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Miss A. Sundarambal Vs. Government of Goa, Daman and Diu and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpl. C.A. No. 59 of 1983
Judge
Reported in1984(2)BomCR53; (1983)IILLJ491Bom
Acts Industrial Disputes Act, 1947 - Sections 2, 2A, 10 and 10(1)
AppellantMiss A. Sundarambal
RespondentGovernment of Goa, Daman and Diu and Others
Excerpt:
labour and industrial - workmen - sections 2 and 10 of industrial disputes act, 1947 - petitioner working as teacher terminated from her service - industrial dispute raised - government refused to make reference of dispute under section 10 on ground that teacher cannot be termed as 'workmen' - petition against refusal filed - petitioner contended that school is industry and teachers working in it are workmen - a person can be workmen if he is employed in one or the other types of work mentioned in definition of workmen provided in section 2 (s) - teacher not doing any type of manual work - work of teacher is of intellectual type which is different from manual work - teacher cannot be termed as 'workmen' - petition dismissed. - - she was unsuccessful in those steps. by his report.....jahagirdar, j.1. the petitioner was appointed as a teacher in a school conducted by the society of franciscan sisters of mary, which is the fourth respondent in this petition. the first respondent is the government of goa, daman and diu; the second respondent is the lt. governor of goa and the union of india is the third respondent. the services of the petitioner were terminated by the fourth respondent by a letter date 25th april, 1975. the termination of the services was done on several grounds, reference to which is unnecessary for the disposal of this petition.2. the petitioner took several measures to get herself reinstated including what she thought was a remedy available under the grant-in-aid code governing the school conducted by the fourth respondent. she was unsuccessful in.....
Judgment:

Jahagirdar, J.

1. The petitioner was appointed as a teacher in a school conducted by the Society of Franciscan Sisters of Mary, which is the fourth respondent in this petition. The first respondent is the Government of Goa, Daman and Diu; the second respondent is the Lt. Governor of Goa and the Union of India is the third respondent. The services of the petitioner were terminated by the fourth respondent by a letter date 25th April, 1975. The termination of the services was done on several grounds, reference to which is unnecessary for the disposal of this petition.

2. The petitioner took several measures to get herself reinstated including what she thought was a remedy available under the Grant-in-Aid Code governing the school conducted by the fourth respondent. She was unsuccessful in those steps. Thereafter, taking resort to S. 2A of the Industrial Disputes Act, she raised an industrial dispute which was admitted in conciliation by the Assistant Labour Commissioner acting as the Conciliation Officer. By his report submitted to the Secretary of Industries and Labour Department on 22nd May, 1982, the Conciliation Officer reported the failure of the conciliation proceedings. The petitioner wrote more than one letter to the Government to refer the industrial dispute to the appropriate authority for adjudication under S. 10(1) of the Industrial Disputes Act. Ultimately, by his letter dated 18th February, 1983 to the petitioner, the Under Secretary of the Industries and Labour Department informed her that the Government is not making any reference of the dispute under S. 10 of the Industrial Disputes Act 'on the ground that a teacher cannot be termed as 'workman' for the purposes of the said Act'. It is in these circumstances that the petitioner has approached this Court under Art. 227 of the Constitution of India praying for a writ of mandamus requiring the first respondent to make a reference under S. 10 of the said Act of the industrial dispute involving the termination of the petitioner's services.

3. Mr. Sonak, the learned Advocate appearing for the petitioner, has canvassed three propositions before us. In the first place he contended that the power of making a reference given to the appropriate Government under S. 10 of the Industrial Disputes Act does not include the power to decide the question as to whether a particular person is a workman or not. According to him, the question as to whether a person is a workman or not can only be decided by the appropriate adjudicating authority such as the Industrial Tribunal or the Labour Court and the appropriate Government cannot in exercise of its power under S. 10 of the Act, decide that question because by doing so it will be deciding the question of the status of a person.

4. Mr. Sonak then proceeded to contend that on an earlier occasion the Government had in fact made a reference under S. 10 of the Industrial Disputes Act of an industrial dispute involving the termination of the services of a teacher. By refusing to make a reference in the case of the petitioner the Government is guilty of an action in contravention of Art. 14 of the Constitution. In any case, it should be held, says Mr. Sonak, that the Government is estopped from contending that a teacher is not a workman.

