B. Jatishwar Sharma vs The Director of Education Govt. of Manipur and Another

N. Ibotombi Singh, J.—This is an application under Article 226 of the Constitution of India for a writ of Mandamus or any other writ of like nature seeking to quash the order dated 28.3.81 of the Director of Education, Government of Manipur (Annexure A/6 to the petition) whereby services of the Petitioner as Craft Instructor B.T.I. (Kakching) were terminated on his attaining the age of 58 years with effect from 1.4.81.

The material facts leading to the present petition may be stated as follows:

The Petitioner entered government service on 22.8.55 as a Weaving and Spinning Instructor of Basic Training Institute, Govt. of Manipur (called briefly, B.T.I.). He was confirmed in the said post in or about the year 1959. Later he was designated as Craft Instructor. The Petitioner was transferred from B.R.I. Ukhrul to B.T.I. Kakching in the year 1971 as Craft Instructor of Weaving and Spinning. Since then be had been employed as Craft Instructor in the B.T.I. Kakching till order impugned herein was passed terminating his services on superannuation that he has attained age of 58 years. It is averred in the petition that B.T.I. is an industry; and amongst others the following crafts are taught:

Weaving and Spinning

Tailoring

Agriculture and Gardening

Carpentry

Pottery

Cane and Bamboo works

Leather Crafts

Bee keeping.

Such other subsidiary subjects are also taught, namely,

(i) Music

(ii) Arts and

(iii) Physical Education.

The entire crafts are taught theoretically and practically. No power driven machines and appliances are installed as the basic foundation is only on handicrafts and all machineries are hand-driven ones. The products, it is alleged, are put on sale thereby making a source of income to the Government. In support of it, copies of Treasury Challan No. 33 dated 12.2.70 and No. 37 of 10.1.73 are filed alongwith the petition. It is further averred that the Petitioner and other craft instructors are skilled workmen who are imparting technical education to the trainees by demonstration. The Basic Training Institute is an ''industry'' and the Petitioner who is a skilled craftsman is a ''workman''. It is a case of the Petitioner that he being a workman at stated above, ought to have retired from service on the after-noon of the last day. of the month in which he attained the age of 60 year in accordance with the Rules called Manipur Service Laws (1st Amendment) Rules, 1976, made by the Governor of Manipur in exercise of the power conferred by the proviso to Article 309 of the Constitution. Rule 3(i) (b) of the said Rules provides that a ''workman'' who is governed by the said rules shall retire from the service on the afternoon of the last day of the month in which he attains the age of sixty years. A note is appended to the following effect that a ''workman'' in this clause means a highly skilled, semi-skilled or unskilled artisan employed on a monthly rate of pay in a industrial or work charged establishment''. A copy of the said Rules is annexed to the petition as Annexure A/5. On the facts above, the Petitioner contends that the impugned order is in violation of the said rule; and he has been prematurely retired from service, though he was entitled to be in service till ho attains the age of sixty years.

The Respondents, Director of Education, Govt. of Manipur and State of Manipur, while opposing the petition by filing a joint affidavit stated, inter alia, that the Basic Training Institute Kakching where the Petitioner was employed as Craft Instructor is not an industry but a training institute pure and simple and there are no ingredients to show that the Basic Training Institute, kakching is an ''industry''. Though the activities averred in the petition are admitted, it is stated in the counter-affidavit that the finished products produced by the trainees are All sub-standard and as such they are not saleable in the market. It is admitted, however, that the products are sometimes disposed of, through sale at negligible cost when there is shortage of accommodation for storage of such products. The Respondents simply denied that the Petitioner is ''a skilled workman'' but it is not denied that the Petitioner is ''a skilled technical personnel''. As the institution in question is not an industry and the Petitioner not a ''workman'', the Petitioner has no right to challenge the impugned order. He is an ordinary government servant who shall retire on attaining the age of 58 years on superannuation and as such the order is legal and valid.

