# RAJ KUMAR v. DIRECTOR OF EDUCATION & ORS

- **Citation:** [2016] 1 S.C.R. 697
- **Court:** Supreme Court of India
- **Decided:** 2016-04-13
- **Case number:** Civil Appeal No.1020 of2011
- **Bench:** V. Gopala Gowda, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-kumar-v-director-of-education-ors-31073
- **Pages:** 30

## Headnote

Industrial Disputes Act, 1947:
Chapter V-A, s. 25F (a), (b) - Delhi School Education Act,
1973 - ss. 2(h), 8(2), JO - Retrenchment - Challenge to -Appel/antpermanent driver in a public school, having become surplus,
retrenched from services by respondent-Managing Committee of the
School - Issuance of notice to the appellant in accordance with s.
25F (a) and retrenchment compensation - Tribunal and the High
Court held that the appellant was retrenched from the services by
the Managing Committee following the procedure laid down u/s.
25F (a) and {b) - On appeal, held: Driver employed by a school,
being a skilled person, is a workman for the purpose of the 1947 ·
Act - Notice for retrenchment was served on. the appellant on
07.01.2003, however, no evidence to show that notice of the
retrenchment was sent to the appropriate authority even till date -
Thus, the mandatory conditions of s. 25F to retrench a workman
was not complied with - Notice of retrenchment and the order of
retrenchment set aside - Further, the Managing Committee did not
obtain prior approval of the order of termination passed against
the appellant from the Director of Education as required uls.8(2) of
the DSE Act - No evidence to show that the retrenchment of the
appellam was necessary as he had become 'surplus' - Thus, the
termination of the appellant is bad in law for non-compliance with
the mandatory provisions of s. 25F and also s. 8(2) of the DSE Act
- Management to re-instate the appellant at his post with back wages
- Industrial Disputes (Central) Rules, 1957 - r. 76(a).
s. 25F {a),{b),{c) - Condition prescribed for retrenchment of
work as prescribed u/s. 25F {a), {b), {c) - Directory or mandatory -
Held: Section 25F(c} is a condition subsequent, but is still a
mandatory condition required to be fulfilled by the employers before
the order of retrenchment of the workman is passed.
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[2016] I S.C.R.
Delhi School Education Act, 1973 - s. 8(2) - Compliance of
- Requirement - Appellant-permanent driver in a public school,
having become surplus, retrenched from services by respondentManaging Committee of the School - Submission that Managing
Committee before terminating services of appellant did not comply
with the mandatory provision of s. 8(2), holding that s. 8(2) was
struck down in Kathuria case - Held: Section 8(2) is a procedural
safeguard in favour of an employee to ensure that an order of
termination or dismissal is not passed without the prior approval of
the Director of Education, to avoid arbitrary or unreasonable
termination - High Court erred in striking down s. 8(2) in Kathuria
Public School's case and is bad in law - Furthermore, notice of
retrenchment was served on the appellant on 07. 01.2003 and was
retrenched from service on 25. 07.2003 - Decision in Kathuria Public
School's case striking down s. 8(2) was rendered two years later
and respondents could not have foreseen thats. 8(2) would be struck
down later and thus, decided not to comply with it - Section 8(2)
was very much a valid provision of the statute on the date of the
retrenchment of the appellant - Rights and liabilities of the parties
to the suit must be considered in accordance with the law as on the
date of the institution of the suit - Thus, the termznatio11 order was
bad in law.
Allowing the appeal, the Court
HELD: 1. The retrenchment of the appellant from service
as also termination order is bad in law. The judgment and order
passed by the High Court is set aside. (Para 37) [726-B-C]
2. A perusal of the *HR Adyanthaya case and ••Bangalore
Water Supply case clearly shows that a driver employed by a
school, being a skilled person, is a workman for the purpose of
the Industrial Disputes Act, 1947. The provisions of ID Act are
applicable to the facts of the instant case. [Para 20) (713-C]
*RR. Adyanthaya v. Sandoz (India) Ltd (1997) 5 SCC
737; ••Bangalore Water Supply and Sewerage Board
v. A. Rajappa & Ors. 1978 (3) SCR 2

## Text

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[2016] 1 S.C.R. 697
RAJ KUMAR
v.
DIRECTOR OF EDUCATION & ORS.
