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Judgment
A.K. Shrivastava, J.—"School is an industry but teacher is not a workman." Much emphasis has been put by learned senior counsel Shri Nair in that regard and has submitted that this is a well settled principle of law and in that regard he has cited two decisions of the Supreme Court they are Ahmedabad Pvt. Primary Teachers'' Association Vs. Administrative Officer and Others, and the latest pronouncement Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, . Shri Varun Kumar, learned Counsel for the petitioner tried to somersault the situation on the ground that the facts are quite different. According to learned Counsel the petitioner is not purely a teacher but certain duties are also assigned to him to serve in the factory area in the main office under O.S. in preparing NCWA-V arrears and if that is the position, according to Shri Varun Kumar, learned Counsel appearing for the petitioner, the situation is somersaulted. The petitioner (hereinafter referred to as ''the workman'') has challenged the award of the CGIT, Jabalpur (respondent No. 1) and has contended that this peculiar position has not been considered by the authority and did not pay any heed to it.
There is no scintilla of doubt since it is well settled principle of law that a "school is an industry and the teachers are not the workman" as defined u/s 2(s) of the Industrial Disputes Act, 1947 (in short ''the Act''). Learned Counsel for the workman by inviting my attention to the definition of the workman envisaged u/s 2(s) of the Act has vehemently argued that if this definition is kept in juxtaposition to Annexure P/5 dated 2/5.4.1996, office order dated 7.5.1996 and 8.5.1996, it can safely be said that the duties which are being discharged by the workman are not purely of a teacher but his duty would come under the ambit and sweep of the definition of the workman envisaged u/s 2(s) of the Act.
In order to appreciate the rival contentions of learned Counsel for the parties, it would be apposite to re-write the definition of workman defined under the Act which reads thus:
"Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 Air Force Act, 1950 (45 of 1950) or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or 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 one thousand six hundred rupees per mensem, or exercises, 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.
In order to appreciate the argument of learned Counsel for the petitioner, I have kept the definition of ''workman'' in juxtaposition to the above said three office orders Annexure P/5 dated 2/5.4.1996, 7.5.1996 as well as 8.5.1996 and for better understanding it would be condign to reproduced them as under:
No. SECL/SAM/KRO/00/96/55 Dated 2/5.4.96 OFFICE ORDER
Following staff members shall report for their new assignment to the Manager Kotma Colliery:
Shri R.C. Singh
Shri R.L. Soni
Shri D.R. Pandey
Shri J.L. Garewal
Smt. L.D. Ravalkar,
This order shall come into force with effect from 2.5.96.
(emphasis supplied)
Sub Area Manager, Kotma R.O.
NO. SECL/KC//00/96/228 Dated 7.5.96 OFFICE ORDER
In pursuance of Office Order No. SECL/SAM/KRO/00/96/55 dated 2/5-4-96, issued by the Sub Area Manager, Kotma R.O., the following persons are posted in main office with immediate effect. They will assist O.S. in preparation of NCWA-V arrears. This issues with the approval of S.A.M. KRC.
Sri R.C. Singh
"R.L. Soni
Smt. L.D. Rawalkar.
MANAGER KOTMA COLLIERY
NO. SEC./KC/96/229 Date: 8.5.1996 To
Sri R.C. Singh "J.L. Garewal "R.L. Soni "D.R. Pandey Smt. L.D. Rawalkar,
You were to report to the office on 2.5.96 but till date you have not reported for your duty. Your attendance will be counted only from the date you have joined your duty. You are hereby directed to report to office Supdt. Kotma Colliery immediately failing which disciplinary action may be initiated.
MANAGER KOTMA COLLIERY
(emphasis supplied)
The name of petitioner finds place at item No. 4 in the office order dated 2/5.4.1996 whereby he was directed to be reported to his new assignment to the Manager, Kotma, Colliery. On bare perusal of another office order dated 8.5.1996 which I have reproduced hereinabove, it is gathered that it was directed to the petitioner that in case he fails to join the duty in compliance to the order dated 2/5.4.1996 disciplinary action will be initiated against him. Thus, it is as clear like a noon day that apart from the work and duty of the teacher some extra work has been assigned to the petitioner and that work and duties if tallied by keeping the definition of the workman in juxtaposition and are read conjointly one can say that there appears to be some merit in the contention of learned Counsel for the petitioner. The decisions of Ahmedabad Pvt. Primary Teachers'' Association (supra) as well as Sonepat Cooperative Sugar Mills Ltd. (supra) are quite distinguishable on the facts. In none of those cases, the teachers were asked to discharge the duty in the factory or establishment apart from the duty of teaching and therefore those two cases are not applicable in the present case. Since the clerical work has been assigned to the petitioner vide Annexure P/5 to discharge the said duty in the factory premises by assisting the Manager in order to prepare the NCWA-V arrears, therefore, the case of petitioner is required to be adjudicated.
It has been contended by Shri Nair, learned senior counsel that the limited question was referred to the Tribunal and the Tribunal was required to decide that question only. The question which was referred to the Tribunal reads as under:
Whether the action of the management of Jamuna & Kotma Areas of S.E.C. Ltd. in denying proper fixation of Shri J.L. Garewal, Teacher of Junior High School, Kotma Colliery; in Clerical Gr.I is legal and justified? If not, to what relief the workman concerned is entitled to?
It has also been canvassed by learned senior counsel that in the statement of claim filed by the workman, there is no such pleading and since there is no pleading of the workman in that regard that he was a workman, therefore, no relief can be granted to the petitioner and the Tribunal rightly passed the award rejecting the claim of the petitioner. Learned senior counsel by inviting my attention to Rule 10-B of the Industrial Dispute Rules, 1956 has submitted that despite there being an objection in the statement of claim filed by the management, the workman did not submit any rejoinder to it and the documents were not filed. It has been contended by Shri Varun Kumar, learned Counsel for the petitioner that in para 7 the workman has submitted that he is a workman.
In order to take out the grain from the chaff, it is hereby directed that the Tribunal may re-decide the issue by recording the evidence of the parties. Since the award has been passed without recording any evidence on the preliminary ground, the CGIT is hereby directed to provide opportunity to the parties to lead the evidence and re-decide the matter. The workman is free to amend his statement of claim by adding necessary pleadings mentioned in above said three office orders issued by the management. Let the decision be taken within six months, since the matter is quite old.
Ex consequenti this petition is allowed in part to the extent indicated hereinabove. The award of the CGIT, Jabalpur dated 16.11.1995 is hereby quashed. No costs.