Apeejay School vs Sh. Darbari Lal & Ors
2010 Latest Caselaw 2802 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 7695/1999

%                                            Date of decision: 28th May, 2010

APEEJAY SCHOOL                                          ..... Petitioner
                            Through: Mr. H.L. Tiku, Sr. Advocate with
                                     Mr. Rajesh Goyal & Ms. Yashmeet,
                                     Advocates

                                    Versus
SH. DARBARI LAL & ORS.                     ..... Respondents
                  Through: Mr. Harish Malhotra, Sr. Advocate
                           / Amicus Curiae with Mr. R.K.
                           Modi, Advocate.
                           Mr. Arun Birbal, Advocate / Co-
                           Amicus Curiae.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?              yes

2.       To be referred to the reporter or not?             yes

3.       Whether the judgment should be reported            yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner school has preferred this writ petition challenging

the order dated 26th November, 1999 of the Labour Court in a reference

of an industrial dispute at the instance of the respondents 1 to 3. The

respondents 1 to 3 claimed to be the employees (non-teaching) of the

petitioner school and contended that the petitioner was neither issuing

them identity cards nor giving them any legal benefits and asking them

to render duties under fictitious names and on their refusal to do so, the

petitioner school had refused work to them.

2. The petitioner contended before the Labour Court that it was a

recognized private unaided school within the meaning of the Delhi

School Education Act, 1973 (School Act) ; that Section 8 (3) of the said

Act provides the remedy of appeal before the Delhi School Education

Tribunal (School Tribunal) to any employee of the school against any

order of dismissal, removal or reduction in rank; that in view of the

existence of the specific remedy provided in the School Act, the Labour

Court had no jurisdiction to entertain the dispute.

3. The Labour Court vide order impugned in this petition held that

though the respondents may be having the right of appeal before the

School Tribunal but they also had the right to challenge their termination

on the various grounds available to them under the Industrial Disputes

Act (I.D. Act). It was further held that the right of appeal before the

School Tribunal did not debar the employee of a school from raising a

dispute under the I.D. Act. Aggrieved therefrom the present petition was

preferred. This Court vide ex parte order dated 23 rd December, 1999

which continues to be in force, while issuing notice of the petition stayed

further proceedings before the Labour Court. The respondents failed to

appear inspite of notice. Rule was issued on 25th September, 2000 and

the interim order made absolute. The respondents have not appeared

thereafter also.

4. The petition was however dismissed for non prosecution on 4 th

January, 2007. CMs No.1524-25/2010 have been filed by the petitioner for

restoration and for condonation of delay in applying for the same. Notice

of the said applications was also issued to the respondents and served. The

respondents still failed to appear. In the circumstances, the respondents

were proceeded against ex parte on 21st April, 2010 and the senior counsel

for the petitioner heard on the applications. The applications for

condonation of delay in applying for restoration and for restoration of the

writ petition were allowed on 21st April, 2010 and the senior counsel for

the petitioner heard on merits.

5. The senior counsel for the petitioner on that date contended that till

prior to the setting up of the School Tribunal, the Labour Courts / Industrial

Tribunal had jurisdiction. He further contended that the School Tribunal

had been set up as per the directions of the Supreme Court contained in

para 64 of the judgment in T.M.A. Pai Foundation Vs. State of Karnataka

2002 (8) SCC 481. It was / is the contention of the senior counsel for the

petitioner that considering the status of the educational institutions and the

nature of duties which employees and teachers of educational institutions

are required to perform, need was felt for setting up of the School Tribunal

and directions in this regard were issued. It was further contended that the

very fact that the Supreme Court directed the setting up of the School

Tribunals inspite of the remedy under the I.D. Act and / or the Civil Court

being available, was indicative that after the setting up of the School

Tribunal, the same has exclusive jurisdiction over disputes between a

School and its employees / teachers.

6. The senior counsel for the petitioner had on that date also invited

attention to:

(i) Kathuria Public School Vs. Director of Education

123(2005) DLT 89 (DB) where the Division Bench of this

Court in para 42 of the judgment reiterated that the School

Tribunal is a specialized Tribunal.

(ii) Jitender Kumar Vs. Director of Education 2000 IV AD

(Delhi) 444 where a Single Judge of this Court held a writ

petition to be not maintainable owing to the alternate

remedy of appeal available before the School Tribunal.

