MISS A. SUNDARAMBALversusGOVERNMENT OF GOA, DAMAN AND DIU & ORS.

i




                    MISS A. SUNDARAMBAL
    A                         v.
           GOVERNMENT OF GOA, DAMAN AND DIU & ORS.

                                    JULY 27, 1988

    B           [E.S. VENKATARAMIAH AND N.D. OJHA, JJ.]

              Labour law-Industrial Disputes Act. 1947-Sections 2(s) and
        2(j)-"Industry" and "workmen"-educational institution being
        "industry'', whether teachers employed therein would be "workmen''.

              The appellant was a school teacher and her services were termi-
    c   nated by the Management. She made several efforts in getting the order
        of termination cancelled but without success. Ultimately she raised an
        industrial dispute before the Conciliation Officer under the Act. The
        conciliation ptoceedings failed and the conciliation officer reported
        accordingly to the Government. The Government considered the ques-
    D   tion of referring the matter for adjudication under section IO of the Act.
        But' on reaching the conclusion that the appellant was not a 'workman'
        as defined in the Act, it declined to make a reference.
              The appellant filed a writ petition before the High Court for issue
        of a Writ Of Mandamus requiring the Government to make a reference
        under section lO(l)(c) of the Act to a Labour Court to determine the
    E   validity of the termination of her services. The High Court dismissed
        the petition holding that the appellant was not a workman. This appeal
        by special leave is against the Judgment of the High Court.

              Dismissing the appeal, this Court,
    F         HELD: .i. l Even though an educational institution has. to be
        treated as an industry the teachers employed by educational institutions
        whether the said institutions are imparting primary, secondary,
        graduate or post graduiite education cannot be called as 'workmen'
        within the meaning of ~ction 2(s) of the Act. Imparting of education
        which is the main function of teachers cannot be considered as skilled'
    G   or unskilled manna! wol1k 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, bnilds up theit 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 princi-
    H   pal work of teaching. [608B-C; 610A-C]
                                           604
                     A. SUNDARAMBAL v. GOVT. OF GOA                       605
                                                                                  A
          1.2 If an employee in an industry is not a person engaged in doing
    work falling in any of the categories as mentioned in Section 2(s) of the
    Act, he would not he a workman at all even-though he is employed in an
    industry. 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    B
    treated as workmen. The acceptance of this argument 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. [609C-D; 61 IC-E]

         Bangalore Water Supply & Sewerage Board, etc. v. R. Rajappa &
    Others, [1978] 3 S.C.R. 207, relied on. (2)                                   c

          University of Delhi & Anr. v. Ram Nath, [1964] 2 SCR 703 and
    May and Baker (India) Ltd. v. Their Wrokmen, [1961] 11 L.L.J. 94
    referred to.
                                                                                D
          2. Teachers as a class cannot be denied the benefits of social
    justice. It is necessary to provide for an appropriate machinery so that
    teachers may secure what is rightly due to them. In a number of States
    in India laws have been passed for enquiring into the validity of illegal
    and unjust terminations of service of teachers by providing for appoint-
    ment of judicial tribunals to decide such cases. It is time that State of E
    Goa takes necessary steps to bring into force legislation providing for
    adjudication of disputes between teachers and the Managements of edu-
    cational institutions. [611F-G]                                           ·

          [At the instance of this Court, the Management of the School
I   agreed to pay the appellant Rs.40,000 which this Court directed to be paid    F
    in 6 monthly instalments commencing from September, 1988.] [6128]

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1776
    (NL) of 1984.

          From the Judgment and Order dated 5.9.1983 of the High Court, G
    of ·Bombay in Special Civil Application No. 59 of 1983

         Dr. Y.S. Chitale and V.N. Ganpule for the Appellant.

         G .B. Pai, Parveen Kumar and Vivek Ghambir for the Res-
    pondents.                                                                     H
     606         SUPREME COURT REPORTS              (1988] Supp. 1 S.C.R.

