Gujarat High Court
St.Annes High School vs Dineshbhai Purshottambhai Pateliya on 5 May, 2025
Author: Gita Gopi
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10067 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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Approved for Reporting Yes No
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ST.ANNES HIGH SCHOOL & ANR.
Versus
DINESHBHAI PURSHOTTAMBHAI PATELIYA
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Appearance:
VENU H NANAVATY(7458) for the Petitioner(s) No. 1,2
MR.SHASHIKANT PARMAR(6346) for the Respondent(s) No. 1
MR PARTH PATEL for the Respondent(s) No.2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 05/05/2025
ORAL JUDGMENT
1. The petitioners are the St. Anne's High School and
St. Anne's High School Trust, Nadiad, District Kheda
challenging the order dated 19.04.2011 of the
Labour Court, Nadiad in Reference (LCN) Application
No.46 of 2010, whereby the application of the
present petitioners under Exhibits 5 and 6 for
deciding the preliminary issue came to be rejected.
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2. Heard learned advocate Ms. Venu H. Nanavaty for
the petitioners and learned advocate Mr. Shashikant
Parmar for the respondent.
3. Learned advocate Ms. Venu H. Nanavaty submitted
that the petitioners are an educational institution
governed by the Gujarat Secondary and Higher
Secondary Education Act, 1972 (hereinafter referred
to in short as 'the Education Act') and registered
under the Bombay Public Trust Act. The petitioner
School as per the notification of Gujarat Government
No.GH/SH/2/SEB/1190-EM-387-388-CHH falls under
Group-II and is located at Serial No.289 in the said
notification. It is submitted that the notification
clarifies undisputedly that the petitioner School being
registered is permitted to impart secondary education.
4. Referring to the facts of the case, it is submitted that
the respondent-employee herein was working with the
petitioners as a Junior Clerk. Way back in the year
2003 in the Annual Programme, he behaved
improperly with an Assistant Teacher, abused, entered
into a scuffle and threatened him. The respondent
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was grossly negligent and made grave mistake in the
School Leaving Certificates of the students. The
respondent failed to mend himself and even
misappropriated the scholarship of the students to the
tune of Rs.2,400/- by making false signatures of the
students. The respondent went on earned leave for a
period of 10 days and when he came back, he
rectified the same without any authority, and
converted a few days into casual leave and thereafter,
deliberately misplaced his leave report from the file.
The respondent was given a memo on every occasion
only with a view to give him further chance to
reform himself, the Management therefore to give an
opportunity did not take any serious action till the
last incident. The memo for the last aggravated
misconduct was also not accepted by the respondent
and thereafter, the memo was sent by post to the
residential address of the respondent. It is submitted
that the respondent is guilty of the charges of
disobedience, gross negligence, misconduct,
misappropriation and moral turpitude.
5. The petitioner initiated a departmental inquiry and
inspite of service of notice, he remained absent.
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Though opportunity was granted to him, he failed to
appear in the departmental enquiry and therefore, he
was terminated with effect from 01.08.2007, after
taking due permission from the government.
6. Learned advocate Ms. Venu H. Nanavaty further
submitted that after a long period of 3 years, the
respondent raised a dispute before the Assistant
Labour Commissioner, Nadiad on 26.07.2010. The
gross delay has not been explained. The respondent
approached by invoking the machinery under the
Industrial Disputes Act, 1947 (hereinafter referred to
in short as 'the I.D. Act.'), which is without
jurisdiction. The settlement could not be arrived at
and the matter was referred to the Labour Court
which culminated in Reference (LCN) Application
No.46 of 2010. It is submitted that vide application
Exhibits 5 and 6, the Labour Court was invoked for
raising the preliminary issue of jurisdiction to
entertain the reference. Learned advocate Ms. Venu
H. Nanavaty has referred to the observations of the
Labour Court and submitted that the Labour Court
fell in error in rejecting the application, though the
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notification of the Government was not in dispute
and the provisions of Section 38 of the Education Act
was appreciated. The learned Tribunal rejected the
preliminary issue application primarily on the ground
that the matter was referred by Labour Commissioner
and therefore, decided to assume the jurisdiction for
conducting the matter.
