JUDGMENT
Nagendra Rai, J.
1. The management-petitioner has filed the present application for quashing the award rendered by the Labour Court, Bokaro Steel City (respondent No. 1) in Reference Case No. 32/1994 directing the petitioner to consider the case of M.K. Choudhary, Teacher Staff, represented by Bokaro Ispat Kamgar Union, B.S. City (hereinafter referred to as the Union), favourably designating him as Volley Ball Coach or promoting him to Identical Executive Cadre Post w.e.f. July 31, 1992 when Jaideep Sarkar was made Volley Ball Coach and pay him difference of wages with other consequential benefits within three months from the date of announcing the award. A copy of the said award has been annexed as Annexure-21 to the writ application.
2. The Government of Bihar vide notification dated February 28, 1994 referred the following Industrial Dispute between the petitioner management and the Workmen Union for adjudication: "Whether not to give the designation of Volley Ball Coach to M.K. Choudhary, Teacher Staff No. 664533 is proper? If not, what relief he is entitled to?" 3. The reference arose in the following circumstances:
M.K. Choudhary was appointed as an Assistant Teacher (P.T.) by the petitioner-management on casual basis on July 9, 1985 vide Annexure 1. At the time of joining, he was B.Sc. and holding diploma in physical education. His service was regularised on November 24, 1986 vide Annexure 2. He was posted in the Education Department of the petitioner-management on December 9, 1986 vide Annexure -3. On May 9, 1987 all the Assistant Teachers including the workman were redesignated as Assistant Master. On May 25, 1991 vide Annexure-6, he was promoted and posted as Master in L-7 Grade and thereafter, he was promoted to Higher Grade Senior Master on December 31, 1994 vide Annexure-7 in L-8 grade.
4. The case of the workman is that he was very good Vooley Ball player from his school days and from the date of his appointment as a Teacher he was coaching the students in Volley Ball. In 1987 the management took a policy decision to get all P.T.I’s trained in various disciplines of sports and athletics at National Institute of Patiala (N.I.S.) so that their services may be utilised as coaches for training the students of Company’s Schools and in pursuance thereof all the P.T.Is including petitioner were asked to make application to N.I.S. for their selection for diploma courses in various disciplines of sports. He also applied and was selected for 1987-88 sessions for training as Volley Ball Coach. He executed a bond as required by the management and agreed to serve the Company at least for five years with a clear understanding that on successful completion of training, he would be designated as Volley Ball Coach with scale of pay. On completion of training, he was granted diploma in Volley Ball Coaching and thereafter his services have been utilised as Volley Ball Coach for coaching the students of the Schools of the management. Later on in 1992, he acquired master’s degree in Physical Education from Jiwajee University Gwalior (M.P.). In 1992 the management posted one Jaideep Sarkar Junior to him and less qualified as Volley Ball Coach ignoring his claim. He requested the management to designate him as Volley Ball Coach from December 1990 in the scale of pay Rs. 2,200 to 3,600 but the same was not done hence the dispute.
5. The case of the management on the other hand is that after working for about 7 years in the school, the petitioner started claiming for change of his designation as Volley Ball Coach. His case was examined and he was informed that there was no post of coach in the Education Department and as such he is to continue as P.T.I. teacher. It is also asserted that he has never contributed towards the development of sports among the students. Jaideep Sarkar’s case is different, who is a Volley Ball teacher. He was transferred in Sports department in Company’s interest. The claim of the workman that a decision was taken by the management in 1987 for imparting N.I.S. training to all the P.T.Is’ for the purpose of utilising their services as Coaches is incorrect. He was never selected as Volley Ball Coach nor he organised coaching camp for the students.
6. When the management did not accept the claim of the workman, the union raised an Industrial Dispute before the State Government and the State Government referred the aforesaid dispute for adjudication.
7. Both the parties filed the written statements. The management in the written statement took a preliminary objection about the maintainability of the reference under Section 10(1)(c) of the Industrial Disputes Act (hereinafter referred to as the Act) on the ground that the P.T.I. teacher M.K. Choudhary is not a workman as defined under Section 2(s) of the Act and as such the dispute raised with regard to his case is not an industrial dispute and accordingly, the reference is impermissible in law.
