Madras High Court
The Management Of vs The Workmen on 30 April, 2014
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-04-2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.A.No.1705 of 2013 & M.P.No.1 of 2013 The Management of Bakthavatchalam Vidyashram, rep.by its Principal No.596, A1 & A2, TNHB Colony, Periyar Nagar, Korattur, Chennai - 80. ... Appellant Vs. 1. The Workmen, rep.by The President, Southern Employees Association, No.6, Thomas Nagar, Little Mount, Saidapet, Chennai - 15. 2. The Presiding Officer, Industrial Tribunal, High Court Campus, Chennai - 104. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 5.3.2013 in W.P.No.34471 of 2004. For Appellant : Mr.R.Parthiban For 1st Respondent : Mr.K.S.Govindaprasad 2nd Respondent : Industrial Tribunal J U D G M E N T
N.PAUL VASANTHKUMAR, J This writ appeal is preferred against the order of the learned single Judge made in W.P.No.34471 of 2004 dated 5.3.2013 wherein the award passed by the Industrial Tribunal in I.D.No.113 of 2000 dated 19.5.2004 was confirmed extending salary on par with the State Government School Servants from 1.1.1996 to the employees working in appellant School - Bakthavatchalam Vidyashram, Periyar Nagar, Korattur, Chennai, which is an unaided private School.
2. The brief facts necessary for disposal of this writ appeal are as follows:
(a) Bakthavatchalam Vidyashram, affiliated to CBSE was established in the year 1991-92 and the School is governed by the Affiliation Bye-laws of the CBSE and it is an unaided private school. The entire expenditure of the school are met from out of the fees chargeable from the students studying in the school. The School is situated at Periyar Nagar, Korattur, which is in the outskirts of Chennai.
(b) In the year 1999 the first respondent association claiming to represent the Drivers, Conductors, Ayahs, etc., employed in the School, claimed payment of salaries on par with the State Government employees with effect from 1.1.1996; leave equal to the Government School Staff; encashment of accumulated leave from 1.1.1996; etc. The said claim was made on the basis of the 6th Pay Commission benefits extended to the State Government employees from 1.1.1996.
(c) Ultimately the first respondent raised I.D.No.113 of 2000 after the reference was made by the Government in G.O.(D)No.853 dated 17.10.2000 before the Industrial Tribunal, Chennai. In the said Industrial dispute claim statement was filed contending that the appellant management is an educational institution affiliated to CBSE and bound by the affiliation bye-laws of the CBSE and Class-IV employees employed in the appellant management are protected under the Industrial Disputes Act, 1947 and as per the Affiliation Bye-laws, the employees working in the affiliated school are entitled to receive salary on par with the scale of pay fixed by the Central Government or State Government staff employed in Schools and they are also entitled to get leave and other benefits like State Government Employees.
(d) CBSE issued circular on 22.7.1997 giving direction to all the affiliated schools stating that they should pay salary and admissible allowances to the staff, which shall not be less than those paid to the corresponding employees of the State Government Schools, or the scales of pay prescribed by the Government of India.
(e) The said industrial dispute was opposed by the appellant management by contending that the terms of reference itself is not maintainable; workmen represented by the respondent are not governed by the bye-laws of CBSE; the workmen are given 15 days earned leave every year and 12 days casual leave per year; encashment of casual leave is not given to workmen in any establishment or institution; conditions of service, method of recruitment, qualification, eligibility for appointment in the Government service are entirely different; and that, the pay commission recommendations cover only the pay scales of the Government employees and as the members of the first respondent are not appointed in the State Government service, they cannot seek enforcement of pay commission recommendations. The CBSE circular does not cover the category of Drivers, Conductors, Ayahs on whose behalf the claim petition is filed as running a transport unit by the Institution is not mandatory for conducting courses in the institution.
(f) The Drivers and Conductors employed in the Transport Unit were terminated pursuant to the closure of the Transport Unit on 21.6.2001 and separate application was submitted seeking permission to terminate the services of the Drivers and Conductors, pending ID. The management could not offer any alternate employment as there was no scope for the same. The salary paid to the Senior Drivers, Junior Drivers, Conductors and Ayahs are more than the minimum wages fixed by the Government of Tamil Nadu and Drivers and conductors hardly have work for four hours in a day, however they were paid the salary of full time employees.
