O. Ref. No. 1/2010 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 27th August, 2010 + O. REF. 1/2010 PRESIDING OFFICER DELHI SCHOOL TRIBUNAL ..... Petitioner Through Ms. Rekha Palli, Amicus Curiae. versus GOVT. OF NCT OF DELHI (THROUGH ITS CHIEF SECRETARY) ..... Respondent Through Mrs. Avnish Ahlawat, Adv. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN HON’BLE MS. JUSTICE MUKTA GUPTA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present reference under Section 113 read with Order XLVI of the Code of Civil Procedure, 1908 was made by the Presiding Officer, Delhi School Tribunal (for short „the tribunal‟) constituted under the Delhi School Education Act,1973 (for brevity „the Act‟). When this matter was listed before the Division Bench, two decisions, namely, Kathuria Public School v. Director of Education & another, 2005 VI A.D. (Del) 893 and Servants of People Society & others v. Smt. Sudesh Oberoi & another, 2007 L.I.C. 2774 were cited and the Division Bench noticing the conflict of opinion thought it apt that the controversy should be resolved by a larger Bench and, accordingly, the matter has been placed before us. 2. The resume of facts which are imperative to be stated are that the O. Ref. No. 1/2010 Page 2 of 21 tribunal which has been empowered under the Act to deal with certain grievances of the employees working in Delhi schools thought it seemly to refer certain issues as regards its jurisdiction and execution/implementation of its orders. The questions those have been referred by the tribunal are as follows: “(i) As to whether this Tribunal has jurisdiction to deal with all the grievances of school teachers and employees including minor penalties as defined in Rule 117 (a) of the Delhi School Education Rules, 1973 in view of the judgment of the Hon‟ble Supreme Court in “T.M.A. Pai foundation and Others vs. State of Karnataka” (supra). (ii) If your Lordships reach to a conclusion that this Tribunal has the jurisdiction in case of all grievances of the teachers and employees of recognized schools, then the pending matters before various Benches of Hon‟ble High Court of Delhi filed by the aggrieved teachers/employees may please be transferred to Delhi School Tribunal for their disposal as per law; and (iii) Either declare Delhi School Tribunal as a „Court‟ under the Contempt of Courts Act or direct the Administrator to frame rules for implementation of Section 27 of the Delhi School Education Act, 1973 or to devolve power of a Civil Court under Order XXI of Code of Civil Procedure, 1908 on this Tribunal to enable enforcement of judgments and orders passed by the O. Ref. No. 1/2010 Page 3 of 21 Tribunal.” 3. On a bare reading of the aforesaid questions, it is clear as crystal that question Nos. 1 and 2 are interlinked and interconnected and if the answer in respect of 1st question is answered in the affirmative, the 2nd question would melt into insignificance. 4. To appreciate the controversy, it is necessitous to refer to Section 8 of the Act. Sub-sections 3 and 4, of the Section being relevant for the present purpose, are reproduced herein below:- “8. Terms and conditions of service of employees of recognised private schools – (1) & (2) xx xx xx xx (3) Any employee of a recognised 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. (4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director: Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under section 9, of the employee: Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days O. Ref. No. 1/2010 Page 4 of 21 from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period. (5) xx xx xx xx” 5. On a perusal of sub-sections (3) and (4), it is demonstrable that an employee of a recognised school when visited with the punishment of dismissal, removal or reduction in rank can approach the tribunal for redressal of his grievances and if an employee is suspended, there is a stipulation that prior approval of the Director is to be obtained and no appeal lies from such orders to the tribunal. 6. The Division Bench in Kathuria Public School (supra) after scanning the anatomy of the Act and placing reliance on the pronouncement in T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481 = AIR 2003 SC 355 especially on paragraphs 61, 63 and 64 and further referring to Rule 120 of the Delhi School Education Rules, 1973 (for short „the Rules‟) and the decision rendered in Frank Anthony Public School Employees Association v. Union of India and others, AIR 1989 SC 311 eventually came to hold as follows:- “42.The Supreme Court had, in fact, directed in T.M.A. Pai Foundation's case (supra) for constitution of a specialised Tribunal in respect of any grievance of the teacher. Till such Tribunal is constituted, power was given to the District Judge to deal with such matters or an Additional District Judge as