Telangana High Court
Timpany School, Rep. By Its ... vs The General Secretary, Timpanay School ... on 28 September, 2018
THE HON'BLE SRI JUSTICE M.GANGA RAO
WRIT PETITION No. 16079 OF 2001
ORDER:
The Timpany School, Visakhapatnam, filed this writ petition being aggrieved by the award of the 2nd respondent- Industrial Tribunal-cum-Labour Court, Visakhaptnam passed in I.D.No.185 of 1998 dated 18.04.2001 as notified in G.O.Rt.No.1420, Labour, Employment Training and Factories (LAB.I) Department, dated 13.06.2001, wherein and whereby the Labour Court allowed the reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for short 'the Act').
2. The 1st respondent-General Secretary, Timpany School Workers' Union, Visakhapatnam approached the Assistant Commissioner of Labour, Circle III, Visakhapatnam and a joint meeting was conducted by the authorities of the Labour Department with the respondent-Union and the petitioner- School in respect of the demands of the respondent-Union. On failure of the conciliation proceedings, the dispute was referred to the competent State Government i.e., Government of Andhra Pradesh. The Government of Andhra Pradesh referred the dispute for adjudication under Section 10(1)(c) of the Act. The following is the reference:
"Whether the Private Colleges and School Staff and Workers Union in Timpany School, Visakhapatnam is justified in demanding the following:2
1) to regularise the services of the temporary workmen who completed the service of 6 months as on 1.9.97;
2) to fix the pay scales of Class IV employees and drivers on par with State Government employees of that cadre;
3) for provision of free education to the children of the employees;
4) for provision of shoes and raincoats;
5) for provision of rotation system to watchmen; and
6) for payment of compensation of Rs.1.5 lakh and provision of compassionate employment to the dependant of the deceased in case of death of an employee while on duty.
If not, to what relief the workmen are entitled?"
The 2nd respondent-Industrial Tribunal-cum-Labour Court, on considering of the evidence before it i.e. evidence of workmen- WWs 1 and 2 and documents Exs.W1 to W7 on behalf of the Union and evidence of MWs 1 to 3 and documents Exs.M1 to M10 on behalf of the Management, came to the conclusion that the demands raised by the workmen are justifiable except the first demand as the learned counsel appearing for the workmen fairly conceded that the workmen cannot make such a demand. The Labour Court answered the reference by passing the following award:
"1) Directing the management to fix the pay scales of Class-IV employees and drivers on par with the State Government employees of the same order and similarly placed in Government educational institutions;
2) to provide free education to the two children of a regular employee in the management schools;3
3) to provide shoes and rain coats individually to the watchmen and the drivers every year and two uniforms to the male employees of Class IV and drivers and two sarees to the lady employees in Class IV service every year;
4) to provide rotation system of night shifts to day shifts particularly to the watchmen; and
5) to provide employment on compassionate grounds in case of death of an employee in harness while in service. However, there is no order as to costs and each party is directed to bear its own costs."
Being aggrieved by the same, the petitioner-School filed the present writ petition.
3. Sri Aswin Kumar, learned counsel appearing for Sri D.V.Sitharam Murthy, learned counsel for the petitioner, would contend that the petitioner-School is a private Christian minority institution established in Visakhapatnam in the year 1931. It does not receive grant-in-aid from the State Government or any financial assistance from the Central Government. The syllabus that is followed by the school is as prescribed by the Indian Council of Secondary Education (ICSE) and Central Board of Secondary Education (CBSE), New Delhi. Both these organisations are non- statutory organisations. The educational institutions run on the funds of the Trust and the fee earned by the school. The institutions are run on a no-profit basis. The funds raised by the institution are utilised towards salaries of employees, 4 maintenance of buildings, construction of additional class rooms, library, laboratory equipment, computers, stationery and other expenditure required to run educational institutions and also meet the modern challenges in education. The petitioner-School is well reputed in Visakhapatnam for its academic excellence and discipline. The employees of the school are paid well. The demands made by the workmen under the reference are not valid and the reference is illegal and it is made contrary to law.
The petitioner-School is a minority educational institution. The employees cannot demand that their service conditions should be on par with the service conditions of the Government educational institutions. There is no grant-in- aid to the school from the State or Central Governments. The educational institution runs on the funds of the Trust, earned by school fees and the school development fund collected at the time of admission of students. There is no profit element and the object of the institution is to give preference in admission to students belonging to the minority community and also in employment which is quite constitutional besides imparting education. The financial statements of the Trust are duly audited by qualified and reputed auditors. The union has no right to demand regularisation of their services of temporary workmen who completed six months service as on 01.09.1997 and it is settled law that no such temporary workmen can demand regularisation. The demand of the 5 workmen to provide free education to the children of the employees is absolutely untenable. No private educational institution made such a provision. So far as the provisions of shoes and raincoats to all employees is not tenable. The educational institution is not a factory or an industry in which such protective measures are to be mandatorily given. However, the institution provides two pairs of uniform once in two years along with shoes to the watchmen who are on duty. Raincoats are kept in the watchmen room and such of the watchmen on duty will use them if needed and deposit the same at the place after the duty. The other employees like drivers, aayas and peons are given two pairs of uniforms once in two years and the same cannot be demanded for other employees. The said demand is not justified by any law. So far as demand to provide rotation system for watchmen, it is submitted that such a demand is neither feasible or tenable nor desirable. The existing system is not prohibited under any law and it is for the management to run the affairs of the school by arranging deployment, etc. as required. The demand for compensation of Rs.1.5 lakh and provision for compassionate appointment to the dependants of the deceased in case of death of an employee while on duty are wholly untenable. However, in deserving cases, providing employment is always considered. No provision to any compensation can be made. However, if an employee dies on duty, he may be entitled to compensation under the 6 Workmen's Compensation Act, if the said Act is applicable to educational institutions.
