1. The president, the secretary, the headmaster and other members of the managing committee of Tantia High School, Calcutta, have moved the writ application challenging the memo, dated 25 June, 1985, issued by the Assistant Secretary to the Government of West Bengal, Labour Department, referring the dispute between the petitioners and respondent 5, Ram Saran Mahato, to an Industrial Tribunal under S. 10 read with S. 2-A of the Industrial Disputes Act, 1947. The petitioner's case in short, is that respondent 5 was appointed as a peon by the then authority of the school in or about 1960. Before his suspension he used to draw a total remuneration of Rs. 575-45. During his service hours he used to come heavily drunk. The secretary received on 12 February a complaint from the Assistant Secretary, Barabazar Library, in February 1981 on the occasion of Kavi Sammelan Utsav Day that seven pairs of shoes were stolen and the allegation was that during drunken state the said respondent handed over shoes to his own men. The said respondent 5 admitted the guilt by his letter of 14 February, 1984 and prayed forgiveness on the undertaking that he would not repeat such act and if he did so in future the school authority would be at liberty to take any action against him. The petitioners state that being a full-time Class IV employee of the school respondent 5 was not legally to take any part-time job in the said library. On 20 February, 1981, the headmaster wrote to respondent 5 asking explanation as to why disciplinary action should not be taken against him for his behavior. The following day respondent 5 gave explanation that to the effect that he had already written in his letter of 14 February, 1981, the true facts and expressed his sorrow for the unfortunate incident and prayed for a chance to correct himself. By another letter, dated 27 February, 1981, addressed to the headmaster he again pleaded guilty and prayed for mercy. Again on the next day, i.e, 28 August, 1981, he came on duty in the school heavily drunk and quarreled with the gate-keeper attracting a crowd. He was not in a state to stand and was ordered by the headmaster to be removed to his residence by the gate-keeper but he refused to go and ultimately he was physically put into a rickshaw. Following this incident the headmaster again wrote to respondent 5 of 28 August, 1981 incident and asked him to show cause, by 4 September, 1981, why disciplinary action should not be taken against him. By a letter, dated 31 August, 1981, he again wrote to the headmaster accepting his guilt and assured the headmaster that he would not repeat the same in future. On 8 April, 1983, the headmaster received a complaint from Shiwnath Tewari, the accountant of the school, that he found respondent 5 sitting in the school bus in a drunken condition. The headmaster on 9 April, 1983, referred the complaint to one S.K Mookherjee, assistant teacher of the school, to make an enquiry. After making necessary enquiry a report was submitted to the headmaster to the effect that the complaint of Shiwnath Tewari was correct. It was further stated that once Sri Mookherjee himself found respondents in a drunken condition when respondent 7, Jadu Nandan Singh, was trying to put him in a rickshaw. It was stated in the report that respondent 5 was a habitual alcoholic. By letter, dated 8 April, 1983, the headmaster suspended respondent 5 till 16 April, 1983 and again by the letter of 14 April, 1983, the suspension was extended till 29 April, 1983. On 29 April, 1983, the headmaster served a chargesheet upon respondent 5. The decision of suspension of the petitioners and issuance of chargesheet was approved by the managing committee on 30 April, 1983. By a reply to chargesheet, dated 4 May, 1983, the respondent refuted the fourth and fifth charges. According to the secretary the reply to the chargesheet revealed arrogant attitude against the headmaster and a show of indiscipline. Having considered all aspects of the matter the secretary of school passed an order dismissing respondent 5 by his communication, dated 11 May, 1983, and the said decision of the secretary was ratified by managing committee on 30 September, 1983.
2. Thereafter the school authority received a letter, dated 7 June, 1933, from the Assistant Labour Commissioner, West Bengal, along with a copy of the letter, dated 17 May, 1983, written by respondent 5 to the Labour Commissioner and the school authority was requested to submit its comments within a week. Thereafter by a communication, dated 3 July, 1983, the Assistant Labour Commissioner asked the school authority to send a competent representative to see him on 19 July, 1983 for a joint conference. The petitioners did not find any reason either to give a reply or to see the Assistant Labour Commissioner because it was not an industrial dispute upon which the Labour Department of the Government had any jurisdiction to intervene. The contention of the petitioners is that by virtue of regulation 3 of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeal by Appeal Committee) Regulation, 1964, any decision of the managing committee may be challenged in appeal before the Appeals Committee and in view of this specific provision for remedy the Labour Department or the Industrial Tribunal has no jurisdiction to deal with this matter. Surprisingly by order, dated 25 June, 1984, the Government of West Bengal referred the matter of dismissal of respondent 5 to the Fourth Industrial Tribunal, West Bengal. By memo, dated 2 August, 1984, the said Industrial Tribunal summoned the authority of the school who appeared before it on 21 August for filing statements of case by the parties. On that date the representative of the school appeared and took time and the matter was adjourned on 28 September. Thereafter the petitioners moved the High Court and obtained the injunction.
3. The contention of the petitioners is that educational institutions in West Bengal do not come within the purview of the Industrial Disputes Act, 1947. The whole body of employees of educational institutions are outside the purview of the Industrial Disputes Act, 1947, and come under the West Bengal Board of Secondary Education Act, and the rules and regulations framed thereunder. Hence the prayer to quash the impugned order of reference of 25 June, 1984.