(Civil Appeal No.1020 of2011)
APRIL 13, 2016
[V. GOPALA GOWDA AND AMITAVA ROY, JJ.)
Industrial Disputes Act, 1947:
Chapter V-A, s. 25F (a), (b) - Delhi School Education Act,
1973 - ss. 2(h), 8(2), JO - Retrenchment - Challenge to -Appel/antpermanent driver in a public school, having become surplus,
retrenched from services by respondent-Managing Committee of the
School - Issuance of notice to the appellant in accordance with s.
25F (a) and retrenchment compensation - Tribunal and the High
Court held that the appellant was retrenched from the services by
the Managing Committee following the procedure laid down u/s.
25F (a) and {b) - On appeal, held: Driver employed by a school,
being a skilled person, is a workman for the purpose of the 1947 ·
Act - Notice for retrenchment was served on. the appellant on
07.01.2003, however, no evidence to show that notice of the
retrenchment was sent to the appropriate authority even till date -
Thus, the mandatory conditions of s. 25F to retrench a workman
was not complied with - Notice of retrenchment and the order of
retrenchment set aside - Further, the Managing Committee did not
obtain prior approval of the order of termination passed against
the appellant from the Director of Education as required uls.8(2) of
the DSE Act - No evidence to show that the retrenchment of the
appellam was necessary as he had become 'surplus' - Thus, the
termination of the appellant is bad in law for non-compliance with
the mandatory provisions of s. 25F and also s. 8(2) of the DSE Act
- Management to re-instate the appellant at his post with back wages
- Industrial Disputes (Central) Rules, 1957 - r. 76(a).
s. 25F {a),{b),{c) - Condition prescribed for retrenchment of
work as prescribed u/s. 25F {a), {b), {c) - Directory or mandatory -
Held: Section 25F(c} is a condition subsequent, but is still a
mandatory condition required to be fulfilled by the employers before
the order of retrenchment of the workman is passed.
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Delhi School Education Act, 1973 - s. 8(2) - Compliance of
- Requirement - Appellant-permanent driver in a public school,
having become surplus, retrenched from services by respondentManaging Committee of the School - Submission that Managing
Committee before terminating services of appellant did not comply
with the mandatory provision of s. 8(2), holding that s. 8(2) was
struck down in Kathuria case - Held: Section 8(2) is a procedural
safeguard in favour of an employee to ensure that an order of
termination or dismissal is not passed without the prior approval of
the Director of Education, to avoid arbitrary or unreasonable
termination - High Court erred in striking down s. 8(2) in Kathuria
Public School's case and is bad in law - Furthermore, notice of
retrenchment was served on the appellant on 07. 01.2003 and was
retrenched from service on 25. 07.2003 - Decision in Kathuria Public
School's case striking down s. 8(2) was rendered two years later
and respondents could not have foreseen thats. 8(2) would be struck
down later and thus, decided not to comply with it - Section 8(2)
was very much a valid provision of the statute on the date of the
retrenchment of the appellant - Rights and liabilities of the parties
to the suit must be considered in accordance with the law as on the
date of the institution of the suit - Thus, the termznatio11 order was
bad in law.
Allowing the appeal, the Court
HELD: 1. The retrenchment of the appellant from service
as also termination order is bad in law. The judgment and order
passed by the High Court is set aside. (Para 37) [726-B-C]
2. A perusal of the *HR Adyanthaya case and ••Bangalore
Water Supply case clearly shows that a driver employed by a
school, being a skilled person, is a workman for the purpose of
the Industrial Disputes Act, 1947. The provisions of ID Act are
applicable to the facts of the instant case. [Para 20) (713-C]
*RR. Adyanthaya v. Sandoz (India) Ltd (1997) 5 SCC
737; ••Bangalore Water Supply and Sewerage Board
v. A. Rajappa & Ors. 1978 (3) SCR 207: (1978) 2 SCC
213 - relied on.
