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Judgment
This writ petition is filed for a writ of mandamus, declaring the impugned notice enclosure dated 7-10-1997 discharging the petitioners with immediate effect as totally illegal, without jurisdiction and in violation of Sections 79 and 83 of Andhra Pradesh Education Act, and consequently direct the respondents to reinstate and continue the petitioners in service with all consequential benefits.
In the affidavit filed in support of the writ petition it is stated that the 4th respondent, Women and Child Welfare Centre, Sriramnagar, Garividi Mandal, Vizianagaram District in which the petitioners were working, was established in the year 1978 with an object of providing education to the physically handicapped, deaf and mute, blind and mentally retarded children and also to render social service to the destitute women, aged women and other needy persons. It is also stated that the staff of the institute consisted in all 63 members out of which 22 are teaching staff and 41 are non-teaching staff. It is also stated that the 4th respondent centre was admitted to grant-in-aid from the first respondent-Government of India. It is stated that amongst other sections the 4th respondent-Centre has printing and binding unit, candle making unit and artificial leg making unit, craft unit and other units for imparting training education to the deaf and mute, blind and mentally retarded children etc. As per the statement of expenditure given by the Chartered Accountant for the 4th respondent dated 4-7-1996, reveals the source of funds received by the institution both from the Central Government and other agencies. The institution is maintaining school for deaf and mute children, school for mentally retarded and school for blind children and also a residential hostel and vocational training units. It is further stated that when the petitioners and others placed a demand for enhanry salaries and other amenities on 7-10-1997, on the same day the fourth respondent issued the impugned proceedings dated 7-10-1997 in a vindictive manner, so as to prevent the petitioners and others from ventilating their legitimate grievances. They further submitted that the action of the fourth respondent is totally illegal and amounts to practicising unfair labour practices prohibited under the Industrial Disputes Act. It is further stated that the impugned action also is in violation of Section 25(f) of the Industrial Disputes Act, as no notice or notice pay in lieu of notice was given to them before issuing the impugned proceedings and as such the impugned discharge order is totally void ab-initio. They also further contended that the impugned action is contrary to Sections 79 and 83 of the Andhra Pradesh Education Act, in the sense that the fourth respondent could not have retrenched the petitioners, without approval of the competent authority. As such the impugned proceedings are liable to be set aside. It is further submitted that the petitioners were given consolidated salary even though they are fully qualified for the post they were holding, and it was only in those circumstances the petitioner and union members were demanding the required salary and other facilities. Hence, the decision to close down the units was taken only due to the demand made by the petitioners and as such it is a mala fide action. The statement made in the impugned proceedings that continuance of these units have become unviable and nonfeasible due to lack of orders and also due to financial crisis etc., is an incorrect statement. It is further stated by the learned Counsel appearing for the petitioners that the 4th respondent is a State within the meaning of Article 226 of the Constitution of India. Since the fourth respondent is receiving 90% of the grant from the Government of India hence the petitioners are entitled to remedy under Article 226 of the Constitution of India, and he submitted that the writ petition deserves to be allowed.