5. In the third place Mr. Sonak argued that the petitioner is in fact a workman. According to him, looking to the nature of the duties of the petitioner and considering the law laid down by this Court and the Supreme Court, it should be held that a teacher, and in any case the present petitioner, is a workman within the meaning of S. 2(s) of the Industrial Disputes Act. We will examine these contentions in that order.

6. The contention of the Government is devoid of jurisdiction to decide as to whether a particular person is a workman or not is patently erroneous. S. 10 of the Industrial Disputes Act empowers the appropriate Government to refer a dispute to the Labour Court or the Industrial Tribunal for adjudication when it is of the opinion that an industrial dispute exists or is apprehended. Implicit in this power is the existence of the satisfaction that what it is to be referred to is an industrial dispute. The satisfaction of the existence of an industrial dispute or the satisfaction that an industrial dispute is apprehended is a condition precedent to the order of reference that may be made under S. 10 of the Act. An order under S. 10 cannot be made mechanically without forming an opinion as mentioned in the said section. Fort the formation of the said necessary opinion, the appropriate Government must also be satisfied that a person whose dispute is being referred for adjudication is a workman. This necessary follows from the definition of 'industrial dispute' as mentioned in S. 2(k) of the Industrial Disputes Act. Under the said definition, 'industrial dispute' means any dispute or difference between employees and employers or between employers and workman or between workmen and workmen. If the appropriate Government decides to refer a dispute to the adjudicating authority as an industrial dispute, it must also be satisfied that it is a dispute between, as in the present case, employer and its workman. It must, therefore, be held that the appropriate Government can, if it is of the opinion that the dispute is not between an employer and his workman, refuse to refer that dispute for adjudication under S. 10 of the Industrial Disputes Act.

7. We are also not impressed by the argument that the Government's refusal to refer the dispute involving the petitioner amounts to an infringement of Art. 14 of the Constitution because the Government had in an earlier case referred to a dispute involving a teacher for industrial adjudication. Repetition of an error, if there is one, is not needed for complying with the principles of equality before law. If in law the Government is justified in refusing a reference on the ground that a teacher is to a workman, then the question of the applicability of Art. 14 does not arise at all. Similarly the argument based on estoppel is also untenable. There is no estoppel against law.

8. The next question is whether a teacher like the petitioner is a workman as defined in S. 2(s) of the Industrial Disputes Act. It has been argued that school is an industry and a teacher employed in that industry is necessarily a workman. The assumption that school is an industry is justified in view of the Judgment of the Supreme Court in Bangalore Water Supply v. Rajappa, : (1978)ILLJ349SC . It may be recalled that earlier in University of Delhi v. Ram Nath : (1963)IILLJ335SC , the Supreme Court had 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. If a university which was engaged in an activity like education could not be an industry, it followed that a school or college which also was engaged in an activity like education could not be regarded as an industry. However in Bangalore Water Supply case (supra) the Supreme Court held, as we will show a little later, that education itself is an industry. We will have an occasion later in this Judgment to study these two decisions of the Supreme Court in order to find out as to whether it was finally decided by the Supreme Court at one stage or another that a teacher was or was not a workman.

9. Mr. Sonak's argument that a teacher should be held to be a workman because he is employed in an industry cannot be accepted. The definition of a workman in the Industrial Disputes Act shows that a person can be called a workman only if he is employed in any industry in one or the other of the four capacities mentioned therein. If it was the intention of the legislature to include every person employed in an industry in the definition of workmen, the legislature would have stopped after the words 'in any industry' in the definition in Cl. (s) of S. 2. In other words, if every person employed in an industry were to be regarded as a workman, then nothing prevented the legislature from defining a workman as 'any person employed in any industry' without proceeding further to say the things which it has said. As has been pointed out by the Supreme Court in Burmah Shell Oil Storage and Distributing Co. Ltd. v. Management Staff association : (1970)IILLJ590SC 'the specification of the four types of work in the definition in S. 2(s) obviously is intended to lay down that an employee is to become to workman only if he is employed to do work of one of those types, while there may be employees, who not doing any such work, would be out of the scope of the word 'workman' without having to resort to the exceptions'. It is clear to us, therefore, that a person employed in an industry may be employed in on or the other of the four capacities mentioned in the definition to be covered by the definition of workman. In other works, a person must be employed to do (1) any skilled or unskilled manual work, (2) any supervisory work, (3) any technical work, (4) any clerical work for him or reward. We will have to examine whether a teacher by the nature of the work performed by him is employed to do any one or the other of the four types of work mentioned above.