3.1 The reasoning adopted by the tribunal as well as the
High Court cannot be accepted. Admittedly, the notice under
RAJ KUMAR v. DIRECTOR OF EDUCATION
Section 25F(c) of the ID Act has not been se.rved upon the State
Government, relying upon the decision of this Court in the case
of ***Bombay Journalists, which was rendered in the year 1963
and wherein it was held that the provisions of Section 25F (c) of
the ID Act is directory and not mandatory in nature. The tribunal
as well as the High Court ignored that subsequently, the
Parliament enacted the Industrial Disputes (Amendment) Act,
1964. 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. [Para 24, 25] [714-C-E, G]
3.2 This Court in ***Bombay Journalists case read the ID
Act and the relevant Rules thereunder together and arrived at
the conclusion that Section 25F(c) is not a condition precedent
for retrenchment. By no stretch of imagination can this decision
be said to have held that there is no need for industries to comply
with this condition at all. At the most, it can be held that Section
25F(c) is a condition subsequent, but is still a mandatory condition
required to be fulfilled by the employers before the order of
retrenchment of the workman is passed. [Para 26] [715-D-F]
***Bombay Union of Journalists & Ors. v. The State of
Bombay & Anr. AIR 1964 SC 1671; Mackinon
Mackenzie & Company Ltd. v. Mackinnon Employees
Union (2015) 4 SCC 544 - referred to.
3.3 Rule 76(a) of the Industrial Disputes (Central) Rules,
1957 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. It is clear that the mandatory conditions
of Section 25F to retrench a workman have not been complied
with. The notice of retrenchment and the order of retrenchment
are set aside. [Para 26, 27] [716-D-F]
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4.1 The respondent-School submitted that there was no
requirement on the part of the respondent-Managing Committee
to comply with Section 8(2) of the DSE Act. Reliance was placed
on the decision of the Delhi High Court in the case of ****Kathuria
Public School case, wherein Section 8(2) of the DSE was struck
down. It cannot be said that not obtaining prior approval for the
termination of the services of the appellant is justified. Section
8(2) is a procedural safeguard in favor of an employee to ensure
that an order of termination or dismissal is not passed without
the prior approval of the Director of Education. This is to avoid
arbitrary or unreasonable termination or dismissal of an employee
of a recognized private school. 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. [Paras 30, 31, 32, 33) [717G-H; 718-A; 719-F-H; 720-A; 722-E]
The Principal & Ors. v. The Presiding Officer & Ors.
1978 (2) SCR 507: (1978) 1 SCC 498 - referred to.
4.2 The Division Bench of the Delhi High Court, erred in
striking down Section 8(2) of the DSE Act in the case of Kathuria
Public School by placing reliance on the decision of this Court in
the case of TMA Pai as the subject matter in controversy therein
was not the security of tenure of the employees of a school, rather,
the question was the right of educational institutions to function
unfettered. Section 8(2) of the DSE Act is one such precautionary
safeguard which needs to be followed to ensure that employees
of educational institutions do not suffer unfair treatment at the
hands of the management. The Division Bench of the High Court,
while striking down Section 8(2) of the DSE Act in the case of
Kathuria Public School has not correctly applied the law laid down
in the case of Katra Educational Society wherein a Constitution
Bench of this Court, with reference to provision similar to Section
8(2) of the DSE Act and keeping in view the object of regulation
of an aided or unaided recognised school, has held that the
regulation of the service conditions of the employees of private
recognized schools is required to be controlled by educational
authorities and the state legislature is empowered to legislate
such provision in the DSE Act. The Division Bench wrongly relied
RAJ KUMAR v. DIRECTOR OF EDUCATION
upou that part of the judgment in the case of Katra Education
Society which dealt with Article 14 of the Constitution and aided
and unaided educational institutions, which had no bearing on
the fact situation therein. Therefore, the decision in the case of
Kathuria Public School striking down Section 8(2) of the DSE Act,
is bad in law. [Para 33] [722-H; 723-A-H)
Kathuria Public School v. Director of Education & Anr.
113(2004) DLT 703 (DB) - disapproved.
TMA PAI Foundation v. State of Karnataka 2002 (3)
Suppl. SCR 587 :(2002) 8 SCC 481; Katra Educational
Society v. State Of Uttar Pradesh & Ors. AIR 1966 SC
1307 : 1966 SCR 328; Frank Anthony Public School
Employees Association v. Union Of India & Ors. 1987
(1) SCR 238: (1986) 4 SCC 707 - referred to.
4.4 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 Katliuria School striking down Section
8(2) of the DSE Act was rendered almost exactly two years later.
