Madras High Court
The Workmen Employed In Padma Seshadri vs The Management Of Padma Seshadri Bala ... on 30 April, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2015 CORAM : THE HON'BLE Ms.JUSTICE K.B.K.VASUKI W.P.No.8346 of 2005 The Workmen employed in Padma Seshadri Bala Bhavan Senior Secondary School, Chennai rep. by its President, Southern Employees Association .. Petitioner Vs. 1.The Management of Padma Seshadri Bala Bhavan Senior Secondary School, No.7 Lake First Main Road, Nungambakkam, Chennai -34. 2.The Presiding Officer, Principal Labour Court, City Civil Court Buildings, Chennai-1. .. Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for a issuance of Certiorarified Mandamus, calling for records from the second respondent Labour Court relating to the award dated 12.4.2004 in I.D.No.655 of 1997 quash the same and consequently direct the first respondent to grant the monetary benefits of the demands referred for adjudication by the Government of Tamil nadu G.O.(D) No.932 Labour & Employment Department (A2) dated 17.10.1997 with effect from 1.1.1996 together with interest at 10% p.a. For Petitioner : Mr.K.S.Govindaprasad For Respondents : Mr.K.Prahalad Bhat for M/s.Satish Parasaran (R1) O R D E R
The writ petition is filed by the petitioner, Southern Employees Association, against the award dated 12.4.2004 made in ID.No.655/1997, denying the demand made by the petitioner on behalf of the workmen employed in Padma Seshadri Bala Bhavan Senior Secondary School, Chennai, for certain monetary benefits as per G.O.(D) No.932 Labour and Employment (A2) Department dated 17.10.1997 with effect from 1.1.1996 together with interest at 10% p.a.
2.The issue raised by way of Industrial Dispute for adjudication before the second respondent Labour court is for payment of salary, allowances and other allowances, such as, bonus, apparel etc. for Ayahs, Watchmen and Attenders on par with the Government servants of equal cadres. The workmen represented by the President of Southern Employees Association, in their claim statement filed under section 2(k) of the Industrial Disputes Act 1947 (hereinafter shortly referred to as Act) stated that as per the Rules and Regulations (Bye-Laws) of the Central Board of Secondary Education (CBSE) to which the first respondent Management is affiliated to, all the workmen employed by the first respondent should be paid salary and allowances as per the scales fixed by the Government from time to time and the workmen are also entitled to uniforms and chappals and other benefits such as bonus granted to the Government servants, whereas the first respondent Management failed and neglected to implement the same.
3.The claim made by the workmen was before the Tribunal seriously denied by the first respondent Management on the following grounds: (i)The first respondent institution is run by a Trust represented by its Board of trustees on the basis of 'no profit motive' and is not an aided school, as such, the Government Orders are not applicable to this institution. (ii)The management as per its own policy, has revised the salary of the workers with effect from 1.6.1998 which is comparable to the Government scales, but the workmen have no right to claim the same as per the G.O., which is not enforceable against the institution. (iii)The uniforms are issued by practice for identification purpose to security/drivers/conductors and not for all workmen. (iv)The demand for bonus is unsustainable in law, as the Bonus Act is not applicable to this institution. The first respondent Management in their additional counter statement further stated that the Dearness Allowance of the employees had already been raised and the employees were also paid arrears. It is further stated therein that the representative of all staff members (including teaching and non teaching and class 4 employees), after discussions with the Management of the institution, entered into a memorandum of agreement on 20.4.2000 and signed the settlement under section 18(1) of the Act and majority of non teaching staff including class 4 employees of the first respondent institution numbering 87 out of 114 employees including the members of the petitioner Union have also signed the settlement and except 27 employees who are the members of the petitioner union, rest of the employees already received benefit under the agreement. It is also stated therein that the first respondent being unaided private educational institution, is run exclusively from and out of the fees collected from the students and no additional financial burden can be cast on the first respondent beyond the settlement already arrived at by the employees and the Management and the claim made by the petitioner Union hence becomes infructuous.
4.The petitioner Union in their rejoinder challenged the fair and reasonableness of the settlement. It is according to the petitioner Union, illegally obtained by canvassing the employees individually to enter into the settlement, which is more beneficial to the first respondent management and the same amounts to unfair labour practice.
5.Both the parties have in support of their respective contentions, let in oral and documentary evidence before the second respondent Labour Court. The Labour Court after due contest, dismissed the claim statement as not justified on the ground that the first respondent institution is not an industry and there is no satisfactory and acceptable evidence adduced on the side of the petitioner to show that the petitioner Union is duly empowered to raise this dispute. Aggrieved against the same, the workmen represented by the President of Southern Employees Association, came forward with the present writ petition before this Court.
