Madras High Court
The Society Of The Franciscan Sisters vs The State Of Tamil Nadu on 7 September, 2011
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.9.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition Nos.4353, 4384, 4385, 4984, 5113, 8805 to 8807, 8808, 10201, 12600 of 2004, 38758 of 2003, 18336, 18337, 4975, 5159, 6858, 9809, 9908, 14452 and 27980 of 2004 and WPMP.Nos.5122/2004, 5167 & 5168/2004, 10297 & 10298/2004, 10300/2004, 10301/2004, 14706/2004, 46936/2003 8082/2004, 9809/2004, 11584/2004, 17112/2004 and 34001 of 2004 W.P.No.4353/2004 The Society of the Franciscan Sisters of St.Joseph, represented by its Sr. Venantia, Superior General F.S.J. Generalate .. Petitioner -Vs- The State of Tamil Nadu, represented by its Secretary to Government, Labour and Employment (J1) Dept., Fort St.George, Chennai-9. .. Respondent Writ petition filed under Article 226 of the Constitution of India praying this Honourable Court to issue a writ of declaration declaring G.O.(2D).No.34. Labour and Employment (J1) Department dated 5.5.2003, fixing Minimum wages for various categories of persons employed in the petitioner institutions, annexed in the writ petition, as null and void. For petitioner in W.P.Nos.4353, 4384, 4385, 4984, 5113, 8805 to 8807, 8808, 10201 and 12600 of 2004 : Mr.A.Xavier Arul Raj. For petitioner in WP.No.38758/2003 and 18336, 18337/2004 : Mr.S.P.Harikrishnan for M/s.La Law. For petitioner in W.P.No.4975/2004 : Mr.P.M.Subramaniam For petitioner in W.P.No.5159/2004 : Mr.K.Soundararajan For petitioner in W.P.No.6858/2004 : Mr.P.Chandrasekaran For petitioner in W.P.No.9819/2004 : Mr.P.Thiagarajan For petitioner in W.P.No.9908/2004 : Mr.A.Sivaji For petitioner in W.P.No.14452/2004: No appearance For petitioner in W.P.No.27980/2004: No appearance. For respondents in W.P.Nos.4353, 4384, 4385, 4984, 5113, 8805 to 8807, 8808, 10201,12600 of 2004, 38758 of 2003, 18336, 18337, 4975, 5159, 6858, 9809, 9908, 14452 and 27980 of 2004 & For R1 in W.P.No.14452/2004 : Mr.S.Gomathinayagam Addl. Advocate General-II Assisted by Mr.S.V.Duraisolaimalai A.G.P. For R2 in W.P.No.14452/2004: No appearance. COMMON ORDER
There are twenty one writ petitions originally filed on the file of this Court challenging two Government Orders in G.O.No.1533, Labour dated 20.7.1988 notifying the intention to include the employment in coaching academics in Part I of the Schedule of the Minimum Wages Act, 1948 and the consequential G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 fixing minimum wages for the said employment as null and void. One W.P.No.37794 of 2003 has been de-linked by this Court. Barring this one writ petition, all the writ petitions are taken up for common disposal. With the consent of all the parties, Common Order is passed.
2. Brief facts leading to the filing of the writ petitions are as under: The writ petition in W.P.No.4353 of 2001 has been filed by the Society of the Franciscan Sisters of St.Joseph, represented by its Vice President stating that the petitioner Society is a religious, charitable and educational society, registered under the Societies Registration Act and after being established, it is running some primary and nursery schools apart from matriculation schools.