notified by the Government. No restriction has been placed on the scope and ambit of the consideration of the grievances of the teacher or employee by the Tribunal. Under the said Act in question, the Tribunal is already O. Ref. No. 1/2010 Page 5 of 21 constituted. Thus, all that is to be done is that the Tribunal should be able to hear all grievances including in respect of suspension by a teacher or an employee. Taking into consideration the observations made by the Apex Court in T.M.A. Pai Foundation's case (supra), we are of the considered view that pending necessary legislative action by the State, the Tribunal constituted should be able to hear all grievances of the staff and teacher and not necessarily as restricted to in Sub-section (2) of Section 8 of the said Act. The result would be that if a teacher is aggrieved by a suspension order or its prolongation, the grievance can be made before the Tribunal depending upon the facts and circumstances of the case. 44. The result of the aforesaid is that the provisions of Sections 8(2) and 8(4) of the said Act, Rules 115(2) and (5) and 120(1)(d)(iii) and (iv) and 120(2) of the said Rules requiring prior and ex post facto approval for disciplinary proceedings would have no application to private unaided schools. As a sequator to that, Sub-section (5) of Section 8 would also really have no application to such private unaided schools. Needless to say that these directions are in respect only of unaided non-minority institutions since the relevant provisions have been held as inapplicable only to such institutions and that was the question raised before this Hon'ble Court. We draw strength for taking such a view even from the observations of the Supreme Court in Sunil Batra v. Delhi Administration & Ors., etc., AIR 1978 SC 1675 where Justice V.R. Krishna Iyer, J. had observed that the interpretation of statutes which preserves and sustains the validity of the provision should be adopted and the Courts with functional flexibility should explore the meaning or meanings to adopt that construction which humanely constitutionalizes the statute in question. Thus, these provisions may have application to other institutions, but in view of the observations of the Supreme Court in T.M.A. Pai Foundation's case (supra) in respect of unaided non- minority institutions, these provisions would have no application to such institutions and such an interpretation based really on a reading down of the statutory provision would be the acceptable mode of interpretation of the statute.” (Emphasis supplied) O. Ref. No. 1/2010 Page 6 of 21 7. The other Division Bench in Servants of People Society and others (supra) addressed itself with regard to the Scheme of the Act and the ouster of jurisdiction of Civil Court as postulated under Section 25 of the Act and held thus: “7. Section 3 of the Act deals with the powers of the Administrator to regulate education in all the schools in Delhi. Section 10 stipulates, amongst others, that scales of pay and allowances, medical facilities, pension, retirement benefits and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of corresponding status in schools run by the appropriate authority and in case it is found to be less, the appropriate authority shall be entitled to direct, in writing, the managing committee of such a School to bring the same up to the levels of those employees of the corresponding status in Schools run by the appropriate authority. Section 25 of the Act stipulates that no Civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person so authorised or specified under the Act, is empowered by or under the Act to exercise any power. Section 28 of the Act deals with the power of the Administrator to make rules to carry out the provisions of the Act, with previous approval of the Central Government and subject to the condition of previous publication. 8. The plea of lack of jurisdiction in Civil Courts can be tested on the anvil of the provisions of Section 8 of the Act which specifies the terms and conditions of service of employees of recognized private schools and sub-section (3) thereof provides that any employee of a recognized private school who is dismissed, removed or reduced in rank may, within three months from the date of communication of such order of dismissal to him, appeal against the same to the Tribunal constituted under Section 11, namely, the Delhi School Tribunal. 