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2016 (4) TMI 1470 - SC - Indian LawsRetrenchment from services by the Respondent-Managing Committee, DAV Public School - Appellant is a workman for the purpose of ID Act or not - conditions precedent for the retrenchment of a workman as prescribed Under Section 25F(a), (b) and (c) of the ID Act have been fulfilled or not - applicability of provision of Section 8(2) of the DSE Act. Whether the Appellant is a workman for the purpose of ID Act? - HELD THAT - The issue whether educational institution is an 'industry', and its employees are 'workmen' for the purpose of the ID Act has been answered by a Seven-judge Bench of this Court way back in the year 1978 in the case of Bangalore Water Supply 1978 (2) TMI 204 - SUPREME COURT . It was held that educational institution is an industry in terms of Section 2(j) of the ID Act, though not all of its employees are workmen. Thus, a driver employed by a school, being a skilled person, is a workman for the purpose of the ID Act. The question is answered accordingly in favor of the Respondents. The provisions of ID Act are applicable to the facts of the present case. Whether the conditions precedent for the retrenchment of a workman as prescribed Under Section 25F(a), (b) and (c) of the ID Act have been fulfilled in the instant case? - HELD THAT - Admittedly, the notice Under Section 25F(c) of the ID Act has not been served upon the Delhi State Government. In support of the justification for not sending notice to the State Government reliance has been placed upon the decision of this Court in the case of Bombay Journalists 1963 (12) TMI 33 - SUPREME COURT . This decision was rendered in the year 1963 and it was held in the said case that the provisions of Section 25F(c) of the ID Act is directory and not mandatory in nature. What has been ignored by the Tribunal as well as the High Court is that subsequently, the Parliament enacted the Industrial Disputes (Amendment) Act, 1964. Rule 76(a) clearly mandates that the notice has to be sent to the appropriate authorities within three days from the date on which notice is served on the workman. In the instant case, the notice of retrenchment was served on the Appellant on 07.01.2003. No evidence has been produced on behalf of the Respondents to show that notice of the retrenchment has been sent to the appropriate authority even till date. Thus, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside. Whether the provision of Section 8(2) of the DSE Act is applicable to the facts of the instant case? - HELD THAT - A number of legislations across the country have been enacted which deal with the Regulation of educational institutions, which contain provisions similar to the one provided for Under Section 8(2) of the DSE Act. One such provision came for consideration before a Constitution Bench of this Court in the case of Katra Educational Society v. State of Uttar Pradesh and Ors. 1966 (1) TMI 80 - SUPREME COURT . The impugned provisions therein were certain Sections of the amended Intermediate Education Act (U.P. Act 2 of 1921). Section 16-G of the Intermediate Education (Amendment) Act, 1958 provided that Committee of Management could not remove or dismiss from service any Principal, Headmaster or teacher of a college or school without prior approval in writing of the Inspector. The Amendment Act also contained other provisions providing for governmental control over certain other aspects of the educational institutions. A perusal of the Statement of objects and reasons of the DSE Act would clearly show that the intent of the legislature while enacting the same was to provide security of tenure to the employees of the school and to regulate the terms and conditions of their employment. The Respondent-Managing Committee in the instant case, did not obtain prior approval of the order of termination passed against the Appellant from the Director of Education, Govt. of NCT of Delhi as required Under Section 8(2) of the DSE Act. The order of termination passed against the Appellant is thus, bad in law. Relief - HELD THAT - The termination of the Appellant is bad in law for non-compliance with the mandatory provisions of Section 25F of the ID Act and also Section 8(2) of the DSE Act. Further, the Respondent-School has not produced any evidence on record to show that the retrenchment of the Appellant was necessary as he had become 'surplus'. The termination of the Appellant was ordered in the year 2003 and he is unemployed till date. The Respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.) and Ors. 2013 (8) TMI 1142 - SUPREME COURT wherein it was held ' Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.' The impugned judgment and order dated 28.07.2008 passed by the Delhi High Court is liable to be set aside and accordingly set aside, by allowing this appeal. The retrenchment of the Appellant from his service is bad in law. The Respondent-Managing Committee is directed to reinstate the Appellant at his post. Consequently, the relief of back wages till the date of this order is awarded to the Appellant, along with all consequential benefits from the date of termination of his services. The back wages shall be computed on the basis of periodical revision of wages/salary. Appeal allowed.
Issues Involved:
1. Whether the Appellant is a workman for the purpose of ID Act? 2. Whether the conditions precedent for the retrenchment of a workman as prescribed under Section 25F(a), (b), and (c) of the ID Act have been fulfilled in the instant case? 3. Whether the provision of Section 8(2) of the DSE Act is applicable to the facts of the instant case? 4. What order? Issue-wise Detailed Analysis: 1. Whether the Appellant is a workman for the purpose of ID Act? The court examined the definition of "workman" under Section 2(s) of the Industrial Disputes Act, 1947 (ID Act) and the relevant case law. The court referred to the decision in H.R. Adyanthaya v. Sandoz (India) Ltd., which clarified that a person must be employed to do manual, unskilled, skilled, technical, operational, clerical, or supervisory work to qualify as a workman. Additionally, the court cited Bangalore Water Supply and Sewerage Board v. A. Rajappa, which established that educational institutions are industries under the ID Act, and their employees, excluding teachers, can be workmen. Given that the Appellant was a driver, a skilled position, he was deemed a workman under the ID Act. 2. Whether the conditions precedent for the retrenchment of a workman as prescribed under Section 25F(a), (b), and (c) of the ID Act have been fulfilled in the instant case? The court found that the conditions under Section 25F of the ID Act were not fully met. Specifically, the notice under Section 25F(c) was not served on the appropriate government. The court noted that while the decision in Bombay Union of Journalists v. The State of Bombay had previously held Section 25F(c) to be directory, the subsequent amendment to the ID Act in 1964 did not indicate any legislative intent to make this provision non-mandatory. The court emphasized that even if Section 25F(c) is considered a condition subsequent, it remains mandatory. The court held that the failure to comply with Section 25F(c) rendered the retrenchment notice and the order of retrenchment invalid. 3. Whether the provision of Section 8(2) of the DSE Act is applicable to the facts of the instant case? The court analyzed Section 8(2) of the Delhi School Education Act, 1973 (DSE Act), which requires prior approval from the Director of Education for the termination of an employee's services. The court rejected the reliance on the Delhi High Court's decision in Kathuria Public School v. Director of Education, which had struck down Section 8(2) based on the Supreme Court's judgment in TMA Pai Foundation v. State of Karnataka. The court clarified that Section 8(2) serves as a procedural safeguard to prevent arbitrary termination and is within the legislative competence of the State. The court held that the termination of the Appellant without prior approval from the Director of Education was invalid. 4. What order? The court concluded that the termination of the Appellant was illegal due to non-compliance with Section 25F of the ID Act and Section 8(2) of the DSE Act. The court directed the Respondent-Managing Committee to reinstate the Appellant with back wages and all consequential benefits from the date of termination. The back wages were to be calculated based on periodical revisions of wages/salary, and the amount due was to be spread over 13 years to comply with Section 89 of the Income Tax Act. The compliance was mandated within six weeks from the date of receipt of the judgment copy. Conclusion: The Supreme Court set aside the impugned judgment and order of the Delhi High Court, declared the retrenchment of the Appellant as bad in law, and directed his reinstatement with back wages and consequential benefits.
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