IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.Nos.20547 and 20548 of 2001 The Correspondent Nazareth Convent High School Ootacamund, The Nilgiris .. Petitioner in both the writ petitions vs. 1. Mrs.Nirmala Suresh 2. The labour Court Coimbatore .. Respondents in both the writ petitions W.P.No.20547 of 2001: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in the order dated 17.8.2001 passed in C.P.No.484 of 2000 on the file of the second respondent and quash the same. W.P.No.20548 of 2001: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in C.P.No.484 of 2000, on the file of the second respondent and quash the same. For petitioner : Mr.S.K.Raghunathan For Respondents : No Appearance https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R The above writ petitions have been filed to call for the records relating to the order, dated 17.8.2001, made in C.P.No.484 of 2000, on the file of the second respondent labour Court and to quash the same. 2. Heard the learned counsel appearing for the petitioner. There is no representation on behalf of the first respondent. 3. Since the issues involved in the above writ petitions have arisen out of the same facts and circumstances, a common order is passed. 4. It has been stated that the first respondent had joined the petitioner School as an untrained Middle Grade Assistant, on 7.6.1989, on a consolidated pay of Rs.750/- per month. The first respondent was handling the Tamil Language Classes for the students of 4th to 8th standards of the petitioner school. Later, she was teaching Tamil language between June, 1999 and April, 2000, for the 9th standard students. From the month of June, 2000, the first respondent was drawing a basic salary of Rs.4,000/- per month and with the usual allowances, she was paid a salary of Rs.5,855/- per month. The salary paid by the petitioner School is as per the scale of pay fixed by the Management of the school both for the Secondary Grade Assistants and the Graduate Assistants. The first respondent had accepted her appointment as a Secondary Grade Assistant, without any protest. However, the first respondent had contended that her salary was fixed in the scale of pay of a Graduate Assistant and not as fixed for a Secondary Grade Assistant. The option was given to the first respondent to leave the school, if she is not willing to work as a Secondary Grade Assistant. 5. It has also been stated that the petitioner School is not coming under the category of Aided Schools and the petitioner Management is not getting any grant or aid from the Government or from any organisation. The salaries paid to the teachers are from the fees collected from the students of the school. While so, the first respondent had misbehaved with the Principal of the School, abusing her with filthy language and by threatening that she would be physically harmed. The first respondent had also attacked the Dance Teacher, on 19.9.2000, using filthy language. Further, she had misbehaved in the School premises during the School hours. Therefore, the petitioner Management had issued a show cause notice, dated 21.9.2000, framing charges against the first respondent for the misconduct. The first respondent had sent a reply, on 29.9.2000, submitting her explanation. Since the explanation submitted by the first respondent was not satisfactory, the petitioner Management had initiated the disciplinary proceedings against her by appointing an https://hcservices.ecourts.gov.in/hcservices/ enquiry officer. The enquiry had been conducted in a proper manner by giving sufficient opportunity to the first respondent to put forth her case. 6. It has also been stated that after completion of the enquiry, the enquiry officer had submitted his report, on 15.11.2000 and it was communicated to the first respondent. A show cause notice, dated 30.11.2000, had been issued to the first respondent for the purpose of imposing on her the appropriate punishment. The first respondent had sent a reply, by her letter, dated 24.12.2000. Since the charges against the first respondent were proved beyond doubt, an order of termination was passed against the first respondent, on 10.1.2001 and it was served on the first respondent, on 11.1.2001. The first respondent had filed a writ petition in W.P.No.3014 of 2001, before this Court, under Article 226 of the Constitution of India, questioning the validity of the termination order, dated 10.1.2001. While so, the first respondent had filed a petition in C.P.No.484 of 2000, on the file of the second respondent, under Section 33(C)(2) of the Industrial Disputes Act, 1947, for a direction to the petitioner to pay a sum of Rs.1,02,600/- as arrears of salary to the first respondent, in the capacity of ordinary selection grade assistant or in the alternative to direct the Management to pay a sum of Rs.1,52,830/-, in the capacity of selection grade Secondary Grade Assistant or to direct the management to pay a sum of Rs.2,12,430/-, in the capacity of ordinary graduate assistant or to direct the Management to pay a sum of Rs.2,44,530/-, treating the first respondent as a selection grade graduate assistant. 