Writ Petition No.5294 of 2004

18th June, 2015.

Petitioner Counsel: Shri S.W. SAMBRE
Respondent Counsel: Smt. S.W. DESHPANDE, Shri M.A. KADU

Cases Cited:
State of W.B. and Ors. Vs. Harendra Nath Bhowmick and Ors., (2001) 5 SCC 338 [Para 5]
The Premier Automobiles Ltd. Vs. Kamlakar Shantaram Wadke and Ors., AIR 1975 SC 2238 [Para 5,6,11]
M.P. Sharma Vs. Industrial Court, M.P. Indore and others, AIR 1967 Madhya Pradesh 177 (V 54 C55) [Para 5,10]
Narendra Dev Vs. Labour Court, Bikaner & Anr., 1996 II CLR 691 [Para 5]
Sangam Education Society, Nagpur & Anr. Vs. Bharti Hansraj Borkar & Anr., 1995 (1) Mh.L.J. 847 [Para 6,11]
Shivshakti Shikshan Sanstha and Anr. Vs. Nilkanth s/o Kawaduji Shivshankar and Anr., 2005 (3) Mh.L.J 696 [Para 6,10]
A. Sundarambal Vs. Government of Goa, Daman and Diu and Ors., (1988) 4 SCC 42 [Para 9]

JUDGMENT

JUDGMENT :- The short issue has arises for consideration is whether a Physical Training Instructor can invoke jurisdiction of the Labour Court under the provisions of Section 33-C(2) of the Industrial Disputes Act, 1947 (for short the Act of 1947) for claiming difference of wages for the period prior to termination.

2. The relevant facts are that the respondent No.1 claims to have been appointed as a Physical Training Instructor in view of his qualification of M.A., M.Com., B.P. Ed. According to him, he worked in the petitioner No.2 - Institution for the period from 01.07.1987 till 05.03.1992. According to him, he was entitled to be paid salary as well as bonus on fixed scale but however, he was initially paid an amount of Rs.400/- per month and thereafter at the rate of Rs.600/- per month from 01.07.1988. Hence, for recovering the amounts not paid, the respondent No.1 filed proceedings under Section 33-C(2) of the Act of 1947.

3. The petitioners in their reply raised an objection to the jurisdiction of the Labour Court. According to them, the respondent No.1 was not a "workman" in terms of provisions of Section 2(s) of the Act of 1947 and hence, there was no jurisdiction with the Labour Court to adjudicate the claim.

4. The Labour Court while deciding the preliminary issue as to jurisdiction held that the respondent No.1 was a workman as the witness of the petitioners had admitted that he was not a teacher. It further held that such claim for difference of wages could not made by invoking provisions of Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short the Act of 1977). It therefore, held that the Labour Court had jurisdiction to entertain the claim. This order has been challenged by the petitioners herein.

5. Shri S.W. Sambre, learned counsel appearing for the petitioners submitted that the Labour Court had no jurisdiction to entertain the claim made by the respondent No.1 as he was a "teacher" within the meaning of said expression as defined by Section 2(26) of the Act of 1977. According to him, a Physical Training Instructor could not be called a workman for invoking provisions of the Act of 1947. He referred to various provisions of the Act of 1977 and also relied upon the following judgments (i) (2001) 5 SCC 338 State of W.B. and others v. Harendra Nath Bhowmick and others; (ii) AIR 1975 SC 2238 The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others; (iii) AIR 1967 Madhya Pradesh 177 (V 54 C55) M.P. Sharma v. Industrial Court, M.P. Indore and others; and (iv) 1996 II CLR 691 Narendra Dev v. Labour Court, Bikaner & Anr. He also relied upon the dictionary meaning of the expression "teacher" and submitted that an Instructor was also a teacher.