6.Heard the rival submissions made on both sides and perused the records.
7.As already stated above, the claim made by the workmen of the respondent Management is for payment of salary and other allowances such as bonus etc., on par with the Government employees and for getting uniform and chappels to all workmen. The claim so made is on behalf of Ayyas, Watchmen and Attenders employed in the respondent management. The claim is based on rules and regulations i.e., Bye laws of Central Board of Secondary Education (hereinafter shortly referred to as 'CBSE'), to which the respondent Management is affiliated to. During the pendency of the Industrial Dispute, the representatives of the workmen i.e. both teaching and non teaching employees including class IV employees entered into settlement under section 18(1) and the same was signed by majority of the employees among non-teaching staff and class IV employees. According to the particulars furnished by the respondent management, 87 out of 114 employees i.e., majority of employees of non-teaching and class IV employees, entered into section 18(1) settlement and the employees also received benefits under the settlement and the remaining workers who were affiliated to the petitioner Union, have been agitating their rights by way of Industrial dispute and by way of the present writ petition.
8.The labour court has dismissed the claim on the following three grounds: (i)the respondent institution is run by the Board of trustees and is not an industry. (ii)Southern Employees Association failed to prove that the same is duly empowered to raise the issue. (iii)The respondent management being an unaided school, the GO issued by the Government is not binding on them. Other issue which is raised in this writ petition is whether the respondent institution is governed by the Bye laws of CBSE, New Delhi and whether non-teaching staff are entitled to pay and allowances on par with the Government servants of the corresponding category.
9.Both the learned counsel on record for and against the relief sought for herein, cited the following authorities:
On the side of the petitioner:
(i)(1997) 3 SCC 571 (K.Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another)
(ii)(2000) 7 SCC 109 (G.B.Pant University of Agriculture & Technology, Pantnagar, Nainital v. State of UP and others)
(iii)Division Bench order of this court in a batch of writ appeals in WA.1962/2005 etc dated 28.4.2008 (The Special Officer, Salem Co.op. Sugar Mills, Matriculation Higher Secondary School, Mohanur, Namakkal District v. All Teachers Front rep. by its General Secretary, Coimbatore and others) On the side of the respondent Management:
(i)(1972) 4 SCC 188 (Kumari Regina v. St. Aloysius Higher Elementary School and another)
(ii)(1976) 4 SCC 736 (Herbertsons Ltd v. The workmen of Herbertsons Ltd and others)
(iii)(2011) 13 SCC 760 (Satimbla Sharma and others v. St.Paul's Senior Secondary School and others)
(iv)2014-4-LW.187 (The Management of Bakthavatchalam Vidyashram rep. by its Principal v. the Workmen rep. by the President and another).
10.In the case decided by the Hon'ble Supreme Court reported in (1997) 3 SCC 571 (K.Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another), the issue involved is whether the daily wage employees are entitled to seek enforcement of government orders under Article 226 of the Constitution of India. In the case above cited, the demand made by those employees was that they are entitled to parity of pay scales on par with the Government employees, as per executive instructions of the Government. When the writ petition was filed seeking equal pay for equal work on par with the Government employees and when the maintainability of the writ petition for enforcement of such right was questioned, the Hon'ble Apex Court answered the same in favour of the employees. It is observed therein that the private institutions cater to the need of providing educational opportunities and the teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the Government and when an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. However, the said observation is not applicable to the facts of the present case as the respondent Management staff are bound by CBSE Bye-laws.
11.It is true that the Division Bench of this Court, while deciding the batch of writ appeals in WA.1962 of 2005 etc, after referring to various decisions of the Hon'ble Supreme Court and the Division Bench of this court, upheld the claim of the teachers for equal pay on par with the teachers, who are working in Government schools. It is observed by the Division Bench that the standard expected of a person intending to serve as a teacher could be achieved only when they are placed equally with the same class of people in Government institutions and their rights are well insulated by the protective cover of Rules contained in Code of Regulation for Matriculation Schools, which cannot be chiseled out by the plea that the school managements derive pitiable proceeds and when such rights are absolute in character, there could be no stumbling-block for the Government to issue executive fiat, regulating their pay as found in the said Code of Regulations. It is further observed therein that a school or a college is personified through its teachers who put together play vital role and make focal point on which outsiders look at it. The teachers are the hub, on which all the spokes of the school are set around whom they rotate to generate good result. While ill-paid teachers may not strictly be stated to be a cause for dropping grade of institution, well paid teachers would prove and could definitely claim that improvement in standard of education was by their leaps and bounds. The functional efficacy of a school very much depends upon the efficient and dedication of well placed teachers and the pictograph of a school can very well be ascertained by the productive teachers working therein. Degradation of creativity in the teachers could not be tolerated, since they are affiliated with the responsibility of producing good students. As such, matriculation school teachers are entitled to equal pay on par with the teachers working in government schools.
