Calcutta High Court
Satya Narayan Tantia And Ors. vs State Of West Bengal And Ors. on 15 January, 1991
Equivalent citations: (1991)1CALLT405(HC)
JUDGMENT Khwaja Mohammad Yusuf, J.
1. The President, 'the Secretary, the Headmaster and other Members of the Managing Committee of Tantia High School, Calcutta, have moved the writ application challenging the Memo dated 25th June, 1985 issued by the Assistant Secretary to the Government of West Bengal, Labour Department, referring the dispute between the petitioners and the respondent No. 5, Ram Saran Mahato, to an Industrial Tribunal under Section 10 read with Section 2A of the Industrial Disputes Act, 1947, The petitioners' case, in short, is that respondent No. 5 was appointed as a Peon by the then authority of the School in or about 1960. Before his suspension he used to draw a total remuneration of Rs. 575.45. During his service hours he used to come heavily drunk. The Secretary received on 12th February, 1981 a complaint from the Assistant Secretary, Barabazar Library, in February 1981 on the occasion of Kavi Sammelon Utsav Day that seven pairs of shoes were stolen and the allegation was that during drunken state the said respondent handed over shoes to his own men. The said respondent No. 5 admitted the guilt by his letter of 14th February, 1985 and prayed forgiveness on the undertaking that he would not repeat such act and if he did so in future the School authority would be at liberty to take any action against him. The petitioners state that being a full time class IV employee of the School the respondent No. 5 was not legally to take any part-time job in the said Library. On 20th February, 1981 the Headmaster wrote to respondent No. 5 asking explanation as to why disciplinary action should not be taken against him for his behaviour. The following day the respondent No. 5 gave explanation that to the effect that he had already written in his letter of 14th February, 1981 the true facts and expressed his sorrow for the unfortunate incident and prayed for a chance to correct himself. By another letter dated 27th February, 1981 addressed to the Headmaster he again pleaded guilty and prayed for mercy. Again on the next day i.e. 28th August, 1981 he came on duty in the School heavily drunk and quarreled with the gate-keeper attracting a crowd. He was not in a state to stand and was ordered by the Headmaster to be removed to his residence by the gate-keeper but he refused to go and ultimately he was physically put into a rickshaw. Following this incident the Headmaster again wrote to the respondent No. 5 of the 28th August, 1981 incident and asked him to show cause by 4th September, 1981 why disciplinary action should not be taken against him. By a letter dated 31st August, 1981 he again wrote to the Headmaster accepting his guilt and assured the Headmaster that he would not repeat the same in future. On 8th April, 1983 the Headmaster received a complaint from Shiwnath Tewari, the Accountant of the School, that he found the respondent No. 5 sitting in the School bus in a drunken condition. The Headmaster on 9th April, 1983 referred the complaint to one S. K. Mookherjee, Assistant Teacher of the School, to make an enquiry. After making necessary enquiry a report was submitted to the Headmaster to the effect that the complaint of Shiwnath Tewari was correct. It was further stated that once Mr. Mookherjee himself found the respondent No. 5 in a drunken condition when the respondent No. 7, Jadu Nandan Singh, was trying to put him in a rickshaw. It was stated in the report that respondent No. 5 was a habitual alcoholic. By letter dated 8th April, 1983 the Headmaster suspended the respondent No. 5 till 16th April, 1983 and again by the letter of 14th April, 1983 the suspension was extended till 29th April, 1983. On 29th April, 1983 the Headmaster served a charge-sheet upon the respondent No. 5. The decision of suspension of the petitioners and issuance of charge-sheet was approved by the Managing Committee on 30th April, 1983. By a reply to chargesheet dated 4th May, 1983 the respondent refuted the 4th and 5th charges. According to the Secretary the reply to the charge-sheet revealed arrogant attitude against the Headmaster and a show of indiscipline. Having considered all aspects of the matter the Secretary of the School passed an order dismissing the respondent No. 5 by his communication dated 11th May, 1983 and the said decision of the Secretary was ratified by the Managing Committee on 30th September, 1983.
