The Judgment of the Court was delivered by
Sivaraman Nair, J.:— The question arising for decision in these three appeals is as to whether a teacher is a workman as defined in S. 2 (s) of the Industrial Disputes Act. Khalid, J., in his judgment in Original Petitions Nos. 3596 of 197) and 637 of 1980 reported in 1952 — I L.L.N 348 held that a teacher, not being a person employed to do manual work, is not a workman. That judgment is the subject-matter of Writ Appeals Nos. 410 and 411 of 1982. U.L Bhat, J., in his judgment in Ordinal Petition No. 6956 of 1981 followed an earlier judgment of Khalid, J., reported in 1981-II L.L.N 427 as also 1982 — I L.L.N 348 and held that substitute teachers appointed by the Railway Administration were not workmen entitled to the protection under the Industrial Disputes Act. That judgment is the subject-matter of Writ Appeal No. 587 of 1982.
2. Section 2 (s) of the Industrial Disputes Act defines a workman as follows:
“2 (s) ‘workman’ means any person (including an apprentice) employed in any industry to do skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed of 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 condition 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 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 supervisory opacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of powers vested in him, functions mainly of a managerial nature”.
3. The definition, therefore, provides for workmen to mean persons engaged in manual, supervisory, technical or clerical work in any industry. The manual work in turn may be skilled or unskilled. Altogether, therefore, there are five categories of people who are within the definition of workman. They are:
(1) Persons who are engaged in skilled manual work;
(2) unskilled manual work;
(3) supervisory work;
(4) technical work; and
(5) clerical work.
From the generality of persons comprehended by the definition, four categories of persons are excluded. They are:
(1) Persons who are subject to the Army Act, 1950 or the Air Force Act, 1950 or the Navy (Discipline) Act, 193;
(2) persons employed in the police service or as an officer or other employee of a prison;
(3) persons employed mainly in managerial or administrative capacity; and
(4) those, being employed in supervisory capacity, draw wages exceeding five hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by the reason of the powers vested in them, functions mainly of a managerial nature.
4. The appellants contend that teaching is manual work, perhaps skilled manual work; and as such teachers, who are employed in education, which is an industry, to do skilled manual work are workmen as defined in S. 2 (s) of the Industrial Disputes Act. The respondent dispute this preposition and submit that teaching is not manual work, skilled or unskilled, nor is it clerical, or technical or supervisory, and hence teachers ere outside the comprehension of the Industrial Disputes Act.
5. It is common ground now, in view of the decision reported in Bangalore Water Supply case, [1978 — I L.L.N 376 and 657] and Umayammal v. State of Kerala, [1982 - II L.L.N 809]. that education is “industry” as defined in S. 2(f) of the Industrial Disputes Act, and if teachers satisfy requirements of S. 2(s) of the Act, they will be workmen. It is also not disputed that the predominant nature of the work of the person employed shall be determinative of the question whether he is employed to do any manual, or supervisory or technical or clerical work in view of the decisions of the Supreme Court reported in South Indian Bank Ltd. v. A.R Chacko ([A.I.R 1964 S.C 1522], May & Baker (India), ltd. v. Their workmen, [A.I.R 1967 S.C 678], Ananda Bazar Patrtka v. Its workmen, [1969— II L.L.J 670] and Burmah-Shell Oil Storage v. Burmah-Shell Management Staff Association, [(1970) 3 SCC 378 : A.I.R 1970 S.C 922. It is also submitted by counsel for the appellants that the work of teaching may not be supervisory, or technical or clerical; land we need consider only whether it is skilled or unskilled manual work.
6. A specious contention was sought to be urged that “education” having been held to be an industry by the Supreme Court in Bangalore Water Supply case, [1978—I L.L.N 376 and 657] (vide supra), teachers who are employed therein must be held to be workmen. This contention has for its foundation, the assumption that the definition in S. 2(s) if the Act is exhaustive of all employees, and the only categories of persons employed in an industry who are outside the scope of the definition are the four groups of persons specifically excluded by the definition. If this submission be correct, there was no need to categorise workmen as those employed to do manual or supervisory or technical or clerical work. The definition need only have been all persons employed in an industry except the four groups of excluded persons. The same f??? submission was made before the Supreme Court, but was rejected as fallacious in the decision reported in Burmah-Shell Oil Storage v. Burmah Shell Management Staff Association, [(1970) 3 SCC 378 : A.I.R 1970 S.C 922] (vide supra). The following observations from that decision will serve as a complete answer to this seemingly attractive argument:
“If every employee of an industry was to be a workman except those mentioned in the four exceptions, these four classifications need not have been mentioned in the definition and a workman could have been defined as a person employed in an industry except in cases where be was covered by one of the exceptions. The specification of the four types of work obviously is intended to lay down that an employee is to become a workman only if he is employed to do work of one of those types, while there may be employees who, not doing any such work, would be out of the scope of the word ‘workman’ without having to resort to the exceptions. An example, which appears to be very clear, will be that of a person employed in canvassing sales for an industry. He may not be required to do any paper work, nor may he to required to have any technical knowledge. He may not be supervising the work of any other employees, nor would be doing any skilled or unskilled manual work. He would still be an employee of the industry and, obviously, such an employee, would not be a workman, because the work, for which be is employed, is not covered by the four types mentioned in the definition and not because he would be taken out of the definition under one of the exceptions”.
