Last Updated on March 1, 2021 by Satish Mishra
Education Tribunal Bill to Adjudicate Disputes in Education Sector
In this post we will discuss about a recently introduced as Bill seeking to reform the higher education sector in the country, this Bill establishes Educational Tribunals at the national and state levels to expedite adjudication of disputes in the education sector
Educational Tribunal
Today we are going to discuss about the Introduced as part of the suite of Bills seeking to reform the higher education sector in the country, this Bill establishes Educational Tribunals at the national and state levels to expedite adjudication of disputes in the education sector. These include disputes involving teachers and other employees of higher education and other stakeholders such as students, universities (including foreign education providers) and statutory regulatory authorities.
- The Bill seeks to set up Educational Tribunals at the national and state level to adjudicate disputes involving teachers and other employees of higher educational institutions and other stakeholders such as students, universities and statutory regulatory authorities.
- The state tribunals shall adjudicate cases related to service matters of teachers and other employees of higher educational institution; dispute over affiliation of a higher educational institution with an affiliating university and unfair practices of a higher educational institution prohibited by any law.
- The national tribunal shall adjudicate cases of dispute between higher educational institutions and statutory authorities; higher educational institution and affiliating university (in case of central universities), and any reference made to it by an appropriate statutory authority. It shall have appellate jurisdiction on orders of the state tribunals.
- An order of the tribunal shall be treated as decree of a civil court. If orders of the national or state tribunal are not complied with, the person shall be liable to imprisonment for a maximum of three years or with fine of uptoRs 10 lakh or with both.
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FACTS:
Though the circular of the High Court is only to provide a Forum for presentation of the appeals, but the determination of the scope of hearing of such appeals falls within the legislative domain of the State Government independent of the order passed by the Supreme Court. The notification dated 28.05.2008 specifically does not specify as to which orders passed by the management would be appealable, but it is notified that all the District & Sessions Judges have been authorized by the High Court to hear appeals of the employees of aided/unaided Medical/Dental/Ayurvedic/Homeopathic/Educational Institutions against the decision of Management within their jurisdiction. In other words, the circular of this Court contemplating ‘Forum’ has been 2 of 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH adopted by the State for the purposes of presentation of appeals. Such decision to provide an appeal against the decision of the Management would include all orders which the Management pass in relation to employee of the institution. Such decision to contemplate filing of an appeal against the decision of the Management shall be deemed to be taken in exercise of executive powers of the State in terms of Article 162 of the Constitution of India in the absence of any other legislative enactment dealing with the issue.
The education including technical education, vocational and technical training of Labour specifically falls in Entry 25 of List III of 7th Schedule to the Constittuion. However, in terms of Article 243G of the Constitution read with 11th Schedule, Adult and non-formal education is a function assigned to institution of rural self- government. Similarly, Entry 13 of 12th Schedule read with Article 243W empowers the Urban Local Bodies to promote education. In fact, the subject of education may fall in one or the other Entry of the 7th Schedule, but it could not be pointed out that there is any other legislation on the subject of teachers and the management of aided or unaided educational institutes in the States except the Act. In the absence of any specific Statute enacted by the Parliament, to regulate the terms of employment of teachers of the educational institutions and the State having enacted the Act, prima facie, it appears that all disputes relating to pay scales and disciplinary proceedings etc. would fall within the legislative competence of the State Government.
ISSUES:-
The subsequent notification dated 07.05.2013 does not change the scope or jurisdiction of the Educational Tribunal in any substantial manner. Therefore, any decision of the Management could be challenged by way of an appeal before the Educational Tribunal. Consequently, we find that though the Supreme Court in T.M.A.Pai Foundation’s case (supra), directed constitution of Educational Tribunal relating to disciplinary matters, but in view of the decision of the State Government, taken in exercise of the executive powers of the State, the decision of the Management regarding pay scale can also be subject matter of appeal before the Educational Tribunal.”
3 of 4 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Resultantly, the inaction of the respondents in not considering the case of the petitioner for promotion would also bring it within the ambit of the observations of the Division Bench, since the petitioner is falling back upon the statutory provisions and therefore, it cannot be said that the Educational Tribunal would not have jurisdiction, in view of the circulars/notifications dated 10.08.2005, 08.09.2005, 03.04.2008, 28.05.2008, 07.05.2013 and 02.03.2015.
In view of the above, this Court is of the opinion that the inaction of the Management, as such, in not promoting the petitioner, which is his substantial grouse, could be legitimately raised before the Educational Tribunal.