2. Thereafter the School authority received a letter dated 7th June, 1983 from the Assistant Labour Commissioner, West Bengal, along with a copy of the letter dated 17th May, 1983 written by the respondent No. 5 to the Labour Commissioner and the School authority was requested to submit its comments within a week. Thereafter by a communication dated 3rd July, 1983 the Assistant Labour Commissioner asked the School authority to send a competent representative to see him on 19th July, 1983 for a joint conference. The petitioners did not find any reason either to give a reply or to see the Assistant Labour Commissioner because it was not an industrial dispute upon which the Labour Department of the Government had any jurisdiction to intervene. The contention of the petitioners is that by virtue of Regulation 3 of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeal by Appeal Committee) Regulation, 1964 any decision of the Managing Committee may be challenged in appeal before the Appeal Committee and in view of this specific provision for remedy the Labour Department or the Industrial Tribunal has no jurisdiction to deal with this matter. Surprising by order dated 25th June, 1984 the Government of West Bengal referred the matter of dismissal of respondent No. 5 to the 4th Industrial Tribunal, West Bengal. By Memo dated 2nd August, 1984 the said Industrial Tribunal summoned the authority of the School who appeared before it on 21st August for filing statements of case by the parties. On that date the representative of the School appeared and took time and the matter was adjourned on 28th September. Thereafter the petitioners moved the High Court and obtained the Injunction.
3. The contention of the petitioners is that educational institutions in West Bengal do not come within the purview of the Industrial Disputes Act, 1947. The whole body of employees of educational institutions are outside the purview of the Industrial Disputes Act and come under the West Bengal Board of Secondary Education Act, 1947 and the Rules and Regulations framed thereunder. Hence the prayer to quash the impugned order of Reference of 25th June, 1984.
4. The State-Respondents filed an Affidavit-in-Opposition supported the case of respondent No. 5 and stating that the dispute in question is an industrial dispute and comes within the jurisdiction of the Labour Department-and as such the State Government was within its bound to refer the dispute to the 4th Industrial Tribunal in accordance with law.
5. The respondent No. 5, Ram Saran Mahato, in his Affidavit-in-Opposition said that there was no legal bar to accept any part-time employment and further that the alleged incident which took place outside the precints of the School could not be called upon to be explained because the alleged misconduct has not even a casual connection with the place of work. The alleged incident occurred beyond the School hours as well. He further stated that the alleged explanation that was submitted by him were not voluntary. The respondent further stated that the authorities have not acted in accordance with the procedure and natural justice. He challenged the order of suspension has wholly illegal and without jurisdiction and total violation of Rule 28 Sub-rule 9(viia) of the Rules of 1969. He further stated that there was no compliance of Rule 28(8) of the said Rules. He stated that since he was dismissed illegaly so it was not obligatory on his part to prefer any appeal and it became an industrial dispute. He further stated that the point of jurisdiction ought to have been taken by the petitioners before the Tribunal itself. The respondent No. 5 has categorically stated in the Affidavit that the Supreme Court is of the view that education is an industry and the management raising a preliminary objection against the order of Reference should not stall the proceeding by invoking the writ jurisdiction. The respondent No. 5 denied all the allegations labelled against him by the petitioners.
6. Mr. Banerjee, the learned Advocate appearing for the petitioners, submitted that a private educational institution is not an industry and its employees are not workmen under the Industrial Disputes Act. In this connection he submitted that the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964 fully protects teaching and non-teaching staff of an educational institution and in this connection he referred to Regulations 3 and 9(b). He also placed Section 2(j) of the Industrial Disputes Act to bring home the point what is meant by "industry". He cited two decisions, namely, Baidyanatk Bose and Ors. v. Smt. Sudha Roy and Ors. reported in 70 CWN 571 and Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. .
