A. Sundarambal v. Government of Goa, Daman & DiuAIR 1988 SC 1700

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E.S. VENKATARAMIAH, J. – The short question which arises for consideration in this
case is whether a teacher employed in a school falls within the definition of the expression
‘workman’ as defined in S. 2(s) of the Industrial Disputes Act, 1947 (the Act’).

2. The appellant, Miss A. Sundarambal, was appointed as a teacher in a school conducted
   by the Society of Franciscan Sisters of Mary at Caranzalem, Goa. Her services were
   terminated by the Management by a letter dated 25th April, 1975. After she failed in her
   several efforts in getting the order of termination cancelled, she raised an industrial dispute
   before the Conciliation Officer under the Act. The conciliation proceedings failed and the
   Conciliation Officer reported accordingly to the Government of Goa, Daman and Diu by his
   letter dated 2nd May, 1982. On receipt of the report the Government considered the question
   whether it could refer the matter for adjudication under S. 10(1)(c) of the Act but on reaching
   the conclusion that the appellant was not a ‘workman’ as defined in the Act which alone
   would have converted a dispute into an industrial dispute as defined in S. 2(k) of the Act, it
   declined to make a reference. Thereupon the appellant filed a writ petition before the High
   Court of Bombay, Panaji Bench, Goa for issue of a writ in the nature of mandamus requiring
   the Government to make a reference under S. 10(1)(c) of the Act to a Labour Court to
   determine the validity of the termination of her services. That petition was opposed by the
   respondents. After hearing the parties concerned, the High Court dismissed the writ petition
   holding that the appellant was not a workman by its judgment dated 5th September, 1983.
   Aggrieved by the judgment of the High Court the appellant has filed this appeal by special
   leave.
3. Two questions arise for consideration in this case: (1) whether the school, in which the
   appellant was working, was an industry, and (2) whether the appellant was a ‘workman’
   employed in that industry. It is, however, not disputed that if the applicant was not a
   ‘workman’ no reference under S. 10(1)(c) of the Act could be sought.
4. The first question need not detain us long. In University of Delhi v. Ram Nath
   [AIR 1963 SC 1873] a bench consisting of three learned Judges of this Court held that the
   University of Delhi which was an educational institution and Miranda House, a college
   affiliated to the said University, also being an educational institution would not come within
   the definition of the expression ‘industry’ as defined in S. 2(j) of the Act. Section 2(j) of the
   Act states that ‘industry’ means any business, trade, undertaking manufacture or calling of
   employers and includes any calling, service, employment, handicraft, or industrial occupation
   or avocation of workmen. Gajendragadkar, J. (as he then was) who decided the said case,
   held that the educational institutions which were predominantly engaged in teaching could not
   be considered as industries within the meaning of the said expression in S. 2(j) of the Act and,
   therefore, a driver who was employed by the Miranda House could not be considered as a
   workman employed in an industry. The above decision came up for consideration in
   Bangalore Water Supply & Sewerage Board v. A. Rajappa [AIR 1978 SC 548] before a
   larger bench of this Court. In that case the decision in University of Delhi was overruled.
   Krishna Iyer, J. who delivered the majority judgment observed (at 596) thus:
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   “(a) Where a complex of activities, some of which qualify for exemption, others
   not, involves, employees on the total undertaking, some of whom are not ‘workmen’
   as in the University of Delhi Case or some departments are not productive of goods
   and services if isolated, even then, the predominant nature of the services and the
   integrated nature of the departments as explained in the Corporation of Nagpur, will
   be true test. The whole undertaking will be ‘industry’ although those who are not
   ‘workmen’ by definition may not benefit by the status.”
5. The learned Judge, however, observed that while an educational institution was an
   industry it was possible that some of the employees in that industry might not be workmen.
   At page 548 with reference to University of Delhi the learned Judge observed thus:
   “The first ground relied on by the Court is based upon the preliminary conclusion
   that teachers are not ‘workmen’ by definition. Perhaps, they are not, because teachers
   do not do manual work or technical work. We are not too sure whether it is proper to
   disregard, with contempt, manual work and separate it from education, nor are we too
   sure whether in our technological universe, education has to be excluded. However,
   that may be a battle to be waged on a later occasion by litigation and we do not
   propose to pronounce on it at present. The Court, in the University of Delhi
   proceeded on that assumption viz. that teachers are not workmen, which we will
   adopt to test the validity of the argument.”
6. Thus it is seen that even though an educational institution has to be treated as an
   industry in view of the decision in the Bangalore Water Supply, the question whether
   teachers in an educational institution can be considered as workmen still remains to be
   decided.
7. In order to be a workman, a person should be one who satisfies the following
   conditions: (i) he should be a person employed in an industry for hire or reward; (ii) he should
   be engaged in skilled or unskilled manual, supervisory, technical or clerical work; and (iii) he
   should not be a person falling under any of the four clauses, i.e. (i) to (iv) mentioned in the
   definition of ‘workman’ in section 2(s) of the Act. The definition also provides that a
   workman employed in an industry to do any skilled or unskilled manual, supervisory,
   technical or clerical work for hire or reward includes any such person who has been
   dismissed, discharged or retrenched in connection with, or as a consequence of, an industrial
   dispute, or whose dismissal, discharge or retrenchment has led to that dispute.
