IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22517 of 2008(E)
1. JACOB MATHEW, MADATHIL PUTHENPURAYIL,
... Petitioner
Vs
1. DIRECTOR OF TRAINING,
... Respondent
2. ST.MARY'S INDUSTRIAL TRAINING CENTRE,
3. VICAR,
For Petitioner :SRI.K.A.MANZOOR ALI
For Respondent :SRI.JOHN JOSEPH VETTIKAD
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :03/04/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 22517 of 2008-F
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Dated this the 3rd day of April, 2009.
JUDGMENT
The petitioner in this writ petition is seeking for a direction to
respondents 2 and 3 to disburse arrears of salary as enjoined by the
proceedings Exts.P1 and P2 issued by the first respondent and the
Government of India.
2. Shortly stated, the relevant facts are the following: The petitioner
was serving as the Principal of St. Mary’s Industrial Training Centre,
Mannarkad under the second respondent from 9.9.1979. The institution is
having permanent affiliation with the National Council for Training in
Vocational Trades (NCVT). The petitioner is having degree in Science and
also B.Sc. Engineering Degree. He was getting only a consolidated
allowance of Rs.550/- per month. The issue regarding the payment of
adequate remuneration to the staff engaged by private Industrial Training
Centres was considered in the 31st meeting of the NCVT held on
30.11.1995. Based on the recommendation, the Government of India passed
Ext.P1 directing the State Governments to issue necessary instructions to all
the private ITIs which are affiliated to NCVT, to pay their staff a minimum
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of 2/3rd of salary being paid to the faculty/staff members of the Government
ITIs with immediate effect. This is dated 16.8.1996. The Director of
Training under the State Government accordingly issued P2 circular to all
the institutions.
3. The Association of Industrial Training Centres challenged these
orders before this court by filing O.P.No.5202/1997 which was dismissed by
Ext.P3 judgment. The matter was taken in appeal and before the Apex
Court. The judgment of this court was confirmed. The petitioner had earlier
approached this court by filing O.P.No.27697/2000 and at that point of time
the S.L.P. filed before the Apex Court was pending and there was an order
of stay in force. In that view of the mater, the petitioner withdrew the
original petition with liberty to move again, if required. This is evident
from Ext.P6 judgment. He retired from service on 30.11.2006.
4. After the Special Leave Petition was dismissed, again the first
respondent issued Ext.P7 circular to all the institutions to grant the benefits.
The petitioner submitted Exts.P8 and P9 representations along with a salary
statement. But no action was taken by the second respondent. Thereafter,
he filed Ext.P10 representation before the first respondent and has filed this
writ petition seeking for various reliefs.
5. In the counter affidavit filed on behalf of respondents 2 and 3,
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mainly it is contended that they are not “other authorities” as defined under
Article 12 of the Constitution of India and they are not discharging any
statutory functions and are not functioning with the financial aid from the
Government and therefore no writ will lie against them. It is further pointed
out that the petitioner is not entitled for any monetary reliefs as he has
worked on agreed terms. In para 4 of the counter affidavit, they have
pleaded ignorance of the recommendation of the NCVT and the acceptance
of the recommendation by the Government of India. It is also contended
that the Government or the NCVT has no power to fix a minimum scale of
pay of teachers of private ITIs like the second respondent. In para 6, a
contention is seen raised that the earlier writ petition was withdrawn by the
petitioner to get the benefits offered by the respondents in the matter of
payment. It is also stated that as he has received the benefits without any
protest, he is not entitled for any further reliefs.
6. It is not disputed that the second respondent Training Centre is
affiliated to NCVT. Ext.P1 circular will show that the Government of India
accepted the recommendation to provide a minimum salary to the teachers
of private ITIs which are affiliated to NCVT. This was implemented in the
State by Ext.P2 circular by the Department of Industrial Training. It is also
informed to them that the norm regarding payment of salary is a pre-
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condition for getting permanent affiliation. The challenge against these
orders was repelled in Ext.P3 judgment. After elaborately considering the
contentions, this court in para 7 of the judgment held that the
recommendation made by the NCVT was after discussion with the
representatives of the employers and employees in the 31st meeting held on
31.11.1995 and therefore, the management, after having agreed, cannot go
back. Regarding the obligation of the management, it was held thus:
“In the present case, the State has issued necessary circulars or
orders directing the private management to pay at least 2/3rd of the
salary given to the Government Teachers. Petitioners cannot shirk
from their duties to pay the salary as directed by the Government. As
held by the Supreme Court, petitioners are running institutions
imparting education on the public. Public are availing of the benefit
of education from the institutions. Hence, they are bound to pay
salary as directed by the Government.