7. Learned advocate Ms. Venu H. Nanavaty referred to
the provision of Section 38 of the Education Act to
state that the respondent was working as a Junior
Clerk and therefore, being a member of the non-
teaching staff, the dispute would be exclusively
decided by the Tribunal and the Labour Court cannot
have the jurisdiction to entertain the reference. Ms.
Nanavaty also referred to the judgment in the case of
Saurashtra University and Another V. Saurashtra
University University Karmarchari Parivar reported in
(2004) 1 GLR 160 to contend that this judgment was
confirmed by the Division Bench which was reported
as Saurashtra University Karmachari Parivar v.
Saurashtra University in (2004) 1 G.L.H. 741.
Learned advocate Ms. Nanavaty while referring to the
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said judgments stated that in the strict sense, the
Labour Court would have no jurisdiction to decide
the dispute.
8. Per contra, learned advocate Mr. Shashikant Parmar
for the respondent submitted that the dispute between
the school and the employee though would be guided
by the provisions of the Education Act, which
provides for statutory Tribunal, such disputes arising
between the parties should be only pertaining to
"conditions of service" of such person who are
referred under Section 38 of the Education Act while
dismissal of employee as a dispute cannot be tried by
tribunal. It is further submitted that there is no
contention of the petitioners that they do not fall
under the definition as per Section 2(j) of the I.D. Act
and that by way of preliminary issue, such contention
cannot be raised after the reference by the Labour
Commissioner.
9. Learned advocate Mr. Shashikant Parmar has referred
to the judgment in the case of Bangalore Water
Supply and Sewerage Board v. A. Rajappa and Others
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reported in AIR 1978 SCC 548 to contend that
education is not mere a Industry, rather the mother
of Industries. He has also referred to the
observations made by a Bench of 7 Hon'ble Judges in
the above case with regard to definition of 'industry'
in Section 2(j) of the I.D. Act, which reads as
under :-
"116. We dissent, with utmost deference, these propositions
and are inclined to hold as the Corporation of Nagpur (AIR
1960 SC 675) held that education is industry, and as Isaacs
J. held, in the Australian case (1929) 41 CLR 569) (Aus)
(supra) that education is pre-eminently service."
10. Learned advocate Mr. Shashikant Parmar has
also referred to the judgment in the case of A.
Sundarambal v. Government of Goa, Daman and Diu
reported in AIR 1988 SCC 1700 to differentiate the
work between teaching staff and non-teaching staff
and to contend that school is an 'industry' in view of
the definition of 'workman'. It is thus, further
submitted by learned advocate Mr. Shashikant Parmar
that before the Labour Court, the petitioners have
raised the dispute of the respondent working as
Junior Clerk, which learned advocate contended
would fall under the definition of 'workman' since
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the respondent had performed clerical duties
exclusively and thus the relation between the
petitioner-school and the respondent-workman would
fall under the definition of 'industry' and 'workman'.
11. It is also contended that the decision referred by
the learned advocate for the petitioners Ms. Venu H.
Nanavaty in Saurashtra University Karmachari Parivar
(supra) would not be applicable to the facts of the
present case since Section 7(3) of the Gujarat
University Tribunal, 1983 very exclusively excludes
the jurisdiction, while the provisions under Section 38
of the Education Act does not clarify excluding the
jurisdiction of the Labour Court. Pressed into service,
the provisions of Section 40 itself as it was before the
year 2013, it is submitted by learned advocate Mr.
Shashikant Parmar that the civil court jurisdiction has
been excluded by barring provision, but the
Education Act does not oust the Labour Court
jurisdiction.
12. Learned advocate Mr. Shashikant Parmar further
submitted that to adjudicate the dispute, with the
said Act would require consideration with the social
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approach which would be fulfilling the workman as
the beneficiary under dispute. Thus, referring to the
provisions Section 2(j) and (s) read with Section 10 of
the I.D. Act, it is submitted by learned advocate Mr.
Shashikant Parmar that since the reference has been
made to the Labour Court, it can decide the very
dispute, and Section 38 of the Education Act would
not take away the jurisdiction of the Labour Court as
the matter is about termination of service of the
clerk. It is further stated that when the legislature is
silent on this subject, the Court should not
incorporate any other meaning to the maintainability
of the petition before the Labour Court, since
presumption is always in favour of the jurisdiction.