8. We are concerned in this case primarily with the meaning of the words ‘skilled or
   unskilled manual, supervisory, technical or clerical work.’ If an employee in an industry is
   not a person engaged in doing work falling in any of these categories, he would not be a
   workman at all even though he is employed in an industry. The question for consideration
   before us is whether a teacher in a school falls under any of the four categories, namely, a
   person doing any skilled or unskilled manual work, supervisory work, technical work or
   clerical work. If he does not satisfy any one of the above descriptions he would not be a
   workman even though he is an employee of an industry as settled by this Court in May and
   Baker (India) Ltd. v. Their Workmen [AIR 1967 SC 678]. In that case this Court had to
   consider the question whether a person employed by a pharmaceutical firm as a representative
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   (for canvassing orders) whose duties consisted mainly of canvassing orders and any clerical
   or manual work that he had to do was only incidental to his main work of canvassing could be
   considered as a workman as defined in the Act. Dealing with the said question, Wanchoo, J.
   (as he then was) observed thus (at 679-80):
   “A ‘workman’ was then defined as any person employed in any industry to do
   any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing
   manual or clerical work was necessary before a person could be called a workman.
   This definition came for consideration before industrial tribunals and it was
   consistently held that the designation of the employee was not of great moment and
   what was of importance was the nature of his duties. If the nature of the duties is
   manual or clerical, then the person must be held to be a workman. On the other hand
   if manual or clerical work is only a small part of the duties of the person concerned
   and incidental to his main work which is not manual or clerical, then such a person
   would not be a workman. It has, therefore, to be seen in each case from the nature of
   the duties whether a person employed is a workman or not, under the definition of
   that word as it existed before the amendment of 1956. The nature of the duties of
   Mukerjee is not in dispute in this case and the only question therefore is whether
   looking to the nature of the duties it can be said that Mukerjee was a workman within
   the meaning of S. 2(s) as it stood at the relevant time. We find from the nature of the
   duties assigned to Mukerjee that his main work was that of canvassing and any
   clerical or manual work that he had to do was incidental to his main work of
   canvassing and could not take more than a small fraction of the time for which he had
   to work. In the circumstances the tribunal’s conclusion that Mukerjee was a
   workman is incorrect. The tribunal seems to have been led away by the fact that
   Mukerjee had no supervisory duties and had to work under the directions of his
   superior officers. That, however, would not necessarily mean that Mukerjee’s duties
   were mainly manual or clerical. From what the tribunal itself has found it clear that
   Mukerjee’s duties were mainly neither clerical nor manual. Therefore, as Mukerjee
   was not a workman, his case would not be covered by the Industrial Disputes Act and
   the tribunal would have no jurisdiction to order his reinstatement. We, therefore, set
   aside the order of the tribunal directing reinstatement of Mukerjee along with other
   reliefs.
9. The Court held that the employee Mukerjee involved in that case was not a workman
   under section 2(s) of the Act because he was not mainly employed to do any skilled or
   unskilled manual or clerical work for hire or reward, which were the only two classes of
   employees who qualified for being treated as ‘workman’ under the definition of the
   expression ‘workman’ in the Act, as it stood then. As a result of the above decision, in order
   to give protection regarding security of employment and other benefits to sales
   representatives, Parliament passed a separate law entitled the Sales Promotion Employees
   (Conditions of Service) Act, 1976. It is no doubt true that after the events leading to the
   above decision took place section 2(s) of the Act was amended by including persons doing
   technical work as well as supervisory work. The question for consideration is whether even
   after the inclusion of the above two classes of employees in the definition of the expression
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   ‘workman’ in the Act a teacher in a school can be called a workman. We are of the view that
   the teachers employed by educational institutions whether the said institutions are imparting
   primary, secondary, graduate or post-graduate education cannot be called as ‘workman’
   within 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. It is not possible to accept the
   suggestion that having regard to the object of the Act, all employees in an industry except
   those falling under the four exceptions (i) to (iv) in section 2(s) of the Act should be treated as
   workmen. The acceptance of this argument will render the words ‘to do any skilled or
   unskilled manual, supervisory, technical or clerical work’ meaningless. A liberal construction
   as suggested would have been possible only in the absence of these words. The decision in
   May and Baker (India) Ltd. precludes us from taking such a view. We, therefore, hold that
   the High Court was right in holding that the appellant was not a ‘workman’ though the school
   was an industry in view of the definition of ‘workman’ as it now stands.
10. We may at this stage observe that teachers as a class cannot be denied the benefits of
    social justice. We are aware of the several methods adopted by unscrupulous managements to
    exploit them by imposing on them unjust conditions of service. In order to do justice to them
    it is necessary to provide appropriate machinery so that teachers may secure what is rightly
    due to them. In a number of States in India laws have been passed for enquiring into the
    validity of illegal and unjust terminations of services of teachers by providing for appointment
    of judicial tribunals to decide such cases. We are told that in the State of Goa there is no such
    Act in force. If it is so, it is time that the State of Goa takes necessary steps to bring into force
    an appropriate legislation providing for adjudication of disputes between teachers and the
    Managements of the educational institutions. We hope that this lacuna in the legislative area
    will be filled up soon.
11. This appeal, however, fails and it is dismissed. Before we conclude we record the
    statement made on our suggestion by the learned counsel for the Management, Shri G.B. Pai
    that the Management would give a sum of Rs.40,000/- to the appellant in full and final
    settlement of all her claims. The learned counsel for the appellant has agreed to receive Rs.
    40,000/- accordingly. We direct the Management to pay the above sum of Rs.40,000/- to the
    appellant in six instalments.