will have to be checked. The Act makes provisions in respect of these matters. The Act being a general law for prevention and settlement of industrial disputes cannot be construed as a law which directly interferes with the right of administration of a minority educational institution guaranteed under Article 30(1) of the Constitution of India. The law is not enacted with the object of interfering with any such right. It clearly falls within the observation of Mathew, J. in St. Xavier's College case (supra) that “regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgement”.” 10. It was further held in paragraph 18 of the said judgment as follows: Para 18: “.... It has to be borne in mind that these provisions have been conceived and enacted in accordance with the principles accepted by the International Labour Organisation and the United Nations Economic, Social and Cultural Organisation. The International Covenant on Economic, Social and Cultural Rights, 1966 which is a basic document declaring certain specific human rights in addition to proclaiming the right to work as a human right treats equitable conditions of work, prohibition of forced labour, provisio n for adequate remuneration, the right to a limitation of work hours, to rest and leisure, the right to form and join trade unions of one's choice, the right to strike etc. also as human right. The Preamble to our Constitution says that our country is a socialist republic. Article 41 of the Constitution provides that the State shall make effective provision for securing right to work. Article 42 of the Constitution provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43 of the Constitution states that the State shall endeavour to https://hcservices.ecourts.gov.in/hcservices/ secure by suitable legislation or economic organisation or in any other way to all workers agricultural, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. Even the management of a minority educational institution has got to respect these rights and implement them. Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in this case which are brought into force in the country. Due obedience to those laws would assist in the smooth working of the educational institutions and would facilitate proper administration of such educational institutions. If such laws are made inapplicable to minority educational institutions, there is very likelihood of such institutions being subjected to maladministration. Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment, unemployment, security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 30(1) of the Constitution of India is violated. If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be due to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 30(1) violated? Certainly not. Similarly the right guaranteed under Article 30(1) of the Constitution is not violated, if a minority school is ordered to be closed when an epidemic breaks out in the neighbourhood, if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school. In the same way if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose. Laws are now passed by all the civilised countries providing for such a machinery. The Act with which we are concerned in this case is an Act which has been brought into force for resolving such industrial disputes. Sections 10, 11-A, 12 and 33 of the Act cannot, https://hcservices.ecourts.gov.in/hcservices/ therefore, be construed as interfering with the right guaranteed under Article 30(1) of the Constitution of India. Similarly, Section 9-A of the Act, which requires the management to issue a notice in accordance with the said provision in order to make changes in the conditions of service which may include changes in the hours of work, leave rules, introduction of new rules of discipline etc., cannot be considered as violative of the right guaranteed under Article 30(1) of the Constitution of India....” [Emphasis added] Therefore, it is too late for the petitioner to state that the provisions of the I.D. Act will not apply to non-minority institution when it is made applicable even to a minority institution, which enjoys the protection under Article 30(1) of the Constitution of India and the provisions of the I. D. Act were held to be regulatory in nature. 11. However, the learned Senior Counsel appearing for the petitioner submitted that the Private Schools Act insofar it has received the assent of the President and in respect of the Private Schools, it is a complete Code by itself and Section 28 of the Private Schools Act has an over-riding effect. Section 28 of the private Schools Act reads as follows: “28. Chapter to have overriding effect.- (1) This Chapter or any rule providing for all or any of the matters specified or any of the matters specified in this Chapter or any order made in relation to any such matter shall have effect notwithstanding - (a) anything contained in any- (i) other law for the time being in force, or (ii) award,