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 stru.ck down later
and hence decided to not comply with it. Section 8(2) was very
much a valid provision of the statute as on the date of the
retrenchment of the appellant, and there is absolutely no reason
why it should not have been complied with. The rights and
liabilities of the parties to the suit must be considered in
accordance with the law as on the date of the institution of the
suit. [Para 34) [724-A-D]
Dayawati v. Inde1fit AIR 1966 SC 1423:1966 SCR 275;
Carona Ltd v. Parvathy Swaminathan and Sons 2007
(1) SCR 656:(2007) 8 SCC 559 - referred to.
4.5 The respondent-Managing Committee did not obtain
prior approval of the order of termination passed against the
appellant from the Director of Education, Govt. of NCT of Delhi
as required under Section 8(2) of the DSE Act. [Para 35) [724-GH)
5. The termination of the appellant is bad in law for noncompliance with the mandatory provisions of Section 25F of the
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ID Act and also Section 8(2) of the DSE Act. The respondentSchool did not prod nee any evidence on record to show that the
retrenchment of the appellant was necessary as he had become
'snrplus'. The termination of the appellant was ordered in the
year 2003 and he is unemployed till date. The respondents have
been unable to produce any evidence to show that he was gainfully
employed during that period and thus, he is entitled to back wages
and other consequential benefits. [Para 36) [725-A-C]
Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyala (D.ED.)& Ors. 2013 (9) SCR 1 : (2013)
10 sec 324 - relied on.
6. The respondent-Managing Committee is directed to
reinstate the appellant at his post. Consequently, the relief of
back wages till the date of this order is awarded to the appellant,
along with all consequential benefits from the date of termination
of his services. [Para 37) [726-B-C]
Miss A. Sundaramba/ v. Govt. of Goa, Daman & Diu
and Ors. 1988 (1) Suppl. SCR 604 : (1988) 4 SCC 42;
Babu Verghese & Ors. v. Bar Council Of Kera/a & Ors.
1999 (1) SCR 1121 : (1999) 3 SCC 422 - referred to.
Case Law Reference
AIR 1964 SC 1671
referred to.
Para 13
1988 (1) Suppl. SCR 604
referred to.
Para 17
1978 (3) SCR 207
relied on.
Para 20
fl99zl 5 sec 737
relied on.
Para 20
f20l~l 4 sec 544
referred to.
Para 26
1999 (1) SCR 1121
referred to.
Para 29
113 (2004) DLT 703 (DB)
disapproved.
Para 33
2002 (3) Suppl. SCR 587
referred to.
Para 30
1966 SCR 328
referred to.
Para 32
1978 (2.l SCR 507
referred to.
Para 33
1987 (1) SCR 238
referred to.
Para 34
1966 SCR 275
referred to.
Para 34
2007 (10) SCR 656
referred to.
Para 32
2013 (9) SCR 1
relied on.
Para 36
RAJ KUMAR v. DIRECTOR OF EDUCATION
703
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1020
A
of2011
From the Judgment and Order dated 28.07.2008 of the High Court
of Delhi at New Delhi in Writ Petition (C) No. 5349 of2008.
A. T. M. Sampath, Rahul Nagpal for the Appellant.
A. K. Sanghi, Dr. Abhishek Atrey, D. S. Mahra, Ajay Kumar
Singh, RavindraA. Lokhande, S. S. Ray, Rakhi Ray, Vaibhav Gulia, Anil
Katiyar for the Respondent.
·The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. I. The present appeal arises out of
the impugned judgment and order dated 28.07.2008 passed by the High
Court of Delhi at New Delhi in Writ Petition (C) No.5349 of 2008,
whereby the High Court dismissed the said Writ Petition filed by the
appellant in limine and upheld the termination order dated 22.08.2008
passed against the appellant by the Delhi School Tribunal (hereinafter
referred to as "the Tribunal") on the ground that the appellant, who was
a driver, had been retrenched from his services by the respondentManaging Committee, DAV Public School by following the procedure
laid down under Sections 25F (a) and (b) of Chapter V-A of the Industrial
Disputes Act, 194 7 (hereinafter referred to as "the ID Act").
2. The brief facts of the case required to appreciate the rival legal
contentions advan9ed on behalf of the parties are stated as hereunder:
3. 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").