(g) The Industrial Tribunal accepted the claim made by the respondent and passed an award on 19.5.2004 holding that the demand of the workmen working in the management of the appellant seeking payment of salary as Government School staff from 1.1.1996 is justified.
(h) Aggrieved by the said award dated 19.5.2004 the management filed W.P.No.34471 of 2004 before this Court to set aside the award contending that Drivers, Conductors and Ayahs are not coming within the staff category of CBSE Schools and therefore the respondent is not justified in making a demand based on the circular issued by the CBSE dated 22.7.1997, the pay commission benefits having been made applicable only to the Government School staff or aided school staff, the respondent is not justified in claiming extension of VI Pay Commission salary to the Drivers, Conductors and Ayahs employed in the appellant school. The learned single Judge dismissed the writ petition and confirmed the award of the Industrial Tribunal, against which this writ appeal is preferred.
3. Mr.R.Parthiban, learned counsel appearing for the appellant submitted that the affiliation bye-laws are not applicable to the members of the respondent association viz., Drivers, Conductors and Ayahs, and the respondent has not mentioned about the number of persons who are its members, and CBSE Board is not made as a party. Learned counsel also submitted that the unaided school staff cannot demand that they should be paid salary on par with the Government or Aided School staff, as the staff in the Government and Aided Schools are appointed by due process and the staff in Unaided schools are employed without following any procedure, and particularly for appointment of Drivers, Conductors and Ayahs no procedure is followed. The members of the respondent association are paid more than the minimum wages prescribed by the Government and the Industrial Tribunal and the learned single Judge are not right in sustaining the claim of the respondent.
4. We have also heard Mr.K.S.Govindaprasad, learned counsel appearing for the first respondent/Association.
5. During pendency of the writ appeal the learned counsel appearing for the appellant management was directed to ascertain as to how many persons are working as on today as Ayahs/Sweepers. The learned counsel submitted that the following persons are working as Ayahs/Sweepers as on today and they are receiving salary as follows:
(i) Valarmathy .. Rs.9,045/- per month
(ii) Kannika .. Rs.7,930/- per month
(iii) Jayarani .. Rs.8,780/- per month
(iv) Gouri .. Rs.7,930/- per month
(v) Nagalakshmi .. Rs.8,605/- per month
(vi) A.M.Ramesh .. Rs.6,413/- per month
(vii) Banu .. Rs.9,059/- per month The learned counsel was also directed to verify and state the minimum wages fixed as on today by the Government of Tamilnadu for various institutions, other than those run by the Government and local bodies. The learned counsel produced G.O.(2D)No.2 Labour and Employment (J1) Department, dated 27.1.2014 wherein it is stated that the driver post carries salary of maximum of Rs.5,360/-; O.A./Gardener/Ayah/Watchman will get Rs.4,500/- per month; and Scavenger will get Rs.4,414/- per month and the said amount is fixed to persons serving in all City Municipal Corporation limits. The learned counsel also submitted that as per the Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009, all Private Unaided Schools are bound to go before the Fee Determination Committee and the said Committee by order dated 10.6.2013 fixed the fee to be collected from each student standard-wise to the appellant School and only out of the fee collected from the students as fixed, the management is generating funds for running the institution and only from that amount salary could be paid to all the staff members, including Ayahs. The learned counsel also cited the judgment of the Supreme Court reported in (2011) 8 MLJ 554 (SC) (Satimbla Sharma v. St.Paul's Senior Secondary School) to substantiate the proposition that Private Unaided School staff cannot claim parity in salary and allowances with Government and Aided School staff and Private Unaided managements are not bound to ensure equal pay for equal work, unless there is a statutory prescription to pay the same salary as Aided School staff. The learned counsel also cited the judgment of the Kerala High Court in W.A.No.1042 of 2012 dated 14.9.2012 and contended that the Court itself could fix reasonable salary.
6. Mr.K.S.Govindaprasad, learned counsel appearing for the first respondent on the other hand submitted that as the appellant management is extracting work from the members of the association as per the affiliation bye-laws of the CBSE, it is bound to pay salary on par with the State Government Staff and the appellant having given an undertaking to pay salary as per the Affiliation Bye-laws, it cannot deny salary to the Ayahs, who are 4th grade employees, and therefore the Industrial Tribunal as well as the learned single Judge are right in granting the relief.
