Bhavnagar Municipality Vs. Presiding Officer, Labour Court and ors. - Court Judgment

Rajesh Balia, J.

1. By this petition the petitioner-Bhavnagar Municipality seeks for a writ of prohibition against the respondent No. 1 from proceeding with the application moved by the respondent Nos. 2 to 9 under Section 33C(2) of the Industrial Disputes Act.

2. Brief facts of the case which are necessary for deciding the controversy raised before me are that the respondent Nos. 2 to 9 claiming themselves to be primary teachers of the schools run by the respondent Municipality filed an application under Section 33C(1) of the Industrial Disputes Act for making recovery of their salary from the petitioner. On an earlier occasion disputes of the similar type having been raised between the parties the Municipality has contested its liability to pay salary of the primary teachers employed at various schools run under its jurisdiction on the ground that the Municipality is not the employer and it is the responsibility of the Administrative Officer to make the payment. That plea having been rejected by the Labour Court and for the subsequent period also similar directions having been issued similar applications were filed. It was urged in the petition apart from other grounds that since the liability of the Municipality to pay salary as held by the Labour Court is under challenge in Special Civil Application No. 3341 of 1980 the finding given by the Labour Court could not be taken to be binding and without determining that issue the proceedings before the Labour Court may not be proceeded with.

3. At the time of hearing it was urged by the learned Counsel for the petitioner-Municipality that the respondent Nos. 2 to 9 who admittedly claimed relief as primary teachers are not workmen within the meaning of Section 2(s) of the I.D. Act in view of the decision of the Supreme Court rendered in the case of Miss A. Sundarambal v. Government of Goa Daman & Diu and Ors. : (1989)ILLJ61SC and the Labour Court has no jurisdiction to proceed further in the matter. According to him, before any action can be proceeded with under the I.D. Act the parties must have employer-employee relationship and that the employee must fall within the definition of 'workman' under Section 2(s) of the I.D. Act.

4. The learned Counsel for the respondents firstly raised preliminary objection that as the question about want of jurisdiction on the ground of applicants being not workmen has not been raised in the petition and before the Labour Court the petitioner is precluded from raising this objection for the first time. However, on being asked by the Court he was candid enough to state that claim is founded on the basis that they are primary teachers, but he further contended that as they are discharging duties other than primary teachers, he is entitled to contest before the Labour Court that the applicants are workmen within the meaning of Section 2(s) of the I.D. Act.

5. In view of the admitted position that the respondent Nos. 2 to 9 are primary teachers and in view of the clear pronouncement of the Supreme Court, I am of the opinion that this preliminary objection cannot be sustained. While dealing with the question whether the teachers can be termed as 'workmen' within Section 2(s) of the I.D. Act the Supreme Court categorically stated that though school is an industry in view of the definition of 'workman' as it stands a teacher employed in the school does not fall within the definition of expression 'workman'. Honourable Venkataramiah, J. speaking for the Court held as follows:.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 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 so, is only incidental to their principal work of teaching....

6. In view of the admitted position that the applicants are primary school teachers the aforesaid pronouncement leaves beyond pale of doubt that notwithstanding schools are industries applicants cannot be termed as workmen though they may be discharging other duties in addition. Hence, provisions of the I.D. Act cannot be invoked for the purpose of seeking redressal under the Act.

7. It was further contended by the learned Counsel for the respondents that in view of the earlier decision rendered in Special Civil Application No. 3341 of 1980 which is an inter-party decision binding on the parties this Court ought not to interfere with the same. He has also relied in this connection on a decision of the Supreme Court in the case of Sohan Singh and Ors. v. The General Manager, Ordnance Factory and Ors. : AIR1981SC1862 . Having carefully considered the contention, in my opinion, this is also not sustainable. The order passed in the Special Civil Application No. 3341 of 1980, does not come in the way of the petitioner seeking writ of prohibition. The only question raised and decided in the said Special Civil Application was about the liability, of the Municipality to bear burden of salary of the primary school teachers, who were before the Court and the Court agreed with the finding of the Labour Court that the schools vest in the Municipality and the employees employed by the school are to be regarded as employees of the concerned Municipality. That finding of course is binding between the parties and in any future proceedings before whatever forum the petitioner is not entitled to agitate that it is not responsible to pay salaries to the primary school teachers denying its liability to pay the same. So far as the question of jurisdiction of the Labour Court to proceed with the applications is concerned, it was neither raised nor decided by the Court. The plea of constructive res judicata, in my opinion, cannot be entertained in the present case.

8. The other limb of argument of the learned Counsel for the respondents is that this Court exercising equity jurisdiction under Article 226 of the Constitution of India ought not to interfere with the proceedings which are otherwise justified. For this proposition he placed reliance on the judgment reported in (case of Sohan Singh) AIR 1981 SC 1862. This plea also is not sustainable inasmuch as the present is not a petition for writ of certiorari where the Court is required to correct the error of jurisdiction where any order passed by the Tribunal is otherwise just and proper to be made in the facts of the case. Present is a case of writ of prohibition at threshold. The Labour Court has not exercised any jurisdiction so far and the matter is yet to be decided by the Labour Court. The present matter does not involve any question of interfering with any directives issued by the Labour Court which are otherwise just and proper. It may be noticed that the case referred to by the learned Counsel for the respondents related to interference with the directive for recovery issued by the Labour Court and the matter was adjudicated. In that connection it may be stated that the view is now well settled by number of decisions of the Supreme Court that the Court where it exercises its discretion for grant of relief it may not interfere with the orders of the Tribunal which are otherwise justified in law even if there is some justification about the plea of want of jurisdiction for the person challenging the same.

9. On admitted facts, the respondent Nos. 2 to 9 cannot be held to be workmen and the matter does not become triable by the Labour Court exercising jurisdiction under Section 33C(2) of the I. D. Act. The Labour Court cannot be left free to proceed with the matter in which it has no jurisdiction to do it.

10. However, the matter does not rest here. As I have noticed above the matter is pending since 1981. The petitioner's plea on the basis of the Supreme Court decision which has come to settle the controversy regarding status of a teacher as workman during the pendency of this petition. The liability of the Municipality to make payment so far as the applicants are concerned, stands determined by a Division Bench decision of this Court which the petitioner is not entitled to agitate. The amount claimed by the respective applicants in the application is otherwise due is not in dispute. In that view of the matter, it would be unjust to relegate the applicants to pursue remedy before appropriate forum after lapse of about 13 years. The Court has necessary power to grant appropriate relief on admitted facts.

11. Under the circumstances, I deem it just and proper to direct the petitioner, who is otherwise liable, to make payment of admitted emoluments to concerned teachers within a period of two months from today. As the petitioner is responsible for withholding the salaries of the employees for no good reason and in avoiding the claim on mere technicalities, it shall also pay costs of this petition to each of the respondent Nos. 2 to 9 which is quantified at Rs. 250/- for each respondent. Rule is accordingly made absolute to the above extent.