           The Judgment of the Court was delivered by
A
            VENKAtARAMIAH, J. The short question which arises for
     consideration in this case is whether a teacher employed in a school
     falls within the definition of the expression 'workman' as defin~d in
     section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred
B    to as 'the Act').

           The appellant, Miss A. Sundarambal, was appointed as a teacher
     in a school conducted by the Society of Franciscan Sisters of Mary at
     Caranzalem, Goa. Her services were terminated by the Management
     by a letter dated 25th April, 1975. After she failed in her several
     efforts in getting the order of termination cancelled; she raised an
·C   industrial dispute before the Conciliation. Officer under the Act. The
     conciliation proceedings failed and the Conciliation Officer reported
     accordingly to the Government of Goa, Daman and Diu by his letter
     dated 2nd May, 1982. On receipt of the report the Government con-
     sidered the question whether it could refer the matter for adjudication
D    under section lO(l)(c) of the Act but on reaching the conclusion that
     the appellant was not a 'workman' as defined in the Act which alone
     would have converted a dispute into an industrial dispute as defined in
     section 2(k) of the Act, it declined to make a reference. Thereupon,
     the appellant filed a writ petition before the High Court of Bombay,
     Panaji Bench, Goa for issue of a writ in the nature of mandamus
 £   requiring the Government to make a reference under section lO(l)(c)
     of the Act to a Labour Court to determine the validity of the termina-
     tion of her services. The said writ petition was registered as Special
     Leave Application No. 59 of 1983. That petition was opposed by tile
     respondents. After hearing the parties concerned, the High Court dis-
     missed the writ petition holding that the appellant was not a workman
 F   by its judgment dated 5th September, 1983. Aggrieved by the judg-
     ment of the High Court, the appellant has filed this appeal by special
     leave.

          Two questions arise for consideration in this case; (!) whether
   the school, in which the appellant was working, was an industry, and
 G (2) whether the appellant was a 'workman' employed in that industry.
   It is, however, not disputed that if the appellant was not a 'workman'
   no reference under section lO(l)(c) of the Act could be sought.

         Th!! first question need not detain us long. In University of Delhi
     & Anr. v. Ram Nath, (1964] 2 S.C.R. 703 a bench consisting of three
 H learned judges of this Court held that the University_ of Delhi, which
              A. SUNDARAMBAL v. GOVT. OF GOA !VENKATARAMIAH, J.] 607
..,
.
           was an educational insiitution and Miranda House, a college affiliated
    '                                                                                A
           to the said University, also being an educational institution.would not
           come within the definition of the expression 'industry' as defined in
        . section 2(j) of the Act. Section 2(j) of the Act states that 'industry'
          means any business; trade, undertaking, manufacture or calling of
          employers and includes any calling, service, employment, handicraft,
          or industrial occupation or avocation of workmen. Gajendragadkar,          B
          J., (as he then was) who decided the said case, held that the educa-
          tional institutions whiCh were predominantly engaged in teaching
          could not be considered as industries within the meaning of the said
          expression in section './(j) of the Act and, therefore, a driver who was
          employed by the Miranda House could not be considered as a wbrk-
          inan .employed in an industry. The.above decision came up for consi-
          deration in Bangalore Water Supply & Sewerage Board, etc. v. R.
                                                                                     c
          Rajappa & Others, [1978] 3 S.C.R. 207 before a larger bench of this
          Court. In that case the decision in University of Delhi & Anr. v. Ram
        · /\(ath, (supra) was overruled. Krishna Iyer, J. who delivered the
          majority jqdgment observed at page 283 of the Report thus:
                                                                                     D
                          "(a) Where a complex of activities, some of which
                    qualify for exemption, others not, involves, employees on
                    the total undertaking, some of whom are not 'workmen' as
                    in the University of Delhi case or some departments are not
                    productive of goods and services if isolated, even then, the
                    predominant nature of the services and the integrated            E
                    nature of th<; departments as explained in the Corporation
                    of Nagpur, will be true test. The whole undertaking will be
                    'industry' although those who are .not 'workmen' qy defini-
                    tion may nm Jenefit by the status."