(iii) Dharamvir Singh Vs. NCT of Delhi 150 (2008) DLT 735

where also a Single Judge of this Court took the view that

the remedy of a writ petition to this Court was not a proper

remedy in view of the existence of the School Tribunal.

However, neither of the said judgments deals with the matter in

question i.e. whether the jurisdiction under Section 10 of the I.D. Act has

become barred because of the setting up of the School Tribunal.

7. The senior counsel for the petitioner on that date had also drawn

attention to Section 25 of the School Act which bars the jurisdiction of the

Civil Court in matters, in relation to which any authority appointed under

the Act is empowered by the Act to exercise such power.

8. This Court however finding:-

(i) That Section 25 (supra) bars only the jurisdiction of the Civil

Court and not of the Industrial Adjudicator.

(ii) That Section 8(3) of the School Act providing for the remedy

of appeal to the School Tribunal does not have a non obstante

clause.

(iii) That the same question had arisen in Apeejay School Vs. Gopi

Chand 117 (2005) DLT 521 but had remained unanswered

owing to the parties consenting to go to the School Tribunal.

(iv) That a Single judge of this Court in Management of Mahavir

Senior Model School Vs. Shri Ram Surat Mishra

MANU/DE/3167/2006 has observed that even if the I.D. Act

applies and the employee can raise a dispute which can be

referred to the Industrial Tribunal, the application of the

School Act and the Rules is not excluded by the Industrial

Disputes Act.

(v) That Section 28 of the Administrative Tribunals Act, 1985

which also though excluding the jurisdiction of the Court in

relation to matters with respect whereto jurisdiction was

vested in the Administrative Tribunal, saves the jurisdiction of

the Industrial Adjudicators.

and considering that the legal question involved is of general importance

and likely to affect other schools / their employees, appointed Mr. Harish

Malhotra, Senior Advocate as Amicus Curiae & Mr. Arun Birbal,

Advocate as Co-Amicus Curiae to assist the Court.

9. The senior counsel for the petitioner Mr. H.L. Tiku, Mr. Harish

Malhotra, senior counsel / Amicus Curiae & Mr. Arun Birbal, advocate /

Co-Amicus Curiae have been heard.

10. Further Submissions of Mr. H.L. Tiku, senior counsel for the petitioner

(i) The School Act and the I.D. Act are social legislations; while the

I.D. Act applies to all workmen, the School Act applies to a class

carved out of the said workmen i.e. to the workmen employed in

schools only. The School Act is thus a special legislation.

(ii) That notwithstanding the remedies in the I.D. Act, a remedy for the

employees of Schools was created in the School Act which is a

subsequent legislation. Section 2(h) of the School Act includes in the

definition of "employee" not only the teachers but also every other

person working in the school.

(iii) The School Act provides a speedier / summary remedy for redressal

of the grievances of the employees of the school. Per contra, the

procedure for redressal of grievances under the I.D. Act is longer and

more time consuming with the employees being first required to go

for conciliation and the adjudication being dependent upon the

reference being made by the appropriate government.

(iv) That a legislation for a special class necessarily excludes a general

legislation.

(v) Attention is invited to the proposed amendment of 1982 to Section

2(j) of the I.D. Act, to exclude from the definition of "industry", the

schools and educational institutions besides hospitals etc. It is

contended that the reasons for the said amendment being not brought

in force till now were stated by the government in the counter

affidavit filed in Union of India Vs. Shree Gajanan Maharaj

Sansthan (2002) 5 SCC 44. It is contended that the amendment has

not been brought into force merely for the reason of there being no

alternative proper adjudicatory machinery in force qua employees of

hospitals also sought to be excluded from the definition of industry

in Section 2(j) of the Act. It is contended that it being the legislative

intent and the alternative adjudicatory mechanism qua schools being

already existent in the School Act, this Court should, even without

the amendment being brought in force, read the provisions in

consonance with the spirit of the amendment. It is contended that

most of the States have Educational Acts and School Tribunals; that

the schools were in fact not amenable to the Industrial Adjudicator

till they fell within the definition of industry as pronounced in

Bangalore Water Supply & Sewerage Board Vs. A. Rajappa (1978)

2 SCC 213. Attention is also invited to Court on its own Motion Vs.

All India Institute of Medical Sciences (2002) 7 AD (Delhi) 530

where the Division Bench of this Court noted the proposed

amendment of 1982 to Section 2(j) of the Act and held that the

employees of hospitals were being treated as a class apart from the

other workmen.