12.However, as rightly argued by the learned counsel for the respondent Management, the employees involved in the case above cited belong to Matriculation School, which is governed by the Code of Regulation of Matriculation Schools in Tamil Nadu and they are bound by Chapter V, in proviso 16(ii) of the Code of Matriculation Schools, which provides for teachers and non teaching staff in Matriculation schools to be paid salary at least on par with the Government scales of pay revised from time to time, as such, the observation made by the Division Bench is not applicable to the present respondent management, who is governed by bye-laws of CBSE.
13.The learned counsel for the respondent management would, in support of his contention that the respondent Management is not bound either by the orders issued by the Government or bye-laws of CBSE, cite the following decisions: (i)(1976) 4 SCC 736 (Herbertsons Ltd v. The workmen of Herbertsons Ltd and others); (ii)(2011) 13 SCC 760 (Satimbla Sharma and others v. St.Paul's Senior Secondary School and others) and (iii)2014-4-LW.187 (The Management of Bakthavatchalam Vidyashram rep. by its Principal v. the Workmen rep. by the President and another).
14.As far as the judgment reported in (1976) 4 SCC 736 (Herbertsons Ltd v. The workmen of Herbertsons Ltd and others) is concerned, the same is dealt with the effect of section 18(1) settlement entered into between majority of the workmen and new union, on the dispute pending with the old union. In the case decided by the Supreme Court, the employer filed appeal before the Supreme Court against the award given by the Industrial Tribunal in the reference brought about by workmen on behalf of all the workmen. While the appeal was pending most of the workers resigned from the old union and joined the new Union and the employer/company recognised the new union and informed the old union of its derecognition. Thereafter, the company entered into a memorandum of settlement under section 18(1) with the new union in substitution of the award pending determination in the appeal and the new union was so added in the appeal before the Supreme Court and the company prayed for disposal of the appeal in terms of the settlement. The Apex Court directed the tribunal to determine whether the settlement is valid, fair and just and the Tribunal on consideration of the evidence given by the witnesses and documentary evidence, concluded against the settlement and such finding was challenged before the supreme court. The Supreme Court allowed the appeal by holding that a voluntary settlement if fair and just, could be allowed to be binding on all the workers, even if a very small number of workers were not members of the majority Union and when a recognised union negotiates with an employer, the workers as individuals do not come into the picture and it is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour and the same would be the normal rule and we cannot altogether rule out exceptional cases, where there may be allegations of malafides, fraud or even corruption or other inducements. It is further held therein that the number of workers supporting the dissident union would matter to decide whether the settlement accepted by the majority of the workmen is to be considered as just and fair. It is also held that when negotiations take place which have to be encouraged, particularly between labour and employer in the interest of general peace and well being, there is always give and take.... When the settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of other aspect, so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust. Also the parties may agree for less. The question of adjudication has to be distinguished from a voluntary settlement and the settlement therefore cannot be judged on the touchstone of the principles, which are laid down by the Supreme Court for adjudication. It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication.... The Supreme Court in that case, having regard to the totality of the terms of the settlement and the fact that the union backed by a large majority of workmen has accepted the settlement in the course of collective bargaining and finally held that the need for industrial peace and harmony impelled them not to interfere with the settlement and held that the award pending appeal will be substituted by the settlement.
15.The observation as stated above is squarely applicable to the facts of the present case, wherein also, the majority of the workmen have through their representative entered into section 18(1) settlement and majority of the individuals approved the same by independently affixing their signature. Considering the number of workers who entered into such settlement, it cannot be denied that majority of the workers have through their representative negotiated with the management and finally arrived at settlement. In pursuance of the settlement, the majority of the workers received benefits of the same and the respondent management has been from time to time, on their own, also implemented 6th pay commission as per the instructions of the Government. That being so, the workers who filed the claim petition challenging the genuineness of the settlement and reiterated the same demand as raised in the industrial dispute, are also bound by the same and they cannot be permitted to pursue the remedy independently in this writ petition.