6. On the other hand Smt. S.W. Deshpande, learned counsel for the respondent No.1 supported the order of the Labour Court. According to her, as the witness of the petitioners had admitted that respondent No.1 was not teaching in the Institution, he was a workman. She submitted that claim for unpaid salary prior to termination could not have been made before the School Tribunal in terms of judgment of the learned Single Judge in 1995 (1) Mh.L.J. 847 Sangam Education Society, Nagpur & Anr. v. Bharti Hansraj Borkar & Anr. Reliance was also placed on the judgment in the case of Shivshakti Shikshan Sanstha and another v. Nilkanth s/o Kawaduji Shivshankar and another 2005 (3) Mh.L.J 696 to urge that a Physical Training Instructor could not be treated to be an Assistant Teacher. She then submitted by relying upon the decision of the Supreme Court in Premier Automobiles (supra) that it was the choice of the suitor to choose his remedy and hence, jurisdiction of the Labour Court had been invoked.

7. Shri M.A. Kadu, the learned AGP appeared for respondent No.2.

8. I have considered the respective submissions and I have gone through the relevant material relied by the parties. While considering the aspect of jurisdiction of the Labour Court it would first be necessary to consider certain provisions of the Act of 1977. Section 2(26) defines the expression "teacher" to mean a member of the teaching staff. Schedule 'B' Part-III and Clause 7 thereof prescribes the qualifications of Physical Education Teachers. Part-IV of Schedule 'B' prescribes qualifications for non-teaching posts. Schedule 'C' Part-IV prescribes the pay scale of Special Teachers in Secondary School which includes a Physical Training Instructor. Similarly, Schedule 'F' lays down guidelines for fixation of seniority of teachers as well as seniority of nonteaching staff. The aforesaid provisions indicate that a Physical Training Instructor is treated as a member of teaching staff and is thus as a teacher within the meaning of said expression as defined by Section 2(26) of the Act of 1977.

9. At this stage, it would be apposite to refer to the decision of the Supreme Court in A. Sundarambal v. Government of Goa, Daman and Diu and others (1988) 4 SCC 42. While answering the question as to whether a teacher employed in a school falls within the definition of the expression 'workman' as defined in Section 2(s) of the Act of 1947, in para 10 of the report it was observed thus, "We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or postgraduate education cannot be called as 'workmen' withing the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical 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 the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen' as defined under the Act."

10. In Shivshakti Shikshan Sanstha (supra) on which reliance was upon by the learned counsel for the respondent No.1 it was held that a candidate having B.Com. B.P. Ed. qualifications was not eligible to be appointed as an Assistant Teacher in substantive capacity for teaching relevant subjects. Said decision however, does not assist the respondent No.1 for canvassing the proposition that a Physical Training Instructor is not a member of the teaching staff. In M.P. Sharma (supra) it was held by the Madhya Pradesh High Court that services rendered by a Physical Training Instructor would not entitle him to seek reinstatement as an employee under the Madhya Pradesh Industrial Relations Act, 1960 as he was not an "employee" within the the meaning of said expression.

11. From the aforesaid provisions of the Act of 1977, it is therefore, clear that a Physical Training Instructor being a teacher as defined under Section 2(26), he cannot be said to be a workman as defined by provisions of Section 2(s) of the Act of 1947. As observed by the Supreme Court in Premier Automobiles Limited (supra) in such situation, the remedy is available with the Civil Court. It has already been held by this Court in Sangam Education Society (supra) that a claim for unpaid salary prior to termination cannot be made before the School Tribunal. In said case this Court considered the fact that such claim was made by a Clerk and being a member of the nonteaching staff, proceedings initiated by her before the Labour Court were held to be maintainable.

12. In aforesaid background therefore, the findings arrived at by the Labour Court that it had necessary jurisdiction cannot be sustained in law. Mere admission by witness that the respondent No.1 was not a teacher cannot confer jurisdiction on the Labour Court when in fact and in law it did not have such jurisdiction. The impugned order therefore, passed by the Labour Court holding that it had jurisdiction to entertain the claim is liable to be set aside.

13. Hence, the following order is passed:

[i] Order dated 08.03.2004 passed by the Labour Court in I.D.A. Case No.455/1995 is set aside. It is held that the Labour Court has no jurisdiction to try said proceedings.

[ii] It is clarified that it is open for respondent No.1 to invoke jurisdiction of the Civil Court if so adviced and in a manner that is permissible in law.

[iii] Rule is made absolute in aforesaid terms. No order as to costs.

Ordered accordingly.