(vi) As far as the judgment in Management of Mahavir Senior Model

School (supra) is concerned, it is contended that the Single Judge of

this Court in that case solely relied upon Christian Medical College

Hospital Employees` Union Vs. Christian Medical College Vellore

Association AIR 1988 SC 37 which was a case relating to Tamil

Nadu which did not have an Education Act and hence the provision

of alternative remedy was not available and in those circumstances,

the remedy of the I.D. Act was held to be available to the employees

of the educational institutions.

(vii) Attention is also invited to the Full Bench judgment of this Court in

Daulat Ram Vs. Union of India 127 (2006) DLT 99, where also a

writ petition filed by the employees of the School was held to be not

maintainable for the reason of the alternative remedy under the I.D.

Act being available. It is however contended that the Full Bench did

not consider the remedy of appeal to the School Tribunal.

(viii) On the proposition that a special Statute bars the remedy under the

general Statute, the following judgments are cited:

(a) G.V. Sreerama Reddy Vs. Returning Officer AIR 2010 SC

133, where procedure prescribed under the Representation of

the People Act was held to override the general procedure

prescribed in CPC.

(b) Maya Mathew Vs. State of Kerala MANU/SC/0172/2010,

laying down that where a later special law is repugnant to or

inconsistent with an earlier general law, the later special law

will prevail over the earlier general law.

(c) General Manager, Telecom Vs. M. Krishnan

MANU/SC/1597/2009 laying down that a special law

overrides the general law and the remedy under the general

law is by implication barred.

(d) Ratan Lal Adukia Vs. Union of India AIR 1990 SC 104 on

the doctrine of implied repeal.

(e) Gobind Sugar Mills Ltd. Vs. State of Bihar AIR 1999 SC

3097 laying down that the special enactment will override the

general enactment.

(f) Delhi Transport Corporation Vs. D.D. Gupta 25 (1984) DLT

362 holding the jurisdiction of the Labour Court to be barred

for the reason of the existence of a special remedy under the

Payment of Wages Act.

(g) Jitender Kumar (supra) to contend that if the employee is an

employee of the society managing the school, the provisions

of the I.D. Act will apply but if the employee is an employee

of the school recognized under the School Act, the provisions

of the School Act would apply.

(h) Shashi Gaur Vs. NCT of Delhi (2001) 10 SCC 445 where the

writ petition was held not maintainable for the reason of

existence of an alternative remedy under the School Act

(though clarified that jurisdiction under Article 226 not

excluded)

11. Contentions of Mr. Harish Malhotra, Senior Advocate / Amicus Curiae

(i) That the school has no unfettered discretion in the matter of

employment and termination of employment. Therefore, the

employees of a school form a class apart.

(ii) In Management Committee of Montfort Senior Secondary

School Vs. Vijay Kumar AIR 2005 SC 3549 the School

Tribunal has been held to be a judicial authority.

(iii) Section 29 of the School Act enables the Central Government

to remove difficulties. It is contended that the Central

Government was empowered under the said provision to

remove the difficulty aforesaid, though within limited period

after commencement of the Act.

(iv) That the Labour Court is a Civil Court for certain purpose and

thus the bar under Section 25 of the School Act to the

jurisdiction of the Civil Court would apply to the jurisdiction

of the Labour Court also.

(v) That the reasoning given by the Labour Court of the Industrial

Adjudicator exercising original jurisdiction and the School

Tribunal exercising appellate jurisdiction is defective.

Attention is invited to the provisions of the DDA Act, 1957

and the DMC Act, 1957 where also, though the remedy

prescribed is described as appellate, but the same has been

held to bar the jurisdiction of the Court of original jurisdiction

also.

(vi) In Gopi Chand (supra), even though on concession, but the

award was set aside and the parties relegated to the School

Tribunal. It is urged that had the Court been not satisfied with

the non applicability of the I.D. Act, the question of setting

aside of the award would not have arisen.

(vii) In Ashoka Marketing Ltd. Vs. Punjab National Bank AIR

1991 SC 855 the applicability of the Delhi Rent Control Act

was held to be barred in view of the special legislation relating

to public premises in the Public Premises Act, 1971.

For the reasons aforesaid, the remedy of appeal before the School

Tribunal provided in the School Act, was contended to bar the remedy

before the Industrial Adjudicator under the I.D. Act.

