Case: Mgmt.Commt.,Montfort Sr.Secondary School Vs. Vijay Kumar

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." 18. 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." 19. In Rex Vs. London County Council (1931) 2 KB 215 (F) 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." 20. 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." 21. 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 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). Judicial Power: The power to decide cases and controversies (Craig R. Ducat - Constitutional Interpretation). In "Words and Phrases - Legally Defined" by John B. Saunders, 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 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. The 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. (Grider v. Tally 54, Am Rep 65). A 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." 22. 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 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. 23. 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. 24. 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. 25. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. According 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. 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 application15. 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 against23. 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 other24. 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 Act25. 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