7. Another point was sought to be taken in Writ Appeal No. 587 of 1982, namely, that the work of a teacher is “skilled and manual work”. The attempt appears to be to suggest that “skilled or unskilled work” are two different and independent categories of work unrelated to manual, or clerical, or supervisory or technical work. The Supreme Court has added assurance to what is even otherwise clear from the definition that: “skilled or unskilled” only qualifies “manual work” and is not meant to specify other different and independent categories of work to do which a workman may be employed, in the following observations in Barman-Shell Oil Storage v. Burmah-Shell Management staff Association, [(1970) 3 SCC 378 : A.I.R 1970 S.C 922] (vide supra):
“For an employee in an industry to be a workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman”.
The question which has, therefore, to be considered is as to whether the work of a teacher is skilled or unskilled or manual work. On the answer to this question must depend the decision whether a teacher is a workman unless S. 2 (s) of the Industrial Disputes Act.
8. Khalid, J., in his decision reported In Muthayyan v. Manager, Kadalur Estate, [1981 - II L.L.N 427], had held that “manual work” means work done by hand and that in that sense whether a teacher employed by a plantation management would be a workman had to be decided on evidence by the Industrial Tribunal. In the judgment under appeal in Writ Appeals Nos. 410 and 411 of 1982, reported in Venkitaranam v. Labour Court. Ernkulam, [1982 — I L.L.N 348], Khalid, J., followed his earlier decision that as a teacher does not do manual work in the sense of “work done with hands”, he is not a workman under the Industrial Disputes Act, because.
“…The work of teacher falls within this sublime area of intellectual advancement of the wards under his charge, and his work, in my judgment, cannot be equated to manual work, though it may sometimes be skilled work. Therefore, I have no hesitation to hold that the work of a teacher is not manual work….”. in Para 13, at page 353:
He then proceeded to examine whether the work of the teacher was clerical work of technical work or supervisory work. Bhat, J., in his judgment in Original Petition No. 6966 of 1981, followed the above two decisions of Khalid- J. It is conceded by counsel for the appellants in these appeals before us that the only question which we need examine is whether the teacher is engaged in skilled or unskilled manual work. As a matter of fact, the only specific ground taken is in Writ Appeal No. 587 of 1982, where it it urged in ground (2) that
“the learned single Judge omitted to note that teachers are doing skilled and manual work, which will sufficiently bring into the category of workman”.
9. In the common judgment in Original Petitioner Nos. 3696 of 1979 and 697 of 1980, and his earlier judgment reported in Muhayyan v. Manager, Kadalur Estate, [1981 — II L.L.N 427] (vide supra), Khalid, J, has relied on the dictionary meaning of the term “manual work” as signifying work done by hand, and having found that the work of the teacher is not predominantly manual work in that sense, he has held that “teacher” is not a workman as defined in S. 2 (s) of the Industrial Disputes Act. The counsel for the appellants assail these findings to be unsustainable and submits that “manual work” in the context in which it appears in S. 2(s) of the Industrial Disputes Act, must receive a wider and liberal meaning as comprehending all work involving physical strain. It is further submitted that the work of teaching is manual work in the sense of involving a greater or predominant element of physical strain than intellectual exertion.
10. The word “manual” has different dictionary meanings: one of them, of course, is “done, or worked, or used by hand” which has been adopted by Khalid, J., in his judgment reported to Muthayyan v. Manager, Kadalu Estate, [1981 — II L.L.N 427] (vide supra). Oxford Dictionary defines the same term variously as meaning “pertaining to or done with hands,” “nowespecially of (physical) labour”. Judicial decisions pertaining to the term and referred to in Judicial Dictionary by Stroud (4th Edn.) adopt various meanings like “work which involves physical exertion rattier than intellectual exertion,” “work involving strains of the muscles” and “that which tests a man's muscles and sinews,” etc. Words and Phrases Legally Defined by John B. Saunders (2nd Edn.) catalogues decisions which adopt the narrow construction “labour performed by hand” to those which refer to “exercise of sinews and muscles of the 1imbs wielding the hammer or pickaxe or shouldering heavy loads'. Black's Law Dictionary (4th Edn.) defines “manual labour” as “work done with hand,” “labour performed by hand or by exercise of physical force, with or without the aid of tools, machinery or equipment, but depending for its effectiveness chiefly upon personal muscular exertion rather than upon skill intelligence or adroitness”. We feel that we shall not adopt the narrowest dictionary meaning of “[manual works, but should adopt the wider meaning as comprehending all worth involving physical force end depending chiefly upon personal muscular exertions rather then upon exertion of intelligence. In the setting in which it is used in S. 2(s) off the Industrial Disputes Act, apparently to contra-distinguish clerical, supervisory and technical a vocations, we are inclined to hold that the meaning to be given to the term “manual work” is the wider meaning, viz., any form of physical labour depending chiefly on personal muscular exertion as distinct from those involving predominantly intellectual, innovative, imaginative or creative faculties. In case if the restricted meaning is accepted a watchman who is engaged in a work which is mechanical and repetitive and a process involving only physical exertion, but which has to be done by foot, or a headload worker who uses his head and shoulders more than his hands may not be engaged in manual work. Again, an artist who has to use creative and imaginative faculties to paint pictures will nevertheless be a manual worker, because he works with his band. Likewise, a surgeon whose work is manual, and strenuous at that may be a workman even though he is employing his intelligence, expertise and accumulated skills of a totally non-physical character in performing an operation.