8. The management examined five witnesses. The Workmen Union examined workman M.K. Choudhary only. Both parties filed documentary evidence and thereafter, the Labour Court rendered the award as stated above.
9. Learned Counsel for the petitioner raised only one point that the reference was not maintainable as M.K. Choudhary is not a workman as defined under the Act as such the reference under Section 10 of the Act is bad in law. In support of his submission, he relied upon the judgment of the Apex Court in the case of Ms. A. Sundarambal v. Govt. of Goa, Daman & Diu and Ors., (1989-I-LLJ-61).
10. Learned counsel appearing for the workman on the other hand contended that M.K. Choudhary, Teacher, is a workman within the meaning of Section 2(s) of the Act as amended by amending Act 46/1982. The judgment relied upon by the petitioner was rendered before the aforesaid amendment, as such the same is not applicable in the facts of this case. Elaborating his submission, he-stated that as the functions performed by the teacher do not fall within any of the exceptions as mentioned in the definition of workmen under Section 2(s), he is a workman and as such the reference is competent.
11. There is no dispute that if it is found that the teacher is not a workman as defined under Section 2(s) of the Act then the dispute raised by him is not an industrial dispute which can be referred to under Section 10 of the Act to the Labour Court. The definition of workman has gone several changes by way of amendments. The original definition at the time when the Act came into force (April 1, 1947) defined the workmen as persons employed in any industry to do any skilled or unskilled, manual or clerical work for the purposes mentioned in the definition. It did not include any person employed in the Navy, Military or the Air Service. The said definition was amended by the Amendment Act 36/1986 which came into force on August 29, 1956. By the said amendment even the persons employed in supervisory and technical work were also included within the meaning of workman. In case of persons in supervisory capacity it was provided they will be treated as workmen only if their monthly wage did not exceed Rs. 500/-The definition was again amended by Act 46 of 1982 which came into force on August 21, 1984. The said definition runs as follows:
“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 expressed or implied, and for the purposes of any proceeding under this Act in relation to any industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person-
i) who is subject to the Air Force Act, 1950, or the Army Act, 1950, or the Navy Act, 1957 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 a supervisory capacity draws wages exceeding one thousand six hundred rupees per mensem or exercise, 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.
By this definition, the workman employed to do the operational work was included in the definition and the workman doing non- manual, unskilled or skilled work were also included in the definition. In other words, the persons engaged in doing skilled or unskilled work whether manual or otherwise were also treated as workmen within the aforesaid definition.
12. A bare reading of the definition shows that before a person should be treated as a workman, he should be employed in an industry and he should do skilled or unskilled work, manual or otherwise, technical, operational or supervisory work. He should do work for hire or reward and he should not be an employee falling under any of the categories mentioned under (i) to (iv) of the definition.
13. The Apex Court in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa and Ors. (1978-I-LLJ-349) (SC) has held that educational institution is an industry. But no decision was given in that case as to whether the teacher employed is a workman or not. It was held in that case that whole establishment may be industry but every employee may not be a workman as defined under the Act. It was held therein that whether a particular workman is a workman or not as defined under the Act the dominant purpose of the work or substantial part of the work has to be looked into. It is relevant to quote paragraph 143 of the said judgment which runs as follows:
“143. The dominant nature test;
a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not workmen as in the University of Delhi case (1963-II-LLJ-335) (SC) or some departments are not productive of goods and services if isolated, even then the predominant nature of the services and the integrated nature of the departments as explained in the Corpn. of Nagpur (1960-I-LLJ-523) will be the true test. The whole undertaking will be industry although those who are not workmen by definition may not benefit by the status.
b) Notwithstanding the previous clause sovereign function strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.”