7. The petitioner Management had filed a counter affidavit in C.P.No.484 of 2000, stating that the computation petition filed by the first respondent is liable to be rejected, summarily, as the second respondent labour Court had no jurisdiction to entertain the petition on the ground that the first respondent is not a "workman" within the meaning of the Industrial Disputes Act, 1947. Therefore, the invoking of Section 33(C)(2) of the Industrial Disputes Act, 1947 will not arise. Since no award has been passed either by the labour Court or any Industrial Tribunal in favour of the first respondent, there was no question of the first respondent filing a petition for computation of an alleged amount said to be due to her. Various other grounds had also been raised on the merits of the case. 8. It has been stated that the labour Court, after hearing the arguments adduced by the parties concerned, had passed an order, on 17.8.2001, stating that the question of jurisdiction cannot be decided as a preliminary issue and that the final decision would be rendered at a later stage. https://hcservices.ecourts.gov.in/hcservices/ 9. It has also been stated on behalf of the petitioner School that the order of the labour Court, dated 17.8.2001, is erroneous, unsustainable and invalid in the eye of law, as the second respondent labour Court had no jurisdiction, whatsoever, to entertain and adjudicate upon the matter. In such circumstances, the petitioner school had filed the present writ petitions, under Article 226 of the Consideration of India. 10. No counter affidavit has been filed on behalf of the respondents. 11. The learned counsel appearing for the petitioner had submitted that the second respondent labour Court does not have the jurisdiction to take on its file C.P.No.484 of 2000, and to compute the salary due to the first respondent, since the first respondent is not a "workman", under Section 2(s) of the Industrial Disputes Act, 1947. Since the first respondent was a teacher in the petitioner School before she had been terminated from service, she cannot come under the definition of "workman" under the provisions of the said Act. The Supreme Court has held in A.SUNDARAMBAL Vs. GOVT. OF GOA, DAMAN & DIU (AIR 1988 SC 1700) that a teacher in an educational institution cannot be termed as a "workman", under Section 2(s) of the Industrial Disputes Act, 1947. 12. The learned counsel appearing for the petitioner had further submitted that even though the petitioner Management had raised the preliminary issue, questioning the jurisdiction of the labour Court to take on its file C.P.No.484 of 2000 and to hear the same, it had rejected the claim of the petitioner Management by its order, dated 17.8.2001, stating that the issue would be decided during the final hearing of C.P.No.484 of 2000. The order passed by the second respondent labour Court, on 17.8.2001, is arbitrary and illegal and therefore, this Court may be pleased to allow the above writ petitions by setting aside the order of the second respondent, dated 17.8.2001, made in C.P.No.484 of 2000 and to direct the second respondent not to proceed with C.P.No.484 of 2000, pending on its file, as it has no jurisdiction to entertain the same. 13. In view of the submissions made by the learned counsel appearing for the petitioner and on a perusal of the records available, this Court is of the considered view that the issue with regard to the maintainability of C.P.No.484 of 2000, on the file of the second respondent labour Court is to be decided by the second respondent labour Court based on the facts and circumstances of the case. It is for the petitioner Management to show that the first respondent was a teacher in the petitioner School and that she would not be a "workman", under Section 2(s) of the Industrial Disputes Act, 1947. https://hcservices.ecourts.gov.in/hcservices/ 14. In such circumstances, the second respondent labour Court is directed to go into the issues raised by the petitioner, including the issue as to whether the first respondent, who is the petitioner in C.P.No.484 of 2000, on the file of the second respondent labour Court, is a "workman" coming under Section 2(s) of the Industrial Disputes Act, 1947 and to pass appropriate orders thereon, on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this order. With the above directions, the writ petitions are disposed of. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar lan To: The labour Court Coimbatore +1 cc To Mr.S.K.Raghunathan, Advocate, SR.48069 W.P.Nos.20547 and 20548 of 2001 nsm [co] gkg/24.9 https://hcservices.ecourts.gov.in/hcservices/