With strict regulations being implemented on schools from time
to time, the Delhi schools have been saddled with another
compliance to be followed before terminating services of their
employees as has been clarified by the Supreme Court of India
("SC") in its recent judgment passed in
the matter of Raj Kumar vs. Director of Education & Others
("Judgment"). While considering in
detail the provisions of the Industrial Disputes Act, 1947
("ID Act") and the Delhi School
Education Act, 1973 ("DSE Act") relating
to termination of services of employees by schools, the SC
interpreted Section 8(2)1 of the DSE Act which requires
obtaining prior approval of the Director of Education
("DoE") before passing any order of
dismissal or termination of services of its employees by school.
The SC in its Judgment has, inter alia, observed that Section 8(2)
of the DSE Act is a procedural safeguard in favour of an employee
to ensure that an order of termination or dismissal is not passed
without the prior approval of DoE.
Though Section 8(2) was existing in the DSE Act since its
enactment, the High Court of Delhi
("DHC") had in the matter of Kathuria
Public School vs. Director of Education and Another struck down the
provision by placing reliance on the judgment of TMA PAI Foundation
vs. State of Karnataka passed by the Constitution Bench of the SC
in the year 2002. However, the SC has in its recent Judgment
clarified that the DHC erred in striking down Section 8(2) of the
DSE Act and also distinguished the law laid down by the
Constitution Bench in TMA PAI. The SC also observed that
functioning of both aided and unaided educational institutions must
be free from unnecessary governmental interference, however the
same should be in tandem with the conditions of employment of
employees in these institutions.
While discussing the power of the State Legislature to
legislate, the SC concluded that the State Legislature is empowered
in law to enact provisions similar to Section 8(2) of the DSE Act,
with the intent to provide security of tenure to the employees of
the school and to regulate the terms and conditions of their
employment. This is a crucial observation made by the SC in its
Judgment as it upholds the power of legislature of other States to
enact such provisions for their respective States as well as to the
role of judiciary to enforce such protective provisions in the
Remarks: The observations made by the SC in its
Judgment being significant, are a wake-up call for the schools pan
India to assess the applicable provisions of law especially related
to termination and retrenchment of employees and take measures to
ensure compliance. On the other hand, the Judgment certainly is a
sign of relief for the employees of the schools in Delhi,
especially the ones who are not "workman" and thus do not
have the shelter of ID Act and end up suffering the unfair
treatment at the hands of the school management. While the Judgment
deals with a case falling with in the provisions of the ID Act and
the DSE Act, (thus its applicability to the schools in Delhi), it
would be necessary for the schools in other States to assess
provisions of the applicable educational laws (particularly the
ones relating to terms of employment and dismissal similar to
Section 8(2) of the DSE Act) to evaluate its implication and the
consequent impact of the Judgment, on its power of termination.
1 Section 8: Terms and conditions of service of employees
of recognized private schools –
(2) Subject to any rule that may be made in his behalf, no
employee of a recognized private school shall be dismissed, removed
or reduced in rank nor shall his service be otherwise terminated
except with the prior approval of the Director.
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On 31 December 2015 the President gave his assent to certain amendments to the Payment of Bonus Act, 1965. The amendments have increased the wage threshold for determining applicability of the Act from INR 10,000 to INR 21,000 per month.
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