JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The award dated 1st July 2000 passed in Industrial Dispute Case No. 7 of 1999(C) is under challenge whereby and where under the reference has been answered in favour of the workman by directing the Management to extend the pay-scale of trained teacher w.e.f. 08.11.1993 in favour of the workman. 2. The case of the workman is that he was a teacher in S.G.B.K. Mines U.P. School at Guruda. On 18.6.1982 the Orissa Mining Corporation took over the mines from ex-lessee M/s. Seerajuddin & Company. The school was taken over along with its teacher and staff. His service was regularized w.e.f. 14.09.1987 giving pay scale of Rs.800/- to Rs.1250/-since he was matriculate untrained teacher. One Ajambar Mohanto who was a trained teacher was given the scale of pay of Rs.875/- to Rs.1425/- by the Management. After revision of pay scale, the workman’s pay was fixed at Rs.3795/- whereas basic pay of Ajambar Mohanto was fixed at Rs.4500/-. The workman had completed E.T. training in the month of May, 1993 and as such applied for extending the scale of pay of trained teacher but the Management has not considered the same, accordingly a dispute has been raised by the workman-teacher to extend him the pay scale of trained teacher w.e.f. 08.11.1993. 3. The case of the Management is that Sri Ajambar Mohanto had possessed E.T. training on 31.10.1984 in addition to his passing matriculation so his pay was fixed at Rs.875/- but the workman was only a matriculate and as such was not given the pay scale of trained teacher. The Management further claimed that the workman took E.T. training without prior approval of the Management, therefore his claim is not tenable. Their further contention is that as per Orissa Mining Corporation Recruitment and Promotion Rules (herein after referred to as ‘the Rules’) the entry qualification of a teacher is trained matriculation having two years teaching experience and the post shall be filled up by direct recruitment as per the recommendation of the selection committee. The case of the workman would be considered when he will appear for such interview, hence prayer has been made to reject the claim. 4. The appropriate Government while referring the dispute, made the following reference:- “Whether the demand of Keonjhar Mines Mazdoor Union, Guruda for granting trained teachers scale to Md. Saueed Equabal, trained teacher, S.G.B.K. Mn. The case of the workman would be considered when he will appear for such interview, hence prayer has been made to reject the claim. 4. The appropriate Government while referring the dispute, made the following reference:- “Whether the demand of Keonjhar Mines Mazdoor Union, Guruda for granting trained teachers scale to Md. Saueed Equabal, trained teacher, S.G.B.K. Mn. Mines of Orissa Mining Corporation w.e.f. 08.11.1993 is justified? If so to what relief the workman is entitled to?” 5. The Labour Cour, in order to answer the reference, has framed the following issues:- (i) Whether the demand of Keonjhar Mines Mazdoor Union, Guruda for granting trained teachers scale to Md. Saueed Equabal, trained teacher, S.G.B.K. Mn. Mines of Orissa Mining Corporation w.e.f. 08.11.1993 is justified? (ii) If so, to what relief the workman is entitled? The Labour Court has answered the reference in favour of the workman by holding therein that he is entitled to get the salary of trained teacher w.e.f. 08.11.1993. 6. Learned counsel representing the Management has assailed the Award mainly on the ground that the workman being teacher is not workman under the definition of ‘workman’ as defined U/s.2(s) of the Industrial Disputes Act, 1947. 7. None appears for the workman, although notices have been issued. This Court, taking into consideration the fact that the matter is of the year 2001, notices have been issued upon the opposite party-workman who has been represented by his counsel, namely, M/s. B.P. Tripathy and Associates, but not chosen to appear at the time of hearing of the case, hence this Court has taken up the matter for its final disposal. 8. We have heard the learned counsel for the Management and gone through the materials available on record. The sole ground taken by the learned counsel representing the Management is that the industrial dispute is not maintainable since ‘teacher’ is not coming under the parameter of definition of ‘workman’ as contained in Section 2(s) of the I.D. Act. Considering the ground taken by the Management, we thought it proper to first decide the issue of maintainability of the reference in the context of that ground. Considering the ground taken by the Management, we thought it proper to first decide the issue of maintainability of the reference in the context of that ground. We found that no such plea has been taken by the Management before the Tribunal, but however, this plea has been taken before this court, we thought it proper to take up this issue on the settled proposition that legal questions can be raised at any stage of the proceeding. The fact regarding whether ‘teacher’ to be considered as ‘workman’ within the meaning of Section 2(s) or not, this issue needs adjudication in the instant case. We have taken note of the judgment rendered by Hon’ble Apex Court in the case of Miss A. Sundarambal vs. Government of Goa, Daman and Diu and Others, AIR 1988 SC 1700 wherein Hon’ble Apex Court has been pleased to lay down the following proposition at paragraphs 9 and 10 which we intend to quote for ready reference. “9. We are concerned in this case primarily with the meaning of the words 'skilled or unskilled