Andhra HC (Pre-Telangana)
Principal, Government School Of Music ... vs A. Ramachandra Murthy And Anr. on 10 December, 1997
Equivalent citations: 1998(1)ALD299
JUDGMENT
1. The Award of the Industrial Tribunal-cum-Labour Court, Warangal in I.D.No.51 of 1991 dated 4-12-1993 is challenged by the petitioner-institution in this Writ Petition mainly on the ground that the Industrial Tribunal had no jurisdiction to pass any Award in favour of the 1st respondent-A. Ramachandra Murthy.
2. Respondent No. 1 -Sri A. Ramachandra Murthy was appointed as Daily Wage Worker on 28-10-1987 on temporary basis by the petitioner-institution. He worked upto 31-1-1989. It is alleged by the petitioner that the 1st respondent on one evening forgot to bolt the doors of an outside room properly. But the same was noticed by the night watchman and he closed the door properly. On 8-8-1988 when the Principal was attending the Office work till late in the evening, the 1st respondent closed all the doors except the office door and went away without the knowledge of the Principal and without wailing till the arrival of has reliever. On 9-8-1988 the night watchman gave a complaint against the 1st respondent. A memo was, therefore, served on him on 11-8-1988 and in the enquiry he admitted that he saw the cycle and later twisted his own statement stating that he had not seen any cycle. But he admitted that he left the office before the arrival of the reliever. The Principal alleged that he had found the 1st respondent twice leaving the back door without bolting. Again on 8-1-1989, he did not bolt the back door properly and the Principal warned him for the same but in vain. The service of the 1st respondent were, therefore, terminated with effect from 31-1-1989 as, according to the petitioner-institution, he was purely a contingent employee.
3. The 1st respondent moved the Industrial Tribunal against his removal from service. By an Award dated 4-12-1993 the Industrial Tribunal ordered that the 1 st respondent be reinstated into sendee with full backwages and continuity of service. It is this Award which is challenged in this Writ Petition by the petitioner-institution.
4. As stated earlier, the petitioner-institution has challenged the Award mainly on the ground that the Music and Dance school was part and parcel of the Government and the 1st respondent was a Government servant and, therefore, the Industrial Tribunal had no jurisdiction to entertain any grievances relating to service matters of the 1 st respondent. For this purpose my attention was drawn to G.O.Ms.No.670 dated 20-7-1981 issued by the Government of Andhra Pradesh, Education Department regarding creation of separate directorate for Cultural Affairs. It is stated in Para 4 of the said G.O., that the Government after careful consideration ordered the establishment of a separate Directorate for cultural Affairs with immediate effect and passed several orders as slated in Clause 5(i) to 5(v). In Clause 5(iii) it is stated that :
"The subjects relatingto Cultural Affairs including schools and colleges of Music and Dance, now dealt with in the office of the Director of the School Education shall be transferred lo the office of the Director, Cultural Affair. The distribution of subjects among the two Directors shall be as indicated in the Annexure-I to this order,"
The learned Government Pleader for the petitioner-Institution, during the course of arguments, invited my attention to the definition of 'service matters' as given in Section 3(q) of Administrative Tribunals Act, 1985 (Act 19 of 1986) (hereinafter referred to as 'the Act') in which the same is defined as under :
"3(q) 'service mailers' in relation to a person, mean all matters relating to the conditions of his services in connection with the affairs of the Union or any Slate or of any local or other authority within the territory of India or under the control of the Government of India, or, as the case may be, of any Corporation or Society owned or controlled by the Government, as respects -
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary mailers; or
(v) any other matters whatsoever;"
She further submitted that termination of service was covered within the meaning of 'disciplinary matters' and, therefore, there could be no slur on the proposition that the persons employed by the petitioner-institution, cannot be treated as 'workmen' employed in an Industry and the Administrative Tribunal had the exclusive jurisdiction to deal with the service matters of the employees of the petitioner-Institution as the petitioner-Institution was part and parcel of the Government.
5. The authorities cited before this Court as regards the jurisdiction of the Administrative Tribunals on one hand and the industrial Tribunal-cum-Labour Court on the other, vociferously deal with two main propositions of law, viz., the power of judicial review and the scope and ambit of the word 'industry' as defined in the Industrial Disputes Act. On the question of judicial review, the seven Judges bench of the Supreme Court of India headed by the Hon'ble the Chief Justice of India in the case of L. Chandra Kumar v. Union of India, held that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure and, therefore, ordinarily, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded. The bench also held that the power vested in the High Courls to exercise judicial superintendence over the decisions of all Courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided. In Para 99 of the said decision, the Supreme Court observed as follows :
"In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323A and clause 3(d) of Article 323B to the extent they exclude the jurisdiction of the High Courls and the Supreme Court under Articles 226/227 and 32 of (lie Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction'' clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. AH decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated."
Section 28 of the Act viewed from its caption is supposed to be dealing with the exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution. However, from the body of the Section it transpires that the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force are excepted from the exclusion of all other Courts to exercise any jurisdiction, powers or authority in relation to recruitment or matters concerning such recruitment or such service matters. The exception of Supreme Court for exercising the jurisdiction in respect of the matters covered by the Administrative Tribunals is on the basis of clause (1) of Article 136 of the Constitution of India which provides that the Supreme Court may in its discretion, grant Special Leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. In clause (2) of Article 136 it is provided that nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces.
