Haryana registration & regulation of societies, 2012.
Subroto
(Querist) 03 May 2013
This query is : Resolved
Section 46(3) and Section 90 of the Act says that “no member of the Society shall be in the employment of the Society”.
(1) Does it mean that a member of the society who is qualified enough cannot be appointed as a teacher or principal of the school/college run by that society. Can an employee of the School/College be counted as an employee of the Society as well? If yes, then :
(2) What about those members of the Society who were appointed in the schools/colleges run by that society and have been servicing there for over 15 years before the commencement of this Act? Do they have to resign either from the Society or their service ? If yes, then :
(3) Although the Section 46(3) and Section 90 of the Act says that “no member of the Society shall be in the employment of the Society” but it doesn’t say that an employee, say a teacher or a principal of a college/school run by the society cannot become a member of the society which runs the college/school.
There are so many lecturers/teachers and professors who after their voluntarily retirement or resignation establish their own society for imparting education and then also service as lecturer/teacher or professor in the school/college run by their society.
M V Gupta
(Expert) 04 May 2013
A plain reading of the provision extracted by you means that a Member of the Society cannot be in the service of the Society; and consequently the appointment is illegal. However it would be necessary to see the full text of the provisions of the Act to reach a proper conclusion on the issues raised by you. In particular the provisions to regularize the appointments already in existence at the time the Act came into force.
Subroto
(Querist) 04 May 2013
Thanks Mr. Gupta for replying to my query.
Here I am quoting the relevant provisions of the Act:
SECTION 46:-
(1) A Society shall have the powers to spend such sums out of its funds, as it thinks fit, for the purposes authorised under its Bye-laws or by the Act.
(2) No payment shall be made out of the funds to the President, Vice-President, Secretary, Treasurer or any other office bearer by way of honorarium or remuneration :
Provided that incurring of any expenditure on the Boarding/ Lodging and TA/DA of the office bearers while on tour in connection with the affairs of the Society, shall be permissible following the prudent financial norms.
(3) Notwithstanding the restrictions prescribed above, a Society may pay such remuneration, salary or honorarium to the persons in its full-time or part-time employment, as it may determine:
Provided that no member shall be in the employment of the Society.
SECTION 90:-
A Society may employ officers and officials for day to day conduct of its management or operations:
Provided that no member of the Society shall be in the employment of the Society.
Sir, in particular there are no provisions in the Act to regularize the appointments already in existence at the time the Act came into force.
I am asking this query because a lot of Societies in Haryana are threatening the employees of the Schools and Colleges (which are run by these Societies) to RESIGN either from the School/College (as a teacher or lecturer) or from the Society (as a member or office-bearer in the society).
I think they are misusing the Section 46 and Section 90 of the Act so as to minimise the members from their Educational Societies and Establish their own control over the societies and in turn the institutions run by it.
So the QUESTION still remains:
Is An employee, say a teacher/lecturer of a School/College An employee of the Society as well which runs that School/College. As far as I know a teacher/lecturer is an employee of the School or College and by no means an employee of the society As Schools/Colleges are independent bodies having independent status.
Subroto
(Querist) 05 May 2013
Experts, PLEASE HELP! One of my relative is a teacher (in the school) as well as member in the Society (which runs that school) for over 17 years and the President of her Society is threatening her to either resign from the school (as a teacher) or from the Society (as a member) otherwise she'll have to face the consequences.
ajay sethi
(Expert) 05 May 2013
record the threats received .send a strong letter to principal recording that an ___ date you were threatened with dire consequences if you did not resign ,. request principal to desist from such acts in future
Subroto
(Querist) 05 May 2013
Thanks Mr. Sethi.
The principal himself is under the influence of the President of the Society which runs the School (of which he is a Principal).
The Principal himself alongwith the President says to my relative that according to SECTION 46 & 90 of the said Society Act you can either remain as member of the Society or as a teacher in the School (which is run by that Society).
I think they are either Misinterpreting these provisions of the Act or trying to be smart so that my relative resign from the society to save her job as a teacher.
M V Gupta
(Expert) 06 May 2013
The intent of the prohibition contained in Sections 46 and 90 appears to be that a member of the Society should not be an employee of "the Society". It does not say "the school". Please check from the definitions contained in the Act whether School falls within the meaning of the Society. If the school is covered within the meaning of the word Society, then the prohibition applies to teachers also. If not, it has to be seen whether the School has separate registration under the Societies Registration Act. If not, then legally school does not have separate personality and its affairs are the affairs of the Society and hence the prohibition applies to teachers and other staff working in the School also. You may however seek clarification of the education department.
Subroto
(Querist) 06 May 2013
^ Sir, following is the definition of the 'Society' as contained in the Act:-
Society means a Society duly registered or deemed to be registered under the provisions of the Act and includes a State Aided Society;
The word 'School' does not appear anywhere in the Act and the rules made thereunder.