10. Before we do that, however, it would be advantageous to find out whether in the first place it has been held in the Delhi University's case, as Mr. Dias contends, that a teacher was not a workman and that this proposition laid down in the Delhi University's case has not been altered or overruled by the later Judgment in Bangalore Water Supply case. Mr. Sonak has, however, canvassed the view that if the University of Delhi's case held that teachers were not workmen it was so held on concession. A closer examination of the decision in the University of Delhi's case is certainly warranted. In paragraph 5 of the said Judgment, the Supreme Court considered the inter-related definitions under the Industrial Disputes Act. After noticing the definitions of employer and industry the Supreme Court proceeded to mention as follows :

'That takes us to the definition of 'workman' prescribed by S. 2(s). A workman under the said definition means, inter alia, any person including an apprentice, employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. It is common ground that teachers employed by educational institutions, whether the said institutions are imparting primary, secondary, collegiate or post-graduate education, are not workmen under S. 2(s), and so, it follows that the whole body of employees with whose co-operation the work of imparting education is carried on by educational institutions do not fall within the purview of S. 2(s), and any disputes between them and the institutions which employed them are outside the scope of the Act.'

One of the important considerations which weighed with the Supreme Court while holding that a University is not an industry was the fact that a large number of persons with whose co-operation the work of education, which is the primary work of the University, is carried on were not workmen within the meaning of S. 2(s) of the Act. In paragraph 5, undoubtedly, as mentioned by Mr. Sonak, a concession seems to have been recorded. But in paragraph 6 of the Judgment, after pointing out that 'education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development', 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 had deliberately so defined workmen under S. 2(s) as to exclude teachers from its scope'. When the Supreme Court said this it necessarily decided that a teacher is not employed in one or the other of the four capacities mentioned in the definition of workman in the Industrial Disputes Act. While holding that University is not an industry, the question as to whether the large number of people with whose co-operation the work of the University is carried on were workmen or not was considered by the Supreme Court. This question was intimately connected with the question which had to be decided by the Supreme Court. If this is so then one cannot say that the Supreme Court held that a teacher was not a workman merely on the basis on concession. If the Supreme Court had held that teachers were workmen and since the teachers from the largest group of employees of a University, then in the University of Delhi case itself it would have been held that university was an industry. It is, therefore, not possible to accept Mr. Sonak's contention that the Supreme Court held only on the basis of a concession that teachers were not workmen.

11. In Shivaji Ganapati v. Murlidhar 1004 Bom. L.R. 426, a Division Bench of this Court pointed out that a decision given by the Privy Council on an admission given by the party is a decision given by the privy Council after consideration of the matter. Referring to an earlier decision of the Privy Council, this Court pointed out that decision of the Privy Council would have been entirely different if it had not acted upon the admission it put its own imprimatur upon the admission made at the bar. Proceedings further, the Court pointed out that 'when that admission was necessary for the very decision of the appeal and without which the appeal would not have been decided in the manner in which it was decided, then we must attach as much importance to that admission as if it was a decisions given by the Privy Council after consideration of the Matter'. Apart from the aforesaid view expressed by the Division Bench on the value of admission, we are of the opinions that the Supreme Court in the University of Delhi case did not decide the question of the status of teachers merely on the basis of concession.