By filing vacate petition, in substance, the fourth respondent has filed a counter, contending that the writ petition itself is not maintainable against the fourth respondent which is a registered society under the Societies Registration Act and there is no violation of any statutory provisions warranting filing of the writ petition. It is stated that the fourth respondent - Society was registered in the year 1978 under the Societies Registration Act, with a sole object of rendering service to destitute children and women, and handicapped persons, by giving training to them in Tailoring, Embroidering and Knitting, Bread Making, Printing, Stitching, Brick Making, Candle Making and Artificial leg making, to promote community development works and similar vocational and community training. It is stated that the fourth respondent - Centre was receiving donations from various sources such as philonthrophists and some parents. A major part of the funds were being provided by M/s. Ferro Alloys Corporation Ltd., Shreeramnagar, as a major donar. As M/s. Ferro Alloys Corporation Ltd., which was the major donar of the Society, has been incurring heavy losses to the tune of Rs. 51.62 crores and thus it is not in a position to extend their financial assistance due to their financial crisis. It is further stated that since inception till 1995 this society has not received any funds from any Government agencies and it is only from the year 1994-95 the society has been receiving Central Government fund to meet their expenses i.e. Rs. 10,00,000/- out of expenditure of about Rs.24 lakhs, hi view of the fact that M/s Ferro Alloys Corporation Limited expressed their inability to extend their financial assistance to the fourth respondent, the fourth respondent has not enough funds to pay the salaries to the employees particularly to the vocational units and in these circumstances, the maintainence of craft unit, candle making unit, artificial leg making unit and printing unit has become economically not viable. In view of the shortage of funds it has become impossible for the fourth respondent to pay the salary to the existing staff members and also to meet the day to day expenses. Hence it has been unanimously decided by the society to close down these vocational units. It is further contended that the fourth respondent- society was not registered under the Andhra Pradesh Education Act. Hence, the question of applying the provisions of the said Act to the facts of this case does not arise. It is further stated that the allegation made in the writ petition that the impugned action is violative of Section 25F of Industrial Disputes Act is not correct. It is further submitted that the Industrial Disputes Act is not applicable to this case and the petitioners are not workmen as per the I.D.Act. However, on humanitarian grounds, the society has offered one month''s salary in lieu of notice pay by way of compensation. But the petitioners have refused to lake and even they have refused the registered post and as such the registered covers were returned with an endorsement ''returned as refused''. It is further submitted that the petitioners have raised dispute before ACL, Vizianagaram who has issued notices to the fourth respondent and the matter is still pending with ACL and this fact was suppressed in the petition by the petitioners. It is further stated that before the Assistant Commissioner for Labour respondent No.4 has given their comments so that the matter could be settled amicably. It is further stated that the fourth respondent never received any aid from the State Government, at any point of time, and the petitioners were not working in the vocational units which were established to train the destitute women and old age women so as to make self sufficient. Hence, these units are not at all connected with the school and as such the provisions of Sections 79 and 83 of the Andhra Pradesh Education Act are not applicable with the case of the petitioners. Thus denying the allegation made in the writ petition, the respondents prayed for dismissal of the writ petition, contending that respondent No.4 has not violated any statutory provision nor any law, and as such the writ petition has no merit.
The learned Counsel appearing for the petitioner contended that the fourth respondent is running deaf and dumb school and other training units. Therefore, the printing unit, craft unit, candle making unit, and artificial leg making unit, in which the petitioners were working were part of the same school and training programme. Therefore, all these units together are the educational institutions along with deaf and dumb school and as such the fourth respondent-Institute is governed by the Andhra Pradesh Education Act, 1982 (hereinafter referred to as the Education Act). It is further submitted that Section-I of the said Act makes the Act applicable to all the educational institutions, including the institutions established and maintained by the private bodies and also the institution for scientific or technical education financed by the Central Government and declared by parliament by law to be institutions of National Importance. The fourth respondent is one such institute falling u/s 1(3)(i). He submitted that in view of these provisions Sections 79 and 83 of the said Act would be applicable and as such there could not have been a retrenchment, without the approval of the competent authority under that Act. He further submitted that even if the institute is not registered under the Andhra Pradesh Education Act the Andhra Pradesh Education Act applies since the fourth respondent institute is an educational institute. It is further submitted that if the institute is run in violation of the provisions of the Act the, Act provides for punishment for such violation. Therefore, the fourth respondent cannot contend that the Act does not apply, only because the fourth respondent was not registered under the Education Act. He relied upon a judgment reported Vasavi College of Engineering Vs. A. Suryanarayana and Others, ; B. Rama Krishna Reddy Vs. S.B.S.Y.M. Degree College and Others, and Miss. Ravneet Kaur Vs. The Christian Medical College and Another, that the institution in question is a State, therefore, the writ petition is maintainable. He further submitted that even otherwise the fourth respondent is an Industry under the Industrial Disputes Act, in view of the law declared by the Supreme Court in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, . Therefore, the petitioners arc entitled to file this writ petition and their retrenchment is illegal. On the other hand the learned Counsel appearing for the fourth respondent contended that this Writ Petition is not maintainable, since the fourth respondent is a private registered society under the Societies Registration Act and it is not a state within the meaning of Article 12 of the Constitution of India. In support of his submission he relied upon a judgment reported in Sarva Shramik Sangh v. Union of India 1998 (I) CLR 332. On merits he further contended that when the fourth respondent, decided to close down the unit and consequently if the petitioners are liable to discharged, it is within the power of the employer. At any rate, in terms of Section 25F of the I.D. Act the Society has offered one month''s salary in lieu of notice and as such there is no illegality and further submitted that maintaining these vocational institutes, has become economically not viable. Therefore, the fourth respondent rightly decided to close down these units and thereby retrenching the petitioners. He further submitted that if the training is given to the deaf and dumb and other destitute women and children and physically handicapped, so as to rehabilitate them in their life the same does not amount to imparting knowledge, and such institutes cannot be treated as educational institutions for the purpose of the Andhra Pradesh Education Act. At any rate when the fourth respondent is not registered under the Andhra Pradesh Education Act, the provisions of the Andhra Pradesh Act does not apply to the facts of this case, and as such the contention of the petitioner based on Sections 79 and 83 of the Andhra Pradesh Education Act cannot be sustained.