3. Therefore, the learned counsel for the petitioners submits that all the institutions run by the Society are non-profit organisation and are situated in remote areas, covering the students of poor and downtrodden and all the schools are governed by the Tamil Nadu Private Schools (Regulation) Act, 1973 and common labour laws cannot be applied to the educational institutions. While so, the first respondent ought not to have issued G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 fixing minimum wages for the said employment in petitioner's institution. While exercising the power conferred under Section 27 of the Minimum Wages Act, 1948, the State Government has wrongly issued G.O.No.1533, Labour dated 20.7.1988 and included several primary educational institutions under the Act, running on commercial line in part I. Adding further, the learned counsel for the petitioners submits that the intention of the State Government in issuing G.O.No.1533, Labour dated 20.7.1988 is vague and ambiguous, because it says that this Government Order will be made applicable only to the schools running on commercial lines. So far as the petitioners Institutions/ schools are concerned, they are running on charitable motive. Therefore, by issuing G.O.No.1533, Labour dated 20.7.1988 and subsequent G.O.(2D) No.34, Labour & Employment, dated 5.5.2003, the Government cannot fix minimum wages even for the petitioners employed in the educational institutions, run by the petitioners Society. All the institutions are not carrying on business on commercial line, as they are all charitable institutions. Elaborating his arguments, the learned counsel for the petitioners submits that various later enactments like Industrial Disputes Act, Payment of Gratuity Act, Shops and Establishments Act do not include the teachers, as they are neither workmen nor employees. He also relied upon a Judgment of the Apex Court in Ahmedabad Pvt. Primary Teachers' Association v. Administrative Officer and Others (AIR 2004 SC 1426) for the proposition that no teacher is an employee and the State Government is incompetent to bring the teachers under the Fixation of Minimum Wages Act. He also relied upon a decision of the Apex Court in Haryana Unrecognised Schools Association Vs State of Haryana (1996) 4 SCC 225), wherein the notification issued by the Government of Punjab and Haryana fixing the minimum rate of wages to the petitioners in Educational Institutions has been struck down by ruling that the teachers of educational institutions cannot be brought within the purview of Minimum Wages Act. He pleaded further that the Judgments of the Apex Court given under Article 141 of the Constitution of India, is nothing but declaration of law and the same will be equally applicable to the case of the petitioners. On that basis, the learned counsel for the petitioners prayed for quashing both the abovesaid Government Orders.
4. Adopting the abovesaid argument by the learned counsel appearing for the petitioners in other writ petitions in W.P.No.4975/2004, Mr.P.M.Subramaniam, Mr.K.Soundararajan, the learned counsel appearing for the petitioner in W.P.No.5159/2004 and Mr.P.Chandrasekaran, learned counsel appearing for the petitioner in W.P.No.6858/2004 prayed this Court for allowing the writ petitions and they have also pressed into service the Judgment of the Apex Court reported in AHMEDABAD PVT. PRIMARY TEACHERS' ASSN. V. ADMINISTRATIVE OFFICER AND OTHERS (2004) 1 SCC 755, Judgment of the Apex Court in AIRFREIGHT LTD. VS. STATE OF KARNATAKA AND OTHERS (1999) 6 SCC 567 and one another Judgment of the High Court of Judicature, Jharkhand reported in CHACHA NEHRU VIDYAPITH V. AUTHORITY UNDER M.W.A (2001 (1) L.L.N. 1193).
5. But, however, opposing the abovesaid arguments, Mr.S.Gomathinayagam, learned Additional Advocate General appearing for the respondents, elaborately made his arguments. While dealing with the Judgment of the Apex Court in the case of HARYANA UNRECOGNISED SCHOOLS ASSOCIATION VS. STATE OF HARYANA (1996) 4 SCC 225), he has made a submission stating that so far as the teachers are concerned, the Government Orders could not be held applicable, but at the same time, in respect of non-teaching staff are concerned, he has relied upon the Judgment of the Division Bench of Jharkhand High Court, reported in CHACHA NEHRU VIDYAPITH VS. AUTHORITY UNDER M.W.A. (2001(1) L.L.N. 1193) and contended that the two Government Orders viz., G.O.No.1533, Labour dated 20.7.1988 and G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 can be very well held valid in respect of the application of provisions of Minimum Wages Act for payment of minimum wages to the non-teaching staff. This submission also has not been answered by any one of the learned counsel appearing for the petitioners.
6. Though a Judgment of His Lordship Mr.M.Y.Eqbal (while His Lordship then was sitting in Jharkhand High Court) in CHACHA NEHRU VIDYAPITH V. AUTHORITY UNDER M.W.A (2001 (1) L.L.N. 1193) has come handy to answer the issue raised in the present writ petitions, it is useful to refer the ratio laid down by the Division Bench of the High Court of Judicature, Jharkhand as under:
"....The question now falls for consideration is whether the employees of the educational institutions other than the teachers are also excluded from the purview of the definition of employee under S.2(i) of the Act. At this stage, it is worth to mention here that in the case of Haryana Unrecognised School Association [1996 (2) L.L.N. 271] (vide supra), the Apex Court has not held that all the employees of educational institutions are excluded rather question raised and decided was only in respect of teachers of educational institutions.
As noticed in the instant case, the claimant on whose behalf application for minimum wages were filed are none else but junior clerk, peon, mali, maid-servant and rickshaw-pullers. Admittedly, these employees are doing unskilled, semiskilled or skilled work. The employees of these categories working in the employment of any educational institution certainly come within the purview of the Act and they are entitled to get minimum wages time to time fixed under the Act.
