Madras High Court
Louis Gilbert Aroquiassamy @ ... vs The Principal / The Managing Director
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
W.P.No.1223 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
30.07.2021 24.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.1223 of 2020 and
W.M.P.No.1454 of 2020
Louis Gilbert Aroquiassamy @ Samicannou ... Petitioner
-vs-
The Principal / The Managing Director,
Lycee Francais of Pondicherry,
12, Victor Simonel Street,
Pondicherry-605 001. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Certiorari, calling for the records in respect of the order passed
in I.D.(L) No.56 of 2015 dated 23.09.2019 issued by the Labour Court, quash the
same and direct the respondent to reinstate him with continuity of service,
regularize him in History and Geography, from the 15th of July, 2015 onwards, as per
Article 4.5, Section II of the internal Rules and Regulations of the respondent's
institution, direct the respondent herein to pay full back wages.
For Petitioner : Mr.Louis Gilbert Aroquiassamy @ Samicannou
Party-in-Person
For Respondent : Mr.Edward James
*****
ORDER
https://www.mhc.tn.gov.in/judis/ 1/12 W.P.No.1223 of 2020 This Writ Petition has been filed, challenging the Award of the Industrial Tribunal-cum-Labour Court, Puducherry dated 23.09.2019 passed in I.D.(L) No.56 of 2015, in by which, Labour Court dismissed the claim of the Petitioner for reinstatement.
2. It was the case of the Petitioner that he, who is a French Nationality, was appointed as a Teacher on contract basis in the Respondent school on 16.07.2012 for the French Syllabus of History Geography and Bio-Geology and his contract was extended for further period upto July, 2014. It was further case of the Petitioner that even after his unblemished services, he was not confirmed in service upto 14.07.2014. Subsequently, he was terminated by the Respondent by an order dated 26.03.2014 without following the provisions of Section 25(B)(2)(a)(ii) of the Industrial Disputes Act, 1947. Aggrieved by the same, he raised a dispute, which, after completion of conciliation proceedings and on reference by the Government for adjudication, was numbered as I.D.(L) No.56 of 2015 by the Labour Court.
2.1. It was also the case of the Petitioner that the Labour Court, after considering the oral and documentary evidence, held that the Petitioner, being appointed as a Teacher on contract basis, cannot seek any claim under the I.D.Act, 1947 and dismissed the claim of reinstatement. According to the Petitioner, the https://www.mhc.tn.gov.in/judis/ 2/12 W.P.No.1223 of 2020 Labour Court has not appreciated the evidence on record in proper perspective and also not applied the correct provisions of law. Hence, he prayed that the award of the Labour Court needs interference by this Court.
3. The Respondent has filed a counter affidavit, wherein it has been inter alia stated as follows:
i) The Writ Petition filed by the Petitioner is not maintainable either in law or on the facts of the case, as he is not a Workman of the Respondent within the ambit of Section 2(s) of the I.D.Act, 1947 and his dominant role as a Teacher was not in connection with any manual, unskilled, skilled, technical, operational or clerical in nature and therefore, the Labour Court rightly refused to grant the relief of reinstatement;
ii) The Petitioner was drawing a sum of Rs.54,000/- as monthly salary and as per the definition of the I.D.Act, 1947, a person appointed in a Supervisory or Managerial capacity earning more than Rs.10,000/- cannot be construed as a Workman and the judgment relied upon by the Petitioner in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate, reported in AIR 1958 SC 353, is not applicable to the present case, as the issue in that case is with regard to https://www.mhc.tn.gov.in/judis/ 3/12 W.P.No.1223 of 2020 the community of interest and not on the real dispute between the parties;
iii) It was stated that since the Petitioner was appointed on fixed term contract, the Respondent is empowered either to renew it or to bring it to an end.