From the pleadings of both the parties and also from the arguments of the respective Counsels, I find that there are few facts which are clearly admitted on both sides. It is not in dispute that the 4th respondent - Centre is a registered society under the Societies Registration Act, vide registration No. 154/78. It is also not in dispute that from the Memorandum of Association, the society is formed by the wifcs of the employees working in Fcrro Alloys Corporation Limited, Shreeramnagar, Srikakulam District. In the affidavit filed in support of the writ petition, it is stated that the said society is formed with the objective of providing service to the physically handicapped, deaf and mute, blind and mentally retarded children and also to render social service to the destitute women, aged women and other needy persons. Though it is stated in the writ petition that this society is registered under the Andhra Pradesh Education Act, but it transpired that it was registered under the Societies Registration Act, but not under the Andhra Pradesh Education Act. It is also not in dispute that the respondent No.4 - centre imparts training to the needy persons in tailoring, embroidering and knitting, bread making, printing, stitching, brick making, candle making and artificial leg making and other similar vocational and community training is also given. It is stated in the counter of the 4th respondent that the society was formed for rendering public service with the help of funds from donations from various sources such as philonthrophists and some parents etc. A major part of the fund was being provided by M/s Ferro Alloys Corporation Limited, Shrccramnagar. It is further stated that it is only in the year 1994-95, the said society received some funds from the Central Government. It is stated that out of the total extent of Rs.24,00,000/-, this Central Government has been paying only Rs.10,00,000/-, after the respondent No.4 incurred the expenditure and such funds were received only till March, 1997. It is further stated that M/s Ferro Alloys Corporation Limited itself has been in financial crisis and is not able to provide financial assistance to this social service organisation and such, the society being in financial crisis, is finding difficult to pay the salaries to the employees. It is further stated that the vocational units which were established, with the sole intention of imparting training to aged women, destitute women, has turned out to be redundcnt due to non-availability of funds for running the units and it was in those circumstances, the society decided to closed down 1. Printing and Binding unit, 2. Candle Making Unit, 3. Craft Unit and 4. Artificial Leg Making Unit. It has become impossible to the centre to pay the salaries to the existing staff members in addition to running vocational units to meet the day to day expenses. On the basis of these allegations in the counter, the learned Counsel for respondent No.4 contended that since these units are liable to be closed, the petitioners arc liable to be retrenched. The allegation of the petitioners that the society resolved to close these units only when the petitioners placed charter of demands is denied. The learned Counsel for the respondent No.4 contended that the writ petition itself is not maintainable complaining violation of Section 83 of the Andhra Pradesh Education Act. On the other hand, the learned Counsel for the petitioners contended that the institute in question is an educational institution and, therefore, the Andhra Pradesh Education Act applies and as such the petitioners could not have been retrenched without a prior permission of the authorities u/s 83 of the Andhra Pradesh Education Act. The learned Counsel for the petitioner submitted that respondent No.4 - Centre is a State under Article 12 of the Constitution. Therefore, the writ petition is maintainable. He further submitted that at any rate, respondent No.4 - Centre is an Industry therefore, the petitioners can maintain the writ petition.
Having regard to the contentions on both sides, now I have to sec whether respondent No.4 - Centre is a ''School'' or an ''Educational Institution'' under the Andhra Pradesh Education Act.