4. On 01.05.2001, the DAV College Managing Committee in;,_
72"' meeting of Public Schools Governing Body, passed a resolution to
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buy new school buses with CNG facility in compliance with the directions
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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.
5. The respondent-Managing Committee in its meeting dated
24.08.2002, passed a resolution to retrench the services of the two junior
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most surplus drivers, namely the appellant and one Amar Nath, for the
rea.son that the school had two old mechanically unfit vehicles namely, a
Matador (registration No. DL-IV-1481) and a Maruti Van bearing
registration No.DL-5C-3107 which were disposed ofon 01.09.1995 and
13.06.1997, respectively. As an alternate arrangement, private buses
had to be hired for the transportation of students as per instructions in
the earlier resolution, but the respondent-Managing Committee could
not purchase new buses due to shortage of funds, which resulted in the
appellant being declared surplus on account of non-availability of job.
6. On 07.01.2003, the respondent-Managing Committee issued a
notice to the appellant in accordance with Section 25F (a) of the ID Act,
stating that his services were no longer required by the school and that
he would be retrenched from his service on the expiry -of the notice
period of one month. The notice also stated thatthe appellant was entitled
to retrenchment compensation which would be paid after the expiry of
the notice period of one month.
7. On 10.01.2003, the appellant replied to the above said notice
through his counsel, in which it was stated that the impugned notice is
unjust and illegal, as the appellant is a permanent employee of the school
under the provisions of the DSE Act. It was also stated in the notice that
the school had failed to pay arrears amounting to Rs. 70,000/- to the
appellant as per the recommendations of the Fifth Pay Commission. On
the same date, the appellant, through his counsel, wrote a letter to the
respondent No. I-Director of Education, Govt ofNCT of Delhi regarding
payment of all arrears as per the Fifth Pay Commission to the appellant.
8. By way of letter dated 22.01.2003, the respondent-Managing
Committee, through their counsel informed the appellant that the school
has been paying pay and allowances to the appellant as per the
recommendations of the Fifth Pay Commission which came to Rs.3,500/
- per month as basic pay and Rs.1,435/- as Dearness Allowances. In the
same letter, the respondent- Managing Committee also denied that it
had held back an amount ofRs.70,000/-due to the appellant.
9. On 31.01.2003, the appellant filed Writ Petition (C) No.957 of
2003 before the High Court of Delhi, praying that the notice served on
him dated 07.01.2003 be quashed and to stay the operation of the impugned
notice until the Writ Petition was finally disposed of.
JO. Meanwhile, vide letter dated 25.07.2003, the respondent-
RAJ KUMAR v. DIRECTOR OF EDUCATION
[V. GOPALA GOWDA, J.]
M:maging Committee informed 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.
11. The High Court disposed of the Writ Petition No. 957 of2003
filed by the appellant videjudgment and order dated 25.02.2004. Placing
reliance on the judgment of the Delhi High Court passed in Writ Petition
(C) No.970 of2003 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 & 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.
12. Accordingly, the appellant filed Appeal No.09 of2004 before
the Presiding officer, Delhi School Tribunal under Section 8(3) of the
DSE Act against the impugned retrenchment notice dated 07.01.2003.
The Tribunal vide its judgment and order dated 22.02.2008, dismissed
the said appeal on the ground that the respondent-Managing Committee
had the right to retrench surplus drivers of the School after fulfilling all
the conditions as laid down under Sections 25F (a) & (b) of the ID Act.
The Tribunal while upholding the validity of the retrenchment order held
thatthe appellant is governed by the provisions of the ID Act as well the
DSE Act. Section 2(h) of the DSE Act defines "employee" as a teacher
and also includes every other employee working in a recognized school
as "employee". The Tribunal held as under:
"2(h) Hence the, laws which governs the employment of the
Appellant are De.lhi School Education Act & Rules, 1973 and
Industrial Disputes Act, 1947.Since Delhi School Education Act,
1973 has no provision of retrenchment of workmen, one has to
fall back upon the provisions oflndustrial Disputes Act, 1947 to
see whether the conditions of the said Act regarding retrenchment
were fully complied with by the Management or not."
