TaxTMI 
TaxTMI 
2016 (4) TMI 1470
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....er referred to as "the ID Act"). 2. The brief facts of the case required to appreciate the rival legal contentions advanced on behalf of the parties are stated as hereunder: The Appellant was employed as a driver by the DAV Public School, Pocket 'C', LIG Flats, East of Loni Road, Delhi and became permanent on the said post in the year 1994. His terms of service are covered Under Sections 2(h), 8(2), 10 and other provisions of the Delhi School Education Act, 1973 (hereinafter referred to as the "DSE Act"). 3. On 01.05.2001, the DAV College Managing Committee in its 72nd meeting of Public Schools Governing Body, passed a resolution to buy new school buses with CNG facility in compliance with the directions of this Court dated 26.03.2001 passed in the case of M.C. Mehta v. Union of India and allowed the management of the DAV Schools to raise loan from nationalized banks for the said purpose. 4. The Respondent-Managing Committee in its meeting dated 24.08.2002, passed a resolution to retrench the services of the two junior most surplus drivers, namely the Appellant and one Amar Nath, for the reason that the school had two old mechanically unfit vehicles namely, a Matador (....
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....the Appellant that since the extended notice period Under Section 25F of the ID Act was also over, his services now stood terminated. Further, a salary cheque for a sum of Rs. 4,165/- against one month's notice period from 01.07.2003 to 25.07.2003, along with a cheque bearing No. 877690 dated 22.07.2003 for a sum of Rs. 25,650/- as retrenchment compensation Under Section 25F (b) of the ID Act were enclosed with the letter. 10. The High Court disposed of the Writ Petition No. 957 of 2003 filed by the Appellant vide judgment and order dated 25.02.2004. Placing reliance on the judgment of the Delhi High Court passed in Writ Petition (C) No. 970 of 2003 dated 21.07.2003, filed by the other terminated driver Amar Nath, in the case of Amar Nath v. Director of Education, Govt. of Delhi and Ors., the High Court held that Section 8 of the DSE Act is very wide and any kind of termination would fall within its ambit. Accordingly, the Writ Petition was disposed of with liberty granted to the Petitioner to seek an appropriate remedy under the DSE Act. 11. Accordingly, the Appellant filed Appeal No. 09 of 2004 before the Presiding officer, Delhi School Tribunal Under Section 8(3) of the DS....
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....he Tribunal placed reliance on the decision of this Court in the case of Bombay Union of Journalists and Ors. v. The State of Bombay and Anr. AIR 1964 SC 1671, wherein it was held that this was only directory in nature, and not a condition precedent for retrenchment. This Court had held as under: Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenchment, and that only helps the Government to keep itself informed about the conditions of employment in the different industries within its region. There does not appear to be present any compelling consideration which would justify the making of the provision prescribed by Clause (c) a condition precedent as in the case of Clauses (a) & (b). Therefore, having regard to the object which is intended to be achieved by Clauses (a) & (b) as distinguished from the object which Clause (c) has in mind, it would not be unreasonable to hold that Clause (c), unlike Clauses (a) & (b), is not a condition precedent. (Emphasis laid by this Court) Thus, the Tribunal held that both the mandatory conditions for retrenchment have been fulfilled....
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....hall his service be otherwise terminated excepted with the prior approval of the Director Section 10 of the DSE Act reads as under: 10.(1). Salaries of employees-the scales of pay and allowances, medical facilities, pension, gratuity provident fund and other prescribed benefits of the employees of a recognized private school shall not be as less than these of the employees of the corresponding status in school run by the appropriate authority......... (2). The managing committee of every aided school, shall deposit every month, its share towards pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits with the Administrator and the Administrator shall disburse, or cause to be disbursed within the first week of every month, the salaries and allowances to the employees of the aided schools. The Industrial Disputes Act, 1947, is: An Act to make provision for the investigation and settlement of industrial disputes, and for certain other purposes Section 2(s) defines a Workman as: 2(s). "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, cleri....
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.... period of the notice: (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2 for every completed year of continuous service] or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government 3 or such authority as may be specified by the appropriate Government by notification in the Official Gazette. The spirit and scheme of the ID Act was discussed by a Seven-Judge Bench of this Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978) 2 SCC 213 as under: To sum up, the personality of the whole statute, be it remembered, has a welfare basis, it being a beneficial legislation which protects Labour, promotes their contentment and regulates situations of crisis and tension where production may be imperiled by untenable strikes and blackmail lock-outs. The mechanism of the Act is geared to conferment of regulated benefits to workmen and resolution, according to a sympathetic Rule of law, of the conflicts, actual or potential, between managements and workmen. Its goal is amelioration of the conditions of wor....
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....h have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz., manual, clerical, supervisory or technical and two two-judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Bunnah Shell cases (supra) have taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation. (Emphasis laid by this Court) 19. The issue wh....