6, It is by virtue of this power conferred upon the Supreme Court under Article 136 of the Constitution of India that the Supreme Court is excepted from exclusion of jurisdiction as laid down under Section 28 of the Act. But industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 can obviously be not given the same treatment. An anomalous situation, therefore, arises that Industrial Tribunal, Labour Court, etc. though not standing on the same footing as laid down under Article 136 of the Constitution, would still be exercising jurisdiction under the Act concurrently with the Tribunals constituted under the provisions of the Administrative Tribunals Act inspite of the fact that Industrial Tribunals or Labour Courts are not even of the same level as that of the Administrative Tribunals. Two different Forums though not of the same level would still be exercising concurrent jurisdiction in respect of recruitment and matters concerning recruitment to any service or post or service matters concerning the members of any service or persons appointed to any service or post as laid down under Section 28 of the Act. Notwithstanding such inconsistency, since Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force, are not excepted from the exclusion of jurisdiction of other Courts as categorically provided in clause (b) of Section 28 of the Act, the Award passed by the Industrial Tribunal-cum-Labour Court at Warangal in I.D,No.51/91 cannot be termed as devoid of jurisdiction and, therefore, cannot be treated as adversely effected either by the definition of 'disciplinary matters' or by the provisions of Section 28 of the Act.
7. While dealing with the contention of the appellant in Civil Appeal No.7845 of 1997, the Supreme Court in General Manager, Telecom v. S. Srinivasan Rao, , to the effect that the reference was incompetent since the Telecommunication Department of the Union of India is not an 'industry' within the meaning of its definition contained in the existing unamended Section 2(j) of the Industrial Disputes Act, 1947 held that this question has to be answered according to the decision of the Supreme Court in Bangalore Water Supply v. A. Rajappa, (which is also referred to and relied upon by the learned Counsel for the 1st respondent in the instant case) which was a binding precedent. The Supreme Court further held that the dominant nature lest for deciding whether the establishment is an 'industry' or not is summarised in Para 143 of the judgment of Justice Krishna Iyer in Bangalore Water Supply case (supra),
8. In Para 3 of the General Manager, Telecom's case (supra), the Supreme Court observed that the matter came up before a three Judges Bench because of a Reference made by a two Judge Bench which doubted the correctness of an earlier two Judge Bench decision in Sub-Division Inspector of Post, Vikam v. Theyyam Joseph, 1996 (2) SC 457, and observed in Para 4 that the only point for decision in the appeal was whether the Telecom Department of the Union of India was an industry within the definition of 'industry' under Section 2(j) of the Industrial Disputes Act, 1947 and observed that the amendment made in that definition in 1982 had not been brought into force by the Central Government by issuance of notification required for the purpose. It was, therefore, not necessary to consider whether the Telecommunication Department of the Union of India would be an 'industry' within the meaning thereof in the amended provision which had not yet been, put into force.
9. The Supreme Court further observed that in Para 143 of the decision of Justice Krishna Iyer in Bangalore Water Supply case (supra), the dominant nature lest for deciding whether the establishment is an industry or not in summarised, which is as under :
"143, The dominant nature test :
(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 (supra) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur (supra), will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the slatus.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption not the welfare activities or economic adventures undertaken by government or statutory bodies."
10. In Para 6, the Supreme Court observed that it was rightly not disputed by the learned Counsel for the appellant that according to this test the Telecommunication Department of the Union of India was an 'industry' within that definition because it was engaged in a commercial activity and the Department was not engaged in discharging any of the sovereign functions of the Slate.
11. From the ratio laid down by the Supreme Court in the above two cases, it clearly emerges that the jurisdiction of Industrial Tribunal in entertaining the 1st respondent's case was not defective in any manner on account of categorical exception of the Industrial Tribunal, etc., from the exclusion of jurisdiction from adjudication of the matters conferred upon the Administrative Tribunals under Section 28 of the said Act as also on account of the fact that the petitioner-Institution although shown to be part and parcel of the Government could not be excepted from the purview of the definition of' industry' as given in the Industrial Disputes Act on the same analogy as observed by the Supreme Court in General Manager, Telecom's case (supra) that the pre-dominant nature of the services and the integrated nature of the departments would be the true test and that the whole undertaking would be 'industry' although those who are not 'workmen' by definition may not benefit by the status and also on account of the fact that sovereign functions, strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by the Government or statutory bodies. The petitioner-institution in the instant case though could not be treated as carrying on any welfare activity or economic adventures under-taken by the Government or statutory bodies, it cannot be denied that it is carrying on instead of welfare activities, the cultural activities, which cannot undoubtedly be treated as sovereign function of the Slate. With this situation in view, therefore, the jurisdiction of the Industrial Tribunal cannot be ousted from considering the grievances of the 1st respondent and to pass an Award which is under challenge in the present writ petition.
12. If we look into the merits of the case, the contentions raised by the petitioner-institution do not stand even for a moment because the disciplinary action has been taken against the 1st respondent in abject violation of the principles of natural justice. He has been subjected to severe punishment without giving a show cause notice and without conducting departmental enquiry and without giving any opportunity of being heard as stated in the concluding part of Para 7 of the Award under challenge. There is, therefore, no cause for granting any relief to the petitioner-institution as prayed for and the Writ Petition deserves to be dismissed. No interference is, therefore, warranted with the Award in I.D.No.51/91 dated 4-12-1993 passed by the Industrial Tribunal-cum-Labour Court, Warangal.
13. The Writ petition is accordingly dismissed. No costs.