This court is competent to direct the private educational
institutions to pay salary at the same rate which has been issued to
Government institutions.”
Therefore, it is too late in the day to raise a contention by the respondents
that Exts.P1 and P2 are not binding on them and they are unaware about the
developments, etc. In the light of the dictum laid down as above, the
contention that the respondents are not liable to implement Exts.P1 and P2
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cannot be accepted and hence I reject the same. They are bound to pay
salary as directed to be paid by Exts.P1 and P2. The fact they were aware
about Ext.P3 judgment is clear from the averments in para 3 of Ext.P4, the
additional counter affidavit filed by the management in O.P.No.27697/2000.
The plea taken is that against Ext.P3 judgment as affirmed in Writ Appeal
No.1501/2000, S.L.P. is pending before the Apex Court and the Apex Court
had stayed the further proceedings as directed in Ext.P1. Therefore, the
averment in para 4 of the counter affidavit herein, that the respondents are
not aware of the recommendations of NCVT to the Government as regards
the salary of the employees of private ITIs is without any substance. Once
the proceedings have been upheld by this court and by the Apex Court, the
same is binding on respondents 2 and 3 and therefore they are bound to pay
the salary to the petitioner as directed in Exts.P1 and P2. After the Apex
Court judgment, by Ext.P7 they were directed to implement the orders
regarding salary. The right of the petitioner to receive such salary cannot
therefore be denied and it is declared that he is entitled for such benefits.
7. Then the further question is whether in this writ petition, this court
can direct the respondents to disburse the amount. The contention raised is
that the second respondent does not come within the term “other
authorities” under Article 12 of the Constitution of India. That they are
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affiliated to the NCVT is not denied. In fact, the very same contention was
considered and rejected in Ext.P3 judgment, relying upon the decision of the
Apex Court in K. Krishnamacharvulu and others v. Sri Venkateswara
Hindu College of Engineering and another (AIR 1998 SC 295). It was
held that since the institution is imparting education, an element of public
interest is there in the performance of their duties. Accordingly, the right of
the teachers to get parity of the pay scales is protected. Following the
above dictum laid down by the Apex Court, it was held that the petitioners
are running institutions imparting education on the public and the public are
availing of the benefit of education from the institutions and hence they are
bound to pay salary as directed by the Government. Since this judgment
stands affirmed by the Division Bench and the Apex Court, the respondents
cannot now shirk their responsibility to pay salary as directed by the
Government. While imparting education, they are really exercising the
Governmental functions. Since public interest is involved and as they are
imparting education, they are discharging public duties. In that view of the
matter, this court will be justifying in issuing a writ of mandamus to enforce
the claim. As held in Ext.P3 judgment, payment of minimum salary to the
staff in an institution imparting education is in the interest of public. The
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public are availing of the benefit of education from the institution. It is well
settled that in such circumstances, a writ of mandamus could be issued to
compel the institution like respondents 2 and 3 to abide by the directions
issued by the authorities like the State. In fact, under Article 226 of the
Constitution of India, when any citizen or person suffer a wrong, the High
Court will step in protect him, even if the wrong is done by the State, its
instrumentality or authorities, body of individuals, societies which are
incorporated or not or even an individual. It is also well settled that the
right of the person that is infringed, may be under the Constitution or any
other Act validly made, or other binding executive orders. Exts.P1 and P2
clearly provides for payment of minimum salary to persons like the
petitioner. Therefore, that has become part of the service conditions of the
teachers and Principals of these private institutions. That the institution is
affiliated to the NCVT and controlled by the first respondent, is not denied.
In that view of the matter, they cannot adopt an adamant stand that they are
not bound to pay salary.
In the result, the writ petition is allowed. There will be a direction to
respondents 2 and 3 to disburse the amount claimed as per Ext.P9, within a
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period of one month from the date of receipt of a copy of this judgment. No
costs.
(T.R. Ramachandran Nair, Judge.)
kav/