12. While holding, in Bangalore Water Supply case (supra) that education is an industry, thus overruling the earlier Judgment in the University of Delhi case (supra), the Supreme Court did not say that the foundation of the Judgment of the Supreme Court in the University of Delhi case (supra) was wrong. It did not, for example, hold that teachers were workmen and therefore the university would necessarily be an industry. On the other hand, it was held that education itself is an industry because it satisfied the triple tests of systematic activity. While examining the Judgment in the University of Delhi case (supra), the Supreme Court, in Bangalore Water Supply case (supra), noticed that two reasons had been given to avoid the conclusion that imparting education was an industry. The first ground relied upon by the Court in the earlier case according to the Bangalore Water Supply case (supra) Judgment was based upon the preliminary conclusion that teachers were not workmen by definition. In this connection it was observed by the Supreme Court as follows :

'Perhaps, they are not, because teachers do not do manual work or technical work. We are not too sure whether it is proper to disregard, with contempt, manual work and separate it from education nor are we too sure whether in our technological universe, education has to be excluded. However, that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present.'

In fact, proceedings further, the Supreme Court in Bangalore Water Supply case (supra) adopted what it called the assumption of the University of Delhi's case (supra) that teachers were not workmen to examine the question as to whether a university is an industry. Mr. Dias, therefore, is demonstrably on sound ground when he says that the Bangalore Water Supply case (supra) did not overrule the decision given by the University of Delhi case (supra) that teachers employed in a university are not workmen, though it did hold that education, an activity carried on by University, is an industry.

13. Despite this, we will take the liberty of considering the question afresh in the light of the clear language of the definition contained in S. 2(s) of the Act. In support of the rival contentions, the learned Advocates have cited several authorities. We postpone the examination of these authorities to a later part of this Judgment. We prefer first to examine the question on merits without the aid of the authorities.

14. 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 work 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, practical are held in the laboratories with the assistance of qualified teacher. 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 library 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, for example, mark the attendance of the students and to submit the progress reports of their wards.

15. We may also refer to the Grand-in-aid Code for Secondary Schools and other educational institutions of the Government of Goa, Daman and Diu Din order to understand the nature of the work done expected to be done by teachers in the educational institutions in this territory. Under the said Code, a trained teacher has been defined as a teacher who had secured a professional certificate, diploma or degree recognised by the Department qualifying for a teaching post in educational institutions. What is preferred to is professional qualification to enable to teach in a better manner. A secondary school has been defined as an institution which imparts general education which may be partly academic and partly vocational suitable for pupils in the stage of adolescence. Rule 35 of the Code requires that a progress book should be maintained for each pupil, in which his progress at the examinations held by the school from time to time, his progress in studies from months to months, his monthly attendance, fee receipts and remarks about his conduct, health and special interest, if any, should be recorded. Thought it is not mentioned by whom this recording is to be done, we will proceed on the assumption that it is to be done by a teacher who is in charge of a class Mr. Sonak has invited our attention to Cl. (c) of Rule 45, which deals with medical inspection. In this provision it is mentioned that in addition to the routine medical examination height and weight measurements should be taken at regular intervals of not less then six months and recorded in the form of graphs by the teacher. Mr. Sonak wants us to notice the provision in Rule 47 wherein particulars about the term fees are mentioned. According to Mr. Sonak, the fees are also collected by the teachers. There is no indication that this work is to be done necessarily by the teacher, but we may even assume that is so, Rule 69 of the Code requires that all teachers shall, during the period of their service, employ themselves honestly and efficiently under the order of the head of the school, and shall make themselves in all respect useful to the school. It is also provided that in addition to the ordinary school work, teachers may be required to participate in co-curricular and corporate activities of the school including social education. From the broad summary of the nature of duties performed by a teacher made above, it is clear that they are essentially intellectual in character. This is so, as it should be, because a teacher by definition teaches, imparts education to those who want to receive the same and for this duty he is continuously equipping himself by study and research.

16. Bearing the nature of these duties of a teacher in mind we will now proceed to see whether a teacher is a workman as defined in S. 2(s) of the Industrial Disputes Act. We have already shown above that a person can be a workman if he is employed in one or the other of the four types of work mentioned in the said definition. 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. We are not for a moment suggesting that manual work is in any way inferior to the intellectual work that is being done by a teacher. We are only pointing out the essential and sharp difference that is there between the intellectual work done by a teacher and the manual work which is done, for example, by an operative in am mill. 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, tracking 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 sort of work, which Mr. Sonak mentions, is being done by a teacher, it is only incidentally and not mainly or predominantly.

