Holding

The Tribunal is the exclusive statutory forum for adjudicating disputes under Chapter IV of the Delhi School Education Act, and once a remedy under it is pursued, the parties cannot simultaneously invoke arbitration; the Tribunal is a judicial authority and the appeal is dismissed.

Summary

The Management Committee of Montfort Senior Secondary School terminated Assistant Teacher Vijay Kumar on disciplinary grounds. Kumar appealed the termination to the Delhi School Tribunal under Section 8(3) of the Delhi School Education Act, 1973, while the school sought referral of the dispute to arbitration under Section 8(1) of the Arbitration and Conciliation Act, 1996. The Tribunal dismissed the arbitration application and the dismissal was upheld by a writ petition. The Supreme Court examined whether both the Tribunal and arbitration were available remedies, whether the Tribunal qualified as a "judicial authority" under the Arbitration Act, and applied the principle of dominus litis. Relying on Frank Anthony and St. Xaviers precedents, the Court held that employment in unaided minority schools is governed by statutory provisions of Chapter IV, making the Tribunal the exclusive forum and precluding simultaneous arbitration; it also affirmed the Tribunal’s status as a judicial authority. Consequently, the Court dismissed the civil appeals as being without merit.

Issues considered

Whether a dispute arising from termination of a teacher in an unaided minority school must be referred to arbitration under Section 15(3)(e) of the Delhi School Education Act despite an appeal before the Tribunal.
Whether the Delhi School Tribunal qualifies as a "judicial authority" within the meaning of the Arbitration and Conciliation Act, 1996.
Whether the principle of dominus litis permits a party to choose arbitration when an appeal under Section 8(3) is pending.
Whether both the Tribunal remedy and arbitration can be availed concurrently, or one exhausts the other.

Legislation cited

Arbitration and Conciliation Act, 1996s. 5, s. 8
Code of Civil Procedure, 1908
Delhi School Education Act, 1973s. 11, s. 15, s. 8(3)

Subjects

ArbitrationDelhi School TribunalEmployment terminationUnaided minority schoolStatutory vs contractual employmentDominus litisJudicial authoritySection 8(3) Delhi School Education ActSection 15 Arbitration clause

Judgment

MANAGEMENT COMMITTEE OF MONTFORT SENIOR A
SECONDARY SCHOOL
v.
SHRI VIJA Y KUMAR AND ORS.

SEPTEMBER 12, 2005
B
[ARIJIT PASA YAT AND H.K. SEMA, JJ.]

Service Law

Delhi School Education Act, 1973-Sec. 8(3), 15-Arbitration and C
Conciliation Act, 1996-Sec. 8(1)-Montfort School Staff Rules 1974-Ru/es
23, JI-Termination of Respondent teacher on disciplinary grounds-Appeal
pending in Tribunal-Whether dispute has to be referred for Arbitration--
Held, the provision in both remedies are similar and once a remedy under one
is exhausted it is not permissihle to avail the other-Further held, the principle D
of dominus litis has clear application.

Words and Phrases-"Judicia/ Authority"-He/d Tribunal is a judicial
authority vested with powers of civil appellate court.

Respondent No.I was as Assistant Teacher in the appellant school. E
His services were terminated on disciplinary grounds. An appeal was
preferred before the Tribunal under Section 8(3) of the Delhi School
Education Act. The appellant filed an application under Section 8(1) of
the Arbitration Act for reference to an arbitrator. The Tribunal dismissed
the application. rt was challenged in a writ petition which was dismissed.
F
Before this Court, the appellant contended that Chapter V of the Act
applied to un-aided minority schools and Section 15 of the Act deals with
contract of service. Section 15(3)(e) 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 clearly makes arbitration G
mandatory, that the school is legally bound to enter into a written contract
of service with every employee, that 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, that Rule 24 of "Staff Rules" deals with Code of Conduct
137 H
138 SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

A and Rule 31 contains an arbitration clause, that Chapter IV of the Act
deals with terms and conditions of service of recognized private schools,
that Section 12 of the Act states that the provision of Chapter IV is not
applicable to un-aided minority schools, that though Section 12 of the Act
was held to be discriminatory and void, yet effect of Section 15 cannot be
diluted, and that though there may be two remedies available to the
B dismissed employee, that is, one the appeal and the other before the
arbitrator, 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.

C Dismissing the Appeals, the Court

HELD: 1. In view of what has been stated in Frank Anthony's case
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
D 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. If an employee seeks to enforce rights and
obligations created under Chapter IV, a remedy is available to him to get
E 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 the only
way is to ask the parties to go for arbitration. (147-C-FI

F Frank Anthony Public School Employees' Association v. Union of India
and Ors., AIR (1987) SC 311; The Ahmedabad St. Xaviers College Society
and Arir. v. State of Gujarat and Anr., AIR (1974) SC 1389 and Premier
Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bomaby and Ors., [1976]
1 sec 496, relied on.