11. The wider meaning of the term is also commended by most of the judicial decisions. They also apply the test of predominant nature of the work to deter mine whether the work of the person concerned is manual or otherwise.
12. In In re: Momanus [(1933) 148 L.T 406], Roche, J., held that an acrobat and clown was not a person engaged in manual labour, though his performance involved a lot of physical labour as well. It was observed:
“The test is whether the work with hands is the essence of the work, or whether it is some other power or quality which is the essential matter”.
The same learned Judge In re: National Health Insurance Act; In Re: Professional Players of Association of Football, [(1934) 2 K.B 265], held that a professional footballer is not engaged in physical labour. It was observed:
“Here a professional footballer like a professional cricketer, is essentially a person who works with his acquired or inherited skill in play, fortified and improved by continuous instruction, study and practice”.
In Gardner's Appeal, Re: Maschek, Re: Tyrrell, [(19???8) 1 All E.R 20], Branson, J., approved a distinction between manual and non-manual labour as to be “whether the work consisted of the application of scientific knowledge as distinct from manual dexterity”. In Jaques v. Owners of Steam Tug Alexandria, [(1921) 2 AC. 339], it was held that the master of a steam tug, who had also incidentally to perform a number, of duties involving physical labour was not a person engaged in manual labour. Lord Sumner observed:
“Service ‘otherwise than by way of manual labour’ on the other hand fits the case of a person whose service principally involves the exercise of mental qualities, sometimes with and sometimes without the accompaniment of manual labour”.
Lord Parmoor observed in the same decision:
“It was argued by counsel on behalf of the appellant, that the claimant was entitled to compensation in all cases in which the employment included work, not negligible in quantity, by way of manual labour which was not necessary to, but an integral part of the employment. If this construction is accurate the appellant would succeed in the appeal, but I think it is not accurate and that to adopt it would be to include a number of employments, which are in no sense employment by way of manual labour”.
In In re: National Insurance Act, Re: Litho-graphic Artists, Re: Engravers, [(1913) 108 L.T 894], It was held that just as an artist who paints an original picture, a lithographer who designs on specially treated surfaces or an engraver who corrects and improves halftone plates is employed in labour of the brain and intelligence, and not in manual labour. It was held by Warrington, J., that:
“So in the present case, the employee (a lithographer) bas to deal in a particular way with a particular surface which is ultimately to be used in the production of a picture. In doing this he necessarily uses his hands, but the use to which be puts them is not labour, because it involves no strenuous exercise of the muscles of his hand or his arm. The real labour involved is labour of the brain and the intelligence. A lithographic artist can no more be said to be engaged in manual labour than a Royal Academician who paints a portrait or landscape can be said to be engaged in manual labour”.
“The case of engraver is that of persons engaged in correcting and improving halftone places. That is even a fortiorian case. All the employee has to do is to take a grapher's tool and make certain corrections in the plate submitted by way of approval, or tentatively submitted for the reproduction by engraving of a picture or some other object. I think in this case also that the engraver is not in manual labour”.
Referring to this decision, Lord Morris of Borth-Y-Gest observed in his majority opinion in J. & K. Stone Lighting and Radio v. Haygarth, [(1966) 3 All E.R 539], that:
“The case is helpful as indicating an example of cases where in a realistic sense it would be considered that manual labour is merely incidental to something more dominant such as the creative faculty. The creative mind of the composer or the author may bring into service an activity of his hand, which is merely accessory to and subsidiary to the labour of his brain or his imagination or his intellect”.
Lord Upjohn, in his concurring judgment in the above case also approved the decision in [(1913) 108 L.T 894] (vide supra) and held further:
“All the cases accept the view that almost every activity involves manual labour, and so the question of the exercise of artistic skill and intelligence is a powerful factor. For example, I suppose that no man exercise more manual labour than the surgeon operating on his patient, but no one would conceivably suggest that he was engaged in manual labour. The surgeon is performing the highest possible skill of brain and intelligence to which he must couple great manual dexterity”.
13. In Burmah - Shell Oil Storage and Distributing Company of India. Ltd. v. Burmah Shell Management Staff Association, [(1970) 3 SCC 378 : A.I.R 1970 S.C 922](vide supra) dealing with the same question as to whether an employee was a workmen or not the Supreme Court observed:
“There is a clear distinction between technical work and manual work. Similarly, there is a distinction between employments which are substantially foe manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. Even though the law in India is different from that in England, the views expressed by Branson J., in Appeal of Gardiner; In re: Maschek: In re: Tyrrell, [(1938) 1 All E.R 2]. are helpful because, there also the nature of the work had to be examined to see whether it was manual work. As examples of duties different from manual labour, though incidentally involving manual work, he mentioned cases where a worker—
(a) is mainly occupied in clerical or accounting work; or
(b) is mainly occupied in supervising the wcrk of others; or
(c) is mainly occupied in managing a business or a department; or
(d) is mainly engaged in salesmanship; or
(e) if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexerity.
