Dipak Misra, C.J.@mdashThe present reference u/s 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 and Anr., 2005 VI A.D. (Del) 893 and Servants of People Society and Ors. v. Smt. Sudesh Oberoi and Anr., 2007 LabIC. 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 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 Ors. v. 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 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) and (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 u/s 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 u/s 9, of the employee:
Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days 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
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 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
(Emphasis supplied)
7. The other Division Bench in Servants of People Society and Ors. (supra) addressed itself with regard to the Scheme of the Act and the ouster of jurisdiction of Civil Court as postulated u/s 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 u/s 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 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 CPC (in short " Code of Civil Procedure") 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 u/s 9 of the CPC and there being no machinery provided under the Act.
9. At this juncture, we may note with profit that a decision rendered in
10. Ms. Rekha Palli, learned Amicus Curiae, has drawn our attention to
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 u/s 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 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.
11. 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....
12. 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 Ors. (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 Ors. (supra) lays down the law correctly as the same is in accord with the statutory provisions and the 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.
13. 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.
14. 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 Ors. (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 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.
15. 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.
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
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 u/s 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
In our considered opinion, the Division Bench in Sonica Jaggi (supra) has correctly appreciated the observations in T.M.A. Pai Foundation and Ors. (supra) and as far as the said aspect is concerned we concur with the same.
16. 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
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 other matters with which we are not concerned here. There is no appeal provided for u/s 64 against an order issuing a permit in pursuance of the order granting the permit. Issuance of the permit is only a ministerial act necessarily following the grant of the permit. The appeals before the State Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent u/s 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal.
17. In
18. In
The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal.
19. In
Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right, -Constitutional or statutory - without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfillment of those conditions that the right becomes vested and exercisable to the Appellant.
(quoted from the placitum)
20. Similar view was taken in
21. In
22. We have referred to the aforesaid authorities for two purposes, first, that unless an appeal is provided by a statute, no one has right to prefer an appeal as the said right is not inherent in a litigant and secondly, the legislature has the power to circumscribe the nature of appeal. In this context, we may profitably refer to another decision in
23. In the case at hand, if the provisions under Sections 8(3) and 8(4) are scanned, it is luminously clear that the provision of appeal is a restricted and constricted one. The legislature has laid down that an employee can prefer an appeal if he is dismissed, removed or reduced in rank. The Apex Court in Shashi Gaur (supra) after analysing the subtle facets of Sub-Sections 2 and 3 of Section 8 expressed the view that 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. Their Lordships ruled that an appeal would lie 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.
24. In view of the restricted provision, the right to prefer an appeal by the particular categories of employees and relating to the particular lis its spectrum cannot be enlarged as that would cause violence to the provision.
It is well settled in law that where the language of the Statute is plain and dear and does not permit any other kind of interpretation, the same has to be strictly interpreted and we are disposed to think that the said principle is attracted to the case at hand.
25. We will be failing in our duty if we do not take note of the submission of Mrs. Avnish Ahlawat, learned Counsel for the State, who has drawn our attention to Rule 120(3). The said Rule reads as follows:
120(3) Any employee of a recognised private school who is aggrieved by any order imposing on him the penalty of compulsory retirement or any minor penalty may prefer an appeal to the Tribunal.
In the said rule, there is a stipulation with regard to minor penalties.
26. A rule, as is well known, can only supplement the statutory provision but it cannot supplant or travel beyond the statutory enactment. As the provision relating to appeal is a restricted and circumscribed one, the same cannot be enlarged or its scope cannot be broadened by a rule making authority.
27. In this context, we may refer with profit to the decision in Smt Sunita Bugga v. Director of Education and Ors., WP(C) No. 8663/ 2008decided on 30th July, 2010, wherein it has been held as follows:
20. The basic test is to determine whether a rule to have effect must have its source of power which is relatable to the rule making authority. Similarly, a notification must be in accord with the rules, if there is a provision in the rule, as it cannot travel beyond it. In this context, we may refer with profit to the decision in
wherein it has been held as follows:
... Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.
21. In Additional District Magistrate (Rev.), Delhi Administration v. Shri Ram, 2000 v. AD (S.C.) 425 : AIR 2000 SC 2143, it has been held that it is a well recognized principle that conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.