G 2. Even if there are plural or multiple remedies available, the
principle of dominus litis has clear application. (147-H]

Dhannalal v. Kalawathi Bai, (2002] 6 SCC 16 and Ganga Bai v. Vijay
Kumar, (1974] 2 SCC 393 referred to.

H 3. The expression 'Judicial Authority' has not been defined under
MANAGEMENTCOMMITIEEOFMONTFORTSENIOR SEC. SCHOOL•· VIJAY KUMAR J39

the said Act. The Tribunal is prescribed by a judicial officer of equal rank A
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. The Tribunal
has a power to stay the operation of the order appealed against. Finality B
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. 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. (148-E-G)

Bank ofIndia v. Lekhimoni Das and Ors., (2000) 3 SCC 640 and Canara
c
Bank v. Nuclear Power Corporation ofIndia Ltd., (1995) 3 JT SC 42, referred
to.

Regina John M'Evoy v. Dublin Corporation, (1878) 2 LR Ir. 371 D;
Huddart Parker and Co. v. Moorehead, (1909) 8 CLR 330 E; Rex v. London D
County Council (1931) 2 KB 215 F and Royal Aquarium and Summer and
Winter Garden Society Ltd. v. Parkinson, (1892) I QB 431, referred to.

Advanced Law Lexicon by P. Ramanath Aiyar, 3rd Edition, 2005 (pp
2512 and 2518) referred to.
E
4. At first flush, Section 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. 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 F
grievances before a forum. Once a remedy under one is exhausted it is
not permissible to avail the other one. (151-B(

Frank Anthony Public School Employees' Association v. Union ofIndia
and Ors., AIR (1987) SC 311 and The Ahmedabad St.Xaviers College Society G
and Anr. v. State of Gujarat and Anr., AIR (1974) SC 1389 relied on.
'<

' CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6593 of2003.

From the Judgment and Order dated 4.4.2002 of the Delhi High Court
in C. Misc. (Main) No. 511 of 2001.
H
140 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A With C.A. No. 5143 of 2005.

Rajesh Gogna, Rahul Pratap, R.C. Kohli and Tarun Johri for the
Appellant.

P.S. Narasimha, (AC), Ms. Rekha Pandey and Mrs. Anil Katiyar for the
B Respondents.
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Judgment of a learned Single Judge of the
Delhi High Court holding that the Delhi School Tribunal (in short the
C '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
D '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 appeUant.
The respondent No. I - Vijay Kumar (hereinafter referred to as the 'employee')
E was working as an Assistant Teacher in the school known as Montfort $enior
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
F 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.

G 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
H submitted that clause (e) of sub-Section (3) of Section 15 clearly makes
MANAGEMENT COMMIITEE OF MONTFORT SENIOR SEC SCHOOL"· VIJA Y KUMAR [PASA YAT, J.J J4 \

arbitration mandatory. As per the requirement of Section 15 the school is A
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 B
!st 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 C
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 (197 4) SC 13 89, yet effect of Section 15 cannot be diluted.

There is no appearance on behalf of respondent No. I. Therefore, D
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 E
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 p
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 G
dismissed, removed or reduced in rank may, within three3onths
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 H
142 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.
,
A ·: L The Administrator shall, by notification, constitute a Tribunal, to
,.,
. .' be known as the " Delhi School Tribunal" consisting of one person:

i.1 Provided that no person shall be so appointed unless he has held
· office as a District Judge or any equivalent judicial office.

B 11 2. If any vacancy, other than a temporary absence, occurs in the
:c· office of the presiding officer of the Tribunal, the Administrator shall
'. appoint another person, in accordance with the provisions of this
1
.,~section, to fill the vacancy and the proceedings may be continued
, . before the Tribunal from the stage at which the vacancy is filled.

c · .' 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 .

. 11 5. The Tribunal shall have power to regulate its own procedure in all
D >!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
1
; appeal by the Code of Civil Procedure, 1908 (5 of 1908) and shall
E 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
lJ; . ~

01 1. The managing committee of every unaided minority school shall
F ~:;; enter into a written contract of service with every employee of
:::I such school; )l

Provided that if, at the commencement of this Act, there is no
written contract of service in relation to any ex.isting employee of an
' ~ runaided minority school, the managing committee of such school
G rr1. shall enter into such contract within a .period of three months from
· rn:such commencement;
n1
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
H
MANAGEMENT COMMITTEE OF MONTFORT SENIOR SEC. SCHOOL v. VIJA Y KUMAR {PASAY AT, J.J 14J
between him and the school. A
2. A copy of every contract of service referred to in sub-section (I)
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.

