Rights And Remedies Of Private School Teachers
Every individual has certain rights, and any infringement of those rights
constitutes an attack on the state. And these attacks may be even more grievous
if the victims are teachers, shapers of youth. In India, approximately 9.7
million teachers are currently teaching, according to State of the Education
Report for India 2021 released by UNESCO with CETE.
And according to a UN report, approximately 2.7 million teachers were impacted by the COVID-19 lockdown in India, about 95% of whom belonged to private institutions. This data exposes the vulnerability and insecurity of private school teachers. Teachers' anguish is not new, teachers in private institutions have been fired without notice on numerous occasions, and many a times they have been denied PFs (Provident Funds), gratuity, and ESI benefits.
They are being exploited and are being forced to do work at the mercy of such institutions. This profession's professionalism is at its nadir. Management, who is astute and knowledgeable about legal terms, frequently increases an employee's working hours without compensating for overtime. They also use pressurization tactics to get employees to resign so that management can avoid legal repercussions in the future, leaving employees in traumatic situations.
Employees, i.e., teachers, on the other hand, inherit vast knowledge about their subjects, but when it comes to legally remedying and shielding themselves against the tormenting arrows, they are less knowledgeable about, and most of the time fictitiously believe that management being powerful can manipulate court proceedings and thus are reluctant to approach courts. But with the help of landmark cases, we want to emphasise that the judiciary works on the principles of "Equity in Equality" and not on the principles of "favouring the powerful."
Through this Article, we aim to raise their awareness of their legal rights and how to defend themselves because teachers still hold prestigious position in our society.
Legal Remedies for atrocities faced by teachers
We want to bring into notice some of the nefarious deeds committed by the institutions and how some teachers inspite of lowering their guards, hit back on such institutions with their shear will.
Fired without any valid reason
This is the most common nefarious deed practised nowadays. If tribunals are present, challenge the order in court. If the tribunals are not present, private school teachers may file a civil suit for declaration (u/s section 34 SRA), mandatory injunction (u/s section 39 SRA), and arrears recovery. Also included is a remedy for private teachers that was previously only available to government teachers, allowing them to file a writ in the High Courts. Teachers, whether private or public, are teachers, and they are the saviours and mentors of youth.
This was held in the case of Marwari Balika Vidyalay vs. Asha Shrivastava (2019 S.C.). In this case, while delivering his decision, Hon'ble Justice Arun Mishra stated "Whether government or private school both perform public functions i.e. providing education to children in their institutions throughout India". Similar remarks were reached by the court in the case of Ramesh Aluwalia v. State of Punjab, which determined that schools perform public functions and are subject to writs.
If you challenge your authority, you are fired!!
In the case of Somesh Thapliyal Vs. V.C. HNBGU [2021 (SC)] the Hon'ble Justice Ajay Rastogi held that , " This court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost him/her job itself." This implies that the courts are also aware of the working conditions in these institutions.
The employer is always in a dominant position, and we observe that the employee on the receiving end can hardly complain of arbitrariness in employment terms and conditions. Thus, the employer has the authority to dictate employment terms, which is unethical and immoral, and certainly violates the principles of 'Equity and Justice' inherent in the 'Basic Structure of our Constitution.'
A cataract operation resulted in loss of job.
In the case of Sarika Dabas vs. Modern Child Public School (Delhi High Court), the appellant Sarika Dabas was served with the notice by the respondent Modern Child Public School while she was at work. She was fired despite emailing the respondent to let them know she needed time off for cataract surgery.
The defendant was a permanent teacher who had worked for the institute for 11 years when the court noticed that her actions were unethical and against the law. Additionally, the respondent didn't begin in accordance with Section 8(2) of the DSEA (Delhi School Education Act and Rules), which mandates that the Director of Education's prior approval is required before terminating a teacher.
These case laws showcase that justice has been served to the teachers who stood for their rights.
Be vigilant and not dormant
Furthermore, teachers should be vigilant about the below mentioned points:
Always ask for the appointment letter before joining
According to Section 5.2.4 and Section 5(b)(i) of the CBSE Affiliation Bye-Laws and CISCE Affiliation Bye-Laws, respectively, the governing body/managing committee of the school shall issue a written appointment letter to every employee of the school. The letter should incorporate the terms and conditions of the service of the employee, including the designation, probation, scale of pay, and other allowances to which he/she is entitled. And mind you, if the management doesn't give you the appointment letter, then they are liable for penalties.