12. Submissions of Mr. Arun Birbal, Advocate / Co-Amicus Curiae

(i) Attention at the outset is invited to the recent judgment dated

26th April, 2010 in CM (M) No.43/2009 titled Sardar Patel

Vidyalaya Vs. G.P. Srivastava (of the same Judge who had

pronounced the judgment in Management of Mahavir Senior

Model School (supra)) laying down that the Labour Court has

no jurisdiction over matters covered by Section 8 of the

School Act.

(ii) To hold the workmen employed in a school to be outside the

ambit of the I.D. Act would have the effect of divesting such

workmen of the benefits of several beneficial provisions in the

I.D. Act viz. Section 25F etc. and of which there is no

equivalent in the School Act.

(iii) That there is no repugnancy between the two Acts and the

two work in their respective spheres; that the two legislations

have been enacted in exercise of powers under different

entries in the VIIth Schedule of the Constitution.

(iv) That the position is otherwise than as contended by the other

two counsels. It is the I.D. Act which is the special legislation

and the School Act is the general legislation. The Supreme

Court has held the I.D. Act to be a special enactment, its

purpose being to relieve the workman form the rigours of

CPC. Attention is invited to Section 11(6) of the School Act

making the provisions of the CPC applicable to the appeals

before the School Tribunal.

(v) While the School Tribunal is governed by the provisions of

the Limitation Act, the Industrial Adjudicator is not.

(vi) The Industrial Adjudicator, for the sake of expediency is

empowered to hold the inquiry into the alleged act of

misconduct itself while the School Tribunal is not and upon

finding the preceding domestic enquiry to be bad will have to

necessarily remand the matter.

(vii) That Section 8(3) of the School Act only prescribes the

remedy of appeal to the Tribunal against the actions of

dismissal, removal or reduction in rank, all the other disputes

between the employees and the management of the school will

have to necessarily go to the Industrial Adjudicator under the

I.D. Act and thus it is not as if the jurisdiction of the Industrial

Adjudicator has been completely taken away.

(viii) That Parliament cannot be held to have intended to divest the

workmen employed in the school of the benefits of the I.D.

Act without having expressly said so till now.

(ix) That the two remedies are not in derogation to each other and

have to be construed harmoniously. The workman has a right

to elect either of the two remedies. Attention is invited to the

Management of M/s Shafiq Memorial Higher Secondary

School Vs. Padam Kant Saxena 94 (2001) DLT 261 where

the award of the Industrial Adjudicator was set aside though

not on the ground of I.D. Act being not applicable but on the

ground that the award was inconsistent with the provisions of

the School Act which was applicable to the employer in that

case.

(x) Attention is invited to Prabhu Dayal Public School Vs.

Prahlad WP(C) No.3260/1996 decided on 29th July, 2008

where it was held that I.D. Act and the School Act operate in

their own spheres and in case of overlapping, subject to the

rule of repugnancy and subject to the rule that the special Act

overrides the general Act, every attempt has to be made to

give effect to the statutory provisions of the two enactments;

in that case, it was held that the School Tribunal ought to have

decided in accordance with the principles of the I.D. Act.

(xi) It is contended that the Single Judge who has delivered

seemingly conflicting judgments in Management of Mahavir

Senior Model School (supra) & Sardar Patel Vidyalaya

(supra), changed his view in Sardar Patel Vidyalaya only for

the reason of the judgment of the Division bench of this Court

in Sonica Jaggi Vs. Lieutenant Governor LPA No.196/2008

decided on 14th August, 2008. Attention was invited to the

judgment in Sonica Jaggi (supra) which was a case of a

teacher and for the relief of fixation of her salary. It was

contended that the observations in Sonica Jaggi owing

whereto the Single Judge has changed his view in Sardar

Patel Vidyalaya are in the said context and not in the context

of the I.D. Act.

(xii) Attention is also invited to the Constitution Bench judgment in

Bangalore Water Supply & Sewerage Board (supra) to

contend that the Constitution Bench has expressly held a

school to be an industry and the provisions of the I.D. Act to

be applicable thereto. It is contended that in view of the clear

observations of the Constitution Bench of the Supreme Court

in the said judgment that the provisions of the I.D. Act are

applicable to schools, this Court ought not to hold that the

provisions of I.D. Act are not applicable to employees of a

school for the reason of the provisions aforesaid of the School

Act.

(xiii) It is further contended that the beneficial provisions of the I.D.