7. Mr. Das, the learned Advocate appearing for the respondent No. 5, in his argument submitted that Section 2(j) has yet not come into force by notification and as such it was useless to take shelter of this particular provision. He further emphasised on the fact that the incident occurred outside the jurisdiction of the School and for such an act the petitioner was not liable to explain his conduct. At the same time he contended that a part-time job other than the main employment is not a bar. He also referred 4o the order of suspension as contrary to Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules of 1969 and complete violation of the procedure as laid down in that Rule. He cited the following decisions in support of his contention : (i) Suresh Chandra v. State of U.P. and Ors., reported in 1988(1) Lab. IC 263 ; (2) Miss. A. Sundarambal v. Government of Goa, Daman and Diu and Ors. ; and (3) Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and Ors. : This respondent, too, has relied upon the decision (supra) which was cited by the petitioners.
8. Mr. Bhattacharya, the learned Advocate appearing for the Staterespondents, fully supported the case of the respondent No. 5 and submitted that the case comes within the ambit of the Industrial Disputes Act and cited on 106 (M. C. Chockalingam and Ors. v. V. Manickavasagam and Ors.) but the subject matter of this case is totally different based on Madras Cinema (Regulation) Act, 1955 vis-a-vis tenancy and possession and I am not going to deal with it.
9. I have considered the facts and the submissions made by the learned Advocates of the parties. The case revolves round the point whether the employment of respondent No. 5. Ram Saran Mahato, is governed by the Industrial Disputes Act, 1947 or by the West Bengal Board of Secondary Education Act, 1963 and the Rules and Regulations framed thereunder. The petitioners have argued that an educational institution is not an industry and its employees are not workmen under the I.D. Act. Section 2(j) of the said Act gives the definition of "industry" which is quite exhaustive and excludes educational institutions under clause (3) of the Explanation. Section 2(j) has been inserted by Act No. 46 of 1982. The contention of the learned Advocate of the respondent No. 5 is that Section 2(j) has not come into force as yet by Notification. Whatever may be the case it is unthinkable that educational institution comes under the purview of industry because the West Bengal Board of Secondary Education Act, 1963 and the Regulations made under Section 27(3) read with Section 22(3) of the Act of 1963 are quite comprehensive code and there is no reason why the Industrial Disputes Act should be made applicable in the instant case. I find that Section 3 of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964 is quite comprehensive and I quote the same as under :-
"A teacher or any other employee who feels to have been affected adversely by any decision of the managing committee of the Institution he serves or has served (hereinafter referred to as the appellant) may appeal direct to the Appeal Committee against such decision in accordance with the provisions of these regulations."
This must be read along with Regulation 9 which further describes the procedure of the Appeal Committee. Regulation 3 is an exhaustive regulation providing for an appeal to the Appeal Committee against any adverse decision of the Managing Committee and not only against orders of suspension or termination of service. This has been laid down in the case of Mrs. Leena v. West Bengal Board of Secondary Education (74 CWN 325). In the light of the Regulations of 1964 there is no reason to drag in the Industrial Disputes Act to decide a dispute of an educational institution.
10. Now I deal with the cases referred to by the parties. The petitioners have referred to the case of Baidyanatk Base and Ors. v. Smt. Sudha Roy and Ors. (supra) wherein Mr. Justice P. B. Mukharji (as His Lordship then was) held that "if the dismissed person wants reinstatement then High Court has got to adopt the procedure laid down by the Statute and asked for reinstatement from the statutory body which the Statute has created and which the Statute has expressly clothed with the power of reinstatement". This case very much goes in favour of the petitioners. In Bangalore Water Supply and Seweraye Board v. A. Rajappa and Ors. (supra) while discussing the unamended Section 2(j) of the I.D. Act the Supreme Court held that absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. The true focus is functional and decisive test is the nature of the activity with special emphasis on the employer-employee relations. If the organisation is a trade or business it does not cease to be one because of philanthropy animinating the undertaking. The Supreme Court held that the consequences are (i) professions, (ii) clubs, (iii) educational institutions, (iv) co-operatives, (v) research institute, (vi) charitable projects and (vii) other kindred adventure, if they fulfil the triple test listed in the judgment cannot be exempted from the scope of Section 2(j). The Supreme Court in this decision clearly pointed out that "constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby." This is a pointer to the fact that as the School Code in West Bengal is completely statutory in nature and independent of any other Act and protects the interest of both teaching and non-teaching staff, as such the question of enforcement of I.D. Act in school matters does not arise.
