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CASE NO.: Appeal (civil)  6593 of 2003

PETITIONER: Management Committee of Montfort Senior Secondary School  

RESPONDENT: Shri Vijay Kumar and Ors.

DATE OF JUDGMENT: 12/09/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NO. 5143/2005

ARIJIT PASAYAT, J.

       Judgment of a learned Single Judge of the Delhi High  Court holding that the Delhi School Tribunal (in short the  ’Tribunal’) while hearing appeal of a dismissed employee of  the appellant-school preferred under Section 8(3) of the  Delhi School Education Act, 1973 (in short the ’Act’) was  not required to refer the appeal to an arbitrator on an  application being filed before it by the management of the  school under Section 8(1) of the Arbitration and  Conciliation Act, 1996 (in short the ’Arbitration Act’) is  under challenge in this appeal.                                                     Factual position is almost undisputed and it is  unnecessary to set out the details.  In a nutshell the same  is as follows:

       Managing Committee of an un-aided minority institution  is the appellant. The respondent No.1- Vijay Kumar  (hereinafter referred to as the ’employee’) was working as  an Assistant Teacher in the school known as Montfort Senior  Secondary School (hereinafter referred to as the ’School’).  Disciplinary action was taken against him and by order dated  4.5.2000 the Managing Committee terminated his services.  Against the order of termination, an appeal was preferred  before the Tribunal under Section 8(3) of the Act. The  present appellant filed an application under Section 8(1) of  the Arbitration Act for reference to an arbitrator. The  Tribunal dismissed the application by its order dated  7.6.2001. The same was challenged in a writ petition filed  before the Delhi High Court and a learned Single Judge by  the impugned judgment upheld the view of the Tribunal and  dismissed the writ petition.  

       In support of the appeal, it was submitted that Chapter  V of the Act applies to un-aided minority schools and  Section 15 of the Act deals with contract of service. Clause  (e) of sub-section (3) of Section 15 deals with arbitration  of dispute arising out of any breach of contract between the  employee and the managing committee with regard to certain  aspects. It is submitted that clause (e) of sub-Section (3)  of Section 15 clearly makes arbitration mandatory. As per

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the requirement of Section 15 the school is legally bound to  enter into a written contract of service with every  employee. Since there is a specific provision for an  arbitration and there is no dispute that a written contract  of service was entered into, the Tribunal was in law  required to refer the matter to an arbitrator. The Service  Rules for the staff of the school govern the conditions of  service.  They are called "Montfort School Staff Rules"  (in short ’Staff Rules") and have come into effect from  1st July, 1974. Reference is made to Rule 24 dealing with  Code of Conduct and Rule 31 containing an arbitration  clause. Chapter IV of the Act deals with terms and  conditions of service of recognized private schools. Section  12 of the Act states that the provision of Chapter IV is not  applicable to un-aided minority schools. Though Section 12  of the Act was held to be discriminatory and void in Frank  Anthony Public School Employees’ Association v. Union of  India and Ors. (AIR 1987 SC 311) and The Ahmedabad St.  Xaviers College Society and Anr. v. State of Gujarat and  Anr. (AIR 1974 SC 1389), yet effect of Section 15 cannot be  diluted.  

       There is no appearance on behalf of respondent No.1.  Therefore, considering the importance of the matter  involved, we requested Mr. P.S. Narasimha to assist the  Court as Amicus Curiae. He has placed various provisions of  the Act and referring to decisions in Frank Anthony and St.  Xaviers cases (supra), he submitted that the decision of a  learned Single Judge does not require any interference.   According to him full effect has to be given to both Chapter  IV and V.    

       In order to appreciate the rival submissions the  relevant provisions of the Act need to be noted. While  Chapter IV prescribes various statutory rights, privileges  and remedies for the employees of private aided schools,  Chapter V is restricted in its operation and enables  creation of contractual rights with the employees of the  unaided minority schools. The remedy for enforcing the  contractual right is provided in Section 15(3) (e) of the  Act.  

