Delhi High Court

Smt Kanta Devi vs M/S Sarvodaya Kanya Vidyalaya & ... on 18 May, 2015

Author: Deepa Sharma

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   W.P.(C) 3589/2015

                                   Judgment reserved on: 23.04.2015
                                   Judgement pronounced on: 18.05.2015

      SMT KANTA DEVI                                        ..... Petitioner
                          Through: Mr Shiv Prakash Pandey and
                          Mr Raghav Pandey and Ms Arunima Dwivedi,
                          Advs.

                          versus

    M/S SARVODAYA KANYA VIDYALAYA & ANR . Respondents
                  Through: Mr Gursharan Singh, Advocate
                  Mr Arvind Kumar, Deputy Education Officer,
                  Zone-VI, District North-East.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

1. Vide the present writ petition, the petitioner has challenged the award

dated 18th March, 2014 whereby the learned Labour court has held that the

petitioner was not entitled to any relief since there was no relationship of an

employer and an employee between the petitioner and the respondent nos. 1

and 2 and that she was engaged by PTA (parent-teacher association) and

was also paid her salary /honorarium from the PTA fund and that PTA was

not an 'industry' within the meaning of Section 2(J) of the Industrial

Disputes Act.

2. Aggrieved by the said findings of the learned Labour Court, the

petitioner vide the present writ petition has challenged the impugned award

on the grounds that the learned labour court was wrong in overlooking the

fact that number of similarly placed workmen junior to her were

regularized. She was paid a meagre salary/wages of Rs.500 per month

which shows that she was not even paid as per the minimum wages.

3. It is further submitted that learned Labour Court ought to have passed

an award in her favour holding that she was the employee of respondent

no.1. It is further submitted that Labour court had failed to appreciate that

respondent no.2 being part of Government and having control over the

working and functioning of respondent no.1 being a school run under the

provisions of Delhi School Education Act illegally acted in allowing

respondent no.1 to hire the petitioner and being paid wages from the funds

of PTA (Parents Teachers Association).

4. On these contentions, it is prayed that the impugned award be

quashed.

5. I have given due consideration to the arguments of the learned

counsel for the petitioner as well as of learned counsel for the respondent

who had attended the Court, although no notice has so far been issued to the

respondent.

6. The petitioner has placed on record the copies of the pleadings filed

before the learned Labour Court. From statement of claim, it is apparent

that the claim of the petitioner before the learned Labour Court was that she

was an Aaya /water woman, appointed in August 1995 and worked till June

2003 and her last drawn wages were Rs.700 per month which were paid to

her from the PTA fund. She challenged her termination w.e.f. 1 st July, 2003

as illegal. She moved an application before the Central Administrative

Tribunal, which was dismissed vide order dated 12th July, 2005. She had

also alleged that some part time employees named therein were regularized

but her services were illegally terminated.

7. The defence of the respondents was that there was no relationship

between the claimant and the respondent as the claimant was engaged by the

PTA and was drawing salary from PTA fund. No appointment letter or any

I card had ever been issued by the respondents. The plea of the respondent

was also that pursuant to the order/memorandum dated 5th April, 2004, it

was made clear to the District North East that workers engaged by PTA

were not covered under the prevailing Guidelines/instructions of part time

workers. The respondents had also taken the plea that vide

Memorandum/order of Directorate of Education order No.

DE/(16)(3)93/Et/16140-92 dated 01.10.2002 endorsed by DDE-North East

vide order dated 23.10.2002, there was complete ban on creation/filling up

of non-plan funds and appointment of Daily Wages/Contract basis.

8. The learned Labour Court has dealt with the matter in dispute

between the parties and on the basis of the evidence clearly held that the

petitioner was engaged through PTA fund. The Court in para 13 of the

award has observed as under:-

"13. In the cross-examination the workman throughout admitted that she was verbally appointed by the principal of Management No.1 and was engaged through PTA fund. She also admitted that a person who is appointed through PTA does not come within the ambit of regular employee and also that she had been paid her entire honorarium till she worked in the school through PTA. She also denied any knowledge if any employee has been regularized after imposition of ban on 21.10.1998. She also admitted that her attendance used to be marked in the PTA register and that she never served the management as a permanent employee."

9. These facts conclusively establishes the fact that petitioner was

employed by the PTA and was paid from the PTA fund.