11. The respondent No. 5 took the protection of the decision in the case of Suresh Chandra v. State of U.P. (supra) where the Supreme Court stated as follows : "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 unjust conditions of service. In order to do justice to 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 service of teachers by providing for appointment of judicial tribunals to decide such case. We are told that in the State of Goa there is no such Act in force. If; it is so, it is time that the State of Goa takes necessary step to bring into force an appropriate legislation providing for adjudication of disputes between teacher and the managements of the educational institutions. We hope that this lacuna in the legislative area will be filled soon." This decision of the Supreme Court goes against the respondent No. 5 instead of helping him. The State of West Bengal possess comprehensive legislation to protect the interest of teaching and non-teaching staff as pointed out by me hereinbefore and as such this case is of no importance for the defence. The decision in the case of Miss A. Sundarambal v. Government of Goa, Daman and Diu and Ors. (supra) deals with the teachers only and follow the decision in the case of Bangalore Water Supply and Sewerage Board (supra). Here n6t a teacher but a non-teaching staff is involved and as such it does not help the petitioners case. In M/s. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut, and Ors. (supra) the Supreme Court dealt with the acts or omissions which would be treated as misconduct under the Industrial Employment (Standing Orders) Act, 1946, I do not understand how this case comes to the rescue of the respondent No. 5. The learned Advocate of the respondent No. 5 has also relied upon the case of Bangalore Water Supply and Sewerage Board (supra) which I have already discussed hereinbefore.
12. The plea taken by the respondent No. 5 that there is no misconduct on his part it occurred outside the premises of the School and that a part-time job is not a legal bar are points to be decided by the appropriate authority under the provisions of the West Bengal Board of. Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964 because under Regulation 3 a teacher or any other teacher who is affected adversely by any decision of the managing committee of any institution which he has been serving or served may appeal direct to the Appeal Committee against such decision in accordance with the Regulations. The entire dispute relating to the suspension and dismissal of the respondent No. 5 arises out in his capacity as an employee of the School and as such he is to seek the redress of his grievances before the Appeal Committee according to the said Regulations and is not entitled to take the protection of Industrial Disputes Act. In the light of the various decisions discussed hereinbefore it is clear that if there is any Statute covering the entire ambit of disputes in a particular field the same dispute must be referred to the competent authority under the said Statute and not under any other Statute. The basic principle of the School Code of West Bengal must not be violated by juming to another jurisdiction. The interference by the State Government in referring the matter under Section 10 read with Section 2A of the Industrial Disputes Act, 1947 to the 4th Industrial Tribunal is quite unjustified and interference with the West Bengal Board of Secondary Education Act, 1963 and the Regulations and Rules made thereunder.
13. In that view of the matter I quash and set aside the Order dated 25th June, 1984 passed by the Assistant Secretary to the Government of West Bengal, Labour Department, The respondent No. 5, Ram Saran Mahato, shall be at liberty to prefer an appeal in accordance to the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committed) Regulations, 1964. I furhter order that if any question of limitation arises in not preferring the appeal within time, the said limitation shall be waived by the Appeal Committee by this Order of the Court provided the appeal is filed within 30 (thirty) days from this date. If the appeal is preferred within the above period, then the Appeal Committee shall dispose of the same within four months positively.
14. The writ application is accordingly allowed as indicated. There will be no order as to costs.
Mr. Das's prayer for stay of order is refused.
15. Let xerox copy of the order be made available to the parties on usual undertaking and upon compliance of necessary formalities.