Though he subsequently applied to the post of Biology Teacher, his name was not considered for selection for want of proper academic qualification. The Respondent clearly informed its inability to offer any permanent employment to the Petitioner even before the Conciliation Officer, pursuant to which, the Conciliation Proceeding was closed.
iv) It was further stated that the Labour Court has considered all the aspects and points raised by the Petitioner and dismissed the claim, by strongly relying upon the judgment of the Apex Court in the case of Sundarambal vs. Government of Goa, Daman and Diu and others, reported in 1989 I LLJ 61. Thus, it was argued that the Petitioner failed to make out any prima facie case in his favour and therefore, the Writ Petition is liable to be dismissed on the sole ground of maintainability of the Petition.
4. The Petitioner, who appeared as Party-in-Person, by filing a reply affidavit to the counter affidavit, submitted that there is a lot of distinction between occupation and profession and various Courts follow the case of Sundarambal vs. https://www.mhc.tn.gov.in/judis/ 4/12 W.P.No.1223 of 2020 Government of Goa, Daman and Diu and others (cited supra) in the matter of reappointment in the post of Teacher without exactly understanding its inner principle laid down. He also referred to a judgment of the Apex Court in the case of Devinder Singh vs. Municipal Council, Sanaur, reported in (2011) 6 SCC 584 to contend that he was discontinued from service without giving any notice or pay in lieu thereof and compensation as per requirement of Section 25F(a) & (b) of the I.D.Act and therefore, the Award of the Labour Court is liable to be set aside. However, this judgment will not be helpful to the Petitioner, as the disengagement of the Petitioner in the said case (supra) was in respect of a Clerical post, which purely falls under the category 'workman' in terms of the definition of the I.D.Act. Similarly, the other case relied upon by the Petitioner in Workmen of Dimakuchi Tea Estate vs. Management of Dimakuchi Tea Estate (supra) nowhere stated that Teacher comes under the ambit of Workman, whereas the said judgment elaborately discussed about the community of interest. The Petitioner went on to add that the term 'workman' as indicated in the I.D.Act, 1947 cannot be measured on the basis of the salary being drawn by an employee and therefore, drawing a sum of Rs.54,000/- per month may not be put against him to deprive reinstatement. Hence, he sought for sympathetic consideration of his case for re-employment in the Respondent school, by setting aside the award of the Labour Court.
5. Learned counsel for the Respondent contended that the Petitioner was https://www.mhc.tn.gov.in/judis/ 5/12 W.P.No.1223 of 2020 never appointed as a permanent Teacher and he was engaged on contract basis in the leave vacancy as an interim measure for the welfare of the student community. Moreover, he did not work for more than 240 days continuously, so as to claim benefits under Section 25(B) of the I.D.Act, 1947, as there was a break in service, insofar as the case of the Petitioner is concerned. Learned counsel for the Respondent strongly relied upon the judgment of the Apex Court in Sundarambal vs. Government of Goa, Daman and Diu and others, to controvert the plea raised by the Petitioner.
6. Heard the Petitioner / Party-in-Person and the learned counsel for the Respondent and perused the material documents available on record.
7. Admittedly, the Petitioner was appointed as a Teacher on “Fixed Term Contract”, which, according to the Respondent, was for a time gap arrangement. According to the Petitioner, a Teacher is one, who is moulding the minds and brains of the pupil community and therefore, he should be treated as a Workman under Section 2(a) of the I.D.Act, 1947. Though various averments have been made by the Petitioner, the core issue to be decided in this case is, whether a Teacher is a Workman or not.
8. A reading of Ex.Ps.2 to 6 amply proves the fact that the Petitioner was https://www.mhc.tn.gov.in/judis/ 6/12 W.P.No.1223 of 2020 employed for a specific period on contract basis and nowhere, it is stated that he would be considered for permanency in the post in future. The issue whether the Teacher is a Workman or not has already been decided by the Supreme Court in the case of Sundarambal vs. Government of Goa, Daman and Diu and others (supra), by holding as under:
“10.... 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.