17. Is it possible to say that a teacher is engaged to do supervisory work The answer must necessarily be 'no' because a teacher is not supervising the work of anybody engaged in the work connected with the industry, which in the instant case can be taken to be education. The work 'supervise' means to oversee, to look after. At one stage it was suggested by Mr. Sonak that the teacher is doing supervisory work because he is supervising over the studies of the students. The nature of supervision which a teacher is doing has nothing to do with the supervision envisaged in S. 2(s) of the Industrial Disputes Act. The supervision which is relevant for our purpose is the supervision done by an employee in a higher position over the employees in the lower position. Supervision means supervision of the work which itself is again connected with the industry in question. The students over whom, according to Mr. Sonak, the teacher is supervising are not doing any work connected with the industry. They come to the education institutions for receiving education and not to work for the institutions.

18. It is also not possible to say that a teacher is engaged to do technical work. The word 'technical' has different meanings depending upon the context in which it is used. In our opinion, the following meaning given in the Oxford English Dictionary is the meaning in which the word 'technical' mentioned in S. 2(s) is to be understood :

'of or pertaining to the mechanical arts and applied sciences generally, as in technical education, or technical school.'

19. Mr. Sonak stays that many of he teachers are highly technically qualified and when they are engaged by the educational institutions they are engaged for the purpose of giving the benefit of there technical knowledge and expertise. In such a case it should be held that they are engaged to do technical work. If this contention is accepted then some at least of the teachers, according to Mr. Sonak, can be said to be engaged to do technical work. The argument is highly deceptive. Merely because a person is highly technically qualified and he is employed, it does not mean that he is necessarily engaged to do technical work. A highly technically qualified person can also be employed as a teacher and when he is so employed he is still performing the main function of imparting education. The work he is so doing will still be an intellectual work and not technical work. As has been pointed out by the Supreme Court in Burmah Shell case (supra) referred to earlier in this judgment, a person with technical qualifications can on that account be employed in a supervisory capacity and in such a case he will be held to be employed to do supervisory work. The major part of the duties of a person like Transport Engineer, who is employed on account of his technical qualifications, consists of supervisory work rather than his own personal technical work which is only incidental to the main work of supervision. Even if he sued his technical knowledge it is used primarily for the purpose off supervising the work done by the manual labourers working under him. In such a case it cannot be said that he is employed to do any technical work. On an analogous reasoning, it can be easily seen that a person who is technically qualified cannot be said to be employed to do technical work when he is, even by reason of his high technical qualification, employed to do teaching in an education institution.

20. In Venketaraman v. Labour Court, Ernakulam, : (1982)ILLJ454Ker (to which we will make a reference again in this judgment), Khalid J. (as he then was) pointed out that a technical man need no necessarily be a workman. What has to be considered is the object of his employment and the main work that he does. In order to dispel the contention, which the learned Judge though was widely made, that a technical person employed as a teacher must necessarily be held to do technical work, the learned Judge refereed to the judgment of Veeraswami, J., in Murugally Estate v. Industrial Tribunal 1969 II L.L.J. 164, in which Veeraswami, J. stated as follows :

'The test to be applied to cases of technical employments, such as in the instant case, should be the purpose for which the employment is made, irrespective of whether the performance of the duties may or may not occupy the entire time of the employee. This is because the employment is made on the basis of the particular level of professional efficiency and technical qualification.'

We have, therefore, no hesitation in rejecting the contention of Mr. Sonak that some teachers who are employed as teachers because of their technical qualification should be held to be workmen on account of the technical work done by them.