13. Heard learned advocates appearing for the
respective parties. Admittedly, the position is that
the respondent was serving as Junior Clerk in the
petitioners-school. The respondent was terminated
with effect from 01.08.2007 after taking due
permission from the Government, and, after three
years, he raised a dispute before the Assistant
Labour Commissioner, Nadiad on 26.07.2010. A
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settlement could not be arrived at and therefore, the
matter was referred to the Labour Court which
culminated into Reference (LCN) Application No.46 of
2010. The petitioners moved the Labour Court by
way of Exhibits 5 and 6 to raise preliminary issue
contending that the Labour Court would have no
jurisdiction to entertain dispute since it would not fall
under ID Act as the relation between the petitioners
and the respondent would not be in the nature of the
industry and workman.
14. In view of the reference made by the Additional
Labour Commissioner, Nadiad and considering the
disciplinary action against the respondent leading to
the termination of the job, and since the respondent
was working as a Junior Clerk, under that
circumstances, considering him to be falling under
Section 2(5) of the ID Act, observing jurisdiction upon
itself denied to entertain the application.
15. Section 38 of the Education Act reads as
under :-
"38. Dispute to be decided by Tribunal - (1) Where there is
any dispute or difference between the manager of a registered
private secondary school and any person in service of such
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school as head-master, a teacher or a member of non-teachng
staff, which is connected with the conditions of service of such
person, the manager or, as the case may be, the person may
make an application to the Tribunal for the decision of the
dispute.
(2) As from the appointed day the State Government or any
officer of the State Government shall have no jurisdiction to
decide any dispute of the nature referred to in sub-sect. (1) and
any such dispute pending before the State Government or any
officer of the State Government immediately before the
appointed day shall, as soon as may be, after the appointed
day, be transferred to the Tribunal for its decision."
16. Section 38 of the Education Act refers to the
dispute or difference, between the Manager of a
registered private secondary school and any person in
service of such a school, be it teaching or non-
teaching staff. The dispute or differences would be
in connection with the 'conditions of service' of such
person. The primary requirement of Tribunal under
Section 38 of the Education Act is resolving dispute
or difference in connection with the registered Private
school. Section 2(0) of the Education Act recognizes
private secondary school which means a secondary
school which is not owned, managed or sponsored by
the Central or State Government. The Notification
GH/SH/2/SEB/1190-EM-387-388-CHH refers to the
present petitioner-School under at Serial No.289 in
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Group II, under the head of registered Secondary
schools other than post basic secondary schools.
17. Learned advocate Mr. Shashikant Parmar's main
bone of contention was that the Labour Court as well
as this Court would have no jurisdiction whatsoever
to entertain the application Exhibits 5 and 6 since the
dispute has been referred by the Assistant Labour
Commissioner. It is thus submitted that the Labour
Court itself would have jurisdiction to entertain the
dispute under the reference made by the Assistant
Labour Commissioner. It is required to be noted that
the real test for making the reference is whether at
the time of reference, the dispute exists or not, and
when the State Government is satisfied that the
industrial dispute is still subsisting, the Labour Court
cannot go behind the reference, while it is equally
necessary to observe that it is not open to the
Government to go into the merits of the dispute
concerned. However, satisfaction of making reference
under Section (10) of the I.D. Act would be subjective
satisfaction. The power of reference has to be
exercised after knowing as to whether the concerned
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person would fall under the definition of 'workman'
and that the grievance raised is against the 'industry'.
It appears that prior to the reference, this issue has
not been dealt with. The matter was for settlement
and when the settlement could not be arrived at, the
dispute was referred to the Labour Court culminating
into Reference (LCN) Application No.46 of 2010.
The subject reference could be challenged if ex-facie
it could be shown that it was perverse. Urging the
Labour Court to raise the preliminary issue of non-
jurisdiction would be the way to get the issue
decided at the primary stage.
18. Learned advocate Mr. Shashikant Parmar has
also submitted that when there is inconsistency
between the state law and the central law, central
law would prevail.