4. The State-respondents filed an affidavit-in-opposition supported the case of respondent 5 and stating that the dispute in question is an industrial dispute and comes within the jurisdiction of the Labour Department and as such the State Government was within its bound to refer the dispute to the Fourth Industrial Tribunal in accordance with law.
5. Respondent 5, Ram Saran Mahato, in his affidavit-in-opposition said that there was no legal bar to accept any part-time employment and further that the alleged incident which took place outside the precincts of the school could not be called upon to be explained because the alleged misconduct has not even a casual connection with the place of work. The alleged incident occurred beyond the school hours as well. He further stated that the alleged explanation that was submitted by him were not voluntary. The respondent further stated that the authorities have not acted in accordance with the procedure and natural justice. He challenged the order of suspension as wholly illegal and without jurisdiction and total violation of rule 28 sub-rule 9 (viia) of the Rules 1969. He further stated that there was no compliance of rule 28(8) of the said rules. He stated that since he was dismissed illegally so it was not obligatory on his part to prefer any appeal and it became an industrial dispute. He further stated that the point of jurisdiction ought to have been taken by the petitioners before the Tribunal itself. Respondent 5 has categorically stated in the affidavit that the Supreme Court is of the view that education is an industry and the management raising a preliminary objection against the order of reference should not stall the proceeding by invoking the writ jurisdiction. Respondent 5 denied all the allegations lavelled against him by the petitioners.
6. Sri Banerjee, the learned advocate appearing for the petitioners, submitted that a private educational institution is not an industry and its employees are not workmen under the Industrial Disputes Act. In this connection he submitted that the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964, fully protects teaching and non-teaching staff of an educational institution and in this connection he referred to regulations 3 and 9(b). He also placed S. 2(f) of the Industrial Disputes Act to bring home the point what is meant by “industry.” He cited two decisions, namely, Baidyanath Bose v. Smt. Sudha Roy [1970 C.W.N 571] and Bangalore Water Supply and Sewerage Board v. A. Rajappa [1978 — I L.L.N 376 and 657].
7. Sri Das, the learned advocate appearing for respondent 5, in his argument submitted that S. 2(j) has yet not come into force by notification and as such it was useless to take shelter of this particular provision. He further emphasised on the fact that the incident occurred outside the jurisdiction of the school and for such an act the petitioner was not liable to explain his conduct. At the same time he contended that a part-time job other than the main employment is not a bar. He also referred to the order of suspension as contrary to rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules of 1969, and complete violation of the procedure as laid down in that rule. He cited the following decisions in support of his contention:
(1) Suresh Chandra v. State of Uttar Pradesh [1988 L. & I.C 263];
(2) Miss A. Sundarambai v. Government of Goa, Daman and Diu [1988 — II L.L.N 608];
(3) Glaxo Laboratories (India), Ltd. v. Labour Court, Meerut [1934 — I L.L.N 57].
This respondent too has relied upon the decision reported in 1978 — I L.L.N 376 and 657 (vide supra), which was cited by the petitioners.
8. Sri Bhattacharya, the learned advocate appearing for the State-respondents, fully supported the case of respondent 5 and submitted that the case comes within the ambit of the Industrial Disputes Act and cited M.C Chokalingam v. V. Manickavasagam [(1974) 1 SCC 48 : A.I.R 1974 S.C 106], but the subject matter of this case is totally different based on Madras Cinema (Regulation) Act, 1955, vis-a-vis tenancy and possession and I am not going to deal with it.
9. I have considered the facts and the submissions made by the learned advocates of the parties. The case revolves round the point whether the employment of respondent 5, Ram Saran Mahato, is governed by the Industrial Disputes Act, 1947, or by the West Bengal Board of Secondary Education Act, 1963, and the rules and regulations framed thereunder. The petitioners have argued that an educational institution is not an industry and its employees are not workmen under the Industrial Disputes Act. Section 2(j) of the said Act gives the definition of “industry” which is quite exhaustive and excludes educational institutions under Cl. (3) of the explanation. Section 2(j) has been inserted by Act 46 of 1982. The contention of the learned advocate of respondent 5 is that S. 2(j) has not come into force as yet by notification. Whatever may be the case it is unthinkable that educational institution comes under the purview of industry because the West Bengal Board of Secondary Education Act, 1963, and the regulations made under S. 27(3) read with S. 22(3) of the Act of 1963 are quite comprehensive code and there is no reason why the Industrial Disputes Act should be made applicable in the instant case. I find that S. 3 of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964, is quite comprehensive and I quote the same as under:
“A teacher or any other employee who feels to have been affected adversely by any decision of the managing committee of the institution he serves or has served (hereinafter referred to as the appellant) may appeal direct to the Appeal Committee against such decision in accordance with the provisions of these regulations.”