Time Period To File A Suit
According to Sections 5.2.5 and 5(b)(vii) of the CBSE Affiliation Bye-Laws and the CISCE Affiliation Bye-Laws, the agreement between employer and employee is a contract. So, according to Article 55 of the Limitation Act, the period of filing the suit should be within 3 years from the cause of action.
In addition to that, private school teachers can file a civil suit for declaration (u/s 34 SRA), mandatory injunction (u/s 39 SRA), and recovery of arrears. After the verdict in Marwari BalikaVidyalay vs. Asha Shrivastava (2019 S.C.) and Ramesh Aluwalia vs. State of Punjab & Ors., private teachers now have a right to file writs in High Courts, which was previously only available to government teachers. Further, if tribunals are present, then teachers can challenge their order of termination within the limitation period governed by the Local Act.
Don't Procrastinate In Filing The Suit
"Vigilantibus non dormantibus jura subvevient," this maxim means that equity benefits only the vigilant, not the dormant. Thus, your tardy behaviour shouldn't undermine the strength and effectiveness of the legal remedy you've been granted.
Provident Fund Is Your Right
An appeal for provident funds (PFs) should be made if they aren't included in the appointment letter. The Employee's Provident Fund Scheme, 1952 states in paragraph (xcvi) that PFs are applicable to educational institutions in India. Furthermore, in the case of Dav College v. RPFC, the SC affirmed the legality of this system.
Don't Forget To Claim Your Gratuity
A gratuity is a cash benefit provided by an employer to an employee for the services rendered to the organisation. The employee is paid at retirement, resignation, layoff, or termination, provided the employee has completed 5 years of continuous service before leaving the organisation. In Birla Institute of Technology v/s State of Jharkhand & Ors., the Supreme Court held that teachers are entitled to gratuity under the Payment of Gratuity Act, 1972.
ESI Benefits
The SPREE (Scheme to Promote Registration of Employers and Employees), launched by the ESIC in 2016, made it mandatory for all eligible entities, which include private schools as well, to be registered with the corporation and grant benefits accordingly to their employees. The circular also stipulated that those schools which have not so far registered with the corporation will have to pay the amount due to them since 2008, the year when an amendment was made in the Employees' State Insurance (ESI) Act of 1950 to include private education institutes under its ambit.
These are only a few of the key points that educators should know. A sincere request is also made to the Government of Uttarakhand through this article to have a substantive law similar to the DSEA (Delhi School Education Act) in Delhi, Jharkhand Education Tribunal Act, 2005 in Jharkhand and The Karnataka Private Educational Institutions Act in Karnataka for regulating "schools" (as defined in Section 2(n) of the Right to Education Act, 2009).
Also with the overburdening of Judiciary, there is an urgent need for a Central Body, as proposed in The Education Tribunal Bill, 2010, to effectively regulate and administer the working of State Education Tribunals, adhering to the principles to 'Speedy Justice.'
These endeavours will eliminate the uncertainty that the plaintiff or appellant encountered when bringing a lawsuit or submitting an appeal, and it will fulfil the mandate of "Ubi jus ibi remedium."
Conclusion
Today, it is required that teachers as a whole should stand firmly to destroy the hegemony of such draconian management and should not lower their guards in front of them. Because it is Guru Shishyaprampara's legacy and not management shishyaparampara's legacy that our culture inherits.
Dr. APJ Abdul Kalam added to the prestige of this work field when he said "If the people remember me as a good teacher, that will be the biggest honour for me." Hence, we request our teachers, who have faced such rampant behaviour in the past, to not sit quietly and to bring this issue to the notice of the court.
Because "If you haven't turned any wrong into right, you have always been a coward in a fight." Don't be a coward, take legal remedies guaranteed by our procedural laws and Constitution. Be fearless, not for you but for the youth, because teaching is a very noble profession that shapes the character, calibre, and future of youth and thus of the nation's.
References:
Award Winning Article Is Written By:
And according to a UN report, approximately 2.7 million teachers were impacted by the COVID-19 lockdown in India, about 95% of whom belonged to private institutions. This data exposes the vulnerability and insecurity of private school teachers. Teachers' anguish is not new, teachers in private institutions have been fired without notice on numerous occasions, and many a times they have been denied PFs (Provident Funds), gratuity, and ESI benefits.