Sir, the schools are given unique registration number by their respective authorities from which they are affiliated to. For eg. CBSE or Haryana Board of Secondary Education. As per their norms, a school can only be established under a Trust, Firm or a Society and it must also give its land on lease to the School.
As far as appointment of teachers on a sanctioned post in a 'Govt. Aided Privately Managed School' is concerned, their employment is regulated and approved by the Directorate, Education and a Society only recommends the name to it.
A teacher, whenever appointed, is appointed by the process established at that time by the Directorate, Education. How it could be called as a direct employee of the Society. Moreover the bank Accounts of a Society and its Schools are also different.
The only close definition of the Employee that I could find of, is in the byelaws of the Society, which is mentioned in the powers of the governing body Clause:
To create provision for engagement of regular or part-time employees of the Society to look after the secretarial, accounting and other functions in a seamless manner.
M V Gupta
(Expert) 07 May 2013
The procedure for recruitment is for getting aid from the Govt. From what u have quoted, I feel the teachers and other staff of the School will be regarded as employees of the Society. Better the teacher concerned resigns membership of the Society to retain her job in the School.
Subroto
(Querist) 08 May 2013
^ From what I have researched so far, the interpretation of the word 'employment' in the SECTION 46 & 90 of the said Act should be about those employees who are employed in the Society directly like clerks, accountants, peon, director, auditor, etc. to look after the affairs of the society like assisting the President and the General Secretary of the Society in their work and gets their salary from the income deposited in the Account of the Society.
According to the Act the sources of income of the Society is clearly defined as membership fee, annual subscription, donations, rent from property/assets, interest, gifts, etc.
WHEREAS an employee (teacher) of the School get his salary from the Account of the school which is maintained separately by the Principal and the Manager of the School and THE SOCIETY has given its LAND on lease to the SCHOOL. As per the State Education Act & CBSE this income should go solely towards the development of the School. That means this income cannot be called an income of the society technically.
If the income of the School can be called as an income of the Society as well then the Society can use this income for its other Aims and Objects such as hospitals, etc. which is totally against the rules and regulations of the State Education Act and the CBSE.
So, in my opinion it can be construed that the teacher of a school are the employees of the School and gets their salary from the account of the school WHEREAS an employee of the society to manage its affairs gets his salary from the Account of the Society.
Thus A Society only controls and lookafter the proper functioning of its schools and the employees recruited in it and by no means use the income of its school to establish another institutions.
Moreover, the aid from the Govt. doesn't go into the account of the society. It goes into the account of the school which is receiving the Aid.
ALSO a teacher is appointed as an employee in the School and takes salary for rendering his services to the School, not to the Society WHEREAS the employee of a Society is the employee who is appointed in the Society or on behalf of Society to manage its institutions such as schools, colleges or hospitals etc. as is clear from the following story that I found on internet:
Three former senior employees of the Delhi Public School (DPS) Society have been booked by Haryana's vigilance department for allegedly embezzling Rs 3 crore from funds meant for the Mewat branch.
The state vigilance bureau (SVB) on November 25 registered a case against the society's former chairman, Narendra Kumar, former director of DPS Mewat R. William and former accountant, Ravindra Kumar.
M V Gupta
(Expert) 08 May 2013
Maintenance of separate accounts for the School and the Society and maintenance of separate list of employees between the Society and the School is for administrative convenience and to comply with the requirement of the Education Department.While deciding the status of employment, the test to be applied is to find out the appointing authority and the disciplinary authority. I am sure the power to appoint and remove the teachers and the other staff of the School vests in the Society. If this is so, legally the teachers and the other staff of the School will have to be regarded as employees of the Society. If u still feel that ur view is correct, u may like to get the issue clarified by the Department of Education as already suggested by me, instead of prolonging discussion here.
Subroto
(Querist) 08 May 2013
^ Thanks you Sir for your advice. I have sent an RTI to both departments, i.e the Industries & Commerce Department (which controls the Society related affairs) AND the Department of Education to know about this issue.
The power to appoint and remove the teachers and the other staff of the School vests in a Managing Committee (in case of Aided Schools) which is constituted & approved in accordance with the directives laid down by the Directorate, Education.
Subroto
(Querist) 08 August 2013
^ Mr. M.V.Gupta, I have tried to get the issue clarified with the Educational Department and the State Registrar.
The Edu. Dept. says that the Appointing and Disciplinary Authority of the teachers of the school is the School Managing Committee (SMC), not the Society's managing committee.
The SMC is constituted in accordance with the Rules laid down by the Edu. Dept. and whenever a teacher is appointed in the school, the appointing authority shall be the SMC and his Contract of Service shall be signed by the Manager of the School who is appointed by the school and can be on salaried basis also.
The office of the State Registrar says that they have have no information available regarding any implementation of that Section of the new Haryana Society Act which says that 'No member shall be in the employment of the Society' AND no information is available which says that according to this Section a teacher of the school who is also a member of the society has to resign either from the society as a member or from the school as a teacher in order to implement the proviso of Section 46(3) & 90 of the Act.
Any guidance or advice by other experts is also requested.