Another helpful illustration given by him of the contrast between the two types of cases was in the following words:
“If one finds a man employed became he has the artistic faculties which will enable him to produce something wan??? in the shape of a creation of his own, then obviously although it involves a good deal of manual labour, he is a employed in order that the employer may get the benefit of his creative faculty”.
In Vinaya Nath Narain Sinha v. Bihar Journal. Ltd.[1955—II L.L.J 633], a Division Bench of the Patna High Court held that an assistant editor of a newspaper was not a workman since he was not engaged to do manual or clerical work. It was observed:
“The duties assigned to petitioner 1 as a senior assistant editor are not ???? In doing his editorial work, petitioner 1 has to display qualities of initiative and independence and it is, I think, too far fetched to argue that the duties of petitioner 1 are of mechanical or routine description. I hold that petitioner I is not a ‘workman’ within the meaning of the Trade Disputes Act”.
n Nellimaria Jute Mills Company, Ltd. v. Staff Union, Nellimaria Jute Mills, [1965 — I L.L.J 167], the Labour Appellant Tribunal of India had to consider the question as to whether the watch and ward staff and the teachers employed by a jute mill were workmen under S. 2 (s) of the Industrial Disputes Act. Dealing with teachers it was observed:
“It was argued on behalf of the teachers that they have to use their hands and to do clerical work inasmuch as the teachers have to writ on blackboards, correct exercise books, fill in attendance register, maintain scholar registers and impart basic education. The headmasters of the two schools were examined. They admitted that the major part of the work of the teachers consisted in the teaching of pupils and the balance of their time is taken up by doing educational propaganda, maintaining registers and records of the schools and submitting periodical returns. We have no doubt in our minds that the teachers' work is neither clerical nor manual. Their main duty is to teach pupils and that is entirely a brain work. That being the position, the teachers are not ‘workmen’ as defined in the Industrial Disputes Act, 1947”.
In Lakshmi Devi Sugar Mills, Ltd. v. State of Uttar Pradesh, [A.I.R 1955 All. 578], a Division Bench of the Allahabad High Court had to consider the question as to whether doctors and compounders employed by a Sugar Mill were workmen as defined in S. 2 (s) of the Industrial Disputes Act. The following observations occur in the judgment delivered on behalf of the Bench by Dayal, J.:
“We have, therefore, to consider whether the doctor and the compounder can be said to be workmen for the purpose of the Uttar Pradesh Industrial Disputes Act. We are of opinion that they cannot be said to be such employees who do manual or clerical work. They can be said to be workmen only if their main work be manual or clerical and not merely because such work is incidental to the carrying out of their main dates. The doctor's main work is not merely to write prescriptions or to feel the pulse of a patient. His main work is to observe the patient, to hear his complaints, to diagnose his disease win the experience and knowledge at his Command and then to prescribe medicine when he considers best for the patient. Similarly the compounder's work is not merely the taking out of medicines, mixing them in proper proportions as prescribed, and dispensing the prescriptions. His main work too requires his knowledge of the medicines, the use of his capacity to weigh them, and to dispense thorn properly and to exercise general vigilance in the proper dispensing of medicines. We do not, therefore, consider that these two persons of the medical staff, namely, the doctor and the compounder, answer the definition of ‘workman’.
Dealing with the question as to whether an assistant artist employed by an advertising contend to draw pictures as per the idea of picture visualised by the chief artist will be a workman under the Industrial Disputes Act, it was observed by the Labour Appellate Tribunal of India, in Advertising Corporation of India v. Barendra Chandra Nag, [1955 — II L.L.J 448], as follows:
“The assistant artists in the present case got the idea from the chief artist and they were to give expression to the idea in their drawings. The mare fact that the original idea could not be modified does not make the works of these assistant artists clerical. They have still ample scope left to them to show their creative talents, visualisation and originality in their pictures within the limits of original idea”.
It was further observed therein that:
“The sub-editor is to keep himself within the policy of the newspaper in the same manner as the assistant artists were to confine themselves within the original idea visualised by the chief artists. Toe directions in either case did not go beyond this. The assistant artist was quits independent to draw up the picture within these limits introducing his visualisation, creative talent and originality picture in the same way as the sub-editor would write editorial notes within the limits of the policy of the newspaper concerned which was in the nature of a general direction to all employees of the newspaper. We have considered the question very carefully and we cannot persuade ourselves to agree w to the learned tribunal that the respondents who were assistant artists in the Advertising Corporation of India, Ltd., were workman”.
In B.I.C, Ltd. (New Egertion Woollen Mills Branch) v. Ram Bahadur Jamuar, [1957 — I L.L.J 42], the Labour Appellate Tribunal of India, again dealing with the question of manual work observed as follows:
“Manual work in this definition is not necessary confined to work by the application of the hands but comprises all work involving physical exertion as distinguished from mental or intellectual exertion otherwise, an operative who works only with his legs and who is undoubtedly a workman, will no fall within this definition. ‘Manual work’ here is evidently used in its wider sense as meaning all work involving physical exertion”.