They are being exploited and are being forced to do work at the mercy of such institutions. This profession's professionalism is at its nadir. Management, who is astute and knowledgeable about legal terms, frequently increases an employee's working hours without compensating for overtime. They also use pressurization tactics to get employees to resign so that management can avoid legal repercussions in the future, leaving employees in traumatic situations.
Employees, i.e., teachers, on the other hand, inherit vast knowledge about their subjects, but when it comes to legally remedying and shielding themselves against the tormenting arrows, they are less knowledgeable about, and most of the time fictitiously believe that management being powerful can manipulate court proceedings and thus are reluctant to approach courts. But with the help of landmark cases, we want to emphasise that the judiciary works on the principles of "Equity in Equality" and not on the principles of "favouring the powerful."
Through this Article, we aim to raise their awareness of their legal rights and how to defend themselves because teachers still hold prestigious position in our society.
Legal Remedies for atrocities faced by teachers
We want to bring into notice some of the nefarious deeds committed by the institutions and how some teachers inspite of lowering their guards, hit back on such institutions with their shear will.
Fired without any valid reason
This is the most common nefarious deed practised nowadays. If tribunals are present, challenge the order in court. If the tribunals are not present, private school teachers may file a civil suit for declaration (u/s section 34 SRA), mandatory injunction (u/s section 39 SRA), and arrears recovery. Also included is a remedy for private teachers that was previously only available to government teachers, allowing them to file a writ in the High Courts. Teachers, whether private or public, are teachers, and they are the saviours and mentors of youth.
This was held in the case of Marwari Balika Vidyalay vs. Asha Shrivastava (2019 S.C.). In this case, while delivering his decision, Hon'ble Justice Arun Mishra stated "Whether government or private school both perform public functions i.e. providing education to children in their institutions throughout India". Similar remarks were reached by the court in the case of Ramesh Aluwalia v. State of Punjab, which determined that schools perform public functions and are subject to writs.
If you challenge your authority, you are fired!!
In the case of Somesh Thapliyal Vs. V.C. HNBGU [2021 (SC)] the Hon'ble Justice Ajay Rastogi held that , " This court can take judicial notice of the fact that if an employee takes initiation in questioning the terms and conditions of employment, that would cost him/her job itself." This implies that the courts are also aware of the working conditions in these institutions.
The employer is always in a dominant position, and we observe that the employee on the receiving end can hardly complain of arbitrariness in employment terms and conditions. Thus, the employer has the authority to dictate employment terms, which is unethical and immoral, and certainly violates the principles of 'Equity and Justice' inherent in the 'Basic Structure of our Constitution.'
A cataract operation resulted in loss of job.
In the case of Sarika Dabas vs. Modern Child Public School (Delhi High Court), the appellant Sarika Dabas was served with the notice by the respondent Modern Child Public School while she was at work. She was fired despite emailing the respondent to let them know she needed time off for cataract surgery.
The defendant was a permanent teacher who had worked for the institute for 11 years when the court noticed that her actions were unethical and against the law. Additionally, the respondent didn't begin in accordance with Section 8(2) of the DSEA (Delhi School Education Act and Rules), which mandates that the Director of Education's prior approval is required before terminating a teacher.
These case laws showcase that justice has been served to the teachers who stood for their rights.
Be vigilant and not dormant
Furthermore, teachers should be vigilant about the below mentioned points:
Always ask for the appointment letter before joining
According to Section 5.2.4 and Section 5(b)(i) of the CBSE Affiliation Bye-Laws and CISCE Affiliation Bye-Laws, respectively, the governing body/managing committee of the school shall issue a written appointment letter to every employee of the school. The letter should incorporate the terms and conditions of the service of the employee, including the designation, probation, scale of pay, and other allowances to which he/she is entitled. And mind you, if the management doesn't give you the appointment letter, then they are liable for penalties.
Time Period To File A Suit
According to Sections 5.2.5 and 5(b)(vii) of the CBSE Affiliation Bye-Laws and the CISCE Affiliation Bye-Laws, the agreement between employer and employee is a contract. So, according to Article 55 of the Limitation Act, the period of filing the suit should be within 3 years from the cause of action.
