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C. A. Moss v. Management Of St. Patricks High School, Secundrabad
Factual and Procedural Background
This is an appeal heard by Gopal Rao Ekbote, J. from the judgment of Chinnappa Reddy, J. given in Writ Petition No. 1272 of 1966. The learned judge below had issued a writ of certiorari quashing the order of the Director of Public Instruction dated 5th August, 1966 (R.C. No. 915/D2/65).
The factual matrix as set out in the opinion: the St. Patrick's High School, Secunderabad (an educational institution run by Roman Catholics of Hyderabad, recognised by the Government of Andhra Pradesh but not receiving grants-in-aid) employed the appellant (a teacher appointed in January 1951 and party to an agreement dated 1st November 1953). The principal of the school (who is also the correspondent) framed charges against the appellant in November 1965. An inquiry officer was appointed; a report finding the appellant guilty of all charges was submitted on 13th December 1965. The appellant allegedly refused to participate at a point in the inquiry; a show-cause notice was issued and the principal's final order dated 7th January 1966 dismissed the appellant from service.
The appellant appealed to the Director of Public Instruction on 9th January 1966 relying on clause 10 of the agreement and the grant-in-aid rules. The principal objected to the Director entertaining the appeal. By order dated 5th August 1966 the Director set aside the dismissal, imposed withholding of increment for one year as punishment, and directed reinstatement. The writ petition challenged that Director's order; the High Court (Chinnappa Reddy, J.) quashed the Director's order. This appeal challenges that quashing.
Legal Issues Presented
- Whether clause 10 of the parties' agreement constitutes a submission of disputes to the Director of Public Instruction as a private arbitrator (i.e., an arbitrator appointed by agreement of the parties) rather than a statutory adjudicatory authority.
- Whether a writ of certiorari under Article 226 of the Constitution can issue against the Director of Public Instruction where he acts pursuant to clause 10 (i.e., whether certiorari lies against a private arbitrator appointed by contract).
- Whether the grants-in-aid rules (executive instructions) can be treated as conferring statutory jurisdiction on the Director so as to make him amenable to writ jurisdiction in respect of appeals from management orders.
- Whether, on the facts, it was necessary for the court to examine the merits of the dismissal once it was concluded that the Director acted as a private arbitrator (i.e., the scope of judicial review where the appellate authority is contractual/arbitral rather than statutory).
Arguments of the Parties
Appellant's Arguments (as presented in the opinion)
- Learned counsel for the appellant (Sri Jaleel Ahmed) contended that clause 10 of the agreement rendered the Director of Public Instruction the equivalent of a private arbitrator appointed by submission under the contract.
- Consequently, the appellant's counsel argued, any decision by that private arbitrator could not be challenged by a writ of certiorari under Article 226 of the Constitution.
Principal / Management (as reflected in the opinion)
- The principal objected to the Director entertaining the appeal from the appellant (the opinion records that the principal objected but does not elaborate formal arguments).
Other positions noted by the court
- The opinion records the concession (by implication in the analysis) that the grants-in-aid rules are executive instructions not made under statute and therefore are not legally enforceable rules conferring statutory jurisdiction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. v. The Disputes Committee of the National Joint Council for the Craft of Dental Technicians and Others, (1953) 1 All E.R. 327 | Authority that prerogative writs such as certiorari or prohibition do not lie against private arbitrators appointed by agreement; such supervisory writs have been applied to statutory bodies invested with duties by statute, not to private tribunals created by submission. | The court relied on the reasoning in this decision (including Lord Goddard's observations) to hold that the Director, acting under clause 10 as an arbitrator appointed by agreement, was a private arbitrator and therefore not subject to writ jurisdiction under Article 226 in respect of his decision. |
| Writ Petition No. 811 of 1963 (order dated 20th January, 1964) — (decision of "one of us" mentioned in the opinion) | Expresses the same view that certiorari does not lie against private arbitrators appointed by agreement. | Referred to as a domestic precedent where a similar view was taken; used to support the court's conclusion that certiorari cannot issue against the Director when he acts as a private arbitrator under the agreement. |
Court's Reasoning and Analysis
The court's analysis proceeded in a series of connected steps, applied strictly to the materials and law cited in the opinion:
- The court observed that the grants-in-aid rules, although containing a similar provision for appeal, are not rules made under statute but are executive instructions of the government; therefore they cannot be legally enforceable rules conferring statutory jurisdiction on the Director of Public Instruction.
- Given the foregoing, the only legal basis for the Director's interference with the principal's order was clause 10 of the parties' contract (the agreement dated 1st November, 1953). The court quoted clause 10 in full and treated it as the operative provision.
- A plain reading of clause 10 led the court to conclude that the parties had agreed to refer disputes arising from the contract to the "competent educational officer" (in practice the Director). The clause, although it did not use the word "arbitration," operated as a submission of disputes to an arbitrator appointed by the parties.
- The court reasoned that the Director of Public Instruction, when acting under clause 10, derived his authority from the contract between the parties and not from any statute. Therefore his character was that of a private arbitrator rather than a statutory body or statutory arbitrator.
- The court stated the settled legal principle that prerogative writs under Article 226 (certiorari, prohibition, etc.) may be issued to control the excess of legal authority by bodies that have legal authority to determine rights and duties and are invested with judicial functions by statute. By contrast, private arbitrators appointed by agreement are not amenable to such writs.
- The court fortified its conclusion by reference to R. v. The Disputes Committee (1953) 1 All E.R. 327, where the English courts refused to issue certiorari against a private arbitration body, and by noting subsequent adoption of the principle by Indian courts (including a prior order in W.P. No. 811 of 1963).
- Because the Director was acting as a private arbitrator under the contract, the court concluded that this court could not exercise supervisory jurisdiction by certiorari over his decision. Consequently, the court found it unnecessary to consider the merits of the underlying disciplinary decision taken by the principal or the Director's factual findings.
Holding and Implications
Core Ruling: The writ appeal is allowed and the writ petition is dismissed. The order of the learned judge (Chinnappa Reddy, J.) quashing the Director of Public Instruction's order is set aside.
Consequences and immediate effects:
- The court held that clause 10 of the parties' agreement constitutes a submission of disputes to an arbitrator appointed by the parties (the Director of Public Instruction in his contractual capacity), and that decisions of such a private arbitrator are not subject to writ of certiorari under Article 226.
- Because the Director was acting as a private arbitrator, the High Court's supervisory jurisdiction by certiorari could not be invoked to quash his decision; accordingly the writ petition was dismissed and the appellate order in favour of the teacher (by the Director) stands as not susceptible to certiorari challenge in this court.
- The court expressly stated that it was not necessary to go into the merits of the underlying disciplinary decision once it concluded that the Director was a private arbitrator.
- The court made no order as to costs.
The opinion expressly relies upon and follows existing authority (including an English decision and domestic authority referenced) for the proposition that certiorari does not lie against private arbitrators; therefore the court's ruling implements established precedent rather than announcing a new legal principle.
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".
(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.
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