3. Every contract of service referred to in sub-section (I )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 C
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 D
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 di~issed, removed from
service or reduced in rank;
E
(e) arbitration of any dispute arising out of any breach· of contract
between the employee and the managing committee with regard
to
.. \f.,,

(i) the scales of pay and other allowances.
F
(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 employ~J.

(f) any other matter which, in the opinio!i of 'ihe ~imaging ~Y
1

committee ought to be or may be specified in sui:h ccf~tract. ,
1

!., • 4: .•
As noted above, Section 15 specifically applies to un-aided,~\~o.~\~ schools.
Rule 31 of the Staff Rules is also of some relevance and reads as follows:
. ":11•}

H
"lfthe employee feels aggrieved against the decisitiriofthe disciplinary ,_,
144 SYPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A 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:
B
"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.
c 8. POWER TO REFER PARTIES TO ARBITRATION WHERE THERE
IS AN ARBITRATION AGREEMENT.

(I) 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
D substance of the dispute, refer the parties to arbitration.

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

E (3) Notwithstanding that an application has been made under sub-
section (I) 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
F 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
G 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
H
MANAGE.MENT COMMITIEEOF MONTFORT SENIOR SEC. SCHOOL.-. VIJA Y KUMAR (PASAYAT,J.] 14 5

counsel for the petitioner that Section 12 was hit by Article 14 and A
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 B
and linguistic minorities to administer educational institutions of their
choice and Sections 8 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 C
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 D
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 E
institutions effective instruments for imparting education cannot be
considered to impinge upon the right guaranteed by Article 30( I) 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 p
substantial measure. The provisions embodied in Sections 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 G
by the Nine Judge Bench in Ahmedabad St. Xaviers College v. State
a/Gujarat, [1975] I 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 H
146 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A 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
B 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 I0 inapplicable
to minority institutions, but also because it makes Sections 8( I), 8(3 ),
8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions.
c That the Parliament did not understand Sections 8 to 11 as offending
the fundamental right guaranteed to the minorities under Article 30( I)
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.
D
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
E 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."
F
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 mat-administration of an
educational institution cannot be said to offend clause (I) of Article
G 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( I) is intended to be real and effective and not a mere pious and
H abstract sentiment; it is a promise of reality and not a teasing illusion.
MANAGEMENT COMMITIEE OF MONTFORT SENIOR SEC SCHOOL"· VJJA Y KUMAR [PASA YAT, J.J J47
•
Such a right cannot be allowed to be whittled down by any measure A
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
B
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
c
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- D
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 E
Shantaram Wadke of Bombay and Ors., [1976] I 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 F
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 G
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 H
148 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A 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
B 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 Dhannala/'s case (supra) it was further held as under:

c "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 plaintiffs choice or
permitting recourse to a forum will be opposed to public policy or
D 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 (I) of Section 8 of the Arbitration Act. The expression 'Judicial
E 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 th.e 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
F 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
G I 1 of th~ 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 v. Dublin Corporation, (1878) 2 LR Ir. 371
H (D) it was observed as under:-
MANAGEMENT COMMITTEE OF MONTFORT SENIOR SEC. SCHOOL>. VIJA Y KUMAR [PASA YAT. J. J 149

'The term "judicial" does not necessarily mean acts of a judge or A
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."

I_n Huddarl Parker and Co. v. Moorehead, (1909) 8 CLR 330 (E) B
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 C
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 v. London. County Council, (1931) 2 KB 215 (F) judicial authority D
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 E
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:
F
"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." G
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 H
150 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A emanating from a judge as such; the authority vested in a judge.
(Bouvier L. Diet.); 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 ')udicial" is used in two senses. The first to designate such
B 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
c judged. (See Royal Aquarium v. Parkinson, (1892) 1 QB 431).

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

In "Words and Phrases - Legally Defined" by John B. Saunders,
D 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
E 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.
F
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
G 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).

H A judge exercises "judicial powers" not only when he is deciding
MANAGEMENTCOMMITIEEOFMONTFORTSENIORSEC.SCHOOLv. VIJAYKUMAR[PASAYAT,J.J J5 J
suits between parties, but also when he exercises disciplinary powers A
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 B
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.
c
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.
D
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.
E
While acceptinglhe 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. F
Civil Appeal No. 514312005

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

V.M. Appeals dismissed. H