13. The Tribunal further held that all the conditions precedent
which are required to be satisfied for retrenchment under Section 25F
of the ID Act have been fulfilled in the instant case. The appellant was
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given notice under the provisions of the ID Act dated 07.01.2003. The
intended date of his retrenchment thus, was 07.02.2003. However, the
appellant was retrenched only on 25.07.2003. It was held that since the
notice of more than one month had been given, the condition of Section
25F (a) of the ID Act has been duly complied with. The Tribunal in its
order further held that the appellant had been paid the retrenchment
compensation calculating 15 days average pay for every completed year
of continuous service. The respondent-Managing Committee calculated
his service for a period of 9 years and concluded that the appellant is
entitled to salary for a period of four and a half months, which amounts
to Rs.19, 740/-, after taking into consideration Rs.3,500/- basic pay along
with Rs.4,07 l/- as dearness allowance. In total, the appellant was paid
Rs.25,650/- on account of compensation. Therefore, the Tribunal held
that Section 25F (b) of the ID Act had also been duly complied with. On
the issue of notice being served on the appropriate government in the
prescribed manner, the Tribunal placed reliance on the decision of this
Court in the case of Bombay Union of Journalists & Ors. 1: The
State of Bombay &Anr. 1, 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) & (bl as distinguished from the object which clause
(cl has in mind. it would not be unreasonable to hold that clause
(cl. unlike clauses (al & (bl, is not a condition precedent."
(emphasis laid by this Court)
Thus, the Tribunal held that both the mandatory conditions for
retrenchment have been fulfilled in the instant case, and that Section
25F(c) of the ID Act merely lays down a direction and not a condition
precedent. The Tribunal further held:
H
I AIR 1964 SC 1671
RAJ KUMAR v. DIRECTOR OF EDUCATION
[V. GOPALA GOWDA, J.]
"As far as the question of permission from Directorate of
Education before removing an employee is concerned, in view of
the judgment of the Hon'ble Supreme Court in the matter of'TMA
Pai Foundation v/s State of Karnataka" and the judgment of our
own Hon 'ble High c·ourt in the matter of"Kathuria Public School
vis Directorate of Education", the provision regarding obtaining
prior approval from the Director of Education has been struck
down and the School Management has been given a free hand to
deal with its employees."
The appeal tiled by the appellant before the Tribunal was accordingly
dismissed.
14.Aggrieved of the said judgment of the Tribunal, the appellant
filed Writ Petition (C) No. 5349 of2008 before the High Court of Delhi
questioning the correctness of the same urging various grounds. The
High Court vide impugned judgment and order dated 28.07.2008 dismissed
the same in limine as it found no infirmity in the view taken by the
Tribunal. Hence, the present appeal.
15. On the basis of the contentions advanced by the learned counsel
appearing on behalf of the parties, the following issues would arise for
our consideration:
707
A
B
c
D
I) Whether the appellant is a workman for the purpose of ID
E
Act?
2) Whether the conditions precedent for the retrenchment of a
workman as prescribed un.der Section 25F (a), (b) and (c) of the
ID Act have been fulfilled in the instant case?
3) Whether the provision of Section 8(2) of the DSE Act is
F
applicable to the facts of the instant case?
4) What order?
16. Before we advert to the rival legal contentions advanced on
behalf of the parties, it is important for us to consider the relevant
provisions of the ID Act and DSE Act in play in the instant case.
The DSE Act was enacted in the year 1973 and is:
"An Act to provide for better organisation and development of
school education in the Union Territory of Delhi and for matters
connected therewith or incidental thereto"
G
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708
SUPREME COURT REPORTS
(2016] I S.C.R.
A
Section 2(h) defines an employee:
"means a teacher and includes every other employee working in
a recognized school"
Section 8(2) of the DSE Act provides:
B
"Subject to any rule that may be made in this behalf, no employee
of a recognized private school shall be dismissed, removed or
reduced in rank nor shall his service be otherwise terminated
excepted with the prior approval of the Director"
c
D
E
F
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Section I 0 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 theAdministratorshall 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, 194 7, 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, clerical or supervisory work for hire or
reward, whether the terms of employment be express or implied,
and for the purposes of any proceeding under this Act in relation
to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a
consequence of, 9 that dispute, or whose dismissal, discharge or
retrenchment has led to that dispute, but does not include any
such person-
RAJ KUMAR v. DIRECTOR OF EDUCATION
709
[V. GOPALA GOWDA, J.]
