IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5272 of 1987 For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SHANTIBEN L CHRISTIAN Versus ADMINISTRATIVE OFFICER -------------------------------------------------------------- Appearance: MR PC MASTER for Petitioner MR DEVANG NANAVATI with MR DG SHUKLA of NANAVATI & NANAVATI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE J.N.BHATT and MR.JUSTICE M.R.CALLA Date of decision: 04/05/2001 C.A.V. JUDGEMENT (Per : MR.JUSTICE B.C.PATEL) #. Learned Single Judge of this Court has referred this matter to a larger bench. Hence this matter is placed before this Bench in view of the order passed by the Honourable the Chief Justice. #. The petitioner approached this Court by filing the aforesaid petition interalia contending that the petitioner was serving as a Primary Teacher under the respondent Board (Ahmedabad Municipal School Board). The petitioner joined on 8.7.1947 as a primary teacher and retired on 30th November 1982. It is contended that the petitioner was entitled to gratuity under the provisions of Payment of Gratuity Act, 1972 (hereinafter referred to as the Act) on her retirement. She was paid a sum of Rs.9618-25 as per the rules in force at the relevant time. However, the petitioner has claimed that the petitioner was entitled to a larger sum of Rs.19,573-80 under the provisions of the Act and not Rs.9618-25. Since the amount was not paid in full according to the petitioner, an application was made under the Act before the controlling authority, Ahmedabad being application No. 243/83 which was rejected by the Controlling Authority on 2.9.1983 against which an appeal, being appeal No. 28 of 1984 was preferred before the appellate authority, who by judgment and order dated 21.8.1984 remanded the matter to the controlling authority. Ultimately, on remand, the respondent Board was directed to pay balance amount of Rs.9955-55 within thirty days from the date of the order. The respondent preferred an appeal being appeal No. 60 of 1986 before the appellate authority. After hearing the parties, the said appeal was allowed on 8.7.1987 and the judgment and order passed by the Controlling Authority was set aside, vide Annexure 'B'. The order made by the appellate authority is challenged before this Court. #. In this petition, while examining the contention whether the Institute where the petitioner was serving is amenable to the Act or not, learned Single Judge found it difficult to agree with the view taken by one of us (M.R. Calla, J.) in Special Civil Application No. 13265 of 1993 decided on 17.11.1995 wherein reliance was placed on a decision of Division Bench of this Court in CHARUTAR VIDYA MANDAL vs. SHRI MIRANMIYA REHMUMIYA MALEK reported in 1977 LAB I.C. 1647. #. It is required to be noted that before the learned Single Judge in Spl. C.A. No. 13265 of 1993, the Institute volunteered to part with a sum of Rs.25,000/in favour of legal heirs of one of its employees, Kantilal Manilal Shah, who, before his death, had served the Institute for nearly 42 years. Thus, the learned Single Judge was not really called upon to decide whether the Institute was amenable to the provisions contained in the Act or whether the deceased employee was an employee within the meaning of the Act or not. In view of the admission by the parties before the Court, learned Single Judge held that: "Be that as it may, the petitioner institution being not amenable to the payment of Gratuity Act, the order passed by the appellate authority under the provisions of Gratuity Act on12.7.93 cannot be sustained in the eye of law and the same is hereby quashed and set aside". Thus, according to us, the Court in the above matter, was not called upon to decide the question about the applicability of the provisions contained in the Act. On an admission, the order was made, and mere observation made could not have been cited as a precedent before the learned Single Judge before whom the present petition was placed for hearing. #. In the referring order, learned Single Judge considered the provisions contained in the Bombay Shops & Establishment Act, the decision of a Division Bench of this Court in the case of PORBANDOR NAGAR PALIKA vs. V.G. PATEL CONTROLLING AUTHORITY reported in 16 GLR 963, and the decision of the Apex Court in the case of STATE OF PUNJAB vs. LABOUR COURT, JULLENDER reported in (1980) 1 SCC 4. Learned Single Judge also considered a decision of the Division Bench of this Court in CHARUTAR VIDYA MANDAL vs. SHRI MIRANMIYA REHMUMIYA MALAK reported in 1977 LAB. I.C. 1647 in which the Division Bench held that providing transport service to students so that they could without difficulty of having to waste their time in searching for some transport was a very insignificant part in the scheme of educational system of the petitioner Vidyamandal and it would be unreasonable to lend an industrial colour to this insignificant activity, the principal activity of which was imparting education. It was held that transport service provided was neither an organised industry nor a commercial undertaking so as to come within the sweep or range of section 2 (4) of the Act. The Division Bench pointed out in paragraph 6 of its judgment in which it is stated that applying the tests laid down by the Supreme Court, it is difficult to say that the petitioner Vidya Mandal, by reason of its running a transport service for the convenience of its students is carrying on a trade, business or profession or it is in connection with, incidental or ancillary to the profession, trade or business with which the Vidya Mandal was concerned. The Division Bench was not called upon to decide the question as to whether teaching is a profession or not. The question in that case was whether in view of the inclusion of "any profession" in the expression "commercial establishment" as defined, an establishment which imparts teaching would be a commercial establishment. However, the question in the instant case to be considered is whether a teacher can be said to be an