Again it was observed therein:
“The duties of the complainant here are essentially manual in nature, in the sense that they involve a substantial amount of physical effort, and accordingly we bold that he is a workman within the meaning of S. 2(5) of the Industrial Disputes Act”.
In Marshal Braganza v. Samant, [1976 — I L.L.N 83], the Bombay High Court held that a film cameraman is not a workman since the nature of the work of a cameraman indicates that for the successful creation of reality, he depends upon the display of his imagination and the exercise of artistic faculty and the application of technical knowledge as distinguished from manual dexterity.
Dealing with the case of chartered accountant who was entrusted with compilation of reconciliation statements, preparation of budgetary statements, etc., of the Delhi Branch of the employer concern, Prakash Narayan, J. (as he then was), of the Delhi High Court held that the employee was not a workman since his duties were neither clerical nor skilled manual work. It was observed that:
“Merely because Goel used to make a few entries in the various books of account does not convert his employment into one of clerical nature … What had to be seen was whether the nature of his duties as given by himself was skilled or unskilled manual work, or supervisory work or technical or clerical work. If it was not so primarily, then Goel could not be a workman. He may be something else, but certainly not a workman within the meaning of S. 2(5)…. The main duties of Goel appeared to be non-clerical and of the type which required some application of mind and initiative. This is as distinguished from skilled labour or skilled manual work… Compilation of reconciliation statement, preparation of budgetory statements cannot be regarded as skilled or unskilled manual or clerical work. It cannot even be technical clerical work. It calls for creativeness, imagination and an application of mind which must be distinguished from skilled or unskilled manual work, supervising work and technical or clerical work”.
In Crown Talkies. Madras v. M.P Sethurajan, [(1975) 48 F.J.R 344], Ramanujam, J., had to deal with the same question under S. 2(s) of the Industrial Disputes Act with reference to manual work and it was observed that;
“the learned counsel for the petitioner refers to the definition of the word ‘manual’ found in Oxford Dictionary. which says that the word ‘manual’ means, ‘of done with hands’ and states that a watchman's work does not involve that use of hands and, therefore, his work cannot be taken to be a manual work. It is true the word ‘manual’ normally and usually connotes ‘pertaining to the hand; done or made by the hand’. I am not, however, inclined in this case to go by the definition of the word ‘manual’ occurring in the dictionary, as, in my view the expression ‘manual work’ occurring in the definition of ‘workman’ in S. 2(s) is comprehensive enough to include all manual or physical exertions, and it cannot be limited to the work done by hand. It cannot be disputed that a watchman's work involves physical exertion as he has to keep watch over the theatre and the properties therein either standing or sitting at his post and as such a work naturally requires exertion of all his physical faculties including the eyes, ears, legs, hands, etc. The expression ‘manual work’ occurring in the definition of ‘workman’ according to me, has been used in antithesis to mental or intellectual work so as o distinguish between work done by physical exertion and other work which is of supervising, technical or clerical nature. If the contention of the petitioner's learned counsel is to be accepted then only those persons who do work with hands will come under the definition of ‘manual workers’, and a large group of persons will go out of the definition. Having regard to the object of the Industrial Disputes Act, the definition of ‘workman’ in S. 2(s) cannot be construed in such a narrow and strict manner”.
We do not propose to multiply authorities.
14. The principle which emerges from these decided cases are unmistakable, and they are:
(a) manual work used in S. 2(s) cannot be confined to work done by hand alone; it comprehends all physical exertions, which are mechanical and repetitive, depending for its effectiveness, chiefly on personal muscular exertion; and
(b) in assessing the nature of the work, manual work which is incidental or accessory to other types of work, namely, those which call for the intellectual, imaginative, creative or innovative faculties will not be determinative.
The work of a teacher has to be viewed in the light of these principles to determine whether he is a workman under S. 2(s) of the Industrial Disputes Act.
15. Whether a person employed in education would be industrial employee was first considered by the Supreme Court in the decision in City Corp nation of Nagpur v. Its employees, [A.I.R 1960 S.C 675], with reference to the questions as to whether different departments of the City Corporation of Nagpur were industries. It was held that education in the sence or rendering a service was an industry under S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act. The relevant finding is as follows:
“Education: Department. This department looks after the primary education, i.e, compulsory primary education within the limits of the Corporation. (See the evidence of witness 1 for party 1). This service can equally be done by private persons. This department satisfies the other tests. The employees of this department coming under the definition of ‘employees’ under the Act would certainly be entitled to the benefits of the Act”.