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
A
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957);
(ii) who is employed in the police service or as an officer or other
employee of a prison;
(iii) who is employed mainly in a managerial or administrative
capacity;
(iv) who, being employed in a suftervisory capacity, draws wages
exceeding one thousand six hundred rupees per mensem or
exercises, either by the nature of the duties attached to the
office or by reason of the powers vested in him, functions
mainly of a managerial nature."
Section 2(oo) lays down the concept of retrenchment as:
"2(oo). Retrenchment means the termination by the employer of
the service of a workman for any reason whatsoever, otherwise
than as a punishment inflicted by way of disciplinary action, but
does not include--
(a) voluntary retirement of the workman;
B
c
D
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment between the
E
employer and the workman concerned contains a stipulation in
that behalf;
(bb) termination of the service of the workman as a result of the
non-renewal of the contract of employment between the employer
and the workman concerned on its expiry or of such contract
F
being terminated under a stipulation in that behalf contained
therein;"
(c) termination of the service of a workman on the ground of
continued ill-health"
Section 25F of the ID Act provides for the conditions precedent for the
retrenchment of a workman and reads as under:
"25F.Conditions precedent to retrenchment of workmen.-
No workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer untilG
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710
SUPREME COURT REPORTS
(2016] I S.C.R.
A
(a) the workman has been given one month' s notice in writing
indicating the reasons for retrenchment and the period of notice
has expired, or the workman has been paid in lieu of such notice,
wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment,
B
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
c
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 & Ors.' as under:
"To sum up, the personality of the whole statute, be it remembered,
D
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
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resolution, according to a sympathetic rule oflaw, of the conflicts,
actual or potential, between managements and workmen. Its goal
is amelioration of the conditions of workers, tempered by a practical
sense of peaceful co-existence, to the benefit of both-not a neutral
position but restraints on laissez faire and concern for the welfare
of the weaker lot. Empathy with the statute is necessary to
F
understand not merely its spirit, but also its sense."
(emphasis laid by this Court)
lt is in th is context that any dispute regarding retrenchment of a workman
under the ID Act needs to be appreciated.
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Answer to Point 1:
H
17. Mr. A. T.M. Sam path, the learned counsel appearing on behalf
of the appellant contends that in the instant case, the appellant is a
permanent employee of the school and thus, he is not a 'workman' for
the purposes of the ID Act. His services are covered instead, under
'(1978) 2 sec 213
RAJ KUMAR v. DIRECTOR OF EDUCATION
[V. GOPALA GOWDA, J.]
Sections 2(h), 8(2) and 10 of the DSEAct, and thus, his services cannot
be retrenched under Section 25F of the ID Act. Reliance is placed on
the decision of this CoUFt in the case of Miss A. Sundarambal v. Govt.
of Goa, Daman & Diu and Ors.-', wherein this Court has laid down the
legal principle that while educational institutions come within the ambit
of 'industry', a teacher is not 'workman' for the purpose of the ID Act.
The learned counsel submits that using the analogy, the driver of the
school would also be not a 'workman' for the purpose of the ID Act,
rather would come within the ambit of the term 'employee ' as defined
under Section 2(h) of the DSE Act.
18. On the other hand, Mr. S.S. Ray, the learned counsel appearing
·on behalfofthe respondent- School contends that the appellant is squarely
covered under the definition of 'workman' under the ID Act as well as
the definition of 'employee ' under the DSE Act. The learned counsel
places strong reliance on the decision of this Court in the case of A
Sundarambal (supra), wherein this Court held that teachers are not
workmen for the purpose of the ID Act, though educational institutions
are industry in terms of Section 2U) of the ID Act.
19. We are unable to agree with the contention advanced by the
learned counsel appearing on behalf of the appellant. The question 'who
is a workman' has been well settled by various judgments of this Court.
In the case of H.R. Adyantliaya v. Sandoz (India) Ltd', a Constitution
Bench of this Court has held as under:
" .. We thus have three Judge Bench decisions which 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 Dench 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
JD Act. These decisions are also based on the facts found in
those cases. They have, therefore, to be confined to those facts.
'(1988) 4 sec 42
• (1997) s sec 737
711
A
B
c
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712
A
B
SUPREME COURT REPORTS
[2016] l S.C.R.
