WP(C) 8366/2004 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. B.R. Dey, learned Sr. counsel assisted by Mr. A.K. Paul, learn ed counsel appearing for the petitioner as well as Mr. T.C. Khatri, learned Sr. counsel assisted by Mr. B. PUshilan, learned counsel for the respondent school. By means of this writ petition, the petitioner has challenged the order dated 30 .08.2004 by which his service as Headmaster of Assam Valley School in the Distri ct of Sonitpur was terminated. For a ready reference, the order is quoted below : Mr. Tapan Kumar Majumdar Teacher, The Assam Valley School, Balipara-784101. Ref: My letters of 27th and 28th August, 2004. Dear Mr. Majumdar, Please be informed that the management of The Assam Valley School examined the s ervice rendered by you as a teacher, your conduct after receipt of direction to vacate the present accommodation and to shift to the Balipara Housing Establishm ent, your subsequent non-compliance of the lawful order pertaining to shifting o f accommodation and institution of a proceeding in a court of law at Tezpur. The management of AVS views your conduct very seriously and has come to the conc lusion that our wilful insubordination is detrimental to the interest of discipl ine in the institution and student community at large. Therefore, the management decides to terminate your service as a teacher because of your proved misconduct by invoking power under Clause 3(C) of the appointmen t letter dated August 1, 1996 inasmuch as you have been found guilty of insubord ination and encouragement of indiscipline amongst the staff and the students. From the orders of Hon’ble Court of Civil Judge, Junior Division, Tezpur passed on 26.08.2004 dismissing your application for grant of temporary injunction in M isc(J) Case No. 36/2004, it is clearly established that you have misused and abu sed the civil process of temporary injunction by obtaining exparte against the i nstitution and its Headmaster an order of restraint maintaining status quo and t his has made the administration and management of the institution ineffective an d also encouraged indiscipline amongst the staff and students. In view of the cl ear orders of Hon’ble court, no enquiry is found necessary and your service stan ds terminated forthwith. You are entitled to your salary upto the 29th day of August, 2004. However, in a ddition, I have instructed the Accounts Manager to pay you Six Months Basic Sala ry upon the vacation of the property you continue to withhold in Dhansiri House. Please be so kind as to contact the Accounts and Administrative Department to r eceive these dues. You are hereby directed to vacate the said accommodation in Dhansiri House no la ter than 5:00 pm on 7th September, 2004. Yours sincerely Sd/- Headmaster Before entering into the merit of the case of the petitioner the issue relating to maintainability of the writ petition will have to be resolved. While it is th e stand of Mr. B.R. Dey, learned counsel for the petitioner that the writ petiti on is maintainable in view of the fact that although the respondent school is a private institution, but it caters the education which is an element of public i nterest. In this connection, he has placed reliance on K. Krishnamacharyulu & an r. Vs. Shri Venkateswar Hindu College of Engineering & anr. reported in AIR 199 8 SC 295. On the other hand, Mr. Khatri, learned counsel appearing for the respondent scho ol has submitted that the writ petition is not maintainable inasmuch as the scho ol in question is not an authority under Article 12 of the Constitution of Indi a. In this connection, he has referred to the stand of the respondent school in its counter affidavit. In the said affidavit, it has been stated thus: 5. That as regards paragraphs 7, 8, 9, 10 and 11 of the writ petition, it is s ubmitted that the matter relating to provision of accommodation and facts and ci rcumstances in relation thereto are the subject matter of adjudication in the ci vil suit and disputed questions relating thereto have not yet been finally decid ed. Admittedly, writ petitioner’s appeal against the order of the trial court re jecting the grant of temporary injunction is still pending before the learned Ci vil Judge, Senior Division. In view of this save and except what is stated above the Respondents have no comments on the facts relating to such litigation. It i s, however, true that upon rejection of the application for temporary injunction the writ petitioner was asked to quit and vacate the house in his occupation an d shift over to the newly allotted accommodation in the complex where his other colleagues who happened to be similarly situated in the institution had already shifted and settled happily without any grievance whatsoever. The writ petitione r did not comply with the request of the Respondents and it being a clear case o f insubordination his services were terminated by an order contained in Responde nt No. 2’s letter dated 30.08.2004 which is annexed to the writ petition as Anne xure-12. 7. That in paragraph 9 of the Anenxure-1 to the writ petition, it has been provided DISPUTE- in case of any disputes arising at any time as to the interpr etation of any part of this letter of appointment, the disputes shall be referre d to an Arbitrator mutually agreed upon and the decision of such an Arbitrator s hall be final . In view of this clause of the service contract question as to if the termination of the service of the writ petitioner is in accordance with cla use 3 of the letter of appointment is a mere question of interpretation of the s ervice contract that is governed by an Arbitration clause. The matter cannot be raised before any other forum and the Arbitral Forum is the only and sole forum of choice of the parties where adequate and efficacious remedy is available to a rrive at a just and fair decision. 10. That the Respondents beg to submit that the Assam Valley School is run b y the Magor Educational Trust who do not happen to be either a state or a state authority as defined by Article 12 of the Constitution of India. Besides this no grant whatsoever is received by the trust or its Institution i.e. The Assam Val ley School from the State Government or any Government thereby enabling any gove rnment or authority under the Government to interfere in to the Management of th e institution. The education department of the government has no role to play in the management and day to day affairs of the institution. In view of this the w rit petitioner cannot seek any remedy from a writ court as may be binding on the Respondents holding them to be any publc authority or state. The writ petition is therefore, liable to be dismissed in limine . From the above, what is seen is that in the order of appointment there is an arb itration clause which provides that in case of a dispute arising out at any tim e as to the interpretation of any part of the appointment order, the dispute sha ll be referred to an Arbitrator mutually agreed upon and the decision of the Arb itrator shall be final. Apart from the above, it is the specific case of the respondent school that it is not the authority within the meaning of Article 12 of the Constitution of Ind ia. The school is not in receipt of any grants in aid from the government and th ere is no control of the government over the management of the school. The aforesaid stand of the respondents in their counter affidavit has not been d enied by the petitioner by filing any affidavit in reply. The decision on which the learned counsel for the petitioner has placed reliance is on the basis of the executive instruction issued by the government giving ri ght to the teachers to claim pay scale at per with the government employees. Thu s, in the said case the claim of the petitioners was on the basis of the executi ve instruction issued by the government which gave them the right to claim the p ay scale at per with the government employees. In the instant case, there is no such executive instruction by the government, rather there is no control of the government over the school. In view of the above, I am constrained to hold that the writ petition is not mai ntainable under Article 226 of the Constitution of India. Accordingly, it is dis missed. Irrespective of the findings, it will be open for the petitioner to purs ue to such other legal remedy as may be available in law.