14. The question as to whether the teacher employed in an educational institution is a workman or not came for consideration before the Apex Court in the case of Ms. A. Sundarambal (supra) relied upon by the petitioner. The said decision was rendered by the Apex Court after taking into consideration the definition of the workman as amended by amending Act 36/1956. The Apex Court held that the teacher employed in a school does not fall within the definition of workman though the school is an industry. It held in paragraph 10 of the said judgment as follows:
“The question for consideration is as to whether even after the inclusion of the above two classes of employees in the definition of the expression workman in the Act a teacher in a school can be called a workman. We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post-graduate education cannot be called as workman within the meaning of Section 2(s) of the Act. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of; teachers. The clerical work, if any, they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as workmen as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in Section 2(s) of the; Act should be treated as workmen. The acceptance of this argument will render the words to do any skilled, unskilled work manual, supervisory, technical or clerical work meaningless. A liberal construction as: suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd. v. Their Workmen, (1961-II-LLJ-94) (supra) precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a workman though the school was an industry in view of the definition of workman as it now stands.”
15. Thus, according to the law laid down by the Apex Court function discharged by a teacher is to educate the children to develop their character, enhance their personality and make them responsible citizen. Their function is in the nature of a mission or a noble vocation. Clerical work done is only an incidental to their predominant or principal work of teaching.
16. Learned Counsel for the workman submitted that in view of the amendment of the definition of workman by amending Act 46/1982 by which its scope has been enlarged, the teacher is a workman.
17. I am unable to agree with the aforesaid submission. The only change brought about by the amendment is that workmen employed in operational work have been included. This apart the workmen engaged in non-manual, skilled or unskilled work have been included in the said definition. The function performed by a teacher cannot be treated as operational work nor can be treated as non-manual, skilled or unskilled work. The said amended provision was considered by five-Judge Bench of the Apex Court in the case of H.R. Adyanthaya etc. v. Sandoz (India) Ltd. Etc. (1995-1-LLJ-303)(SC), wherein the question for consideration was as to whether a medical representative is workman or not. The Apex Court referred to and approved the law laid down in the aforesaid case. It was held that an employee would be treated as workman within the definition of the workman as defined under the Act only if he falls in any of the categories as mentioned in the definition clause. It is not sufficient for him to prove that he is not covered by any of the four exceptions to the definition. After taking into consideration the amended provision, the Apex Court held that the word ‘skilled’ has to be considered ejusdem generis and thus, construed, would mean skilled work whether manual or non- manual, which is of a genre of the other types of work mentioned in the definition. As such inspite of the amendment in the definition of the workmen by the Act, 1982 the teacher cannot fall within the category of workmen. The duties performed by him cannot be said to be falling in any of the categories as mentioned in the definition.
18. Thus, in my considered opinion a teacher of the educational institution is not a workman. Accordingly, it is held that M.K. Choudhary is not a workman as defined under Section 2(s) of the Act even though the institution where he is teaching may be treated as an industry. As he is not a workman, the dispute raised by him will not be an industrial dispute which can be referred under the Act for adjudication. The Labour Court has committed a serious error of law in holding otherwise. While dealing with the question as to whether the teacher is a workman or not the Labour Court came to the conclusion that in view of the amended provision in 1982 the work performed by a teacher is a skilled work and as such he is workman within the meaning of Section 2(s) of the Act. The Labour Court failed to notice that the work performed by a teacher is not a skilled work as included in the definition and the same has been specially held by the Apex Court. The addition of works in the definition by amending Act, 1982 in no way changes the position. Thus, in my view, the Labour Court has erred in holding that the teacher is a workman as defined under Section 2(s) of the Industrial Dispute Act.
19. As M.K. Choudhary, a teacher in the school of the management, is not a workman under Section 2(s) of the Act the dispute raised by him is not an industrial dispute and accordingly, the reference by the State Government under Section 10(1)(d) of the Act was not maintainable. The award rendered by the Labour Court on the basis of the said incompetent reference is also not sustainablc and accordingly the reference by the State Government as well as the award rendered by the Labour Court both are quashed. It will be open for the workman to move for redressal of his grievance before an appropriate forum.
20. In the result, the application is allowed.