Act are enforceable by the authorities constituted under the

said Act only and the benefit of the said provisions cannot be

given by the other fora. Reliance in this regard is placed on

Chief Engineer, Hydel Project Vs. Ravinder Nath AIR 2008

SC 1315. The same judgment is also relied upon to contend

that there is nothing wrong in two remedies being available

and it being left to the aggrieved workman to choose his

remedy by election.

(xiv) Reliance is also placed on Chandrakant Tukaram Nikam Vs.

Municipal Corporation of Ahmedabad AIR 2002 SC 997

where the policy of law underlying the ID Act and other

enactments concerning the workmen was emphasized. It was

held that the Courts and Tribunals created by the I.D. Act are

not shackled by the procedural laws nor is their award and

because of their informality, the workmen and their

representatives can themselves prosecute or defend their cases;

these forums are empowered to grant such relief as they think

just and appropriate and which powers are not available to the

other fora. It is contended that the School Tribunal where the

provisions of the CPC are applicable and where representation

through lawyers is not prohibited cannot be a substitute for the

foras constituted under the I.D. Act.

(xv) Reference is also made to Management Committee of

Montfort Senior Secondary School (supra) reiterating that as

a general principle, where two remedies are available under

the law, one of them should not be taken as operating in

derogation of the other.

(xvi) The learned Amicus Curiae has also drawn attention to Agra

District Cooperative Bank Ltd. Vs. Labour Court, UP AIR

2001 SC 2396 holding that when a question of employment

arises, certainly it cannot be said that the doors of the Labour

Court are shut because of the provisions of arbitration in the

Cooperative Societies Act. It was further held that if parties

avail of a remedy in one of the jurisdictions, that proceeding

must be pursued to its logical end and should not be given up

in the middle to start another proceeding under another

enactment. The Amicus Curiae however hastened to inform

that the Supreme Court in Ghaziabad Zila Sahkari Bank Ltd.

Vs. Addl. Labour Commissioner AIR 2007 SC (Suppl.) 425

has taken a contrary view.

(xvii) It was further submitted that the view of the Punjab &

Haryana High Court as well as of the Gujarat High Court also

is that the remedy of School Tribunal does not deprive the

workmen employed in the school of the remedy under the I.D.

Act. Reference in this regard is made to Hindu Kanya

Mahavidalaya Vs. The Presiding Officer, Labour Court,

Gurdaspur, CW(P) 6495/1987 of the High Court of

Chandigarh decided on 2nd July, 2009 and to Arjunbhai

Amritbhai Naik Vs. State of Gujarat (2000) 4 Gujarat Law

Reporter 239. It is further informed that there is a conflict of

opinion on this point in the Bombay High Court and the matter

has been referred to the Full Bench of that High Court.

Reliance is placed on Satyawadi Vs. Sow. Aruna 2000 (3)

Bom. CR 182 laying down that the non teaching employees of

a school have the dual remedy of the School Tribunal and the

I.D. Act and the teaching staff has the remedy only before the

School Tribunal and on Adarsha Shikshan Sanstha Vs.

Jaiprakash Ramvilas Lohia, WP(C) No. 4756/1996 of the

Aurangabad Bench of the High Court at Bombay decided on

14th October, 2009 holding that in view of the special

legislation covering employees of private school, the remedy

is to approach the School Tribunal and not the Labour Court.

(xviii) To meet the argument that the remedy under the I.D. Act is an

uncertain remedy requiring a reference to be made, it is

contended that at least in so far as Delhi is concerned, as per

the local amendment the dispute can be raised directly before

the Industrial Adjudicator even without the reference through

the process of the conciliator and the appropriate government.

13. Submissions in Rejoinder of Mr. H.L. Tiku, Sr. Advocate for the Petitioner.

(i) Once a person decides to work for a school, he should be

deemed to have given up his rights / remedies under the I.D.

Act.

(ii) That the labour issues relating to schools are to be guided by

the provisions of the School Act only.

(iii) Section 8(3) of the School Act has been held in para 41 of

Kathuria Public School (supra) to have wider ramifications

than of merely dealing with termination.

(iv) The rules under the School Act make special provisions with

respect to the employees of the schools. Attention in this

regard is invited to Rule 47. On enquiry, as to what is the

corresponding provision in the School Act to Section 25F of

the I.D. Act, protecting the rights of a workman who has

worked for 240 days in a preceding year, the senior counsel

for the petitioner contends that the benefit of the said

provision can be given by the School Tribunal also. It is

further contended that Section 8(3)&(4) of the School Act, by

requiring the school to obtain the approval of the Directorate

of Education before taking any action of dismissal / removal /

reduction in rank or suspension of an employee, provide an

additional protection to the workmen and owing whereto the

workmen / employees of the school do not require the

protection under the I.D. Act.