              The learned Judge, however, observed that while an educational         F
        institution was an industry it was possible that some of the employees
        in that industry might not be workmen. At page 261 of the Report with
        reference to the case of University of Delhi & Anr. v. Ram Nath,
        (supra) the learned Judge observed thus:

                          'The first ground relied on by the Court is base.ct        G
                    upon the preliminary conclusion that teachers are no(
                    'workmen' by definition. 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 con-
                    tempt, manual work and separate it from education, itor
                    are we too sure whether in our technological universe, edu-      H
    608        SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

               cation has to be excluded. However, that may be a battle to
A
               be waged on a later occasion by litigation and we do not
               propose to pronounce on it at present. The Court, in the
               University of Delhi, proceeded on that assumption viz. that
               teachers are not workmen, which we will adopt to test the
               validity of the argument."

          Thus it is seen that even though an educational institution has to
    be treated as an industry in view of the decision in the Bangalore Water
    Supply & Sewerage Board, etc. v. R. Rajappa & Others, (supra) the
    question whether teachers in an educational institution can be con-
    sidered as workmen still remains to be decirled.
c         Section 2(s) of the Act defines 'workman' thus:

                      "2(s). 'workman' means any person (including an
                apprentice) employed in any industry to do any skilled or
                unskilled manual, supervisory, technical or clerical work
b               for hire or reward, whether the terms of employment be
                expressed or implied, and for the purposes of any proceed-
                ing under this Act in relation to an industrial dispute,
                includes any such person who has been dismissed, dis-
                charged or retrenched in connection with, or as a consequ-
                ence of, that dispute, or whose dismissal, discharge or
E               retrenchment has led to that dispute, but does not include
                any such person

                      (i) who is subject to the Army Act, 1950 (46 of 1940),
                or the Air Force Act, 1950 (45 of 1950), or the Navy (Disci-
                pline) Act, 1934 (34 of 1934); or
F
                      (ii) who is employed in the police service or as an
                officer or other employee of a prison; or

                     (iii) who is employed mainly in a managerial or
                administrative capacity; or
G
                      (iv) who, being employed in a supervisory capacity,
                draws wages exceeding five hundred rupees per mensem or
                exercises, either by the nature of the duties attached to the
                office or by reason of the powers vested in him, functions
                mainly of a managerial nature."
     A. SUNDARAMBAL v. GOVT. OF GOA IVENKATARAMIAH, J.) 609

      In order to be a workman, a person should be one who satisfies
                                                                             A
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              B
indusify 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.

       We are concerned in this case primarily with the meaning of the
                                                                             c
words 'skilled or unskilled manual, supervisory, technical or clerical
work'. If an employee in an industry is not a person engaged in doing
work falling in any of these categories, he would not be a workman at
all even though he is employed in an indu-stry. The question for consi-
deration before us is whether a teacher in a school falls under any of
                                   ~
                                                                             D
the four categories, namely, a person doing any 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
workman even though he is an employee of an industry as settled by
this Court in May and Baker (India) Lid. v. Their Workmen., [1961)
(II) L.L.J. 94. In that case this Court had to consider the question         E
whether a person employed by a pharmaceutical firm as a representa-
tive (for canvassing orders) whose duties cohsisted mainly of canvas-
sing 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
Wanchoo, J. (as he then was) observed thus:                                  F

                 "As 'workman' was then defined as any person emp-
           loyed in any industry to do any skilled or unskilled manual
           or clerical work for hire or reward. Therefore, doing man-
           ual or Clerical work was necessary before a person could be
           called a workman. This definition came for consideration          G
           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 sinall part of the duties of    H
    610       SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