9. From the above proposition, it is very clear that a Teacher is not a Workman under the I.D.Act, 1947, even though the School is regarded as an industry. The judgments produced by the Petitioner in support of his case were all rendered prior to the judgment of the Apex Court in Sundarambal vs. Government of Goa, Daman https://www.mhc.tn.gov.in/judis/ 7/12 W.P.No.1223 of 2020 and Diu and others and will not, therefore, strengthen the case of the Petitioner. That apart, the Petitioner, having signed the contract, which has been extended from time to time, as could be seen from Ex.Ps.1 to 6, cannot go back and endeavour to unsettle the settled issues. The Supreme Court in the following cases categorically held that the doctrine of binding precedent should be followed in letter and spirit and heavily came down on the act of unsettling settled issues:
i) Union of India v. Raghubir Singh, (1989) 2 SCC 754;
“8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.”
ii) Krishena Kumar v. Union of India, (1990) 4 SCC 207;
“33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially https://www.mhc.tn.gov.in/judis/ 8/12 W.P.No.1223 of 2020 the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it.”
iii) Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11;
“13. ... It is further to be noted that Meharban Singh case MANU/SC/0369/1969 : (1969) 3 SCC 542 came to be decided as early as 1970 and has been followed for the last three decades in the State of Madhya Pradesh and innumerable number of matters have been dealt with on the basis thereof and in the event, a different view is expressed today, so far as this specific legislation is concerned, it would unsettle the situation in the State of Madhya Pradesh and it is on this score also that reliance on the doctrine of 'stare decisis' may be apposite. While it is true that the doctrine has no statutory sanction and the same is based on a Rule of convenience and expediency and as also on 'public policy' but in our view, the doctrine should and ought always to be strictly adhered to by the courts of law to subserve the ends of justice.”
iv) Shanker Raju vs. Union of India, (2011) 2 SCC 132;
“10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim stare decisis et non quieta movere, which means 'to stand by decisions and not to disturb what is settled'. Lord Coke aptly described this in his classic English version as 'those things which have been so often adjudged ought to rest in peace'. The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.
(Emphasis in original)” https://www.mhc.tn.gov.in/judis/ 9/12 W.P.No.1223 of 2020
10. The Petitioner has produced voluminous documents in support of his stand that he had rendered continuous service in the Respondent school. In the considered opinion of this Court, even if the Petitioner was holding a permanent and regular post, at this stage, this Court cannot look into those documents and the additional typeset of papers for two reasons, namely, a) this Court cannot render any finding in his favour, after holding that Teacher is not a Workman and b) in case of any adverse remarks, it will affect his alternative remedy.
11. For the foregoing reasons and observations, I find that the relief sought for by the Petitioner cannot be granted and the Award of the Labour Court is sustained. Accordingly, this Writ Petition is dismissed, upholding the Award of the Labour Court dated 23.09.2019. It is made clear that this dismissal order will not preclude the Petitioner from seeking any other relief available to him, under the relevant provisions of Law, but certainly not the one under the I.D.Act, 1947. The period during which the dispute and the Writ Petition were pending needs to be excluded for the purpose of limitation. Until otherwise, any longer time is prescribed under any of the relevant enactments for approaching the alternative Forum, the Petitioner, if already not availed, must seek the alternative relief within three months from the date of receipt of a copy of this order. No costs. Consequently, https://www.mhc.tn.gov.in/judis/ 10/12 W.P.No.1223 of 2020 connected Miscellaneous Petition is closed.
24.09.2021 Index: Yes / No Speaking order /Non speaking order ar To:
The Industrial Tribunal-cum-Labour Court, Puducherry.
S.VAIDYANATHAN,J., ar https://www.mhc.tn.gov.in/judis/ 11/12 W.P.No.1223 of 2020 Pre-Delivery order made in W.P.No.1223 of 2020 24.09.2021 https://www.mhc.tn.gov.in/judis/ 12/12