The demands or the claims made by the workmen are only misconceived and not required for adjudication by the Tribunal. The workers union is threatening the management in number of ways and the management being a minority educational institution had to rush to the District administration for protection of the minority institution which belonging to the minority community. The provisions of Employees' Provident Fund and Miscellaneous Act, Employees Pension Scheme framed under the Act and the Employees Deposit Linked Insurance Scheme also under the Act are applicable to the petitioner-School and the management has been making contributions as required under the Act.
The learned counsel would further contend that the 2nd respondent-Labour Court answered the reference in favour of the workmen except the first claim relating to regularisation of services of the temporary workmen who completed the service of six months as on 01.09.1997. He vehemently contended that the demands raised by the workmen are not supported by any law. The Labour Court erred in directing the Management to fix the pay scales of Class-IV employees and drivers on par with the employees of the State Government working in the Government educational institutions. The Labour Court has no jurisdiction to direct 7 the private un-aided schools governed by the provisions of the Andhra Pradesh Education Act or recognized by the State Education Department to issue direction for fixation of pay scales to the employees. There is no statute which regulates the fixation of pay scales of the employees of the petitioner- School. The institution depends on the funds generated from fee collection and the funds of the Trust and the Management has to fix the pay scales taking into consideration of the financial status of the institution. The Labour Court failed to see that the employees are being paid more than the employees working in other private institutions in the locality. There is no material on record to show that the pay scales of the non-teaching staff in the petitioner-School are neither just nor fair and no such claim has also been made. On the contrary, the petitioner-School established that the pay scales of its employees are better than the scales given to its employees in institutions similarly placed. The school is not receiving any grant-in-aid. There is no obligation to pay Government scales being a minority institution.
The learned counsel would further contend that the principles of 'equal pay for equal work' as enshrined in Article 39(D) Part IV of the Constitution of India in respect of private unaided minority educational institutions could not be made applicable. Under Article 30(1) of the Constitution of India, minority educational institution has a right to establish and administer educational institutions. Right to manage also 8 includes fixation of pay scales etc. There is no basis for the Labour Court to give a direction that free education is to be provided to poor children of regular employees. There is no obligation for the Management to provide free education to the children of the employees and is not a condition of service. The Labour Court should have seen that adequate arrangements are made by the Management for provision of shoes and raincoats to watchmen and there is no justification for directing furnishing of shoes and raincoats individually to watchmen and drivers every year and two uniforms to male employees of Class-IV and two sarees to lady employees in Class-IV every year. There is no such rule with regard to Government or Aided institutions and there is no basis or justification for the Labour Court to direct the provision of rotation system of night shifts and day shifts to watchmen. The Labour Court is not justified in directing the Management to provide compassionate appointment when an employee dies in harness as in the case of public employment. The petitioner-School is a minority institution. The workmen are non-teaching staff of private unaided school and not a factory or an industry to issue directions for provision of shoes, raincoats, uniforms, sarees, etc. The finding of the Labour Court that the petitioner-School is not a minority institution is beyond its jurisdiction and the Labour Court has no power or authority to issue such a declaration. The Labour Court erred in concluding that there was withdrawal of any 9 customary concession or privileges of the workmen. Grant of any privilege or advantage at random or for one or two years cannot constitute customary concession or privilege as contained in Clause IV of Schedule II for the Labour Court to have exercise its power under Section 7(7) of the Act. Hence, the Labour Court exceeded its jurisdiction in issuing directions 1 to 5 of the award. The award of the Labour Court is irrational, unreasonable and cannot be sustained on law or on facts. The Labour Court failed to take into account the benefits granted to the employees under the Employees Provident Fund Act and the welfare schemes under the Act adopted by the school while considering the claims of the workmen. The Labour Court failed to see that no such concessions, allowances and pay scales are paid by the educational institutions similarly situated as the petitioner.