employee or not. It may be that it is an establishment. Learned Single Judge further opined that the Division Bench in the case of CHARUTAR VIDYA MANDAL (supra) considered the question as to whether by providing a school bus service the society was running a commercial establishment?. Learned Single Judge also considered the decision of the Bombay High Court in the case of PRINCIPAL, BHARATIYA MAHAVIDYALAYA AND ANOTHER vs. SHRI RAMKRISHNA reported in 1994 LAB I.C. 404 where the Bombay High Court held that the petitioner institute, a college imparting education and a society registered under the Societies Registration Act, 1966, fell within the definition of a 'commercial establishment' under the Bombay Shops and Establishment Act and section 1 (3) (b) of the Payment of Gratuity Act will be applicable to it even if an educational institution was ultimately exempted under section 4 from operation of the Bombay Shops & Establishment Act. In view of the aforesaid decisions which the learned Single Judge considered, learned Single Judge expressed an opinion that it would not be appropriate to take a different view of the matter than the view taken by another learned Single Judge in Spl. C.A. No.13265 of 1993, and hence referred the matter to a larger Bench. #. In the instant case, the real question is: whether the petitioner, who was serving as an employee, i.e. a primary school teacher, was an employee covered by the definition "employee" as found in sub-clause (e) of section 2 of the Act. The said section reads as under: 2.(e). "employee" means any person (other than an apprentice) employed on wages, not exceeding two thousands and five hundred rupees per mensem, or such higher amount as the Central Government may, having regards to the general level of wages, by notification specify, in any establishment, factory, mine, oilfield, plantation, railway company or shop, to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work, whether the terms of such employment are express or implied, and whether or not such person is employed in a managerial or administrative capacity, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity. Explanation: In the case of an employee, who, having been employed for a period of not less than five years on wages not exceeding the amount for the time being specified by or under clause (e) per mensem is employed at any time thereafter on wages exceeding that amount, gratuity, in respect of the period during which such employee was employed on wages not exceeding that amount shall be determined on the basis of the wages received by him during that period." #. Patna High Court in VED PRAKASH PATHAK NIRALA vs. STATE OF BIHAR AND OTHERS reported in 1999 (3) LLN 369 examined the question about the applicability of section 2 (e) of the Act to a Teacher. In paragraph 5, the Court perused the order of the appellate authority which relied on the decision of the Supreme Court in the case of Bangalore Water Supply and Sewerage Board vs. A. Rajappa reported in 1978 (1) LLN 376 and 657, and came to the conclusion that the teacher is not a workman. In the same paragraph, the Patna High Court held that the question whether teacher is a workman or not has been left open in the decision of the Supreme Court in the case of Bangalore Water Supply (supra) but subsequently in the decision of the Supreme Court in the case of MISS. A. SUNDARAMBAL VS. GOVERNMENT OF GOA, DAMAN AND DIU REPORTED IN 1988 (2) LLN 608, it has been decided after considering the Constitution Bench judgment in case of Bangalore Water Supply and Sewerage Board (supra) that the teacher employed in a school does not fall within the definition of a workman. In paragraph 8 of the judgment, the Patna High Court further pointed out that teacher cannot be said to be an employee under the said Act, as he is not doing any work which can be called as skilled, unskilled, manual work, supervisory work, technical work or clerical work. As teacher is not doing any skilled, semi-skilled, unskilled, manual, supervisory, technical or clerical work as contemplated in sec. 2(e) of the Act, he would not be treated as an employee within the meaning of the said definition and, therefore, he is not entitled to payment of gratuity under the Act. If teacher is not a workman, he also cannot claim that he is an employee under the said Act. #. In paragraph 9 of the judgment, the Patna High Court has also considered the decision of the Apex Court in the case of Haryana Unrecognised Schools Association vs. State of Haryana reported in 1996 (2) LLN 271 wherein the Apex Court again held that a teacher, having regard to the nature of his job performed, cannot be held to be an employee even under section 2(1) of the Minimum Wages Act and that of employee under the Payment of Gratuity Act has a very close resemblance. The Patna High Court therefore held that teacher cannot come within the purview of section 2 (e) of the Act. #. The Bombay High Court, Panaji Bench (Goa) in the case of MISS. A. SUNDARAMBAL VS. GOVERNMENT OF GOA, DAMAN & DIU AND OTHERS REPORTED IN 1983 II LLJ 491 examined the question whether teacher is a workman and can resort to section 2 (s) of the I.D. Act or not. In the case of University of Delhi vs. Ram Nath reported in 1963-II LLJ 335, the Apex Court held that a University like the Delhi University could not be regarded as an industry within the meaning of s.2 (j) of the Industrial Disputes Act. It would necessarily follow that a school or college engaged in the activity of imparting education cannot be regarded as an industry. On analysis of the case reported in 1972 LLJ 590 in case of Burmah Shell Oil Storage & Distributing Co. Ltd. vs. Management Staff Association, in paragraph 9 the Bombay High Court pointed out that a person employed in an industry may be employed in one or the other of the four capacities mentioned in the definition to be covered by the definition of workman. In other words, a person must be employed to do (1) any skilled, semi-skilled or unskilled manual work, (2). any supervisory