14. In the opinion of this Court, the first question which arises for

consideration is whether Section 25 of the School Act, barring the

jurisdiction of the Civil Court, bars the jurisdiction of the Industrial

Adjudicator also. The question is no longer res integra. The Supreme

Court in Gujarat State Co-operative Land Development Bank Ltd. Vs.

P.R. Mankad AIR 1979 SC 1203, in the context of Section 166(1) of the

Gujarat Co-operative Societies Act, 1961 barring the jurisdiction of the

Civil or Revenue Court in respect of disputes required to be referred to the

Registrar held that the bar was only to the jurisdiction of the Civil Court or

the Revenue Court and not of the Labour Court or any Industrial Tribunal

constituted under the I.D. Act to adjudicate industrial disputes. The

language was held to clearly indicate the intention of the Legislature not to

oust the jurisdiction of the Industrial Adjudicator to determine claims and

industrial disputes which cannot be adjudicated by the ordinary Civil

Courts.

15. Also, in National Institute of Mental Health and Neuro Sciences

Vs. C. Parameshwara AIR 2005 SC 242, the bar of Section 10 of the CPC

was held to be referable to a suit instituted in a Civil Court and it was held

that the proceedings before the Labour Court cannot be equated with the

proceedings before the Civil Court; it was further held that the Civil Court

and the Labour Court are not courts of concurrent jurisdiction.

16. In view of the aforesaid, I conclude that there is no express bar in the

School Act to the jurisdiction of the Industrial Adjudicator under the I.D.

Act.

17. That takes me to the next question, as to whether the jurisdiction of

the Industrial Adjudicator under the I.D. Act can be said to be impliedly

barred by the School Act. The strongest argument of the senior counsel for

the petitioner, in the opinion of this Court, is of the Legislature itself by the

amendment of 1982 (though not enforced as yet) having intended to

exclude the schools from the ambit of the I.D. Act. However, the fact

remains that for whatsoever reason, the said amendment has not been

brought into force as yet. The question which arises is, whether inspite of

the amendment having not been brought into force, the Court can interpret

the existing provisions in the Statute in the spirit of the proposed

amendment. That would further amount to this Court bringing into force

the amendment which the Legislature / Executive in its wisdom has not

chosen to bring into force for the last over quarter of a century.

18. The question whether the Court can issue a mandamus directing the

Executive to notify the Act / Amendment came up for consideration in

Common Cause Vs. Union of India AIR 2003 SC 4493 where in relation

to the Delhi Rent Act, 1995, the Supreme Court held that when the

legislature itself had vested the power in the Central Government to notify

the date from which the Act would come into force, then, the Central

Government is entitled to take into consideration various facts while

considering when the Act should be brought into force or not and no

mandamus can be issued to the Central Government to issue the

notification bringing the Act into force. Again in Ajay Goswami Vs.

Union of India AIR 2007 SC 493, it was reiterated that it is not open to the

Court to issue any direction to Parliament to legislate. Even otherwise, the

law consistently has been that the Court cannot recast or re-frame the

legislation for the very good reason that it has no power to legislate and

that the courts shall decide what the law is and not what it should be

(Reference in this regard may be made to Union of India Vs. Deoki

Nandan Aggarwal AIR 1995 SC 96 & State of Kerala Vs. Mathai

Verghese AIR 1987 SC 33).

19. Thus notwithstanding the proposed amendment to exclude the

applicability of the I.D. Act to the schools, this Court would consider the

School Act and the I.D. Act as they stand today and decide this lis

accordingly and not in the spirit of the proposed amendment. It may

however be highlighted that the very fact that amendment to exclude the

applicability of the I.D. Act to schools is proposed, admits that till such

amendment is brought into force, all provisions of the I.D. Act including

the mechanism provided therein for resolution of disputes apply to schools

such as the petitioner.