Admittedly, respondent No. 4 -Centre is not the one registered or recognised under Andhra Pradesh Education Act. This respondent came into existence as a society under the Societies Registration Act in the year 1978. For all these twenty years, it appears that the authorities under the Andhra Pradesh Education Act never bothered or took notice of respondent No.4, presumably under the impression that respondent No.4 is not an educational institution or a school for the purpose of Andhra Pradesh Education Act. From the meaning of ''school'' given in the Chambers Dictionary, 1 find that school is a place meant for instruction or imparting of a specific subject or subjects. I think it appropriate to extract the meaning of ''school'' as given by the Chambers Dictionary as under:
"a place for instruction; an institution for education, esp. primary or secondary, or for the teaching of a specific subject or subjects (eg a ballet school); a division of such an institution; a building or room used for that purpose; the work of a such an institution; the time during which pupils, etc attend it; the body of pupils in it; the disciples of a particular teacher;"
From this meaning it is clear that a ''school'' is an institution where students are trained either for primary or for secondary courses. It is our common knowledge that in all the schools for admission for 1st standard to 10th standard, which includes both primary and secondary education, certain eligibility is prescribed. Unless a student passes out the 1st standard, he wont be permitted to the next standard and so on. The Andhra Pradesh Education Act has itself defined "Education" and "Educational institution" for the purpose of the Andlira Pradesh Education Act as under:
"Section 2 (16): "education" means (general education, medical education), technical education, physical education, teacher education, special education, oriental education, adult education, (including non-formal) and any other branch of education which the Government may, by notification, specify; (Amended by Act 27 of 1987).
Section 2 (18):- "educational institution" means a recognised school, (colleges including Medical College), special institution or other institution (including an orphanage or boarding home or hostel attached to it) by whatever name called, the management of which carries on (either exclusively or among other activities, the activity of imparting education therein, and includes every premises attached thereto; but does not include a tutorial institution; (Amended by Act 27 of 1987)."
From the above definition of two words ''education'' and ''educational institution'', it is clear that any school or college, recognised as such, for imparting general education, medical education, technical education, physical education and any other branch of education, which the Government may, by notification, specify as an educational institution. u/s 2 (18), even orphanage or boarding home or hostel attached to it are included within the definition of ''educational institution''. u/s 2 (34) of the Andhra Pradesh Education Act, "primary education" means education from Class I to Class VII and u/s 2 (37) "secondary education" means education from Class VIII to Class X. It is not the case of the petitioners that respondent No.4 is a school of this type imparting any general education from 1st standard to 10th standard and after the completion of 10th standard, one would be entitled to a certificate from Board of Secondary Education. From this it follows that respondent No.4-centre which trains or rehabilitates physically handicapped, deaf and mute, blind and mentally retarded children and also too render social service to the destitute women, is not an educational institution in the sense defined by the Andhra Pradesh Education Act. As stated in the counter by the 4th respondent, this respondent trains the women and children in Tailoring, Embroidering and knitting, Bread Making, Printing, Stitching, Brick Making, Candle Making, and Artificial Leg Making. It also provides vocational and community training and renders other social services to the destitute women and it also trains physically handicapped and mentally retarded children, including blind, deaf and mute, so as to make them lead a normal life. Such institution which imparts training of a special nature only to rehabilitate such persons cannot be said to be educational institution as defined in the Andhra Pradesh Education Act. It is to be noted that ''adult education'' is (including non-formal) is included within the definition of ''education'' u/s 2 (16) of the Andhra Pradesh Education Act. But not a training given to the physical and mentally handicapped persons. At the most, such institutions could come under the definition of "special institutions" in terms of the definition given u/s 2 (39) of the Andhra Pradesh Education Act. But such institutions should be notified by the Government. Section (39) reads as under:
"Section 2 (3 9):-"special institution" means reformatory school, school for physically handicapped or mentally retarded or other defective pupils and includes any other type of special institution which may be notified as such by the Government."
It is not the case of the petitioners that respondent No.4 -Centre is such ''special institution'' in terms of Section 2 (39) of the Andhra Pradesh Education Act and it is also not their case that there is any notification issued by the Government of Andhra Pradesh on this behalf. If that is so, the respondent No.4 - Centre is not an ''educational institution'' under the Andhra Pradesh Education Act. As I have already stated above, it is neither registered under the Andhra Pradesh Education Act, nor recognised by the authorities under that Act. u/s 20 of the said Act, a permission is required for establishment of and educational institutions and u/s 21, a competent authority may grant or withdraw a recognition of institution imparting education. In this view of the matter, the Andhra Pradesh Education Act, 1982 docs not apply to the facts of this case.