       Section 8(3), Section 11 and Section 15 read as under:    Section 8(3):- Any employee of a recognized  private school who is dismissed, removed or  reduced in rank may, within three months  from the date of communication to him of  the order of such dismissal, removal or  reduction in rank, appeal against such  order to the Tribunal constituted under  Section 11.

Section 11 :- Tribunal  

1.       The Administrator shall, by   notification, constitute a Tribunal, to be   known as the " Delhi School Tribunal"  consisting of one person:

       Provided that no person shall be so  appointed unless he has held office as a  District Judge or any equivalent judicial  office.

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2.      If any vacancy, other than a temporary  absence, occurs in the office of the  presiding officer of the Tribunal, the  Administrator shall appoint another  person, in accordance with the provisions  of this section, to fill the vacancy and  the proceedings may be continued before  the Tribunal from the stage at which the  vacancy is filled.

3.The Administrator shall make available  to the Tribunal such staff as may be  necessary in the discharge of its  functions under this Act.

4. All expenses incurred in connection  with the Tribunal shall be defrayed out of  the Consolidated Fund of India.

5. The Tribunal shall have power to  regulate its own procedure in all matters  arising out of the discharge of its  functions including the place or places at  which it shall hold its sitting.

6. The Tribunal shall for the purpose of  disposal of an appeal preferred under this  Act have the same powers as are vested in  a court of appeal by the Code of Civil  Procedure, 1908 (5 of 1908) and shall also  have the power to stay the operation of  the order appealed against on such terms  as it may think fit.

Section 15:- Contract of Service

1.      The managing committee of every unaided  minority school shall enter into a  written contract of service with every  employee of such school;

               Provided that if, at the  commencement of this Act, there is no  written contract of service in relation  to any existing employee of an unaided  minority school, the managing committee  of such school shall enter into such  contract within a period of three months  from such commencement;

       Provided further that no contract  referred to in the foregoing proviso  shall vary to the disadvantage of any  existing employee the term of any  contract subsisting at the commencement  of this Act between him and the school.

2.      A copy of every contract of service  referred to in sub-section (1) shall be  forwarded by the managing committee of  the concerned unaided minority school to  the Administrator who shall, on receipt  of such copy, register it in such manner

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as may be prescribed.

3.      Every contract of service referred to in  sub-section (1)shall provide for the  following matters namely:

(a)the terms and conditions of service of         the employee, including the scale of pay  and other allowances to which he shall be  entitled;

(b)the leave of absence, age of  retirement, pension and gratuity  or  contributory provident fund in lieu of  pension and gratuity, and medical and  other benefits to which the employee shall  be entitled;   (c)the penalties which may be imposed on  the employee for the violation of any Code  of Conduct or the breach of any term of  the contract entered into by him;

(d)the manner in which disciplinary  proceedings in relation to the employee  shall be conducted and the procedure which  shall be followed before any employee is  dismissed, removed from service or reduced  in rank;

(e)arbitration of any dispute arising out  of any breach of contract between the  employee and the managing committee with  regard to

(i)     the scales of pay and  other allowances.

(ii)leave of absence, age of  retirement, pension, gratuity,  provident fund, medical and  other benefits.

(iii)any disciplinary action  leading to the dismissal or  removal from service or  reduction in rank of the  employee.

(f)any other matter which, in the opinion  of the managing committee ought to be or  may be specified in such contract.

  As noted above, Section 15 specifically applies to un-aided  minority schools. Rule 31 of the Staff Rules is   also of  some relevance and reads as follows:

"If the employee feels aggrieved against the  decision of the disciplinary committee or of  the Managing Committee, he has right to  appeal to the arbitrator, appointed as such  by the society. His decision shall be final  and binding on both parties".

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                Sections 5 and 8 of the Arbitration Act are also  relevant and read as under:

"Section 5 - EXTENT OF JUDICIAL  INTERVENTION.  

Notwithstanding anything contained in any  other law for the time being in force, in  matters governed by this Part, no judicial  authority shall intervene except where so  provided in this Part.