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....e same corporate personality? We find, with all defence, little force in this process of nullification of the industrial character of the University's multi-form operations. (Emphasis laid by this Court) A perusal of the abovementioned two judgments clearly shows that a driver employed by a school, being a skilled person, is a workman for the purpose of the ID Act. Point No. 1 is answered accordingly in favor of the Respondents. The provisions of ID Act are applicable to the facts of the present case. Answer to Point No. 2 20. Mr. A.T.M. Sampath, the learned Counsel appearing on behalf of the Appellant contends that the retrenchment of the services of the Appellant, who is a permanent employee with an unblemished record of service, on the ground of non availability of CNG vehicles is illegal, arbitrary and unjust. The Appellant had been working at the Respondent-School for more than seven years and had even received a letter of appreciation for his services from the principal of the school. The learned Counsel submits that the Appellant could have been given alternate employment at any one of the 60 schools under the Respondent-Managing Committee. It is further submitted th....
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.... by the appropriate Government by notification in the Official Gazette The statement of objects and reasons provides: Opportunity has been availed of to propose a few other essential amendments which are mainly of a formal or clarificatory nature 24. Nothing was done on part of the legislature to indicate that it intended Section 25F(c) of the ID Act to be a directory provision, when the other two Sub-sections of the same Section are mandatory in nature. The amendment was enacted which seeks to make it administratively easier for notice to be served on any other authority as specified. 25. Further, even the decision in the case of Bombay Journalists (supra) does not come to the rescue of the Respondents. On the issue of interpretation of Section 25F(c) of the ID Act, it was held as under: The hardship resulting from retrenchment has been partially redressed by these two clauses, and so, there is every justification for making them conditions precedent. The same cannot be said about the requirement as to Clause (c). Clause (c) is not intended to protect the interests of the workman as such. It is only intended to give intimation to the appropriate Government about the retrenc....
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....erved on that Government, the Regional Labour Commissioner (Central), the Assistant Labour Commissioner (Central), and the Employment Exchange concerned by registered post in the following manner: (a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman; (Emphasis laid by this Court) 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. 26. That being the case, 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. Answer to Point No. 3 27. The learned Counsel for the Appellant contends that the Respon....
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....exercise of jurisdiction by courts and has also been recognized as a salutary principle of administrative law. (Emphasis laid by this Court) 29. On the other hand, the learned Counsel appearing on behalf of the Respondent-School contends that there was no requirement on the part of the Respondent-Managing Committee to comply with Section 8(2) of the DSE Act. Reliance is placed on the decision of the Delhi High Court in the case of Kathuria Public School v. Director of Education and Anr. 113(2004) DLT 703 (DB), wherein Section 8(2) of the DSE was struck down. It was held as under: 21. If the aforesaid observations of the Supreme Court in TMA Pai's case (supra) are taken to its logical conclusion, it would imply that there should be no such requirement of prior permissions or subsequent approval in matter of discipline of the staff. Thus, whether it is for suspension or disciplinary action, the educational institutions would have a free hand. The safeguard provided is for a judicial Tribunal to be set up to examine the cases. A Constitution Bench of this Court had held in the case of TMA PAI Foundation v. State of Karnataka (2002)8 SCC 481 as under: 61...In the case of una....
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....itutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational tribunal be set up in each district in a state--the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings indifferent districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The state government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service. (Emphasis laid by this Court) The learned Counsel appearing on behalf of the Respondent-School submits that not obtaining prior approval for the termin....
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....l institutions was not denied. But it was said that the impugned Act is inoperative to the extent to which it seeks to impose controls upon the management of an educational institution registered under the Societies Registration Act and managed through trustees, and thereby directly trenches upon legislative power conferred by Entry 44 of List I and Entries 10 & 18 of List III. This argument has no substance. This Court has in Board of Trustees v. State of Delhi held that legislation which deprives the Board of Management of a Society registered under the Societies Registration Act of the power of management and creates a new Board does not fall within Entry 44 of List I, but falls under Entry 32 of List II, for by registration under the Societies Registration Act the Society does not acquire a corporate status. It cannot also be said that the pith and substance of the Act relates to charities or charitable institutions, or to trusts or trustees. If the true nature and character of the Act falls within the express legislative power conferred by Entry 11 of List II, merely because it incidentally trenches upon or affects a charitable institution, or the powers of trustees of the ins....
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....erse criticism. In the absence of any legal power, it has not been possible for the Government to improve their working. An urgent need is, therefore, felt for taking effective legislative measures providing for better organization and development of educational institutions in the Union territory of Delhi, for ensuring security of service of teachers, regulating the terms and conditions of their employment.........The Bill seeks to achieve these objectives. 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. In the case of The Principal and Ors. v. The Presiding Officer and Ors. (1978) 1 SCC 498, a Division Bench of this Court held as under: Sub-section (2) of Section 8 of the Act ordains that subject to any Rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director of Education. From this, it clearly fo....
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.... TMA Pai (supra) is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in the case of Kathuria Public School (supra) is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in the case of Katra Education Society (supra). Therefore, the decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act, is bad in law. 34. Furthermore, the decision in the case of Kathuria Public School (supra) does not come to the aid of the Respondents for one more reason. Undisputedly, the notice of retrenchment was served on the Appellant on 07.01.2003 and he was retrenched from service on 25.07.2003. The decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act was rendered almost exactly two years later, i.e. on 22.07.2005. Surely, the Respondents could not have foreseen that the requirement of prior approval of the order of termination passed against the Appellant from Director would be struck down later and hence decided to not comply with it.....
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.... 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) 10 SCC 324 wherein it was held as under: 22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the a....