19. The above both arguments can very well be
dealt with by the observations made by the Division
Bench in the case of Saurashtra University Karmachari
Parivar (supra) and the relevant Paragraph is No.14
which is reproduced as under :-
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"14. We are also not much impressed by the submission
of Mr. Desai to the effect that the Industrial Dispute Act
is a Central Act and Gujarat University Services Tribunal
Act is a State Act and hence, the Central Act would
prevail upon the State Act in case of any repugnancy. It
is for the simple reason that the State Act has received
the assent of the President on 06.01.1988 and by virtue
of the provisions contained in Article 254(2) of the
Constitution of India, the provisions contained in the
State Act would prevail upon the provisions contained in
an earlier law made by Parliament. The reliance placed
by Mr. Desai on the decision of the Hon'ble Supreme
Court in the case of GUJARAT AGRICULTURAL
UNIVERSITY V/S. RATHOD LABHU BECHAR (SUPRA) is
also not of much avail to the appellant as Section 2(f) of
the Act defines University which means an University
constituted under the relevant University Act and includes
any institution of higher education in the State other
than University, declared under Section 3 of the
University Grants Commission, 1956 to be a deemed
University for the purposes of the said Act. The Gujarat
Agricultural University does not fall within the ambit of
this definition and hence, observations made by the
Hon'ble Supreme Court in that case would not be pressed
into service so far as the issue pertaining to the present
appellant and the Saurashtra University is concerned. The
reliance placed by Mr. Desai in the case of JAI
BHAGVAN V/S. MANAGEMENT OF AMBALA CENTRAL
COOPERATIVE BANK LIMITED (SUPRA) would also not
of much assistance to the appellant as the basic issue
which arose before the learned Single Judge and before
us is as to whether a reference has been properly made
or not. The Hon'ble Supreme Court has also observed in
the said decision that once a reference has been properly
made to the Industrial Tribunal, the dispute is to be duly
resolved by the Industrial Tribunal. In other words, if the
reference has not been properly made or if the Industrial
Tribunal has no jurisdiction and still reference has been
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made, then in that case, it cannot be argued that once
the reference having been made, a decision taken by the
Industrial Tribunal on the dispute referred to it cannot be
questioned on the ground of jurisdiction. If on proper
interpretation of the relevant statutory provisions, the
learned Single Judge has come to the conclusion that the
dispute raised can only be decided by the Gujarat
University Services Tribunal, then in that case, if any
decision is taken by the Industrial Tribunal that can
certainly be challenged on the ground of jurisdiction and
that challenge would certainly weigh with the Court and
in this view of the matter, we do not find any infirmity
in the view taken by the learned Single Judge while
allowing the petition."
20. It is required to be mentioned that the next
contention of learned advocate Mr. Shashikant Parmar
of termination of service not falling under the
purview of "conditions of service" as laid down in
Section 38 of Education Act can be answered by
referring to the observations in the judgment of the
Hon'ble Apex Court in State of M.P. v. Shardul Singh
reported in (1970) 1 SCC 108.
21. The observations of the Supreme Court in the case
of State of M.P. (supra) reads as under :-
8. One of the powers conferred under this proviso is to
make rules regulating the conditions of service of persons
appointed to civil services of the Union or the State as the
case may be. The expression "conditions of service" is an
expression of wide import. As pointed by this Court in
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Pradyat Kumar Bose v. Hon'ble Chief Justice of Calcutta
High Court [(1955) 2 SCR 1331] the dismissal of an official
is a matter which falls within "conditions of service" of
public servants. The Judicial Committee of the Privy Council
in North West Frontier Province v. Suraj Narain Anand
[(1948) LR 75 IA 343] took the view that a right of
dismissal is a condition of service within the meaning of the
words under Section 243 of the Government of India Act,
1935. Lord Thankerton speaking for the Board observed
therein :
"apart from consideration whether the context indicates a
special significance to the expression "conditions of service"
Their Lordships are unable in the absence of any such
special significance, to regard provisions which prescribe the
circumstances under which the employer is to be entitled to
terminate the service as otherwise than conditions of the
service, whether these provisions are contractual or
statutory; they are therefore of opinion that the natural
meaning of the expression would include such provision."
In P. Batakotaiah v. Union of India [(1958) SCR 1052] this
Court proceeded on the basis that a rule providing for the
termination of the service of a railway official can be made
in exercise of the powers conferred on the Government by
Sections 241(2), 247 and 263(3) of the Government of India
Act, 1935.
