Gopal Rao Ekbote, J.:-
(1) This is an appeal from the judgment of our learned brother, chinnappa reddy, j. , given in writ petition no. 1272 of 1966 whereby the learned judge issued a writ of certiorari quashing the order of the director of public instruction dated 5th august, 1966 in rc. No. 915/d2/65.
(2) The necsssary facts in order to appreciate the contention raised before us are that the st. Patricks high school, secundrabad through its principal filed a petition under article 226 of the constitution for the issue of a writ of certiorari to quash the order of the director of public instruction. By that order the director set aside an order of the principal, who also is the correspondent, dismissing the 2nd respondent appellant from service for an alleged misbehaviour.
(3) The st. Patricks' high school is an educational institution run by the roman catholics of hyderabad. The principal of the high school is the correspondent. The school does not receive any grants in aid from the government. It is however recognised by the government of andhra pradesh.
(4) The appellant was appointed as teacher in the school in january, 1951. He entered into an agreement with the school on 1st november, 1953. The principal framed certain charges against the appellant on 4th november, 1965 and served the same on him. In his explanation submitted by the appellant he admitted the fourth charge but denied the first three charges levelled against him. The principal, therefore, informed the appellant on nth november, 1965 that an inquiry will be held into the charges and appointed one sri k. Krishnarao advocate as the inquiry officer. The inquiry officer recorded the statements of several persons and as a result of the inquiry, the inquiry officer found the appellant guilty of all charges and submitted his report on 13th december, 1965. It is however pertinent to note that during the course of the inquiry the appellant seems to have adopted an indifferent attitude and ultimately refused to participate in the inquiry. In the light of the report submitted by the inquiry officer a show cause notice was issued to the appellant on 14th december, 1965. He submitted his explanation to that notice. The principal in his final order dated 7th january, 1966 dismissed the appellant from service.
(5) The appellant aggrieved by that order of the principal, preferred appeal on 9th january, 1966 to the director of public instruction. He preferred this appeal under clause 10 of the agreement dated 1st november, 1953 and under the grant - in - aid rules. The principal objected to the director's entertaining the appeal from the appellant. The director of public instruction, however by his order dated 5th august, 1966 set aside the order of dismissal. He instead imposed a punishment of withholding the appellant's increment for one year and directed the principal to reinstate the appellant forthwith in service. It is against this order of the director of public instruction that the said writ petition was filed. The learned judge held that clause 10 of the agreement gave protection to the appellant against the arbitrary action of the management. That this protection cannot be taken away by a unilateral action of the management deciding not to receive aid from the government and that so long as the agreement stands and is not superseded, the teacher is entitled to the protection afforded by clause 10. The learned judge, however, in view of clauses 7 and 10, of the agreement reached the conclusion that the teacher has a right of appeal to the education officer only if the management of the school has not given him a reasonable opportunity and has not considered his statement. If the management has given the teacher a reasonable opportunity and had considered his explanation before taking final decision the teacher has no right of appeal and the director of public instruction has no right to interfere. His inquiry is limited to the extent whether the teacher was given a reasonable opportunity and whether the teacher's explanation has been considered by the management before it arrived at a decision. The learned judge, in view of his finding that such an opportunity was given and explanation was considered, held that the director of public instruction had no right to entertain the appeal and to interfere in the matter that he did. It is this view that is now challenged in the writ appeal.
(6) The principal contention of sri jaleel ahmed, learned counsel for the appellant teacher is that in view of clause 10 of the agreement the position of the director of public instruction is that of a private arbitrator and to challenge any decision given by the said private arbitrator no writ of certiorari under article 226 of the constitution can issue.
(7) It is true that this contention was not specifically raised before the learned judge. That is why the learned judge did not consider it. It may be that it is not even raised in the grounds of appeal; but it can hardly bo doubted that the question now raised goes to the root of the matter and therefore we do not find an difficulty in permitting the learned advocate to raise that question.