In addition to that, private school teachers can file a civil suit for declaration (u/s 34 SRA), mandatory injunction (u/s 39 SRA), and recovery of arrears. After the verdict in Marwari BalikaVidyalay vs. Asha Shrivastava (2019 S.C.) and Ramesh Aluwalia vs. State of Punjab & Ors., private teachers now have a right to file writs in High Courts, which was previously only available to government teachers. Further, if tribunals are present, then teachers can challenge their order of termination within the limitation period governed by the Local Act.
Don't Procrastinate In Filing The Suit
"Vigilantibus non dormantibus jura subvevient," this maxim means that equity benefits only the vigilant, not the dormant. Thus, your tardy behaviour shouldn't undermine the strength and effectiveness of the legal remedy you've been granted.
Provident Fund Is Your Right
An appeal for provident funds (PFs) should be made if they aren't included in the appointment letter. The Employee's Provident Fund Scheme, 1952 states in paragraph (xcvi) that PFs are applicable to educational institutions in India. Furthermore, in the case of Dav College v. RPFC, the SC affirmed the legality of this system.
Don't Forget To Claim Your Gratuity
A gratuity is a cash benefit provided by an employer to an employee for the services rendered to the organisation. The employee is paid at retirement, resignation, layoff, or termination, provided the employee has completed 5 years of continuous service before leaving the organisation. In Birla Institute of Technology v/s State of Jharkhand & Ors., the Supreme Court held that teachers are entitled to gratuity under the Payment of Gratuity Act, 1972.
ESI Benefits
The SPREE (Scheme to Promote Registration of Employers and Employees), launched by the ESIC in 2016, made it mandatory for all eligible entities, which include private schools as well, to be registered with the corporation and grant benefits accordingly to their employees. The circular also stipulated that those schools which have not so far registered with the corporation will have to pay the amount due to them since 2008, the year when an amendment was made in the Employees' State Insurance (ESI) Act of 1950 to include private education institutes under its ambit.
These are only a few of the key points that educators should know. A sincere request is also made to the Government of Uttarakhand through this article to have a substantive law similar to the DSEA (Delhi School Education Act) in Delhi, Jharkhand Education Tribunal Act, 2005 in Jharkhand and The Karnataka Private Educational Institutions Act in Karnataka for regulating "schools" (as defined in Section 2(n) of the Right to Education Act, 2009).
Also with the overburdening of Judiciary, there is an urgent need for a Central Body, as proposed in The Education Tribunal Bill, 2010, to effectively regulate and administer the working of State Education Tribunals, adhering to the principles to 'Speedy Justice.'
These endeavours will eliminate the uncertainty that the plaintiff or appellant encountered when bringing a lawsuit or submitting an appeal, and it will fulfil the mandate of "Ubi jus ibi remedium."
Conclusion
Today, it is required that teachers as a whole should stand firmly to destroy the hegemony of such draconian management and should not lower their guards in front of them. Because it is Guru Shishyaprampara's legacy and not management shishyaparampara's legacy that our culture inherits.
Dr. APJ Abdul Kalam added to the prestige of this work field when he said "If the people remember me as a good teacher, that will be the biggest honour for me." Hence, we request our teachers, who have faced such rampant behaviour in the past, to not sit quietly and to bring this issue to the notice of the court.
Because "If you haven't turned any wrong into right, you have always been a coward in a fight." Don't be a coward, take legal remedies guaranteed by our procedural laws and Constitution. Be fearless, not for you but for the youth, because teaching is a very noble profession that shapes the character, calibre, and future of youth and thus of the nation's.
References:
- https://www.casemine.com/search/in/education%2Bto%2Bchildren
- https://indiankanoon.org/doc/99642278/
- https://indiankanoon.org/doc/39370454/
-
https://delhihighcourt.nic.in/writereaddata/upload/CauseLists/CauseListFile_QFDQWQG1NMA.PDF&ved=
2ahUKEwj4qorkjfn5AhWS1zgGHVvrBDYQFnoECDgQAQ&usg=AOvVa - w26_jnkogvWjudy3Iep6C7Z
- https://indiankanoon.org/doc/1284919/
- https://indiankanoon.org/doc/152668632/
Award Winning Article Is Written By:
- Aakash Sajwan &
- Shobhit Rawat
Authentication No: SP225165418091-8-0922
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