20. Moreover, the implied repeal of the applicability of the I.D. Act to

the employees of the school can be inferred only if the School Act is found

to be equivalent to the I.D. Act in so far as the protection of the rights of

the workmen is concerned. However, it is not found so. The remedy of

appeal before the School Tribunal under the School Act is a remedy

necessarily as before the Civil Court and no further rights then of the Civil

Court have been given to the School Tribunal under the School Act. With

respect to the powers of the Civil Court, the Supreme Court in Apollo

Tyres Ltd. Vs. C.P. Sebastian MANU/SC/1095/2009 has held that there

are many powers which the Labour Court or the Industrial Tribunal enjoy

which the Civil Court does not enjoy; for example, the power to enforce

contracts of personal service, to create contracts, to change contracts etc. It

was further held that these things can only be done by the Labour Court or

Industrial Tribunal but cannot be done by a Civil Court. There is nothing

in the School Act to show that such powers have been conferred and / or

can be exercised by the School Tribunal. The effect thus, of excluding the

jurisdiction of the Industrial Adjudicator for the reason of the remedy of

appeal before the School Tribunal under the School Act, would necessarily

be to the detriment of the workmen and take away from the workmen the

rights given to them under the I.D. Act. This Court in Usha Sahai Vs.

Delhi School Tribunal MANU/DE/0697/2008 has noticed that the right to

file an appeal has been conferred by the School Act and is circumscribed

by the period of limitation prescribed therein for preferring the appeal and

from which it follows that after the expiry of that period, the right to file

the appeal shall stand extinguished. I may add that, conversely, no period

of limitation is prescribed for raising a dispute before the Industrial

Adjudicator and the Industrial Adjudicator also is not circumscribed by any

such limitation for allowing a claim.

21. Though Mr. Arun Birbal, Co-Amicus Curiae has contended that the

view of the Gujarat High Court is that the remedy of the School Tribunal

does not deprive the workman employed in the school from the remedy

under the I.D. Act but I find that a Division Bench of the Gujarat High

Court in Saurashtra University Karmachari Parivar Vs. Saurashtra

University MANU/GJ/0055/2004, on an interpretation of Section 7(3) of

the Gujarat Universities Services Tribunal Act, 1983 barring the

jurisdiction of any other person, officer or authority to entertain a dispute

which the Tribunal constituted under the said Act was entitled to entertain,

held that the jurisdiction of the Industrial Adjudicator was barred because

of the constitution of the Gujarat Universities Services Tribunal. However,

as aforesaid, the bar therein was not only to the jurisdiction of the Civil

Court but also to the jurisdiction of any other person, officer or authority. I

also find another Single Judge of the Bombay High Court in Registrar,

University of Mumbai Vs. Lata Bhor MANU/MH/0911/2004 has held that

once the services of non teaching staff are terminated either by way of

dismissal or termination or reduction in rank, it is the School Tribunal

alone which would have exclusive jurisdiction and only if there is no

termination then the Industrial Court on the ground of apprehended

termination would still have jurisdiction.

22. The argument raised by the senior counsel for the petitioner of

Section 8(3)&(4) requiring the school to take approval of the Directorate of

Education before terminating the services or suspending the employee is

also now not available with respect to the employees of private unaided

recognized schools and with respect whereto the Division Bench of this

Court in Kathuria Public School (supra) has held, such approval to be not

necessary. In that view of the matter, if the provisions of the I.D. Act

otherwise admittedly applicable to the workmen employed in the schools

are also denuded, the workmen employed in the schools would be left in a

very vulnerable position. The extension of the jurisdiction of the School

Tribunal, as held in Kathuria Public School was however circumscribed

by another Division Bench in Sonica Jaggi (supra). Even otherwise, the

School Tribunal has to decide the lis in accordance with the general law /

civil law and which as aforesaid does not empower the Tribunal to grant

reliefs to the workman as the Industrial Adjudicator is. The contention of

the senior counsel for the petitioner that the School Tribunal can also

enforce the rights of the workmen under the I.D. Act is also not tenable.

The rights conferred under the I.D. Act on the Industrial Adjudicator

cannot be exercised by other fora as per the judgment in Chief Engineer,

Hydel Project (supra) relied upon by Mr. Arun Birbal, Co-Amicus Curiae.

I also find that the Supreme Court in The Premier Automobiles Ltd. Vs.

Kamlekar Shantaram Wadke AIR 1975 SC 2238 has unequivocally held

that enforcement of rights and liabilities created under the I.D. Act cannot

be done by a Civil Court and that the Civil Court will have no jurisdiction

to even grant a decree or injunction to prevent the threatened injury on

account of alleged breach of contract, if the contract is one which is

recognized by and enforceable under the I.D. Act only. Civil Courts, as

also the School Tribunal, would have jurisdiction to enforce the rights

under the Civil / General law only and not any rights and liabilities under

the special law as the I.D. Act.