We have heard learned Counsel of both the parties at length. We are not impressed by the argument of the learned Government Advocate that the basic Training Institute, Kakching is not an industry. The contention of the learned Govt. Advocate is that the training institute in question purely imparts teaching to the trainees, and on looking at its activities, this institute cannot be called to be an ''industry''. It is also urged that the Petitioner is not ''a workman''. We are unable to accept the contention of the learned Government Advocate. This very argument was advanced in the case which came up before the Supreme Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, That view proailed in the Ld (SIC) city of Delhi And Anr. v. ''(SIC) University of Delhi and Another Vs. Ram Nath, wherein it was held that an educational institute is not an industry. But it is no longer a good law in view of the pronouncement of the Supreme Court in Bangalore Water Supply (supra). The Supreme Court consisting of 7 Judge exhaustively discussed the scope of ''industry'' and concluded that the University of Delhi and Another Vs. Ram Nath, case was wrongly decided and that education can be and is, in its institutional from an ''industry''. In that case it has been pointed out at page 583:

...It is one thing to say that an institution is not an industry. It is altogether another thing to say that a large number of its employees are not ''workman'' and cannot therefore avail of the benefits of the Act and so the institution ceases to be an industry, The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature of the activity. In the case of the university or an educational institution the nature of the activity is, ex-hypothesi, education which is a service to the community. Ergo, the university is an industry;

[Emphasis added]

The Supreme Court concluded thus:

The final ground accepted by the Court is that education is a mission and vocation, rather than a profession or trade of business. The most that one can say is that this is an assertion which does not prove itself. Indeed, all life is a mission and man without a mission is spiritually still-born. The high mission of life is the manifestation of the divinity already in man. To christen education as a mission even if true, is not to negate its being an industry. We have to look at educational activity from the angle of the Act, and so viewed the ingredient! of education are fulfilled, Education is, therefore, an industry and nothing can stand in the w ay of that conclusion.

In view of the above pronouncement which is the law declared by the Supreme Court within the meaning of Article 141 of the Constitution, we reject the contention of the Government Advocate on behalf of the Respondents, and we have no hesitation to conclude that the Basic Training Institute, Kakching, is an ''industry''.

The next question for our consideration is whether the Petitioner is a ''workman''. In respect of this point also, we are .satisfied that he is workman. Section 2(s) of the Industrial Disputes Act defines ''workman'' as follows:

(s) ''workman'' means any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-

(i) who is subject to the Army Act, 1950 (46 of 1950) or the Air Force Act, 1950 (45 of 1950) or the Navy (Discipline) Act, 1934 (34 of 1934). or

(ii) who is employed in the police service of as an officer or other employee of a prison ; or

(iii) who is employed mainly in a managerial or administrative capacity ; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exorcises, either by the nature of the duties attached to the office or by reason of the. powers vested in him, functions mainly of a managerial nature.

A similar definition of the expression ''workman'' is used in the Manipur Service Laws (1st Amendment) Rules, 1976 as already noticed. The note appended to Clause (b) of Rule 3(i) of the said Rule explains thus-

In this clause, a workman means a highly skilled, skilled, semi-skilled or unskilled artisan employed on a monthly rate of pay in a industrial or work charged establishment.

It is manifestly clear that the Petitioner does not come under any of the excepted category of persons mentioned in (i) to (iv) of Section 2(s) of the Industrial Disputes, Act, 1947. Admittedly the Petitioner is a skilled personnel employed in the Basic Training. Institute, Kakching, which we have held to be ''industry''. The Government in its counter affidavit has admitted that be is a skilled technical personnel. That being so, he is ''a workman'' within the meaning of note (appended to the Manipur Service Laws (1st Amendment) Rules, 1976. When we conclude that the Petitioner a workman as a heraft Instructor employed in an industrial Institute, namely, the Basic Training Institute, Kakching, the said Rules will come to his aid. He being a workman governed by the Rules, his services cannot be terminated except on superannuation on. Attaining the age of 60 years, The impugned order (Annexure A/6): of the Director of Education, Govt. of Manipur, retiring him prematurely on his attaining the age of 58 years, is untenable in law. We declare it as invalid. The Petitioner, therefore, shall be deemed to be in service till he attains the age of/60 years; and he shall be entitled to all the benefits, namely, salaries and other allowances admissible under the Rules as Craft Instructor till his retirement on his attaining the age of 60 years. This petition was filed on 1st December, 1982. While this Rule is pending for hearing, the Petitioner had attained the age of 60 years; and as he was to retire from service on 1.4.83 on superannuation, he shall be given the pensionary benefit as admissible under the Rules as if he has retired from service on 1.4.83.

In view of the foregoing discussion, We allow the petition. The Rule is made absolute. The Respondents are to pay Rs. 200/- as cost to the Petitioner.