21. We do not think it necessary to dwell at length on the question whether teachers are doing clerical work. The nature of the work of the teachers as understood by us should rule out any argument that they are doing clerical work. Mr. Sonak, however, says that considerable part of the work of the teachers is clerical in nature and they should be held to be doing clerical work. According to him, it is not necessary that all the work that is done by a person should be clerical before he is held to be a workman within the meaning of S. 2(s) of the Industrial Disputes Act. We are not accepting this argument. Ultimately one has to decide whether a particular person is doing clerical work or not by finding out the dominant nature of the work done by him. If teachers are doing any clerical work, it is purely incidental to the main work of teaching for which they are employed. Normally a clerk is one employed for doing routine work requiring no special qualifications or skill except in cases like a typist or an accounts keeper or a correspondent. Their work is essentially routine and the degree of proficiency and skill required is very limited. It may be that a teacher will do the clerical work better than the normal clerk. That itself will not impress the work of the teacher with the clerical character.

22. Having analysed the work of the teacher in the light of the provisions contained in S. 2(s) of the Industrial Disputes Act, we are satisfied that a teacher is not doing any one of the four categories of work mentioned in the aforesaid provision. A teacher, therefore, cannot be regarded as a workman under the Industrial Disputes Act.

23. The decisions which have been cited at the bar remain to be considered. In Jay Engg. Works Ltd. v. Industrial Tribunal : (1978)ILLJ282Cal , it was held that teaching staff of a school conducted by Company manufacturing sewing machines were workmen of the Company. While so holding the Calcutta High Court noticed that the teaching staff had been employed in the sewing schools which were directly connected with the pushing of sales of the sewing machines manufactured by the Company. The work that was done by the so-called teaching staff, therefore, was integrally connected with sale part of the industry of the Company. We do not think that this judgment is of any use to the petitioner before us. Sewing schools were not schools in the sense in which educational institutions are understood.

24. Reliance was placed by Mr. Sonak on Smt. M. D. Sigamani v. Presiding Officer, Labour Court (1982) L & I Cas 93. The facts of that case showed that the petitioner before the Madras High Court, which delivered the judgment, had been employed as a workman - teacher in the service of a Company manufacturing safely matches. The schools was found to be run exclusively for the benefit of the children of the employees of the factory. On facts it was noticed that on several occasions the petitioner was asked to perform the duty of checking the women workers going out of the factory. On these facts it was held that the petitioner in that case was a workman. In our opinion, we do not find that it was laid down as a proposition of law that a teacher working in a school is a workman. On the peculiar facts of M. D. Sigamani's case it was held that the teacher in a school which was run exclusively for the benefit of the children of the factory and who, apart from the work of teaching, was doing other duties also connected with the work of the factory was a workman.

25. Predictably, Mr. Sonak has placed great reliance upon a Division Bench judgment of this Court in P. R. Kokil v. General Manager, South Central Railway 74 Bom. L.R. 124. One must carefully note the facts of this case. The petitioner before the Court was a Head Master of a railway school conducted by the railways. In the Indian Railway Establishment Manual, Railway School was defined as a school established by a railway primarily for the benefit of the children of its employees and maintained and entirely controlled by it with or without assistance from revenues of a states or income from other non-railway source. The matter reached the High Court because the railway authorities did not recognise the petitioner as a workman who could hold the post of an office-bearer of the Railway Mazdoor Union. While deciding the question before it, the Division Bench did not fail to notice that Rule 3610 of he Railway Establishment Manual, Part B, provided as follows :

'Government is prepared too accord official recognition to associations of its industrial employees. The grant and continuance or recognition rests in the discretion of Government, but recognition when granted will not be withdrawn without due cause and without giving opportunity, to the association to show cause against such withdrawal. NOTE : The terms 'industrial employee' includes railway servants.'

The petitioner was undoubtedly a railway servant as defined in the relevant rule. Since the term 'industrial employee' included railway servants and since an industrial employee could hold the post of an office-bearer of the Railway Union, it could have been easily held that the petitioner in that case was entitled to be an office-bearer of the Union. The Division Bench, however, referred to and relied upon the judgment of the Supreme Court in J. K. Cotton Mills v. L. A. Tribunal of India 1963 II L.L.J. 436, where it had been held that a Mali who worked in the garden provided for the officer of the Mill was a workman under S. 2(s) of the Industrial Disputes Act. The Supreme Court was considering the question whether the Mali was engaged in an industry. While doing so, in paragraph 13 of the judgment, it observed as follows :

'It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect or far-fetched.'