8- POWER TO REFER PARTIES TO ARBITRATION  WHERE THERE IS AN ARBITRATION AGREEMENT.  

(1) A judicial authority before which an  action is brought in a matter which is the  subject of an arbitration agreement shall, if  a party so applies not later than when  submitting his first statement on the  substance of the dispute, refer the parties  to arbitration.  

(2) The application referred to in sub- section (1) shall not be entertained unless  it is accompanied by the original arbitration  agreement or a duly certified copy thereof.  

(3) Notwithstanding that an application has  been made under sub-section (1) and that the  issue is pending before the judicial  authority, an arbitration may be commenced or  continued and an arbitral award made."

       Section 2(4) of the Arbitration Act embraces statutory  arbitration within the ambit of arbitration agreement over  which the provisions of the Act are applicable. Reading of  Rule 31 of the Staff Rules and Section 2(4) makes it clear  that a statutory arbitration agreement was entered into  between the parties.  

       In Frank Anthony’s case (supra) it was held in  paragraphs 3, 13, 20 and 21 as follows:

"3. The attack of the petitioner against  Section 12 of the Delhi Education Act was  based on Article 14 while the provisions were  sought to be sustained by the respondents on  the basis of Article 30 of the Constitution.  While it was argued by Mr Vaidyanathan,  learned counsel for the petitioner that  Section 12 was hit by Article 14 and that  Sections 8 to 11 did not, in any manner,  impinge upon Article 30 of the Constitution,  it was argued, on behalf of the respondents,  by the learned Additional Solicitor-General  and by Shri Frank Anthony, that the  classification made by Section 12 was  perfectly valid and that, but for Section 12,  Sections 8 to 11 would have to be held to  interfere with the right guaranteed by  Article 30 to religious and linguistic  minorities to administer educational  institutions of their choice and Sections 8

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to 11 would consequently be inapplicable to  such minority educational institutions. 13. Thus, there now appears to be a general  and broad consensus about the content and  dimension of the Fundamental Right guaranteed  by Article 30(1) of the Constitution. The  right guaranteed to religious and linguistic  minorities by Article 30(1) is twofold, to  establish and to administer educational  institutions of their choice. The key to the  article lies in the words "of their own  choice". These words indicate that the extent  of the right is to be determined, not with  reference to any concept of State necessity  and general societal interest but with  reference to the educational institutions  themselves, that is, with reference to the  goal of making the institutions "effective  vehicles of education for the minority  community or other persons who resort to  them". It follows that regulatory measures  which are designed towards the achievement of  the goal of making the minority educational  institutions effective instruments for  imparting education cannot be considered to  impinge upon the right guaranteed by Article  30(1) of the Constitution. The question in  each case is whether the particular measure  is, in the ultimate analysis, designed to  achieve such goal, without of course  nullifying any part of the right of  management in substantial measure. The  provisions embodied in Section 8 to 11 of the  Delhi School Education Act may now be  measured alongside the Fundamental Right  guaranteed by Article 30(1) of the  Constitution to determine whether any of them  impinges on that fundamental right. Some like  or analogous provisions have been considered  in the cases to which we have referred. Where  a provision has been considered by the Nine  Judge Bench in Ahmedabad St. Xaviers College  v. State of Gujarat [(1975) 1 SCR 173], we  will naturally adopt what has been said  therein and where the Nine Judge Bench is  silent we will have recourse to the other  decisions. 20. Thus, Sections 8(1), 8(3), 8(4) and 8(5)  do not encroach upon any right of minorities  to administer their educational institutions.  Section 8(2), however, must, in view of the  authorities, be held to interfere with such  right and, therefore, inapplicable to  minority institutions. Section 9 is again  innocuous since Section 14 which applies to  unaided minority schools is virtually on the  same lines as Section 9. We have already  considered Section 11 while dealing with  Section 8(3). We must, therefore, hold that  Section 12 which makes the provisions of  Chapter IV inapplicable to unaided minority  schools is discriminatory not only because it  makes Section 10 inapplicable to minority  institutions, but also because it makes  Sections 8(1), 8(3), 8(4), 8(5), 9 and 11