4. Per contra, Sri Nuthalapati Krishnamurthy, learned counsel for the 1st respondent-Union, would contend that the petitioner-School is not a minority institution. In support of his contention, he placed his reliance on the judgment reported in A.P. Christians Medical Educational Society Vs. Government of A.P. and Alice Manoranjani and another1, wherein it is held that what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. He further contend that there are seven drivers and one cleaner 1 1986(2) SCC 667 10 who are regularly operating the school car, vans and school bus and also one driver-cum-peon suppose to operate a four wheeler in case of necessity. The workmen raised demands before the petitioner-Management. When the Management was not conceded their demands, the workmen approached the Assistant Commissioner of Labour-III and raised dispute. On failure of the conciliation proceedings, the Assistant Commissioner of Labour submitted the failure report to the State Government. The Government of Andhra Pradesh referred the dispute under Section 10(1) of the Act and the Labour Court answered the reference based on the evidence before it. The demands are genuine and supported by evidence. The employees of the petitioner-institution are entitled for provision of all demands and they are supported by law. The rules applicable to the Government schools are applicable to the petitioner-institution even though it is a minority institution. The petitioner-institution is collecting school fees and the demands would not interfere with the administration of the petitioner-institution as a minority institution under Article 30 of the Constitution of India. The Labour Court, on appreciation of the evidence before it, came to the conclusion that the demands raised by the workmen were legally sustainable and accordingly directed the petitioner-Management as follows:
11
1) to fix the pay scales of Class-IV employees and drivers on par with the State Government employees of the same order and similarly placed in Government educational institutions;
2) to provide free education to the two children of a regular employee in the management schools;
3) to provide shoes and rain coats individually to the watchmen and the drivers every year and two uniforms to the male employees of Class IV and drivers and two sarees to the lady employees in Class IV service every year;
4) to provide rotation system of night shifts to day shifts particularly to the watchmen; and
5) to provide employment on compassionate grounds in case of death of an employee in harness while in service."
Hence, there is no illegality or irregularity which calls for interference of this Court under Article 226 of the Constitution of India.
5. In the facts and circumstances of the case and in considered view of this court that the Labour Court answered the reference in favour of the 1st respondent-Union stating that the demands raised by them are justified and directed the petitioner-Management as stated supra and is not supported by any legally admissible evidence and contrary to law.
6. The petitioner-institution is governed by the A.P. Educational Institutions (Establishment, Recognition, 12 Administration and Control of Schools under Private Management) Rules, 1993 was issued through G.O.Ms.No.1 dated 01.01.1994 as amended by G.O.Ms.No.58 dated 13.07.2006. As per Rule 16 and 17 of the Rules, 1993, the governing body of the school alone is competent to fix the salaries of the staff keeping in view the financial position of the institution. As per Rule 17(5), the governing body shall fix the salary structure of the staff taking into account the revenue position of the institution and other requirements mentioned under sub-rule (4) of Rule 18 for which amounts are to be earmarked. As per the Government Orders, the Managements have made their own arrangements for the payment of salaries to the persons employed in private un-aided posts according to their financial position. Nowhere, it is mentioned that salaries of the teachers appointed in un-aided posts have to be paid on par with other employees in aided posts. The persons appointed in un-aided posts will work only with an understanding in between them and management.
7. Admittedly, the petitioner-institution is not getting any aid either from the State or Central Government. The petitioner-Management in addition to the salary to the workmen, extended certain other benefits like gratuity to those who have completed 5 years of service, medical and LTC every year, basic + DA one month after confirmation, perennial pension plan for those who have completed 15 13 years of service etc. are provided in case of confirmed employees. The petitioner-Management is also allowed pay scales to the Class-IV employees in the time scale of Rs.500- 30-800-40-1200-50-2400/-. In addition to that, 60% of Basic Pay, Special DA minimum Rs.250/- and maximum Rs.750/- according to the Basic Pay, Additional DA of Rs.250/-, City Allowance of Rs.50/-, CCA of Rs.50/- and Gross of Rs.1750/-. There is no justification for the demands made by the employees to pay the wages on par with the Sate Government employees. The employees of the petitioner- institution could not demand the payment of pay scales of the employees working in the Government educational institutions.
8. Hence, in the considered view of this Court, the demands made by the respondent-Union are not justified and there is no obligation to the petitioner to provide the benefits demanded by the 1st respondent-employees under any statute. The petitioner-institution being a minority institution, it has every right to administer the institution of their choice. Any law or executive direction seeking to infringe the substance of that right under Article 30(1) of the Constitution of India to that extent is void. The Labour Court, on mere surmises and conjectures and without there being any legal support for the demands raised by the employees, answered the reference in favour of the respondent-Union and thereby directing the petitioner- 14 Management as stated supra is illegal and not obligated by any statutory provisions. Hence, this Court finds that the Labour Court exceeds its jurisdiction in passing of the award. Further, the Labour Court committed error of fact and error of law in passing the award which warrants interference of this Court under Article 226 of the Constitution of India.
9. Accordingly, the Writ Petition is allowed setting aside the award dated 18.04.2001 passed by the Industrial Tribunal-cum-Labour Court, Visakhapatnam, in I.D.No.185 of 1998. No order as to costs.
10. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.
____________________________ JUSTICE M.GANGA RAO 28-09-2018 anr 15 THE HON'BLE SRI JUSTICE M.GANGA RAO WRIT PETITION No. 16079 OF 2001 28-09-2018 anr