10. The petitioner has also taken the plea that her juniors working in the

same capacity were regularised while she had been discriminated. In order

to substantiate her contention, she had examined Vice Principle as WW2

who had produced the record of Sh. Khichu Singh, Sh.Joginder Singh and

Smt.Kamlesh whom the workman had alleged were regularized though they

too were appointed by the PTA, but the court found that the record produced

by WW2 did not show that these three employees were ever appointed

through PTA. She even examined Sh. Khichu Singh as WW3, but he had

not supported her and deposed that he was never appointed by the

responded from PTA fund and that he had been drawing the salary from the

contingency fund. Also, her witnesses WW4, Sh. Joginder Singh and

WW5, Kamlesh did not support her. The petitioner, therefore, had failed to

prove on record that she had been discriminated, or that any employee

getting wages from PTA fund, was regularised. It is thus an admitted as well

as proved fact on record that petitioner was drawing her wages from PTA

fund. There is no dispute that PTA fund is the private fund created for the

welfare of the students and the teachers, by no stretch of imagination can be

said to be a government fund and she was thus engaged by PTA which is the

private body, not indulging into any commercial activity. PTA is an

independent body, who was not made a party by the petitioner.

11. It is argued by the petitioner that the fact that she was issued I-card

shows that she was engaged at monthly wages of Rs.500/- by respondent.

This argument has been considered by ld. Labour Court. The labour Court

found that the I-card neither bore signatures of the issuing authority nor the

stamp of either of the respondents. Learned Labour court has also referred

to the admission of workman in her cross-examination wherein she had

stated that she was never appointed by Management No.2 and that no

appointment letter was issued to her, no procedure for selection of a

Government employee was followed at the time of her appointment and that

she had been receiving salary/ honorarium from the PTA fund and that her

attendance used to be marked in the PTA register and that she never served

the management as a permanent employee.

12. These admissions on the part of the workman clearly establishes that

she was not under the employment of respondent nos. 1 and 2 but was

engaged by the PTA and paid out of the PTA fund. The petitioner had not

raised any claim against the PTA and the PTA is not a party either before

the Labour Court or before this court.

13. Although, it is not pleaded by the petitioner either before the learned

labour court or in the present writ petition but it is also argued that any

notification restraining the persons employed by the PTA from being

considered for regularisation is bad in law and is liable to be set aside. The

learned counsel has relied on the finding in the cases of Miss.Mohini Jain

vs. State of Karnataka & Ors reported in (1992) 3SCC666, Ramlila

Maidan Incident vs. Home Secretary, Union of India & Ors. reported in

(2012) 5 SCC 1 and Renu & Ors. Vs. District & Sessions Judge, Tis

Hazari & Anr. reported in AIR 2014 SC 2175.

14. The findings in these cases does not support the petitioner.

15. In the case of Miss. Mohini Jain (supra), the issue before the court

was related to the notification of the Karnataka Government permitting the

Private Medical Colleges in the State of Karnataka to charges tuition fee

from the students other than those admitted to the "Government seats". It is

apparent that the issue before this court is entirely different and thus the

findings given by the Supreme Court in the case are of no relevancy in the

present case.

16. In the case of Ramlila Maidan Incident (supra), the issue under

consideration related to the dimensions of the legal provisions in relation to

the exercise of jurisdiction by the empowered officer in passing an order

under Section 144 of the Code of Criminal Procedure, 1973, the court had

considered the question whether the action taken by the public authority was

within its statutory power or not?

17. The findings in the case of Renu & Ors. (supra), does not even

support the case of petitioner, the recruitment of Group 'D' employees in

the courts was an issue therein. The Supreme Court in para 8 has clearly

held as under:-

"8. As Article 14 is an integral part of our system, each and every state action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees'Union v. Delhi Administration, Delhi & Ors, AIR 1992 SC 789; State of Haryana & Ors vs. Piara Singh & Ors etc., AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors v. State of UP & Ors., AIR 1996 SC 2638; I.A.S. Inter College, Khurja, UP & Ors v. State of U.P & Ors, AIR 1996 SC 3420; M.P. Housing Board & Anr. vs. Manoj Shirvasta, AIR 2006 SC 3499; M.P. State Agro Industries Development Corportion Ltd. & Anr v. S.C. Pandey, (2006) 2 SCC 716; and State of Madhya Pradesh & Ors. vs. Ku.Sandhya Tomar & Anr., JT 2013 (9) SC 139.

18. The petitioner, admittedly not appointed as per the procedure for

selection of Government employees but was appointed by PTA and paid

from PTA fund.

19. It is also apparent by way of present writ petition, the petitioner has

not challenged the constitutionality or validity of the notification. The only

challenge made by the petitioner is that of the impugned award and her

prayer in the present writ petition is to quash the impugned award. This case

is squarely covered by the principles laid down by Supreme Court in Union

of India and Anr. vs. Chotelal & Ors, reported in (1991) 1 Supreme Court

Cases 554. In this case, the Supreme Court has dealt with the question

whether the dhobis appointed to wash the clothes of cadets at NDA,

Khadakwasla and being paid from regimental fund can be said to be