22. The reasons given above to the inclusive
meaning of the expression "conditions of service"
taking within its scope termination of service, clarifies
that the matter cannot be decided by the Labour
Court and is required to be transferred to the
competent Tribunal. Sections 38, 39 and 40 of the
Education Act, after the ordinance and promulgation
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of the Gujarat Educational Institutions Services
Tribunal, 2006 by the Act No.20 of 2013 came to be
deleted and Gujarat Educational Institutions Services
Tribunal Act, 2006 (in short may also be referred as
'the Act of 2006') came into force with an intention
to consolidate and amend the laws related to
Educational Tribunal so as to bring about uniformity
and to provide for constitution of Tribunal for the
purpose of determining disputes related to conditions
of service of the members of the teaching and non-
teaching staff of the educational institutions in the
State. Section 2(k) of the Gujarat Educational
Institutions Services Tribunal Act, 2006 defines a
secondary school and higher secondary school giving
the meaning as has been assigned in the Education
Act. Section (l) gives the meaning to the 'tribunal'
which refers as the Gujarat Educational Institutions
Services Tribunal established under Section 3 by way
of notification in Official Gazette constituting the
"Gujarat Educational Institutions Services Tribunal".
Hence, now when the tribunal to provide uniformity
for educational institutions has been constituted, this
Court considers that the dispute in question would
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fall for consideration in the jurisdiction under the
Gujarat Educational Institutions Services Tribunal,
which gets jurisdiction to decide dispute of dismissal,
removal or termination of services of even non-
teaching staff of the educational institution, as
included under Section 2(d) of the Act of 2006.
23. It would be necessary to refer to the following
Sections of the Act, 2006 for ready reference :-
"Section 2 (c) "educational institution" means a University,
College, Higher Secondary School, Secondary School and the
Primary School;
Section 2 (d) "employee" means the any member of the
teaching and non-teaching staff of the educational institution
(whether confirmed or temporary or on probation) in service
of such institution and for the purpose of any proceeding
under this Act in relation to a dispute referred to in section
10, includes any such member who has been dismissed or
removed or whose services are otherwise terminated;
Section 2 (k) "Secondary School" and "Higher Secondary
School" shall have the same meaning assigned to them in
the Gujarat Secondary and Higher Secondary Education Guj.
is of 1973. Act, 1972; Act, 1972;
Section 2 (l) "tribunal" means the Gujarat Educational
Institutions Services Tribunal established under section 3;
3. Constitution of Gujarat Educational Institutions Services
Tribunal
(1) There shall be established by the State Government by a
notification in Official Gazette, the tribunal to be called the
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"Gujarat Educational Institutions Services Tribunal";
(2) The Tribunal shall consist of the President and such
number of Judicial and Administrative members as may be
appointed by the State Government.
22. Abolition of existing Tribunals.
(1) On the appointed day, all the existing tribunals
established or constituted under the relevant Act shall stand
abolished.
(2) All the persons appointed as a tribunal under the
relevant Act shall cease to hold office as such on the
appointed day and shall be deemed to have vacated their
office.
23. Transfer of pending cases.
All the applications, appeals and other proceedings pending
before the existing tribunals immediately before the
appointed day shall stand transferred to the tribunal on the
appointed day and all such applications, appeals and
proceedings shall be continued and disposed of by the
tribunal as if they were filed before it under this Act.
24. The issue of delay in raising a dispute has not
been dealt with by this Court since it is a mixed
question of facts and law which can be successfully
dealt with by the Tribunal. However, it is clarified
that the time which has undergone because of the
proceedings before the Labour Court as well as this
Court would not come in the way while deciding the
issue of limitation, if at all so raised, since the
proceeding before the Labour Court is to be
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transferred as per Section 23 of the Gujarat
Educational Institutions Services Tribunal, 2006.
25. In the result, the present petition succeeds and
is allowed, with a direction to the Labour Court,
Nadiad to transfer the Reference (LCN) Application
No.46 of 2010 to the Gujarat Educational Institutions
Services Tribunal through Registrar, Rajya Shikhsan
Bhavan, Raikhad, Ahmedabad.
26. Registry to inform the Labour Court about this
order with immediate effect.
Sd/-
(GITA GOPI, J)
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