16. The above decision, City Corporation of Nagpur v. Its workmen, [A.I.R 1960 S.C 675] (vide supra), was, however, unsettled by the Supreme Court in Delhi University case |[A.I.R 1963 S.C 1873] for the reason that what fell for consideration in the earlier decision was as to whether the municipal activities would fall within the term “industry” as defined in S. 2(14) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, and not as to whether educational activities would be industry under S. 2(14) of the Industrial Disputes Settlement Act. It was, however, observed, that:
“Having regard to the fact that the word ‘industry’ as defined in the Act takes within its sweep any calling or service or employment, it cannot be denied that there is prima facie some force in the argument urged by the respondents; but in testing the validity of this argument, it will immediately become necessary to enquire whether the work carried on by an educational institution can be said to be work carried on by it with the assistance of labour or co-operation of teachers. The main function of educational institution is to impart education to students and if it is held that the imparting of education is industry in reference to which the educational Institution is the employer it must follow that the teachers who co-operate with the institution and assist it with their labour in imparting education are the employees of the institution, and so, normally, one would expect that the teachers would be employees who would be entitled to the benefits of the Act. The co-operation of the employer and the employees, or, in other words, the co-operation between capital and labour to which reference is always made by the industrial adjudication must, on the respondent's contention, find its parallel in the co operation between the educational institution and its teachers. It would, no doubt, sound somewhat strange that education should be described as industry and the teachers as workmen within the meaning of the Act, but if the literal construction for which the respondents contend is accepted, that consequence must follow. If the scheme of the Act and the other relevant considerations necessarily lead to the said consequence, the Court will hare to accept the respondents' contention not-withstanding the fact that it does not fit in with the general accepted sense of the word ‘industry”.
(Emphasis supplied.)
17. It is important to note that the Court observed:
“that education would be an industry and the teachers workmen within the meaning of the Act, if the literal construction for which the respondents contend was accepted. (In making this observation, the nuances of the definition of ‘workman’ in S. 2(s) of the Industrial Disputes Act was not obviously noticed.)
The reasoning given in the subsequent paragraph for taking education out of the literal meaning of the definition of ‘industry’ was critically considered in Bangalore Water Supply case, [1978 - I L.L.N 376 and 657] (vide supra). After a detailed discussion of these reasons, it was held in Para. 117, at page 416 of the judgment)
“We dissent, with utmost deference, these propositions and are inclined to hold, as Corporation of Nagpur, [A.I.R 1960 S.C 675] (vide supra), held, that education is industry and as Isaac, J., held, in Australian case, [(1929) 41 C.L.R 569] (vide supra), that education is pre-eminently service”.
Paragraph 118, at page 416, deals with other reasoning given in Para. 5 of Delhi University case, [A.I.R 1963 S.C 1873] (vide supra), that
“…the predominant activity of the university was teaching and since teachers did not come within the purview of the Act, only the incidental activity of the subordinate staff could fall within its scope but that could not alter the predominant character of the institution”.
This argument was also repelled in Para. 125, at page 417. It was held:
“Our conclusion is that University of Delhi case, [A.I.R 1963 S.C 1873] (vide supra), was wrongly decided and that education can be and is, in its institutional form, an industry…”
18. The apparent effect of the decision in Bangalore Water Supply case, [1978 — I L.L.N 376 and 657] (vide supra), is not only to restore City Corporation of Nagpur case, [A.I.R 1960 S.C 675] (vide supra), but also to restore the observations contained in Delhi University case, [A.I.R 1963 S.C 1873] (vide supra), to the effect that if the literal construction for which the respondents contend is accepted, the consequence hat education is an industry and teachers are workmen, must follow. The counsel for the appellants contend that this is the true legal position now. Counsel for the respondents, however, contend that Bangalore Water Supply case (vide supra), has overuled Delhi University case (vide supra), only in respect of the finding that education was an industry and did not upset the other finding in Delhi University case (vide supra), that teachers are not workmen. Neither of these propositions seem to be correct in view of the subsequent observations in Bangalore Water Supply case (vide supra), as follows in Para. 113, at page 414:
“… 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 no, propose to pronounce on it at present. The Court, in University of Delhi case (vide supra), proceeded on that assumption, vis., that teachers are not workmen, which we will adopt to test the validity of the argument…”
This indicates, that notwithstanding the observations contained in Delhi University case (vide supra), that if the literal construction of the term “industry” and “workmen” was to be accepted, education would be an industry and teachers would be workmen, the larger Bench in the latest decision has left the question as to whether teachers are workmen open. While restoring the earliest judgment in Corporation of City of Nagpur v. Its workmen (vide supra), the latest decision in Bangalore Water Supply case (vide supra), has taken care not to retain the general observations contained in the two earlier decisions, the first Corporation of City of Nagpur v. Its workmen (vide supra), holding that all persons employed in education are entitled to the benefits of the Act, and the second, the assumption that on literal construction teachers would be, but they are really not workmen, Delhi University case (vide supra). A consideration of the question with reference to the requirements of the statutory definition as under-stood above has not become obligatory as correctly found by Khalid, J.
19. The counsel for the appellants drew our attention to two decisions, where it was claimed that teachers have been held to be workmen one of the Madras High Court reported in sigamani (M.D) (Smt.) v. Labour Court, Madras, [1980 — I L.L.N 39] and the other of Bombay High Court, reported in P.R Kokil v. The General Manager, South Central Railway, Secunderabad*, [1972 L.L.N 207]. Sri K.A Nayar, counsel for the respondents, in Writ Appeals Nos. 410 and 411 of 1982 on, the other hand relied on the decision of the Patna High Court in Vishnu Sugar Mills v. State of Bihar, [A.I.R 1964 Pat. 94].