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inapplicable to unaided minority  institutions. That the Parliament did not  understand Sections 8 to 11 as offending the  fundamental right guaranteed to the  minorities under Article 30(1) is evident  from the fact that Chapter IV applies to  aided minority institutions and it cannot for  a moment be suggested that surrender of the  right under Article 30(1) is the price which  the aided minority institutions have to pay  to obtain aid from the government.  21. The result of our discussion is that  Section 12 of the Delhi School Education Act  which makes the provisions of Chapter IV  inapplicable to unaided minority institutions  is discriminatory and void except to the  extent that it makes Section 8(2)  inapplicable to unaided minority  institutions. We, therefore, grant a  declaration to that effect and direct the  Union of India and the Delhi Administration  and its officers, to enforce the provisions  of Chapter IV except Section 8(2) in the  manner provided in the chapter in the case of  the Frank Anthony Public School. The  management of the school is directed not to  give effect to the order of suspension passed  against the members of the staff."    

       In St. Xaviers’ case (supra) the following observation  was made, which was noted in Frank Anthony’s case (supra):

"A regulation which is designed to prevent  mal-administration of an educational  institution cannot be said to offend clause  (1) of Article 30.  At the same time it has  to be ensured that under the power of making  regulation nothing is done as would detract  from the character of the institution as a   minority educational institution or which  would impinge upon the rights of the  minorities to establish and administer  educational institutions of their choice.   The right conferred by Article 30(1) is  intended to be real and effective and not a  mere pious and abstract sentiment; it is a  promise of reality and not a teasing  illusion.  Such a right cannot be allowed to  be whittled down by any measure masquerading  as a regulation.  As observed by this Court  in the case of Rev. Sidhajbjai Sabhai  (supra), regulations which may lawfully be  imposed either by legislative or executive  action as a condition of receiving grant or  of recognition must be directed to making the  institution while retaining its character as  minority institution as an educational  institution.  Such regulation must satisfy a  dual test \026 the test of reasonableness, and  the test that it is regulative of the  educational character of the institution and  is conclusive to making the institution an   effective vehicle of education for the  minority or other persons who resort to it."

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       The effect of the decision in Frank Anthony’s case  (supra) is that the statutory rights and privileges of  Chapter IV have been extended to the employees covered by  Chapter V and, therefore, the contractual rights have to be  judged in the background of statutory rights.  In view of  what has been stated in Frank Anthony’s case (supra) the  very nature of employment has undergone a transformation and  services of the employees in minorities un-aided schools  governed under Chapter V are no longer contractual in nature  but they are statutory. The qualifications, leaves,  salaries, age of retirement, pension, dismissal, removal,  reduction in rank, suspension and other conditions of  service are to be governed exclusively under the statutory  regime provided in Chapter IV. The Tribunal constituted  under Section 11 is the forum provided for enforcing some of  these rights. In Premier Automobiles Ltd. v. Kamlekar  Shantaram Wadke of Bombay and Ors.  (1976 (1) SCC 496), it  has been observed that if a statute confers a right and in  the same breath provides for a remedy for enforcement of  such right, the remedy provided by the statute is an  exclusive one. If an employee seeks to enforce rights and  obligations created under Chapter IV, a remedy is available  to him to get an adjudication in the manner provided in  Chapter IV by the prescribed forum i.e. the Tribunal. That  being so, the Tribunal cannot and in fact has no power and  jurisdiction to hear the appeal on merits and only way is to  ask the parties to go for arbitration.  