22. From the aforesaid enunciation of law, it is manifest that a rule has to conform to the provisions of the statute and it should not travel beyond the rule making power of the authority framing the rule. There cannot be inconsistency between the Act and the Rules. Repugnancy is inconceivable.
28. In this context, we may fruitfully refer to the decision in Bharathidasan University and Anr. v. All India Council for Technical Education and Ors., 2001 VII AD (S.C.) 702 : AIR 2001 SC 2861 wherein the Apex Court has held thus:
14. The fact that the regulations may have the force of law or when made have to be laid down before the legislature concerned do not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations are confined to certain limits and made to flow in a well defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the Courts are bound to ignore them when the question of their enforcement arise and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a Respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is, shown and found to obviously and patently lack. It would, therefore, be a myth to state that regulations made u/s 23 of the Act have "Constitutional" and legal status, even unmindful of the fact that anyone or more of them are found to be not consistent with specific provisions, of the Act itself.
29. In the case at hand, what hag been given to the Rule making authority, a delegated authority, is a limited one. Thus, reliance placed on the said rule is of no help and we have no hesitation in saying that the said rule runs counter to the statute and, therefore, cannot hold the field. It cannot enable the tribunal to entertain an appeal which has not been provided for in the main enactment.
30. In view of our preceding analysis, we answer the question No. (i) that Delhi School Tribunal has no jurisdiction to deal with all the grievances of the school teachers and employees including minor penalties as defined in Rule 120(3) of the Rules. That apart a matter of suspension or a prolonged suspension cannot be a matter of challenge before the tribunal as that has not been so envisaged or in the provision of appeal. In the absence of such engrafting, it is difficult to clothe the appellate tribunal with such jurisdiction.
31. In view of the aforesaid analysis, we are disposed to think that the decision in Kathuria Public School (supra) does not lay down the law correctly and the observations made in Sonica Jaggi (supra) explaining the decision in Kathuria Public School (supra) is also not correct. We are disposed to think that the decision in Servants of People Society and Ors. (supra) correctly states the law.
32. The second question is a sequitur or the fallout of the first question and, therefore, we conclude and hold that the pending matters before various Benches of this Court pertaining to aggrieved teachers/employees in relation to other grievances need not be transferred to the tribunal.
33. Now we shall advert to the third question. The tribunal has sought that this Court should declare it as a "Court" under the Contempt of Courts Act or direct the Administrator to frame rules for implementation of Section 27 of the Act or to devolve power of a Civil Court under Order XXI of the Code of Civil Procedure, 1908 for enforcement of judgments and orders passed by it. Section 27 deals with liability of manager to punishment. The said provision is as follows:
27. Liability of manager to punishment - If the manager of any recognised private school-
(a) omits or fails, without any reasonable excuse, too carry out any orders made by the Tribunal, or
(b) presents any student for any public examination without complying with the provisions of Section 19, or
(c) omits or fails to deliver any school property to the Administrator or any officer authorised by him under Sub-section (2) of Section 20, he shall be punished with imprisonment for a term which may extend to three months, or with fine which may extent to one thousand rupees, or with both.
34. The submission of the learned Amicus Curiae is that the tribunal has felt that the said provision is not sufficient enough to get the orders passed by it executed. It is urged by her that the Manager may be punished because of criminal liability but that would not confer any benefit to the employees or a teacher who has fought before the tribunal and obtained the relief.
35. On a query being made from Mrs. Avnish Ahlawat, learned Counsel for the State, she fairly stated that the State Government is contemplating to; frame a set of rules for execution of the orders passed by the tribunal.
36. Therefore, we would only suggest that a set of rules should be framed as expeditiously as possible so that the orders passed by the tribunal are executed.
37. In view of the aforesaid premised reasons, we record our conclusion in seriatim as under: I. The decision rendered in Kathuria Public School (supra) does not lay down the law correctly. II. The observations made in Sonica Jaggi (supra) while explaining the decision in Kathuria Public School (supra) are not correct. III. The decision in Servants of People Society and Ors. (supra) correctly states the law. IV. The tribunal under the Delhi Education Act, 1973 does not have jurisdiction to deal with all the grievances of school teachers and employees including minor penalties as defined in Rule 117(a) of Delhi School Education Rules, 1973.
38. The reference is answered accordingly.