20. In neither of the two cases referred to by counsel for the appellants is there a discussion as to whether teachers fall within the definition of S. 2 (s) of the Industrial Disputes Act on the basis of the nature of the work performed by them being manual, clerical, technical or supervisory. In the former case it was argued that education being an industry, the persons employed therein are workmen. The question which arose for consideration therein was whether a person employed as an assistant mistress by the factory manager in a school attached to the factory and in which the children of the employees of the factory alone were admitted, who was enjoying all the benefits of an employee of the factory and who was occasionally employed at the gate of the factory to check women workers was a workman entitled to institute proceedings under S. 33-C of the Industrial Disputes Act. It was contended on behalf of the employer that the school was not an industry; and even assuming it was an industry, it not being a part of the industrial establishment but separately managed by a committee and governed by Tamil Nadu Recognised Private Schools Act, 1973, the employee was not, in any case, a workman of the factory. Though the definition of workman in S. 2 (s) of the Industrial Disputes Act was extracted in the judgment, there is no discussion at all with reference to the definition whether a teacher satisfied the requirements thereof. It appears to have been assumed that once it is found that a person is employed in an industry, he is a workman. The Labour Court which had rejected the application of the petitioner under S. 33-C of the Industrial Disputes Act had relied upon University of Delhi case, [A.I.R 1963 S.C 1873] (vide supra), for coming to the conclusion that education not being an industry, a teacher employed therein cannot be a workman under the Industrial Disputes Act, Varadarajan, J., found that the Supreme Court itself had overruled Delhi University case (vide supra), in Bangalore Water Supply case, [1978 — I L.L.N 376 and 657] (vide supra), on 21 February, 1978, earlier than the decision rendered by the Labour Court on 30 March, 1978. On the admitted facts that the employee was appointed by the respondent-management and continued to be an employee of the factory and occasionally found to be working as a workman of the factory, it was held that the petitioner was a workman entitled to approach the Labour Court under S. 33-C of the Industrial Disputes Act. Education having been found to be an industry and that the school was run for the benefit of children of the employee, it was further held on the basis of the decision of the Supreme Court in J.K Cotton Spinning and Wearing Mills Company v. Labour Appellate Tribunal of India, [A.I.R 1964 S.C 737], that a teacher employed therein was a workman entitled to maintain the proceedings under S. 33-C of the Industrial Disputes Act. This decision, therefore, does not render any assistance to decide as to whether a teacher is a workman as defined in S. 2 (s) of the Industrial Disputes Act in the sense of a person employed in an industry to do skilled or unskilled manual work. We are, therefore, in agreement with Khalid, J., that this decision is not determinative of the question whether a teacher is a workman under S. 2(s) of the Industrial Disputes Act.
21. In Bombay case 1972 L.L.N 207 (vide supra) the question which arose for consideration was whether a teacher employed by the Railway Administration, who satisfied the requirements of the definition of an “industrial employee” and a “railway servant” under the relevant Railway Rules was entitled to be an office-bearer of a trade union of railway servants. The question was also considered from the aspect whether the work of a teacher in a railway school can be said to be an operation or activity incidental to the main industrial activity. It was held that it was, even though it was assumed that the nature of the work carried on by the teacher “can in no sense be described as industrial activity” Reliance for this purpose was placed on the decision of the Supreme Court in J.K Cotton Spinning and Weaving Mills Company, Ltd. v. Labour Appellate Tribunal of India, [A.I.R 1964 S.C 737] (vide supra), in which a gardner employed by a mill to tend the garden in the bungalow of officers of the mill was held to be a workman. Having held thus, it was further found that in terms of rule, 3610 of Indian Railway Establishment Manual that the petitioner therein was entitled to be an office-bearer of the union of railway employees. The question whether a teacher was a workmen according to the definition contained in S. 2 (s) of the Industrial Disputes Act was not considered in that case either. We, therefore, bold in agreement with the observations of Khaild, J. and Bhat, J., that this decision is not helpful in deciding the question whether a teacher is a workman under S. 2(s) of the Industrial Disputes Act.
22. Nor is the decision cited by the counsel for the respondents, Vishnu Sugar Mills v. State of Bihar, [A.I.R 1964 Pat. 94] (vide supra), helpful in this regard. The question which was considered was, of course, the identical question which arises here. It was held by the Patna High Court that such a person was not a workman on the basis of the decision of the Supreme Court in Delhi University case, [A.I.R 1963 S.C 1873] (vide supra). That decision also does not contain any consideration of the question with reference to the definition of a workman under S. 2 (s) of the Industrial Disputes Act. It may also be stated here that Delhi University case (vide supra), on the basis of which alone the Patna High Court rested its decision, has been overuled in the late decision, Bangalore Water Supply case, [1978 — I L.L.N 376 and 657] (vide supra). Thus, this decision also does not render any assistance in resolving the present controversy.
23. The only decision which dealt with the question whether teachers are workmen under S. 2(s) of the Industrial Disputes Act appears to be that of the Labour Appellate Tribunal of India in Nellimarla Jute Mills Company, Ltd. v. Nellimarla Jute Mills Staff Union, [1955 - I L.L.J 167] The Tribunal, on a discussion of the various aspects of the work of a teacher, came to the conclusion that:
“We have no doubt in our minds that the teacher's work is neither clerical nor manual. Their main duty is to teach pupils and that is entirely brain work. That being the position, the teachers are not ‘workmen’ as defined in the Industrial Disputes Act”.