There is another aspect of the case, which is required to be considered. The petitioners are retrenched by the impugned proceedings dated 7-10-1997 as a consequence of closing down of four units namely 1. Printing and Binding unit, 2. Candle making unit, 3. Craft Unit and 4. Artificial Leg Making Unit. Whether these unite could be considered as part of the school would be still a doubtful question. What are the nature of duties, could be ascertained only after perusing the appointment orders of the petitioners, which is a matter of evidence, to be produced by either side. Prima facie such units cannot be construed as a school or part of the school in any sense of the term. At any rate, there is no notification in terms of Section 2 (39) of the Andhra Pradesh Education Act and as such it does not apply to the facts of this case. Consequently, it follows that no permission is required by the authority either for closing the units or for retrench the employees in terms of Section 83 of the Andhra Pradesh Education Act.
Secondly, the petitioners alternatively contended that at any rate, the petitioners were the workmen and the respondent No.4 is an employer and the Management and there cannot be any retrenchment of the petitioners without complying with Section 25F of the Industrial Disputes Act, 1947. The contention of the learned Counsel for respondent No. 4 is that the petitioners cannot be construed as a workmen as per the definition of ''workman'' given in Section 2 of the Industrial Disputes Act and, at any rate, to avoid farther legal complications, respondent No.4 has sent one month''s salary to the petitioners by registered post in terms of Section 25F of the Industrial Disputes Act. He submitted that the management is entitled to retrench an employee in case any unit is abolished, and the workman cannot compel the management to continue his services, notwithstanding such closure of the unit even under Industrial Disputes Act. However, the learned Counsel appearing for the petitioners relied upon the judgment of the Supreme Court reported in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, , contending that respondent No.4 is an ''industry'' and the petitioners are workmen. He submitted that as per the law declared by the Hon''ble Supreme Court in the said Judgment, even educational institutions are construed to be ''industry''. But the Counsel for the 4th respondent submitted that the petitioners arc not the workmen as per the definition of workmen under the Industrial Disputes Act. He further submitted that respondent No.4 being a social service organisation with sole motto of rendering services and rehabilitating destitute women, mentally and physically retarded persons without a tinge of any profit motto, cannot be construed as an ''industry''. He further submitted that the institution is running on the basis of donations made by philonthrophists and some contribution by the Government of India. Therefore, respondent No.4 cannot be construed as an ''industry'' in view of the observation of the Supreme Court in Coir Board, Ernakulam, Cochin and Another Vs. Indira Devi P.S. and Others, . In view of the controversy raised on both sides, as to the nature of activities of the respondent No.4, whether it constitutes an ''industry'' or not would again be a matter of evidence and if the petitioners are so advised, they can raise an dispute under the Industrial Disputes Act, ''since, it is difficult to record any finding in one way or the other, without evidence on both sides, which the Court or Tribunal under the Industrial Disputes Act can decide it effectively.
In view of my above conclusion, that the entire matter in this case requires the evidence, in order to record a finding, either in favour of the petitioners or against them. The other question as to the maintainability of writ petition itself would be only an academic issue. At any rate, the petitioners have got an alternative remedy of filing a dispute under the Industrial Disputes Act. In these circumstances, the judgments cited by the Seamed Counsel for the petitioners reported in Vasavi College of Engineering Vs. A. Suryanarayana and Others, , Bayer (India) Ltd. v. Asst., Commissioner of Labour 1980 (1) ALT 448 and Yogini Mohalkar Vs. State of Andhra Pradesh and Others, , and the judgment cited by the learned Counsel for the respondent No.4 reported in Sri Konaseema Co-op. Central Bank Ltd., v. N. Seetharama Raju AIR 1990 A.P. 171 as to the contention, whether writ petition is maintainable or not would not arise for my consideration.
For the above reasons, I pass the order as under:--
The writ petition is dismissed. It is open to the petitioners to raise a dispute under the Industrial Disputes Act, if they are so advised, and in case the petitioners raise a dispute under the Industrial Disputes Act, the Court or Tribunal under that Act shall decide the case of the petitioners on merits without being influenced by any observations made in this order. No costs.