7. The above observation deserves respectful acceptance by this Court as well. Therefore, non-teaching staff, who are in the employment of educational institutions are certainly come within the purview of the Minimum Wages Act and therefore, they are entitled to get minimum wages fixed from time to time under the Act.
8. As per the above said Judgment, non-teaching employees of a school are entitled for minimum wages but the teachers are held not covered under the Act. On the basis of the ratio laid down in the abovementioned Judgment, the learned counsel for the petitioners prayed for allowing the writ petitions.
A useful reference can be had from the Judgment in Miss. A.Sundarambal v. Government of Goa, Daman and Diu and others (1989-I-LLJ-61).
9. While dealing with the object of the Minimum Wages Act, the Honourable Apex Court in the Constitution Bench decision in the case of M/s. Bhikusa Yamasa Kshatriya and another v. Sangamner Akola Taluka Bidi Kamgar Union and others (1963-I-LLJ-270) held as follows:-
"The object of the Act is to prevent exploitation of the workers, and for that purpose it aims at fixation of minimum wages which the employers must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which by reason of Act."
10. No doubt, the case of the petitioners has to be allowed only in respect of the applicability of the provisions of the Minimum Wages Act against the educational institutions in respect of non-teaching staff only. But, in respect of teachers, as the ratio laid down by various Judgments of the Apex Court, clealrly laid down that the provisions of the Minimum Wages Act cannot be applied to bring the petitioners under the provisions of the Act, I am of the view that both these Government Orders can be held partly valid, only in respect of non-teaching staff, but not against the teachers working in the schools.
11. It is also relevant to mention one another argument advanced by the learned Additional Advocate General that the purpose and the object for which these two Government Orders have been introduced is only to safeguard the teachers at the hands of the employers of the private educational institutions, therefore, when Section 5 of the Minimum Wages Act, 1948 gives enormous power to the appropriate Government, these two Government Orders viz. G.O.No.1533, Labour dated 20.7.1988 and G.O.(2D) No.34, Labour & Employment, dated 5.5.2003, have been issued. Though the Government Order No.1533 was issued in the year 1985, the subsequent notification could not be issued in view of not following the procedure under Section 5 of the Minimum Wages Act, 1948 to enable the Government to go into the question of minimum wages or salary given to the teachers and non-teaching staff working in the educational institutions. Subsequently, the State Government was not in a position to issue proper notification in the Official Gazette so as to effect the said Government Order. However, when the second Government Order was issued, nothing affected by G.O.(2D) No.34, Labour & Employment, dated 5.5.2003, the petitioners have challenged not only G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 but they have also challenged the original Government Order in G.O.No.1533, Labour dated 20.7.1988.
12. During these period from 1988 till the consequential G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 was issued on 5.5.2003, since the petitioners schools have not been put to any prejudice, this Court cannot find fault with the petitioners in not challenging the first G.O.No.1533, Labour dated 20.7.1988.
13. Therefore, the question of delay in filing the writ petitions cannot be held against the petitioners. In any event, as rightly submitted by the learned counsel appearing for the petitioner, since the issue has been made clear by the Apex Court in the Judgments mentioned above, as I mentioned earlier, the Judgment laid down by the Apex Court under Article 141 of the Constitution of India declaring the law, has got binding force, hence the question raised in all the writ petitions is answered against the latches, as the delay in filing writ petition cannot postpone the implementation of the Judgments by the Apex Court.
14. It is also relevant to borrow some of the words from the Judgment of HARYANA UNRECOGNISED SCHOOLS ASSOCIATION Vs. STATE OF HARYANA (1996 II LLJ 639) and the same is extracted as under:
"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 construed as skilled or unskilled manual 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 care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching."
15. So, in view of the above reasoning, both the Government Orders in G.O.No.1533, Labour dated 20.7.1988 and G.O.(2D) No.34, Labour & Employment, dated 5.5.2003 are liable to be quashed.
16. In the result, the writ petitions are partly allowed in respect of Teachers working in the petitioners' schools by partly quashing the Government Orders in G.O.No.1533, Labour dated 20.7.1988 and G.O.(2D) No.34, Labour & Employment, dated 5.5.2003. It is needless to mention that only the Teaching staff working in the schools cannot be brought under the ambit of Minimum Wages Act, 1948. No costs. Connected WPMPs are closed.
vks Copy to:-
The Secretary to Government of Tamil Nadu, Labour and Employment (J1) Dept., Fort St.George, Chennai 9