CITE JUDGEMENT QUOTED ON SETTLED LAW:
Examined by the Supreme Court in Ahmedabad Pvt. PrimaryTeachers Association Vs. Administrative Officer & others (2004) 1 SCC755, wherein it was held that the teachers do not answer description of being employees who are skilled, semi-skilled or unskilled. Thus, the teacher as a class does not fall within the definition of ‘employee’ as contained in Section 2 (e) of the Gratuity Act. Thereafter, Section 2 (e) has been substituted vide the Payment of Gratuity (Amendment) Act, 2009 (No.47 of 2009) on 31.12.2009 with retrospective effect i.e. from 03.04.1997. It may be noticed that 03.04.1997 is the date, when a notification was issued to extend the provisions of the Payment of Gratuity Act, 1972 to the Educational Institutions. The said notification reads as under:
“Notification No.5-42013/1/95-SS II dated 3rd April, 1997 – In exercise of the powers conferred by Clause (c) of sub-clause (3) of Section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies the educational institutions in which ten or more persons are employed or were employed on any day preceding 12 months as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification.
Provided that nothing contained in this notification shall affect the operation of the notification of the Ministry of Labour S.O. 239 dated 8th
January, 1982.”
It is further argued that the issue of payment of gratuity falls within the jurisdiction of Payment of Gratuity Act, 1972 particularly after amendment in the said Act on 31.12.2009, when the definition of ‘employee’ was substituted so as to take into ambit any person, who is employed for wages in any kind of work, manual or otherwise instead of any person employed in skilled, unskilled or semi-skilled categories, as the definition original stood. Reliance is placed upon the judgments of Division Bench of Karnataka High Court reported as Shamaraja Udupa Vs. TheAssistant Labour Commissioner, Mangalore & others 2013 LIC 810 and
Single Bench judgment of Madhya Pradesh High Court in Mahendra SinghChhabra Vs. Appellate Authority, Under the Payment of Gratuity Act,Indore & another 2012 (1) LLJ 432. Thus, the Members of the teaching faculty are governed by Central Statute. Therefore, the Educational Tribunal constituted in exercise of executive powers of the State Government will not include the subject which is covered by a Central Statute.
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On the other hand, learned counsel for the respondents argued that the basic intention of the court to constitute Educational Tribunal as per the directions of the Supreme Court in T.M.A.Pai Foundation’s case (supra), is that the teachers should not be made to fight their claims before the Civil Court. Therefore, all disputes which could be decided by the Civil Court would be required to be decided by the Educational Tribunal. Reference is made to the orders passed in CWP No.4148 of 2008 titled ‘Ramesh Kumar& others Vs. State of Haryana & others’ on 16.03.2009 and 20.05.2009.
Reference is also made to an order passed in CWP No.20611 of 2010 titled ‘Ramesh Kumar Vs. Ambala College of Engineering and Applied Research,Devsthali(nearMithapur), Ambala & others’ decided on 12.03.2012 and subsequent order dated 06.02.2013 passed in LPA No.1084 of 2012 titled ‘Ambala College of Engineering and Applied Research Devsthali (nearMithapur), Ambala & another Vs. Ramesh Kumar & others’, whereby the appeal has been allowed and the matter remitted back to the Educational Tribunal.
We find that the issue has been touched in some of the orders passed by the Learned Single Judges of this Court but the Division Bench orders does not deal with the issue specifically.
FINDINGS OF THE COURT :
It is settled principle that if there is alternative remedy available, this Court would not exercise its discretionary jurisdiction. Reliance can be placed upon the judgment of the Apex Court in Union of India Vs. Satyawati Tondon & others 2010 (8) SCC 110.
Accordingly, in view of the above discussion, the present writ petition is disposed of, with liberty to the petitioner to approach the concerned Educational Tribunal.
Article 243G in The Constitution Of India 1949
243G. Powers, authority and responsibilities of Panchayats Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule
Article 162 in The Constitution Of India 1949
- Extent of executive power of State Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof Council of Ministers
Article 243W in The Constitution Of India 1949
243W. Powers, authority and responsibilities of Municipalities, etc Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule
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CONCLUSION:
In view of the above discussion, we concluded as under:
- That an Educational Tribunal constituted in terms of the direction of the Supreme Court in M.A.Pai Foundation’s case (supra), will not have the jurisdiction to decide issue of payment of gratuity, as the same is payable to the teaching and non-teaching staff in terms of the Payment of Gratuity Act, 1972.
- In respect of second question, the notification of the State Government constituting Educational Tribunal will include all service disputes arising out of an order passed by the Management, as appealable to the Educational Tribunal. Such right to appeal is not arising in view of the judgment in M.A.Pai Foundation’s case (supra), but in exercise of the executive powers of the State.
- The State Government shall consider appropriate amendments in the Haryana School Education Act, 1995 in the light of statement made by Mr. Poonia before this Court expeditiously.
- Since the controversy regarding the Forum for adjudication of disputes relating to payment of gratuity has been settled now, it shall be open to the aggrieved persons to seek redressal under the Payment of Gratuity Act, 1972 in accordance with law, if the same is availed within two months from today. The payment deposited by the petitioners shall be subject to the decision of the Authority under the Payment of Gratuity Act.
Since the questions of law have been answered, the matter be placed before the learned Single Bench for appropriate decision.
This post is written by Pranothi Rama
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