9. In the present case, respondent Nos. 1 and 2 have not sought redressal in respect of any grievance pertaining to their dismissal, removal or reduction in rank. Their plea in the suit was for release of the benefits under the 5th Pay O. Ref. No. 1/2010 Page 7 of 21 Commission to them by the appellants. However, the statute does not provide any machinery for seeking the said relief. The jurisdiction of Civil Courts is excluded by Section 25 only in respect of any matter in relation to which the Administrator or the Director or such other person as mentioned therein is empowered to exercise any power. With regard to the matters where the aforesaid authorities are not empowered to exercise their powers, as in the present case, the Civil Court shall retain the jurisdiction to entertain a suit and grant interim orders therein. Section 9 of the Code of Civil Procedure (in short „CPC‟) provides that the Civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” 8. Eventually, as is evincible, the Bench opined that when a suit is filed seeking release of benefits under the 5th Pay Commission, the same would fall within the domain of the Civil Court being a lis under Section 9 of the Code of Civil Procedure and there being no machinery provided under the Act. 9. At this juncture, we may note with profit that a decision rendered in Sonica Jaggi v. Lt. Governor & others, 152(2008) DLT 601 (DB). In the said case, the question arose whether a teacher of a private school could move the tribunal seeking redressal of her grievance relating to fixation of her salary. It is worth noting that the learned Single Judge relying upon the observations made by the Division Bench in Kathuria Public School and others (supra) held that no restriction has been placed on the scope and ambit of the consideration of the grievances of the teacher or employee by the tribunal and consequently the tribunal is empowered to hear all the O. Ref. No. 1/2010 Page 8 of 21 grievances including fixation of the salary and came to hold since an alternative remedy is available to the appellant therein for the relief claimed, he declined to entertain the writ petition. The Division Bench referred to Section 8 of the Act and thereafter the observations made in T.M.A. Pai Foundation (supra) especially paragraph 64 and thereafter opined that the Division Bench in Kathuria Public School and others (supra) had taken note of the fact that if a teacher is aggrieved by a suspension order or its prolongation, the grievance can be made before the tribunal depending upon the facts and circumstances of the case but the said decision did not suggest that the grievances like fixation of salary can be the subject-matter of an appeal before the tribunal. 11. Ms. Rekha Palli, learned Amicus Curiae, has drawn our attention to Shashi Gaur v. N.C.T. of Delhi & others, JT 2000 (10) SC 481 wherein the Apex Court was dealing with Section 8(3) and Section 11 of the Act in question. While dealing with the concept of otherwise termination, their Lordships have opined thus:- “7. This judgment and the interpretation put to the provisions of Sub-sections (2) and (3) of Section 8 undoubtedly, is of sufficient force. But, the question for our consideration would be that, would it be appropriate for us to give a narrow construction to Sub-section (3) of Section 8, thereby taking the teachers whose services were terminated not by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal constituted under Section 11 of the Act. The Statute has provided for a Tribunal to confer a remedy to the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The Governmental O. Ref. No. 1/2010 Page 9 of 21 authorities, having been given certain control over the action of such private management, if an appeal to the Tribunal is not provided to such an employee, then he has to knock the doors of the Court under Article 226 of the Constitution which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years.” 12. After so stating, the two-Judge Bench proceeded to rule as follows:- “8. In this view of the matter, we are persuaded to take the view that under Sub-section (3) of Section 8 of the Act, an appeal is provided against an order not only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but also against a termination otherwise except where the service itself comes to an end by efflux of time for which the employee was initially appointed….” 13. The submission of the learned Amicus Curiae is that the law laid down in Kathuria Public School (supra) is not correct inasmuch as the Bench has placed heavy reliance on T.M.A. Pai Foundation and others (supra) though the Apex Court had observed that the controversies relating to certain categories of employees and teachers should be adjudicated by the tribunal. The submission of the learned friend of the Court is that till such a tribunal is constituted and vested with the power, the power endowed/ conferred on the existing tribunal by the statute has to be strictly construed as appeal is a creature of the statute. The learned counsel would submit that the decision in Servants of People Society and others (supra) lays down the law correctly as the same is in accord with the statutory provisions and the O. Ref. No. 1/2010 Page 10 of 21 Division