Committee of Montfort Senior Secondary
School Vs. Shri Vijay
Kumar & Ors  Insc 478 (12 September 2005)
Pasayat & H.K. Sema
APPEAL NO. 5143/2005 ARIJIT PASAYAT, J.
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.
position is almost undisputed and it is unnecessary to set out the details. In
a nutshell the same is as follows:
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').
action was taken against him and by order dated 4.5.2000 the Managing Committee
terminated his services.
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.
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 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.
is no appearance on behalf of respondent No.1.
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
to him full effect has to be given to both Chapter IV and V.
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.
8(3), Section 11 and Section 15 read as under:
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.
11 :- Tribunal
Administrator shall, by notification, constitute a Tribunal, to be known as the
" Delhi School Tribunal" consisting of one person:
that no person shall be so appointed unless he has held office as a District
Judge or any equivalent judicial office.
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.
Administrator shall make available to the Tribunal such staff as may be
necessary in the discharge of its functions under this Act.
expenses incurred in connection with the Tribunal shall be defrayed out of the
Consolidated Fund of India.
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.
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.
15:- Contract of Service
managing committee of every unaided minority school shall enter into a written
contract of service with every employee of such school;
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;
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.
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 as may be prescribed.
Every contract of service referred to in sub-section (1)shall provide for the
following matters namely:
terms and conditions of service of the employee, including the scale of pay and
other allowances to which he shall be entitled;
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;
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;
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;
of any dispute arising out of any breach of contract between the employee and
the managing committee with regard to
scales of pay and other allowances.
of absence, age of retirement, pension, gratuity, provident fund, medical and
disciplinary action leading to the dismissal or removal from service or
reduction in rank of the employee.
other matter which, in the opinion of the managing committee ought to be or may
be specified in such contract.
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:
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
5 and 8 of the Arbitration Act are also relevant and read as under:
5 - EXTENT OF JUDICIAL INTERVENTION.
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.
POWER TO REFER PARTIES TO ARBITRATION WHERE THERE IS AN ARBITRATION AGREEMENT.
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.
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
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.
Frank Anthony's case (supra) it was held in paragraphs 3, 13, 20 and 21 as
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.
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 to 11 would consequently be inapplicable to such minority educational
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.
Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of
minorities to administer their educational institutions.
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 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.
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):
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
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 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." 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.
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.
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:
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.
case (supra) it was further held as under:
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 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.
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.
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.
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." 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
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:
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:
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.
word "judicial" is used in two senses.
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).
Power: The power to decide cases and controversies (Craig R. Ducat Constitutional
"Words and Phrases Legally Defined" by John B. Saunders, Volume 3,
at page 113, "Judicial Power" has been defined:
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 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.
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.
v. Tally 54, Am Rep 65).
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.
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.
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.
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.
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.
view of what has been stated above, the inevitable conclusion is that the Civil
Appeal No.6593 of 2003 is sans merit.
Appeal No. 5143/2005 In view of our judgment in C.A. No.6593 of 2003, this
appeal is equally without merit.
record our appreciation for the valuable assistance rendered by Mr. P.S. Narasimha
appeared as Amicus Curiae.
the appeals are dismissed without any order as to costs.