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)
20. The issue whethereducationaj institution is an 'industry', and
its employees are 'workmen' for the purpose of the ID Act has been
answered by a Seven-judge Bench of this Court way back in the year
c
1978 in the case of Ban!(a/ore Water Supply (supra). It was held that
educational institution is an industry in terms of Section 2(j) of the ID
Act, though not all of its employees are workmen. It was held as under:
•
"The premises relied on is that the bulk of the employees in the
university is the teaching community. Teachers are not workmen
D
and cannot raise disputes under the Act. The subordinate staff
being only a minor category of insignificant numbers, the institution
must be excluded, going by the predominant character test. lt is
one thing to say that an institution is not an industry. It is altogether
another thinking to say that a large number of its employees are
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F
G
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not 'workmen' and cannot therefore avail of the benefits of the
Act so the institution ceases to be an industry. The test is not the
predominant number of employees entitled to enjoy the benefits
of the Act. The true test is the predominant nature of the activity .
In the case of the university or an educational institution, the nature
of the activity is, ex hypothesis, education which is a service to
the community. Ergo, the university is an industry. The error has
crept in, if we may so say with great respect, in mixing up the
numerical strength of the personnel with the nature of the activity.
Secondly there are a number of other activities of the University
Administration, demonstrably industrial which are severable
although ancillary to the main cultural enterprise. For instance, a
university may have a large printing press as a separate but
considerable establishment. It may have a large fleet of transport
buses with an army of running staff. It may have a tremendous
administrative strength ofofficers and clerical cadres. It may have
karamcharis of various hues. As the Corporation of Nagpur has
effectively ruled, these operations, viewed in severalty or
)
RAJ KUMAR v. DIRECTOR OF EDUCATION
[V. GOPALA GOWDA, J.]
collectively, may be treated as industry. It would be strange, indeed,
if a university has 50 transport buses, hiring drivers. conductors.
cleaners and workshop technicians. How are they to be denied
the benefits of the Act. especially when their work is separable
from academic teaching. merely because the buses are owned by
the 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."
713
A
B
(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 c
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
21. Mr. A.T.M. Sampath, the learned counsel appearing on behalf
D
of the appellant contends that the retrenchment of the services of the
0
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 respondentSchool for more than seven years and had even received a letter of
E
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 that even the defence of loss is not
available to the respondents, as after the retrenchment of the appellant,
the respondent- School has appointed another, less experienced person
F
as driver. The learned counsel contends that t~1s is in clear viola ti on of
•·
Section 25H of the ID Act, which provides that when an opportunity for
reemployment arises, preference must be given to the willing retrenched
workmen over any other persons for filling up that vacancy.
22. The learned counsel further contends that the conditions
G
precedent prescribed under Section 25F of the ID Act have not been
complied with before retrenching the appellant. It is submitted that the
notice required to be sentto the appropriate government in the prescribed
form, as provided for under Section 25F ( c) of the ID Act has not been
sent.
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SUPREME COURT REPORTS
(2016] I S.C.R.
23. On the other hand, Mr. S.S. Ray, the learned counsel appearing
on behalf of the respondent-School contends that the reason for the
retrenchment of the appellant has been explained in detail in the notice
dated 07.01.2003. The respondent school had only one car left, while
there were three drivers, as the two other cars had been rendered unfit
for use. That being the case, the respondent school required the services
of only one driver and accordingly, the two junior most drivers were
retrenched from service, the present appellant being the junior most driver.
It is submitted that all the mandatory conditions as laid down under Section
25F of the ID Act were complied with, including the payment of
retrenchment compensation to the appellant.
24. We are unable to agree with the reasoning adopted by the
Tribunal as well as the High Court in the instant case. Admittedly, the
notice under Section 25F(c) of the ID Act has not been served upon the
Delhi State Government. In support of the justification for not sending
notice to the State Government reliance has been placed upon the decision
of this Court in the case of Bombay Journalists (supra). This decision
was rendered in the year 1963 and it was held in the said case that the
provisions of Section 25F ( c) of the ID Act is directory and not mandatory
in nature. What has been ignored by the Tribunal as well as the High
Court is that subsequently, the Parliament enacted the Industrial Disputes
(Amendment)Act, 1964.