16.Other serious argument advanced on the side of the petitioner is that one of the conditions imposed for granting recognition to the respondent management is to pay 'equal pay for equal work' on par with the Government employees and having obtained recognition, the respondent is bound by the condition so imposed by the authority concerned and is hence bound to implement the same in true letter in spirit. This argument is answered by the Hon'ble Supreme Court in the decision cited on the side of the respondent, reported in (1972) 4 SCC 188 (Kumari Regina v. St. Aloysius Higher Elementary School and another), wherein, the Hon'ble Supreme Court categorically observed that to achieve uniformity and certainty in the exercise of executive power and to avoid discrimination, the Government would have to frame rules, which, however would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid and if such rules are to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of the school therefore would commit a breach or non-compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. But the enforcement of such rules is a matter between the Government and the management and a third party, such as a teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management on the ground of a breach or non-compliance of any of the rules".
17.The Division Bench of our High court has in the judgment reported in 2014-4-LW.187 (The Management of Bakthavatchalam Vidyashram rep. By its Principal v. The Workmen, rep. by the President, Southern Employees Association and another) while dealing with similar issue of demand made to the Management of Bakthavatchalam Vidyashram, by the workmen represented by the President, Southern Employees Association, by relying on CBSE bye-laws, answered against the workmen stating that CBSE bye laws have no statutory force and it cannot be the sole basis to claim salary of Drivers, Conductors and Ayahs on par with the Government School staff. It is held so, by following the decision of the Hon'ble Supreme Court reported in (2011) 8 MLJ 554 (SC) (Satimbla Sharma v. St.Paul's Senior Secondary School), wherein, it is held that teachers of Private Unaided Schools have no right to claim salary equal to that of their counterpart working in Government Schools and Government Aided schools and the reliance placed claiming equivalent salary under Clause 5(b) of the Council for Indian School Certificate Examinations, stating that the salary, allowances and other benefits of the staff of the affiliated school must be comparable to that prescribed by the State Department of Education as the said condition for provisional affiliation are not statutory and are not enforceable. The Division Bench of this Court in para 12 of the same judgment referred to the order made in WP.Nos.1567 and 1588 of 2007, in and under which, similar relief prayed by Padma Seshadri Bala Bhavan Senior Secondary School Teachers and Staff Welfare Association relying upon the circular issued by CBSE dated 27.7.2005 seeking salary and other benefits under VI pay commission from 1.1.1996 was considered and was negatived by order dated 11.2.2008 by stating that the CBSE Affiliation Bye-laws issued with effect from 28.1.1988 have no statutory force and based on the said circular, claim of salary on par with the Government School staff cannot be ordered and the said order was followed by the decisions of the Hon'ble Supreme Court reported in (1972) 1 SCC 492 (State of Tamil Nadu v. S.K.Krishnamurthi), (2002) 10 SCC 78 (State of Haryana v. Champa Devi) and (2006) 7 SCC 680 (Sushmita Basu v. Ballygunge Siksha Samity).
18.At this juncture, the learned counsel for the petitioner submitted that the judgment of the Division Bench of this court reported in 2014-4-LW.187 (cited supra) filed by the management of Bakthavatchalam Vidyashram was challenged by way of SLP before the Supreme Court and the SLP is pending and CBSE is also impleaded as one of the respondents therein, but the Supreme Court is not inclined to grant any interim order therein. In my considered view, unless and until the issue is finally decided by the Apex court, the decision of the Division Bench in 2014-4-LW.187 following the Apex court decision in respect of Private Unaided Schools governed by the provisions of Council for Indian School Certificate Examinations prescribed by the State Department of Education and the earlier Division Bench order of this Court relating to same issue in respect of the respondent Management, quoting the earlier judgments of the Supreme Court, can be applied to the facts of the present case.
19.The Hon'ble Apex Court in paras 26 and 27 of the decision reported in (2011) 13 SCC 760 (cited supra) refused to issue a writ of mandamus to the Management for complying with the conditions of provisional affiliation of schools prescribed by the Council for the Indian School Certificate Examinations to pay salary and allowances and other benefits of the staff of the affiliated school on par with that prescribed by the State Department of Education for the reason that such conditions for provisional affiliation are not statutory provisions or executive instructions, which are enforceable in law. It is observed therein that unless the recommendations are incorporated in an executive instruction or a statutory provision, they cannot be sought to be enforced through court of law.
20.Thus, for the discussions held above, this Court is on different ground, not inclined to interfere with the impugned award of the labour Court and the petitioner is hence dis-entitled to get any relief in this writ petition.
21.In the result, the writ petition is dismissed. No costs.
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Index:Yes/No
Internet:Yes/No 30.04.2015
To
1.The Presiding Officer,
Principal Labour Court,
City Civil Court Buildings, Chennai-1.
K.B.K.VASUKI, J.
rk
WP.No.8346 of 2005
30.04.2015