This must be read along with regulation 9 which further describes the procedure of the Appeal Committee. Regulation 3 is an exhaustive regulation providing for an appeal to the Appeal Committee against any adverse decision of the managing committee and not only against orders of suspension or termination of service. This has been laid down in the case of Smt. Leena Nandi v. West Bengal Board of Secondary Education [74 C.W.N 325]. In the light of the regulations of 1964 there is no reason to drag in the Industrial Disputes Act to decide a dispute of an educational institution.
10. Now I deal with the case referred to by the parties. The petitioners have referred to the case of Baidyanath Base v. Smt. Sudha Roy [1970 C.W.N 571] (vide supra), wherein Justice Sri P.B Mukharji (as His Lordship then was), held that:
“if the dismissed person wants reinstatement then High Court has got to adopt the procedure laid down by the statute and asked for reinstatement from the statutory body which the statute has created and which the statute has expressly clothed with the power of reinstatement.”
This case very much goes in favour of the petitioners. In Bangalore Water Supply and Sewarage Board v. A. Rajappa [1978 — I L.L.N 376 and 657] (vide supra), while discussing the unamended S. 2(j) of the Industrial Disputes Act the Supreme Court held that absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector. The true focus is functional and decisive test is the nature of the activity with special emphasis on the employer-employee relations. If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking. The Supreme Court held in Para. 163, at page 430, that the consequences are:
“(i) professions;
(ii) clubs;
(iii) educational institutions;
(iv) co-operatives;
(v) research institute;
(vi) charitable projects; and
(vii) other kindred adventure,
if they fulfil the triple test listed in the judgment cannot be exempted from the scope of S. 2(j).”
The Supreme Court in this decision clearly pointed out that “constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.” This is a pointer to the fact that as the School Code in West Bengal is completely statutory in nature and independent of any other Act and protects the interest of both teaching and non-teaching staff, as such the question of enforcement of Industrial Disputes Act in school matters does not arise.
11. Respondent 5 took the protection of the decision in the case of Suresh Chandra v. State of Uttar Pradesh [1988 L. & I.C 263] (vide supra), where the Supreme Court stated as follows:
“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 for an 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 service of teachers by providing for appointment of judicial tribunals to decide such case. 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 step to bring 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 soon.”
This decision of the Supreme Court goes against respondent 5 instead of helping him. The State of West Bengal possess comprehensive legislation to protect the interest of teaching and non-teaching staff as pointed out by me hereinbefore and as such this case is of no importance for the defence. The decision in the case of Miss. A. Sundarambal v. Government of Goa, Daman and Diu [1988 — II L.L.N 608] (vide supra), deal with the teachers only and follow the decision in the case of Bangalore Water Supply and Sewerage Board [1978 — I L.L.N 376 and 657] (vide supra). Here not a teacher but a non-teaching staff is involved and as such it does not help the petitioners case. In Glaxo Laboratories (India), Ltd. v. Labour Court, Meerut [1984 — I L.L.N 57] (vide supra), the Supreme Court dealt with the acts or omissions which would be treated as misconduct under the Industrial Employment (Standing Orders) Act, 1946. I do not understand how this case comes to the rescue of respondent 5. The learned advocate of respondent 5 has also relied on the case of Bangalore Water Supply and Sewerage Board, which I have already discussed hereinbefore.
12. The plea taken by respondent 5 that there is no misconduct on his part if occurred outside the premises of the school and that a part-time job is not a legal bar are points to be decided by the appropriate authority under the provisions of the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964, because under regulation 3 a teacher or any other teacher who is affected adversely by any decision of the managing committee of any institution which he has been serving or served may appeal direct to the Appeal Committee against such decision in accordance with the regulations. The entire dispute relating to the suspension and dismissal of respondent 5 arises out in his capacity as an employee of the school and as such he is to seek the redress of his grievances before the Appeal Committee according to the said regulations and is not entitled to take the protection of Industrial Disputes Act. In the light of the various decisions discussed hereinbefore it is clear that if there is any statute covering the entire ambit of disputes in a particular field the same dispute must be referred to the competent authority under the said statute and not under any other statute. The basic principles of the School Code of West Bengal must not be violated by jumping to another jurisdiction. The interference by the State Government in referring the matter under S. 10 read with S. 2-A of the Industrial Disputes Act, 1947, to the Fourth Industrial Tribunal is quite unjustified and interference with the West Bengal Board of Secondary Education Act, 1963, and the regulations and rules made thereunder.
13. In that view of the matter I quash and set aside the order, dated 25 June, 1984, passed by the Assistant Secretary to the Government of West Bengal, Labour Department. Respondent 5, Ram Saran Mahato, shall be at liberty to prefer an appeal in accordance to the West Bengal Board of Secondary Education (Manner of Hearing and Deciding Appeals by Appeal Committee) Regulations, 1964. I further order that if any question of limitation arises in not preferring the appeal within time, the said limitation shall be waived by the Appeal Committee by this order of the Court provided the appeal is filed within 30 (thirty) days from this date. If the appeal is preferred within the above period, then the Appeal Committee shall dispose of the same within four months positively.
14. The writ application is accordingly allowed as indicated, There will be no order as to costs. Sri Das's prayer for stay of the order is refused.
15. Let xerox copy of the order be made available to the parties on usual undertaking and upon compliance of necessary formalities.