23. The Supreme Court in T.M.A. Pai Foundation suggested setting up of

an Educational Tribunal only for the reason of remedy of "Civil Court"

being inappropriate. The remedy available to such of the staff / employees

of School who are covered by the I.D. Act, of approaching the Industrial

Adjudicator was not considered.

24. The cases of multiple jurisdictions for adjudication of disputes are

not unknown. This Court in Jai Singh Vs. Secretary Law and Judicial

MANU/DE/0875/2008 has held that law recognizes that there can be

concurrent remedies with a right of choice. There is no general principle in

law that only one remedy should be available. There is thus no inherent

inconsistency in the two remedies being available to a workman and to

curb / negate which malady this Court is required to find reasons.

25. The judgments cited by the senior counsel for the petitioner on this

aspect are mostly where a remedy of a writ petition has been held to be

barred owing to the existence of an alternative remedy. However a writ

remedy is essentially a discretionary remedy and which discretion is not

exercised where an alternative efficacious remedy is available. The said

principle though not applicable, even if applied, in view of the finding

above that the remedy before the School Tribunal is not an equally

efficacious to the remedy before the Industrial Adjudicator, would not

apply. Else it is also not a situation where there is any inconsistency or

remedy under one law has to necessarily give way to the other. When as

per the two statutes, the benefit of both can be availed of, there is no reason

for the Court to intervene and hold that benefit of only one is available. The

Division Bench of this Court in Ankur Exports Pvt. Ltd. Vs. MRTP

Commission MANU/DE/0726/2010 has dealt in detail with this aspect and

also of when election is required to be made.

26. The Supreme Court in General Manager, Telecom supra (qua the

Telegraph Act and the Consumer Protection Act) and in Ratan Lal Adukia

supra (qua the Railways Act and the CPC), found one of the statutes to be a

complete code and the legislative intent of two sets of provisions being not

expected to apply simultaneously. However, in the present case, neither is

the School Act found to be a complete code nor any legislative intent to

exclude the I.D. Act from the provisions of the School Act. Rather the

proposed amendment of 1982 shows otherwise. Similarly, in D.D. Gupta

(supra), the Court had found inconsistency between the I.D. Act and the

Payment of Wages Act. No repugnancy between the I.D. Act and the

School Act has been shown. In Ashoka Marketing Ltd. (supra), the

provisions of the Rent Act were held to be excluded by the PP Act for the

reason of the PP Act having been enacted to deal with the mischief of

rampant unauthorized occupation of public premises. The School Act has

not been enacted for any such mischief or owing to applicability of the I.D.

Act.

27. Though in view of the recent dicta in Sardar Patel Vidyalaya (supra)

of a Single Judge of this Court, judicial propriety demanded the reference

of the matter to the Division Bench but in view of the same Single Judge in

Management of Mahavir Senior Model School (supra) having taken a

contrary view, need was not felt for the same and it was deemed expedient

to render a finding on the controversy.

28. The remedy under the I.D. Act has apparently been considered to be

of sufficient importance for the legislature, in 1985, while enacting the

Administrative Tribunals Act to save the said remedy. The Administrative

Tribunals Act was also enacted to provide a specialized fora for employees

of the government / government undertakings. The same can be equated to

the School Act. When the remedy of the I.D. Act is expressly saved by

such a special legislation, I do not find any ground to deprive such valuable

remedy to the workmen employed in the schools.

29. I, therefore, hold that the jurisdiction of the Industrial Adjudicator

under the I.D. Act is not barred in relation to disputes raised by workmen

employed in the schools and covered by the School Act. Resultantly, no

error can be found in the order of the Labour Court rejecting the

preliminary objection raised by the petitioner. Though the institution of the

present petition has considerably delayed the decision on the industrial

reference but the respondents 1,2&3 having chosen not to contest, the

petition is dismissed with no order as to costs.

30. Before parting with the case, I would also like to express my

appreciation for the invaluable assistance rendered by Mr. Harish Malhotra,

Senior Advocate and Mr. Arun Birbal, Advocate who on the request of this

Court, and to the prejudice of their otherwise precious time, have rendered

their invaluable assistance enabling this Court to consider the matter from a

wide perspective.

RAJIV SAHAI ENDLAW (JUDGE) 28th May, 2010 gsr