       According to learned counsel for the appellant though  there may be two remedies available to the dismissed  employee, that is, one the appeal and the other before the  arbitrator, his stand was that when one of the parties i.e.  the employer wants a particular forum for adjudication there  cannot be a compulsion for him to go before the forum chosen  by the other party. This argument in our view is clearly  without substance. Even if there are plural or multiple  remedies available, the principle of dominus litis has clear  application. In Dhannalal v. Kalawathi Bai (2002 (6) SCC 16)  this Court relying on Ganga Bai v. Vijay Kumar (1974 (2) SCC  393) held as under:

"There is an inherent right in every  person to bring a suit of a civil nature  and unless the suit is barred by  statute, one may, at one’s peril, bring  a suit of one’s choice. It is no answer  to a suit, howsoever frivolous the  claim, that the law confers no such  right to sue. A suit for its  maintainability requires no authority of  law and it is enough that no statute  bars the suit.  

In Dhannalal’s case (supra) it was further held as under:

"The plaintiff is dominus litis, that  is, master of, or having dominion over,  the case. He is the person who has  carriage and control of an action. In  case of conflict of jurisdiction the  choice ought to lie with the plaintiff  to choose the forum best suited to him  unless there be a rule of law excluding

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access to a forum of the plaintiff’s  choice or permitting recourse to a forum  will be opposed to public policy or will  be an abuse of the process of law."  

       A question has been raised as to whether the Tribunal  is a judicial authority and/or whether it exercises judicial  power in the background of sub-Section (1) of Section 8 of  the Arbitration Act. The expression ’Judicial Authority’ has  not been defined under the said Act. The Tribunal is  presided by a judicial officer of equal rank of the District  Judge. The expenditure incurred on the Tribunal is defrayed  from the Consolidated Funds of India. It is vested with the  power to regulate its own proceedings and is vested with  same powers as are vested in a Court of Law under the Code  of Civil Procedure, 1908 (in short the ’CPC’). One important  factor is that the Tribunal has a power to stay the  operation of the order appealed against.  

       Finality has been attached to the order of the Tribunal  subject to any judicial review under Article 226/227 or  Article 32 of the Constitution of India, 1950 (in short the  ’Constitution’). Meaning of the words "act judicially" and  "judicial power" need to be noted at this juncture.  Provisions of Section 11 of the Act clearly vest all the  powers of a civil appellate court in the Tribunal while  dealing with an appeal preferred before it under Section  8(3) of the Act.

       In Regina John M’Evoy Vs. Dublin Corporation (1878) 2  LR Ir. 371 (D) it was observed as under:-

"The term "judicial" does not necessarily  mean acts of a judge or legal tribunal  sitting for the determination of matters of  law, but for the purpose of this question a  judicial act seems to be an act done by  competent authority, upon consideration of  facts and circumstances and imposing  liability or affecting the rights of  others."

       In Huddart Parker and Co. v. Moorehead (1909)8 CLR 330  (E) judicial powers were defined as under:-

"The words "judicial power" as used in  section 71 of the Constitution mean the power  which every sovereign authority must of  necessity have to decide controversies  between its subjects or between itself and  its subjects whether the rights relate to  life, liberty or property. The exercise of  this power does not begin until some tribunal  which has power to give a binding and  authoritative decision (whether subject to  appeal or not) is called upon to take  action."

In Rex Vs. London County Council (1931) 2 KB 215 (F)  judicial authority was defined as under:-  

"It is not necessary that it should be a  Court in the sense in which this Court is a

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court; it is enough if it is exercising,  after hearing evidence, judicial functions in  the sense that it has to decide on evidence  between a proposal and an opposition and it  is not necessary to be strictly a Court."

In Royal Aquarium and summer and Winter Garden Society Ltd.  v. Parkinson  (1892 (1) QB 431) dealing with the meaning of  the word ’judicial’ it was observed as under:

"The word ’judicial’ has two meanings. It  may refer to the discharge of duties  exercisable by a Judge or by Justices in  Court or to administrative duties which need  not be performed in court, but in respect of  which it is necessary to bring to bear a  judicial mind, that is, a mind to determine  what is fair and just in respect of the  matters under consideration."     