In an earlier paragraph, that is in paragraph 12, the Supreme Court had mentioned that if the bus drivers engaged in the transportation of workers of a factory could be held to be workmen because they were assisting an operation incidental to the main work of the industry, there was no reason why a Mali should not claim the same status. Relying upon the aforesaid observations in the judgment of the Supreme Court in J.K. Cotton Mills case (supra), the Division Bench held that the petitioner P. R. Kokil was engaged in a work which was incidental to the main industrial operation of the railways. To quote the Division Bench, 'it is true that the work done by the petitioner has no direct connection with the industry in question viz. Railway, but there can be no doubt that the petitioner's activity i.e., work is incidental to the main industrial operation, as indicated by the above-quoted observations of the Supreme Court.'

26. It is not necessary for us to examine the correctness of the finding given by the Division Bench in P. R. Kokil's case as to whether the work of the petitioner before it was incidental to the main industrial operation. But the fact that the Division Bench did not make an analysis of S. 2(s) of the Industrial Disputes Act at all cannot escape our attention. As we have already mentioned earlier, merely because a person is engaged in an industry or even in a work incidental to the main business of the industry, he cannot be called a workman unless he is employed to do one or the other of the four types of work mentioned in S. 2(s) of the said Act. We are not sure whether the decision of the Division Bench would have been the same if its attention had been invited to this aspect of the question. May be, on the basis of the definition contained in Rule 3610 of the Railway Establishment Manual, which we have reproduced above, the relief might have been given to the petitioner before the Division Bench, but it is highly doubtful whether the Division Bench would have held that the petitioner before it was a workman within the meaning of S. 2(s) of the Industrial Disputes Act. Since the decision has not been given on an analysis of S. 2(s) of the Act, we have felt ourselves free to decide this question untrammelled by the observations made by the Division Bench in P. R. Kokil's case. If it is argued that P. R. Kokil's case decided that a teacher everywhere is a workman, then it would be clearly against the judgment of the Supreme Court in the case of University of Delhi.

27. In Vishnu Sugar Mills v. State : (1966)ILLJ777Pat , a Division Bench of the Patna High Court has, after analysing the definition contained in S. 2(s) of the Industrial Disputes Act, held that a teacher in a school run by a factory is not a workman. It is true that the said decision was given by placing reliance upon the judgment of the Supreme Court in the University of Delhi's case (supra). We have already held above that the Supreme Court did decide in the University of Delhi's case that teachers were not workmen. We have further held that the said decision has not been dissented from or overruled by the subsequent decision of the Supreme Court in the Bangalore Water Supply's case (supra), therefore, stands unimpaired.

28. A recent decision which has been given by a single Judge of the Kerala High Court after the judgment of the Supreme Court in Bangalore Water Supply's case (supra) must be noticed. It is Venketaraman v. Labour Court, Ernakulam (supra). In this judgment a detailed analysis of S. 2(s) of the Industrial Disputes Act has been made and after noticing the nature of the work done by the teachers it has been held that the work of the teacher does not partake of the nature of the work mentioned in S. 2(s) of the Act. In our opinion, this judgment of the Kerala High Court lays down the correct law.

29. Summarising, we may state that the University of Delhi's case held that teachers were not workmen and this part of the judgment in the said case has not been dissented from nor has it been overruled by the later judgment of the Supreme Court in Bangalore Water Supply's case (supra).

30. The judgment of the Division Bench of this Court in P. R. Kokil's case (supra) must be confined to the facts of that case because in that judgment the question was decided without deciding whether the work of the teacher was of the types mentioned in S. 2(s) of the Act.

31. On a proper analysis of S. 2(s) of the Act and after appreciating the nature of the work done by a teacher, the conclusion is inescapable that a teacher is not a workman within the meaning of S. 2(s) of the Act.

32. In view of the fact that the petitioner has raised a question which had not been conclusively decided by any decision of this Court, we think that the petitioner should not be saddled with costs, though she fails.

33. In the result, the petition fails. Rule is discharged with no order as to costs.


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