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TMI Blog2005 (9) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 sittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 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 judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esigned 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 the test of reasonableness, and the test that it is regulative of the educational character of the institution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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