       Reference to expressions "judicial", and "judicial  power" as detailed in Advanced Law Lexicon by P. Ramanath  Aiyar, 3rd Edition, 2005 (at pages 2512 and 2518) would be  appropriate:

"Judicial: Belonging to a cause, trial or  judgment; belonging to or emanating from a  judge as such; the authority vested in a  judge. (Bouvier L. Dict.);  of, or belonging  to a Court of justice; of or pertaining to a  judge; pertaining to the administration of  justice, proper to a Court of law.

The word "judicial" is used in two senses.  The first to designate such bodies or  officers "as have the power of adjudication  upon the rights of persons and property.  In  the other class of cases it is used to  express an act of the mind or judgment upon a  proposed course of official action as to an  object of corporate power, for the  consequences of which the official will not  be liable, although his act was not well  judged. (See Royal Aquarium v. Parkinson,  (1892) 1 QB 431).    

Judicial Power: The power to decide cases and  controversies (Craig R. Ducat \026  Constitutional Interpretation).

In "Words and Phrases \026 Legally Defined" by  John B. Saunders, Volume 3, at page 113,  "Judicial Power" has been defined:

"If a body which has power to give a binding  and authoritative decision is able to take  action so as to enforce that decision, then  but only by then, according to the definition  quoted, all the attributes of judicial power   are plainly present." "Judicial power" as  defined by Chief Justice Griffith in Huddart  Parker and Co. v. Moorehead (1909) 8 CLR 330  at 357 approved by the Privy Council in Shell

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Company of Australia v. Federal Commr. Of  Taxation, (1931) AC 275 at p.283 means the  power which every sovereign authority must of  necessity have to decide controversies  between its subjects, or between itself and  its subjects, whether the rights relate to  life, liberty or property.  The exercise of  this power does not begin until some tribunal  which has power to give a binding and  authoritative decision (whether subject to  appeal or not) is called upon to take action.   

The authority to determine the rights of  persons or property by arbitrating between  adversaries in specific controversies at the  instance of a party thereto; the authority  vested in some Court, officer, or person to  hear and determine when the rights of persons  or property or the propriety of doing an act  is the subject-matter of adjudication.  (Grider v. Tally 54, Am Rep 65).

A judge exercises "judicial powers" not  only when he is deciding suits between  parties, but also when he exercises  disciplinary powers which are properly  appurtenant to the office of a judge. (A.G.  of Gambia v. N’ Jie, 1961 AC 617.

At first flush, Sections 8(3) and 15 of the Act may appear  to be self-contradictory.  But it is really not so, when  considered in the background of what is stated in Frank  Anthony and St. Xaviers’ cases (supra).  By giving benefit  of Section 8(3) to employees of recognized unaided minority  schools, they are put at par with their counterparts in  private schools.  The two provisions serve similar purpose  i.e. providing a forum for ventilating grievances before a  forum.  Once a remedy under one is exhausted it is not  permissible to avail the other one.   

       As noted by this Court in Bank of India v. Lekhimoni  Das and Ors. (2000 (3) SCC 640), as a general principle  where two remedies are available under law, one of them  should not be taken as operating in derogation of the other.                                In Canara Bank v. Nuclear Power Corporation of India  Ltd. (1995 (3) JT SC 42) this Court held that the Company  Law Board was a Court while exercising the functions of the  Court. No serious challenge is raised by learned counsel for  the appellant to the proposition that the Tribunal is a  judicial authority within the meaning of the Arbitration  Act.

       While accepting the stand of the appellant in a given  case the provisions of Section 8(3) of the Act could be  rendered nugatory by requiring the Tribunal to refer the  matter to an arbitrator.          

       In view of what has been stated above, the inevitable  conclusion is that the Civil Appeal No.6593 of 2003 is sans  merit.  

Civil Appeal No. 5143/2005

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       In view of our judgment in C.A. No.6593 of 2003, this  appeal is equally without merit.  

       We record our appreciation for the valuable assistance  rendered by Mr. P.S. Narasimha appeared as Amicus Curiae.  

       Both the appeals are dismissed without any order as to  costs.