              the person concerned and incidental to his main work
A
              which is not manual or clerical, ihen 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 work as it
              existed before the amendment of 1956. The nature of the
B             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 inciden-
c             tal to his main work of canvassing and could not take more
              than a small fi;action of the time for which he had to work,
              In the circumstances the tribunal's conclusion .that Muker-
               jee was a workman is incorrect. The tribunal seems to have
               been.led away by the fact that Mukerjee had no supervisory
D              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
               d'uties were mainly neither clerical nor manual. Therefore,
               as Mukerjee was not a workman, his case would not be
E              covered by the Industrial J;:>isputes Act and the tribunal
               would have no jurisdiction to order his reinstatement. We,
               therefore, set aside the Qrder of the tribunal directing rein-
               statement of Mukerjee along with other reliefs.,,.
                                                                                ,_
        The Court held that the employee Mukerjee involved in that case
F was not a workman under section 2(s) of the Act because he was not
  mainly employed to do any skilled or unskilled manual or clerical work
  for hire or reward, which were the only two classes of employees who
  qualified for being treated as 'workman' under the definition of the
  expression 'workman' in the Act, as it stood then. As a result of the
  above decision, in order to give protection regarding security of emp-
G loyment and other benefits to sales representatives, parliament passed
  a separate law entitled the Sales Promotion Employees (Conditions of
  Service) Act, 1976. It is no doubt true that after the events leading to
  the above decision took place section 2(s) of the Act was amended by
  including persons doing technical work as well as supervisory work.
  The question for consideration is whether even after the inclusion of
H the above two classes of employees in the definition of the expression
    ' A. SUNDARAMBAL v. GOVT. OF GOA [VENKATARAMIAH, J.I 611

   'workman' in the Act a teacher in a school can be called a workman.
                                                                             A
   We are of the view that the teachers' employed by educational institu-
   tions whether the said institutions are imparting primary, secondary,
   graduate or post graduate education cannot be called as 'workmen'
   within the meaning of section Z(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 B
   clerical work. Imparting of education is in the nature of a mission or a
   noble vocation. A teacher educates children, he moulds their charac-
  ter, builds up their personality and makes them fit to become res'ponsi-
  ble 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
                                                                             c
  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 Z(s)
  of the Act should be treated as workmen. The acceptance of this
· argument will render the words 'to do any skilled or unskilled manual, D
  supervisory, technical or clerical work' me3!1ingless. A liberal cons-
  truction as suggested would have been possible only in the absence of
  these words. The decision in May and Baker (India) Ltd. v. Their
  Workmen, (supra) precludes us from taking such a view. We, there-
  fore, ho)d 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 . E
  definition of 'workman' as it now stands.

      We may at this stage observe that teachers as a class cannot be
denied the benefits of social justice. We are aware of the several
methods adopted by unscrupulous managements to exploit them by
imposing on them on just conditions of service. In order to do jus\ice to    F
them it is necessary to provide for an appropriate machinery so that
teachers may secure what is rightly due to them. In a number of States
in India laws have been passed for enquiring into the validity of illegal
and unjust terminations of services of teachers by providing for
appointment of judicial tribunals to decide such cases. We are told that
in the State of Goa there is no such Act in force. If it is so, it is time   G
that the State of Goa takes necessary steps to bring into force an
appropriate legislation providing for adjudication of disputes between
teachers and the Managements of the educational institutions. We
hope that this lacuna in the legislative area will be filled up soon.

      This appeal\ however. fails and it is dismissed. Before we con-        H
    612          SUPREME COURT REPORTS             [1988] Supp. 1 S.C.R.
                    •l'
A elude we record the statement made on our suggestion by the learned
  counsel for the Management, Shri G.P. Pai that the Management
  would give a sum of Rs.40,000 to the appellant in full and final settle-
  ment of all her claims. The learned counsel for the appellant has
  agnied to receive Rs.40,000 accordingly. We direct the Management
B to pay the above sum of Rs.40,000 to the appellant in six instalments.
  They shall pay Rs.6,000 on 1.9.1988, Rs.6,000 on 1.10.1988, Rs.6,000
  on 1.11.1988, Rs.6,000 on 1.12.1988, Rs.6,000 on 1.1.1989 ai1d
  Rs.10,000on 1.2.1989.

           There is no order as to costs.

    G.N.                                                Appeal dismissed.