(8) We are not impressed with the argument that clause 10 of the agreement does not constitute the director of public instruction an arbitrator appointed by submission made by the parties to the agreement. It is conceded that the grants - in - aid rules in which a similar provision exists providing appeal against any order of the management to the director of public instruction are not rules made under any statute. They are mere executive instructions given by the government and cannot be legally enforceable in a court of law. The appeal therefore could not be deemed to have been preferred under the said rules. Nor can such executive directions confer a statutory jurisdiction to hear and dispose of such appeals by the director of public instruction. In this view of the matter it is not necessary to decide whether the grant - in - aid rules would apply to a school which is not an aided school but has merely a recognition of the government. The only right which the director of public instruction had therefore to interfere and dispose of the appeal is based on clause 10 of the agreement. That is in effect, the finding of the learned judge also and we do not find any reason to take a different view. Clause 10 of the agreement reads as follows : -
" 10. That in the event of either party to this agreement failing to observe the terms thereof, the aggrieved party shall have a right to appeal to the competent educational officer and the orders of the educational officer shall be final and bindirg on the parties"
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(9) A plain reading of this clause can leave no one in doubt that it is a clause by which the parties have undertaken to refer their disputes to regard to the terms of the contract to the director of public instruction. It is true that the word " arbitration " has not been used in the clause. But that does not alter the real position. This is a clause of reference of the disputes to arbitrator who incidentally happened to be the government servant, the director of public instruction. Whenever a party alleges that the other side has failed to obseive the terms of the contract, the arbitrator gets jurisdiction to entertain the dispute and dispose it of. The director of public instruction admittedly is not a statutory arbitrator, but is an arbitrator appointed by the parties under the terms of the contract. Merely because he happened to be the director of public instruction, the character of the private arbitrator does not get altered. Any decision given by such private arbitrator therefore cannot be said to be a decision given by any statutory arbitrator who can be said to be amenable to writ jurisdiction of this court. Even though such an arbitration may have some trappings of a court he lacks the basic, essential and fundamental requisite in that behalf because he is not invested with any status inherent in judicial power, nor he derives his power from any act of legislature. He is appointed by the parties and the power to decide the dispute between the parties who appointed is derived by him from the agreement of the parties and from no other source. He is merely a private arbitrator.
(10) It is now fairly settled that whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially, acts in the excess of their legal authority, they are subject to the controlling jurisdiction of the high court, exercising the right to issue writs under article 226. It is only therefore against a statutory arbitrator that a writ of certiorari can issue and not against private arbitrator.
(11) We have fortified in our view by the decision reported in r. V. The disputes committee of the national joint council for the craft of dental technicians and others, (1953) 1 all e. R. 327. Chief justice lord goddard was concerned with a case where while filing a writ petition it was thought that the national joint council was a statutory body but it turned out that they were merely arbitrators appointed under the ordinary submission to arbitration, contained in an indenture of apprenticeship, and the learned chief justice observed : - "unless this were a body set up by statute and having duties conferred on it by statute, so that parties are bound to resort to it, it would be a very novel proceeding if we were to issue these prerogative writs addressed to it". The learned chief justice further said: "that is simply a reference to an arbitrator, and i have never heard of certiorari or prohibition going to an arbitrator. Arbitration is a very old remedy in english law but in all the centuries that have passed since the decisions of english courts, first began there is no trace of an arbitrator being controlled by this court by writ of either prohibition or certiorari. The bodies to which in modem times the remedies of these prerogative writs have been applied are all statutory bodies on whom parliament has conferred statutory powers and duties the exercise of which may lead to the detriment of subjects as, for instance, where a statute gives a certain body power for the compulsory acquisition of land and an arbitrator is set up by parliament to assess the compensation and it is essential that the courts should be able to control the exercise of the statutory jurisdiction within the limits imposed by parliament. There is no instance of which i know in the books where certiorari or prohibition has gone to any arbitrator except a statutory arbitrator, and a statutory arbitrator is a person to whom, by statute, the parties must resort".
(12) The learned chief justice held that the petitions in these circumstances were wholly misconceived. The other learned judge (croom johnson, j.) agreed with the view taken by the learned chief justice, croom johnson, j. Observed.
"this being a private arbitration between private individuals and directed by agreement to a body who has the name of the national joint council, for the craft and dental technicians all the matters in dispute must be dealt by persons who represent that body. That is all. They are in no sense a public body. Their authority does not depend upon any statutory jurisdiction. People are not compelled to abide by their decision. This is a private tribunal set up as arbitrators by agreement between the parties."
(13) This decision has beer followed by the indian courts and even by the supreme court. The result is that this court cannot exercise a supervisory jurisdiction by certiorari over such a private arbitrator. Since we are of the view that this court cannot issue a writ of certiorari as against a private arbitrator it is not necessary to go into the merits of the case. One of us in w. P. No. 811 of 1963 dated 2oth january, 1964 took the same view. The writ appeal, therefore, is allowed. The order of the learned judge is set aside and the writ petition is dismissed. In the circumstances however we make no order as to costs. Appeal allowed. Writ petition dismissed.