Bench has categorically held that the tribunal cannot address to any grievance which does not find enumeration in the provision. It is also canvassed by her that the decision in Sonica Jaggi (supra) does not lay down the law correctly as it also observes that the grievance relating to suspension order or its prolongation can be made before the tribunal though the same is not provided under the Act. 14. Mrs. Avnish Ahluwalia, learned counsel for the State, submitted that the tribunal has jurisdiction to deal with appeals which pertain to the imposition of major as well as minor penalties. To buttress the aforesaid submission, the learned counsel for the State has drawn inspiration from sub-rule 3 of Rule 120 of the Rules to which we shall refer afterwards. 15. To have a complete and correct picture of jurisdictional facet of the tribunal more so after the decision rendered in T.M.A. Pai Foundation and others (supra) it is apposite to refer to para 64 of the said decision. It reads as follows: “64...Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved. Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational institution O. Ref. No. 1/2010 Page 11 of 21 should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a Court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a Civil Court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational Tribunal in a State – the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service.” 16. The said paragraph has been dealt in detail in the case of Sonica Jaggi (supra) in paragraphs 7 and 8 of the said decision which are reproduced hereinbelow: “7. In TMA Pai Foundation the Court emphasized the need for establishing a Tribunal to deal with the grievances of the teachers aggrieved by such disciplinary action. The Court further directed that till a specialized Tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the Government. O. Ref. No. 1/2010 Page 12 of 21 It was nowhere suggested by the Supreme Court for formation of a Tribunal to deal with each and every grievance of the employees. In a subsequent judgment in Modern School v. Union of India and Ors. 111 (2004) DLT 317 (SC) = III (2004) SLT 364 = (2004) 5 SCC 583, the Supreme Court has clarified that the principles for fixing fee structure of particular institutions have been illustrated in T.M.A. Pai Foundation (supra) and Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, but it must be borne in mind that those principles were laid down in absence of any statute operating in the field. Where, however, a statute operates in the field, regulation of education would be governed thereby. Where the regulation of education is governed by a legislative Act, the Court cannot impose any other or further restrictions by travelling beyond the scope, object and purport thereof. 8. We may mention that way back in 1978, the Supreme Court in the case of The Principal and Ors. v. The Presiding Officer and Ors. 1978 SCC (L&S) 70, held that under Section 8(3) of the Act it is only an employee of a recognised private school against whom an order of dismissal, removal or reduction in rank is passed who is entitled to file an appeal against such an order to the Tribunal. It was held that as the school in that case was not a recognised private school on the relevant date and the impugned order was not one of dismissal, removal or reduction in rank but an order simplicitor of termination of service, the appeal to the Tribunal was manifestly incompetent. In a subsequent decision in the case of Shashi Gaur v. NCT of Delhi and Ors. (2001)10 SCC 445 , it has been held that Section 8(3) of the Act provides for an appeal not only against the order of dismissal, removal or reduction in rank, which is a major penalty in a disciplinary proceeding, but also against termination, otherwise except, where the service itself comes to an end by efflux of time for which employee was appointed.” In our considered opinion, the Division Bench in Sonica Jaggi (supra) has correctly appreciated the observations in T.M.A. Pai Foundation and others (supra) and as far as the said aspect is concerned we concur with the O. Ref. No. 1/2010 Page 13 of 21 same. 17. At this stage, we may notice few citations with regard to the ambit and scope of a provision relating to appeal in a statute. In Kundur Rudrappa v. The Mysore Revenue Appellate Tribunal and others, AIR 1975 SC 1805, a three-Judge Bench of the Apex Court was dealing with the power of the appellate authority under the Motor Vehicles Act (1939). The question that arose for consideration was whether an appeal would lie against an order granting permit. In that context, their Lordships held as follows:- “5. Appeal is a creature of the statute. There is no dispute that Section 64 of the Act is the only section creating rights of appeal against the grant of permit and