24. On a review of the work of teachers, with reference to the principles emerging from the decided cases, we ate inclined to agree that the work of teachers is not manual, not in the restricted sense in which that term was understood in the decisions under appeal, but even in the wider sense of comprehending work of predominantly physical exertions. There may, of course, be difference in the degree of physical exertion that is involved in teaching, just as much as there are such differences in the degree of intellectual exertions in the different stages of education, viz., pre-primary or kindergarten, elementary or primary school, secondary school, collegiate, post-graduate and research levels. However, it cannot be held that at any stage of education, the work of teaching is principally and predominantly physical exertion even in the larger sense of the term.
25. According to Dictionaries, the meaning of “teach” is: “to show; to direct; to impart knowledge or art; to guide the studies of; to exhibit so as to impress upon the mind to impart the knowledge or art of”. (Chambers Twentieth Century Dictionary).
“To give instruction to, guide studies of; import knowledge, experience, skill, to: to give instruction in, to bring one to a knowledge of or skill in (a subject)”. (Universal Dictionary of English Language.)
Black's Law Dictionary, 3th Edn., defines “teach”:
“To impart knowledge by means of lessons to give instruction in; communicating knowledge, introducing into or impressing on the mind as truth or information, and may be done as well through written communications, personal direction, through the public oress, or through any means by which information may be disseminated, or it may be done by the adoption of sentiment expressed or arguments made by others which are distributed to others for their adoption and guidance”.
26. Universal Dictionary of English Language defines a “teacher” as: “one who teaches; trainer of the mind, instructor, etc”. The emphasis is on the training of the mind. According to the Encyclopaedia Britannica, the elementary-school teacher must teach the basic mental skills—reading, writing, and arithmatic. Beyond this, these elementary-school teacher must teach facts and attitudes favourable to the nation or the church or any other institution supporting the school. The functions and roles of teachers is categorised as follows:
“Broadly speaking, the function of a teacher is to help a client learn things, by imparting knowledge to him and by setting up a situation in which the client can and will learn effectively. But the teacher fills a complex set of roles, which vary from one society to another and from one educational level to another. Some of these roles are performed in the school or university, and some are performed in the community.
Roles in the school or university.
Mediator of learning
Disciplinarian or controller of student behaviour
Parent substitute
Confidant to students
Judge of achievement
Organiser of curriculum
Burreaucrat
Scholar and research specialist
Member of teachers' organisation.
Roles in the commniunity
Public servant
Surrogate of middle class morality
Expert in some area of knowledge or skills
Community leader Agent of social change.
In those areas in which teaching has rot yet become a profession, the teaches may fill fewer of these roles. The primary-school teacher in a simple agricultural society, for example, will fill only the first five of the school roles and the first and possibly the second of the community roles”.
27. The physical part of teaching is the oral instruction accompanied perhaps by visual representations, the correction of written work, the maintenance of records relating to them, etc. The oral instruction accompanied by visual representations only manifest the intellectual activity whereby the product of the work of the brain and intelligence of the teacher is communicated to the pupil. The element of physical exertion involved in the correction of the written work of the students is also likewise mainly work of the intellect of the teacher. It cannot be asserted that even at this stage, the activity is predominantly physical. The physical part is only (he manifestation of the predominant activity which is intellectual in character. The physical on manual exertions are only accessory and incidental to the process of imparting knowledge which is predominantly an activity of the intellect. We cannot hold that the act of teaching is a mechanical and repetitive physical exercise rather than a process involving exercise of the intellectual and creative faculty of the individual teacher. We are not forgetting the fact that excessive commercialisation has affected the field of education and a new orientation in the relation between the teachers and the institutionalised education has transformed it almost into a trade. Almost the whole body of our teaching fraternity has been organised on trade union lines. These are as the Supreme Court correctly observed in the decision reported in Bangalore Water Supply case, [1978 — I L.L.N 376 and 657] (vide supra), pointers to education being treated as an industry. It may perhaps be a natural corrolary that those employed in education, which is an industry, should be treated as workmen. But this can be only if the statutory definition permits it. To hold that teachers are workmen as defined in S. 2(s) of the Industrial Disputes Act as persons employed to do skilled or unskilled manual work is a far cry therefrom. On an examination of the work of teachers with reference to the statutory definition and in the particular context of the submissions advanced by counsel for the appellants, that the work of teaching is skilled or unskilled manual work, we cannot but hold that the judgment under appeal in so far as it holds that the work of teachers is not manual work is correct. It cannot be denied that the work of teachers is to educate. We are reminded of the definition of “education” in Devil's Dictionary by Ambrose Philips: “that which discloses to the wise and disguises from the foolish their lack of understanding”. In either sense, it cannot be held that the work of education is predominantly physical in character; neither in the disclosure to the wi e nor in the disguise from the foolish.
28. Even though other points had been raised in the memoranda of appeals, counsel for the appellants have confined themselves to this aspect of the question only, and, according to us, rightly, in arguing the appeals. It is, therefore, not necessary for us to deal with the other points raised in the memoranda of appeals.
29. The appeals are, therefore, dismissed, confirming the conclusions, that teachers are not workmen since the work of teaching is not skilled or unskilled manual work. This we hold for reasons different from those which are mentioned by Khalid, J., with whom Bhat, J., agreed, as stated above. We make no order as to costs.