work, (3). any technical work, (4) any clerical work for hire or reward. In paragraph 6 of Delhi University case, the Apex Court pointed that "education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development" and the Supreme Court proceeded to say that "to speak of this educational process in terms of industry sounds so completely incongruous that one is not surprised that the Act has deliberately so defined workmen under S.2(s) to exclude teachers from its scope". ##. In paragraph 14, the Bombay High Court pointed out thus: "The duties of a teacher are too well known and judicial notice of the same can be easily taken. Teachers belong to an intellectual class who are trained and qualified to impart education to the students who are, as the word corresponding to student in Indian language shows, seekers of knowledge. The education is imparted in class rooms by means of lectures or tutorials. In technical subjects, practicals are held in the laboratories with the assistance of qualified teachers. Many times teachers are required to take part in extra-curricular activities which are connected with the main function of the educational institution itself. These include organising debates and literary societies. Teachers are also required to conduct examinations in the school or the college and evaluate the answer books of the students. In this process they may be required to do some paper work. They may be required to do, for example, mark the attendance of the students and to submit the progress reports of their wards". ##. In paragraph 16, the Bombay High Court further held that: "It cannot by any stretch of imagination be said that a teacher is doing skilled or unskilled manual work. Indeed it cannot be said that he is doing any manual work at all. His work, which is essentially intellectual, is directly opposite to manual work which is normally done by a mill operative or even an artisan like carpenter. .... It was sought to be argued with some persistence by Mr. Sonak that while discharging his duties, a teacher is necessarily doing a lot of manual work such as, for example, examining the paper, writing on the black board, taking down the attendance of the students etc. We do not see how the items of work enumerated by Mr. Sonak can be said to change the character of a teacher which is essentially intellectual. If the nature of work, which Mr. Sonak mentions, is being done by a teacher, it is only incidentally and not mainly or predominantly." ##. In paragraph 28 of the judgment, the Division Bench also considered a decision rendered by Kerala High Court in Venketaraman vs. Labour Court, Ernakulam reported in 1982 (1) LLB 454, wherein after a detailed analysis of section 2(s) of the I.D. Act and considering the nature of the work done by the teachers, the Kerala High Court held, that the work of a teacher does not pertain to the work mentioned in section 2 (s) of the I.D. Act. The Division Bench opined that the Kerala High Court has laid down the law correctly. ##. The aforesaid decision of the Kerala High Court was challenged before the Division Bench and the Division Bench of Kerala High Court which is reported in case of KARTHI YAYANI & ORS. VS. UNION OF INDIA (1984 II LLJ 259). After considering several decisions, the Division Bench, in paragraph 28 confirmed the conclusion that the teacher is not workman since work of teacher does not partake of the nature of the work mentioned in S.2(s) of the Act, since the work of teaching is not skilled or unskilled manual work. ##. The case of Miss. A Sundarambal was taken to the Apex Court, and the decision of the Apex Court is reported in AIR 1988 SC 1700. In paragraph 8, the Apex Court held as under: "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, i.e. (i) to (iv) mentioned in the definition of 'workman' in section 2 (s) 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." ##. In paragraph 9, the Court examined the question which arose before the Court for consideration whether a teacher in a school falls under any of the four categories, viz. a person doing any skilled, semi-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 a workman even though he is an employee of an industry as settled by the Apex Court in May and Baker (India) Ltd. vs. Their Workmen (1961) 2 Lab LJ 94 : (AIR 1967 SC 678) wherein the Court considered 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, the Court pointed out (at pp. 679-80 of AIR): "A '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 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 word 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 S.2(s) 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 Industrial Disputes Act 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." ##. In paragraph 10, the Court pointed out as under, about a teacher in a school: "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 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 2 (s) of the Act should be treated as workmen. The acceptance of this arguments 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. v. Their Workman (AIR 1967 SC 678) (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". ##. Before the Apex Court in the case of HARYANA UNRECOGNISED SCHOOLS ASSOCIATION vs. STATE OF HARYANA reported in 1996 (2) LLN 271, a question arose for consideration whether teachers of an educational institution can be held to be employee under section 2(i) of the Minimum Wages Act, 1948 to enable the Government to fix their Minimum Wages. The Government of Haryana in exercise of powers conferred under section 27 of the Minimum Wages Act added in Part I of the schedule, item (40) describing "employment in private coaching classes, schools, including nursery schools and technical institutions', for the purpose of fixing minimum rate of wages for the employees therein. Minimum rate of wages in respect of the different categories of employees serving in such schools were fixed which were challenged and the subject matter of that notification was before the