7. We have considered the rival submissions made by the respective counsels in the light of the provisions of Affiliation Bye-laws of CBSE, Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 and Right of Children to Free and Compulsory Education Act, 2009.
8. It is not in dispute that the Transport wing of the appellant School is not functioning from 2001 and it is not a pre-requisite for getting affiliation of a school under CBSE pattern to provide transport facility. The appointment of Ayahs and Sweepers are necessary for the establishment of an educational institution. Admittedly the appellant school is functioning out of the fee collected from the students, as it is an unaided management. The Tamil Nadu Schools (Regulation of Collection of Fees) Act, 2009 mandates managements of all private unaided schools, including CBSE Schools to go before the Committee called Private Schools Fee Determination Committee, and the appellant management also submitted its details regarding expenses to be incurred per year for running the institution and the salary payable to the staff, both teaching and non-teaching, based on which the Private Schools Fee Determination Committee on 10.6.2013 fixed fee for each standard from LKG to 12th Standard and the fee fixed once will be in force for three years. The said Act prohibits collection of any other amount from any student and if collection of any other amount is noticed, penal consequences will follow.
9. The Right of Children to Free and Compulsory Education Act, 2009, Section 23 and Section 2(a) define "appropriate Government" as "State Government". In exercise of that power the State Government fixed salary to the staff members bearing in mind the Minimum Wages Act, 1948 and for the schools located within the Municipal Corporation limits, classified as "A" zone, salary of Rs.4,500/- per month is fixed for Office Assistant/Gardener/Ayahs/Watchmen, and Rs.4,414/- per month is fixed for scavengers. Thus, the State Government in exercise of the power vested under the Right of Children to Free and Compulsory Education Act, 2009 and the Rules framed thereunder has already fixed the salary to Sweepers and Ayahs.
10. The Hon'ble Supreme Court in the decision reported in (2011) 8 MLJ 554 (SC) (Satimbla Sharma v. St.Paul's Senior Secondary School) 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 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.
11. Here in this case the respondent has relied on the CBSE Affiliation Bye-laws for claiming equivalent salary to that of Government School staff. CBSE Bye-laws having no statutory force, cannot be the sole basis to claim salary of Drivers, Conductors and Ayahs on par with the Government School staff. The Judgment of the Supreme Court cited supra is applicable to this case with all vigor.
12. 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 by one of us (NPV.,J.) in W.P.Nos.1567 and 1588 of 2007 and the said prayer 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. In the said order the judgments of the Honourable 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) were followed. Thus, the issue regarding claim of salary by unaided school staff on par with the Government School/Aided School staff is no longer res integra.
13. The Industrial Tribunal has not considered the issue in proper perspective and passed the award dated 19.5.2004, which was also confirmed by the learned single Judge. We are unable to endorse the views of the Industrial Tribunal and the learned single Judge.
14. The Government of Tamil Nadu having fixed minimum wages payable to the unaided school staff, if anyone of the member of the respondent association is paid less salary than the one fixed as per G.O.(2D)No.2 Labour and Employment (J1) Department, dated 27.1.2014, the appellant is bound to pay the minimum wages as prescribed therein. If any member of the association is receiving more wages/salary than the one fixed by the Government, the same shall not be reduced by the appellant management on the basis of this order.
15. In fine, the award of the Industrial Tribunal made in I.D.No.113 of 2000 dated 19.5.2004 confirmed by the order of the learned single Judge in W.P.No.34471 of 2004 dated 5.3.2013, are set aside. The writ appeal is allowed with the above observations. No costs. Connected miscellaneous petition is closed.
(N.P.V.,J) (M.S.N.,J.)
30-04-2014
Index :Yes/No
Internet :Yes/No
vr
To
The Presiding Officer, Industrial Tribunal,
High Court Campus, Chennai - 104.
N.PAUL VASANTHAKUMAR,J
AND
M.SATHYANARAYANAN,J
vr
Pre-Delivery Judgment in
W.A.No.1705 of 2013
30-4-2014