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2007 Supreme(Bom) 1255
Bombay High Court
SMT. NISHITA MHATRE
KAMYANI VIDYA MANDIR -Appeallant
Versus
P.S.NARKAR, PRESIDING OFFICER -RESPONDENTS
WRIT PETITION 6329 Of 2001
Decided On: 09/05/2007
Headnote:Industrial Disputes Act, 1947 - Sections 2(j)(s), 10(1) and 11- A - Workmen - Termination of - Award of, accepted by Labour Court - Challenged by employer - Contended that respondent, a school teacher, not a workman under Section 2(s) of Act - Considering evidence on record, petitioners school not an industry - Employee, a craft teacher in a school for mentally challenged children and sell goods manufactured by them without any profit motive - Teacher working in such a school cannot be considered as workman under Section 2(s) of Act. - Considering the evidence on record in the present case, it is obvious that the Labour Court has erred in concluding that the petitioner is an "industry". In the present case, the dominant purpose for which employees are hired is to train the mentally challenged persons and to look after them. While imparting such training, goods are manufactured and later sold, without the object of making a profit. The respondent No. 1 has admitted that no regular employees are hired by the petitioner to produce the articles, such as, greeting cards, envelopes, candles etc. She has also admitted that the articles which are sold in the stalls set up by the petitioner during the festive seasons are those which are made in the process of training the mentally challenged children. The articles are made by the children together with the teachers. There is no evidence on record to show that the mentally challenged persons who are being trained are paid any money for the products manufactured by them during the course of training. In these circumstances, it cannot be said that there is any employer-employee relationship between them and the petitioner nor can it be said that there is any systematic activity for the production of the goods. Therefore, the finding of the Labour Court that thus the petitioner is an "industry" is erroneous and is therefore set aside.
The other finding of the Labour Court is that the respondent is a workman. This finding also is incorrect. Since it is held that the petitioner is not an "industry" a teacher who is working in such an establishment cannot be considered to be a "workman". Under Section 2(s) of the Industrial Disputes Act, a workman means : "any person employed in any industry". As I have already held that the petitioner is not an industry, the respondent cannot be labelled as a ’workman’.
( 2 ) THE petitioner claims to be an educational institute for mentally challenged children. It is funded by various business houses. According to the petitioner, its main object is to impart education to the mentally challenged and to rehabilitate them in order to enable them to lead independent lives as an integral part of society. The petitioner employed the respondent No. 1 as a "teacher" from 4. 8. 1992 on a temporary basis. After the temporary period was over on 3. 2. 1993, the petitioner appointed the 1st respondent again for a period of two months i. e. upto 30. 4. 1993 on a temporary basis. According to the petitioner, the services of the 1st respondent were not found to be satisfactory and, therefore, memos, warnings and a show cause notice, were issued to her for a several acts of misconduct including late attendance, absenteeism, etc. The services of the 1st respondent were terminated by letter dated 24. 4. 1993 as she was found unsuitable to continue in employment. Thus, the services of the 1st respondent came to an end on 1. 5. 1993.
( 3 ) AGGRIEVED by the decision of the petitioner, the 1st respondent raised an industrial dispute which was referred for adjudication before the Labour Court. It was registered as Reference (IDA) No. 251 of 1994. The 1st respondent filed statement of claim contending that she was employed in an industry and that she was a workman as defined under Section 2 (s) of the Industrial disputes Act. The 1st respondent pleaded that although she was appointed as a Craft Teacher, she was expected to do any work which was allotted to her by the petitioner. She has pleaded in her statement of claim that she was required to do other work like typing, book binding, etc. herself, besides training to mentally challenged to do such jobs. The 1st respondent contend that her services have been terminated without an enquiry and, therefore, the action taken by the petitioner was illegal and unjustified.
( 4 ) IN its written statement, the petitioner has contended that it is not an industry as defined under section 2 (j) of the Industrial Disputes Act. It has described the work that it undertakes in the following manner:-
"in the first place, the first party submits that it is not an "industry" as defined u/s 2 (j) of the Industrial Disputes Act 1947. The first party submits that it is an organisation engaged in the upliftment of the mentally retarded children. It has its objection of giving education and rehabilitating the mentally retarded children with an intention that they should become independent on their own and should lead their life independently. The first party has not engaged in any commercial activity and it has no intent of commerce. The first party therefore is not an "industry" under the Industrial Disputes Act and, therefore, the provisions of the industrial Disputes Act are not applicable to it. "
( 5 ) THE petitioners have also pleaded that the respondent was a Teacher in the school run by the petitioners and, therefore, was not a "workman" as defined under Section 2 (s) of the Industrial Disputes act.
( 6 ) EVIDENCE of both the parties was led before the labour Court. In her examination-in-chief the 1st respondent has stated that, on her appointment as a craft Teacher, she was also doing the work of making greeting cards, envelopes, candles, aprons and taking dictation, proof reading and tally the papers as per number normally at closing hours. She has also stated in the examination-in-chief that the articles prepared by th