manual, supervisory, technical or clerical work'. If an employee in an industry is not a person engaged in doing work falling in any of these categories, he would not be a workman at all even though he is employed in an industry. The question for consideration before us is whether a teacher in a school falls under any of the four categories, namely, a person doing any skilled or unskilled manual work, supervisory work, technical work or clerical work. If he does not satisfy any one of the above descriptions he would not be workman even though he is an employee of an industry as settled by this Court in May and Baker (India) Ltd. v. Their Workmen, (1961) II L.L.J. 94 SC. In that case this Court had to consider the question whether a person employed by a pharmaceutical firm as a representative (for canvassing orders) whose duties consisted mainly of canvassing orders and any clerical or manual work that he had to do was only incidental to his main work of canvassing could be considered as a workman as defined in the Act. Dealing with the said question Wanchoo, J. (as he then was) observed thus: "As 'workman' was then defined as any person employed in any industry to do any skilled or unskilled manual or clerical work for hire or reward. Therefore, doing manual or clerical work was necessary before a person could be called a workman. This definition came for consideration before industrial tribunals and it was consistently held that the designation of the employee was not of great moment and what was of importance was the nature of his duties. If the nature of the duties is manual or clerical, then the person must be held to be a workman. On the other hand if manual or clerical work is only a small part of the duties of the person concerned and incidental to his main work which is not manual or clerical, then such a person would not be a workman. It has, therefore, to be seen in each case from the nature of the duties whether a person employed is a workman or not, under the definition of that work as it existed before the amendment of 1956. The nature of the duties of Mukerjee is not in dispute in this case and the only question therefore is whether looking to the nature of the duties it can be said that Mukerjee was a workman within the meaning of S. 2(s) as it stood at the relevant time. We find from the nature of the duties assigned to Mukerjee that his main work was that of canvassing and any clerical or manual work that he had to do was incidental to his main work of canvassing and could not take more than a small fraction of the time for which he had to work. In the circumstances the tribunal's conclusion that Mukerjee was a workman is incorrect. The tribunal seems to have been led away by the fact that Mukerjee had no supervisory duties and had to work under the directions of his superior officers. That, however, would not necessarily mean that Mukerjee's duties were mainly manual or clerical. From what the tribunal itself has found it is clear that Mukerjee's duties were mainly neither clerical nor manual. Therefore, as Mukerjee was not a workman, his case would not be covered by the Industrial Disputes Act and the tribunal would have no jurisdiction to order his reinstatement. From what the tribunal itself has found it is clear that Mukerjee's duties were mainly neither clerical nor manual. Therefore, as Mukerjee was not a workman, his case would not be covered by the Industrial Disputes Act and the tribunal would have no jurisdiction to order his reinstatement. We, therefore, set aside the order of the tribunal directing reinstatement of Mukerjee along with other reliefs." 10. The Court held that the employee Mukerjee involved in that case was not a workman under section 2(s) of the Act because he was not mainly employed to do any skilled or unskilled manual or clerical work for hire or reward, which were the only two classes of employees who qualified for being treated as 'workman' under the definition of the expression 'workman' in the Act, as it stood then. As a result of the above decision, in order to give protection regarding security of employment and other benefits to sales representatives, parliament passed separate law entitled the Sales Promotion Employees (Conditions of Service) Act, 1976. It is no doubt true that after the events leading to the above decision took place section 2(s) of the Act was amended by including persons doing technical work as well as supervisory work. The question for consideration is whether even after the inclusion of the above two classes of employees in the definition of the expression 'workman' in the Act a teacher in a school can be called a workman We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or post graduate education cannot be called as 'workmen' within the meaning of section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. A teacher educates children, he moulds their character, builds up their personality and makes them fit to become responsible citizens. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen' as defined under the Act. Children grow under the care of teachers. The clerical work, if any they may do, is only incidental to their principal work of teaching. We agree with the reasons given by the High Court for taking the view that teachers cannot be treated as 'workmen' as defined under the Act. It is not possible to accept the suggestion that having regard to the object of the Act, all employees in an industry except those falling under the four exceptions (i) to (iv) in section 2(s) of the Act should be treated as workmen. The acceptance of this argument will render the words 'to do any skilled or unskilled manual, supervisory, technical or clerical work' meaningless. A liberal construction as suggested would have been possible only in the absence of these words. The decision in May and Baker (India) Ltd. v. Their Workmen, (supra) precludes us from taking such a view. We, therefore, hold that the High Court was right in holding that the appellant was not a 'workman' though the school was an industry in view of the definition of 'workman' as it now stands.” We after going through the judgment pronounced by Hon’ble Apex Court as referred herein above and also after going through the definition of ‘workman’ as defined U/s.2(s) of the I.D. Act, have found that for an employee in an industry to be ‘workman’ under the definition, it is manifest that he must be employed to do (a) manual work; (b) unskilled work; (c) skilled work; (d) technical work; (e) operational work; (f) clerical work; and (g) supervisory work. The question as to whether an employee is a ‘workman’ as defined in Section 2(s) of the I.D. Act, has to be determined with reference to his principal nature of duties and functions, such question is required to be determined with reference to the facts and circumstances of the case and the materials on record. The fact of the instant case, which is not in dispute, is that the workman was working for ex-lessee M/s. Seerajuddin and Company as teacher in S.G.B.K. Mines U.P School at Guruda. On 18.06.1982 Orissa Mining Corporation took over the mines from ex-lessee M/s. Seerajuddin and Company. The school was taken over along with its teachers and staff and as such the workman is claiming parity with the other Government teachers so far as their scale of pay is concerned. On 18.06.1982 Orissa Mining Corporation took over the mines from ex-lessee M/s. Seerajuddin and Company. The school was taken over along with its teachers and staff and as such the workman is claiming parity with the other Government teachers so far as their scale of pay is concerned. In such an admitted position, it is to be seen as to whether the workman, who has raised dispute in the year 1993, can be said to be a ‘workman’ within the meaning of Section 2(s) of the I.D. Act, 1947 as per the ratio laid down by Hon’ble Apex Court in the case of Miss A. Sundarambal (supra) and within the purview of Section 2(s) of the I.D. Act, 1947. The fact which is admitted in this case is that the petitioner w.e.f. 18.06.1982 became the employee of Orissa Mining Corporation. The Orissa Mining Corporation Recruitment and Promotion Rules is in operation since the year 1976, having given effect to w.e.f. 13.10.1976 with the scope and application that it would apply to matters of recruitment and promotion of all employees under the administrative control of Orissa Mining Corporation unless otherwise provided by the terms of any contract or agreement. We found from the copy of the Rules, 1976, which has been produced by the learned counsel for the Management before us, that under Annexure-VII as the subject matter pertains to personnel and general service cadre which reflects the constitution of the cadre which constitute the posts, namely, Administrative Officer, Assistant Secretary, Junior Administrative Officer, Assistant Personnel Officer, Assistant Sales Officer, Assistant Stores & Purchase Officer, Senior Assistant, Jr. Assistant, Upper Division Clerk and Lower Division Clerk. Under Schedule-II of Annexure-VII the name of post with qualification with experience has been dealt with, in which at S. No. 29, 30 and 31 the reference of Assistant Teacher is there having qualification and experience. This rule suggests that the Orissa Mining Corporation has formulated its own rules governing the field of recruitment and promotion. The school in question where the workman was working has become the school of Orissa Mining Corporation w.e.f. 18.06.1982 and as such the provision of Rules 1976 will come into play with respect to the service condition of the workman, this suggests that the workman has got its own service rule under which he was to be dealt with. The school in question where the workman was working has become the school of Orissa Mining Corporation w.e.f. 18.06.1982 and as such the provision of Rules 1976 will come into play with respect to the service condition of the workman, this suggests that the workman has got its own service rule under which he was to be dealt with. The Hon’ble Apex Court, after taking into consideration the fact regarding a case like that of similar nature, i.e. in the case of Miss. A. Sundarambal (supra), has decided that since the workman of that case was covered under the Sales Promotion Employees (Conditions of Service) Act, 1976, he was not a ‘workman’ though the school was an industry as would be evident from para 10 of that judgment. In the instant case also the workman is being covered by Rule, 1976 having performed his duty as a teacher and as such the proposition laid down in the case of Miss. A. Sundarambal shall apply in the case of the present workman, accordingly we have no hesitation in holding that the opposite party No. 2 – Md. Sayeed Equabal is not a ‘workman’ within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. In view of above discussions the reference as well as the Award is not sustainable, accordingly quashed reserving liberty to the opposite party No. 2 to raise his grievance before the appropriate forum, if so desire, in that situation the issue will be decided on its own merit. Accordingly the writ petition is allowed.