Teachers: Working with private/govt/aided/unaided etc. establishments can approach Educational Tribunals to avail cost effective and speedy redressal of grievances and complaints in all service related matters.
>>> Many a things have been said about a Teacher.
“Teachers can change lives with just the right mix of chalk and challenges.” - Joyce Meyer.
“Education is the key to success in life, and teachers make a lasting impact in the lives of their students.” - Solomon Ortiz.
“The art of teaching is the art of assisting discovery.” - Mark Van Doren.
Late Prime Minister Pandit Jawaharlal Nehru, said about Dr Sarvepalli Radhakrishnan: The most acknowledged teacher of India: “It is India's privilege to have a great philosopher, a great educationist and a great humanist as her President. That in itself shows the kind of men we honour and respect."
However, very often, we fail to show our appreciation and gratitude for their altruistic devotion. Teachers do need encouragement and support from the community to feel that their efforts are being recognized.
>>> Kautilya, the greatest economist of the medieval period of Indian history, said, “in the happiness of his subjects lies the king’s happiness, in their welfare his welfare.”
Mahatma Gandhi viewed work more as duty than as right.
>>> Teachers also find themselves entangled in litigations and often confused what exactly they should do and which forum they may approach for redressal of their grievances and restoration of their rights and adjudication of the disputes on their service matters.
Courts of law in Republic of India have risen time and again as ‘Parents Patriae’; Parent to the nation, and have provided relief to the community of employees including teachers.
Courts have duly acknowledged that Teachers should be spending their time in educating the masses and making them employable and thus enable them to earn and shoulder their responsibilities.
In the case of educational institutions…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.
>>> National Human Rights Commission: Right to Work: The right to work is closely related to other basic rights such as the right to life, the right to food and the right to education. In a country where millions of people are deprived of any economic assets other than labor power, gainful employment is essential for these rights to be fulfilled.
Indeed, unemployment is the main cause of widespread poverty and hunger in India. The right to work states that everyone should be given the opportunity to work for a basic living wage. The right to work emphasizes on the steps to be taken by a State Party for the achievement of the full realization of this right and includes technical and vocational guidance and training programmes.
>>> United Nations: Universal Declaration of Human Rights: Article 23, 24
Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and
To protection against unemployment.
Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Everyone has the right to form and to join trade unions for the protection of his interests.
Everyone has the right to work and free choice of employment in just and favorable conditions. Everyone has the right to be protected against unemployment…………….
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
United Nations: Universal Declaration of Human Rights: Article 6,7,8, 23, 24
The preamble of the 1944 International Labour Organization Constitution, which the ILO and its oversight organs have acknowledged to have the force of law and to be legally binding on member states……………..
>>> THE CONSTITUTION OF INDIA: The Indian Constitution refers to the right to work under the “directive principles of state policy”.
Article 39 urges the State to ensure that “the citizens, men and women equally, have the right to an adequate means to livelihood……………
Article 41 stresses that “the state, shall within the limits of its economic capacity and development, make effective provision for securing right to work...”
>>> Closely related to the right to work are rights at work or labor rights.
The characterization of right to work as a social right of the individual is closely linked to modern industrialized society.
The right to work is closely related to right to salary in modern sense.
>>> Excessive commercialization has affected the field of education and a new orientation in the relation between the teachers and the institutionalized education has transformed it almost into a trade.
Almost the whole body of our teaching fraternity has been organized on trade union lines, ………………………….. It should………………………….form more forums/associations/Guild/unions.
It may perhaps be a natural corollary that those employed in education, which is an industry, should be treated as workmen. But this can be only if the statutory definition permits it.
Teachers are now not covered as ‘Workman’ as in ID Act and thus cannot approach Labor Court/Tribunal.
Even a Non Workman and Teacher have right to justice and delivery of speedy justice.
>>> Right to justice and legal aid: 3.15.1 The Commission recommends that after article 30, the following article should be added as article 30A:
“30A: Access to Courts and Tribunals and speedy justice
3.2 Right to Speedy Justice:
Although the importance of speedy disposal of cases was recognized as early as in the year 1958 by the Law Commission of India in its 14th Report, in India, neither the Constitution nor any existing laws or statutes specifically confer the right to speedy trial on the accused. The Law Commission of India observed that in an organized society, it is in the interest of the citizens as well as the state that the disputes which go to the law courts for adjudication should be decided within a reasonable time, so as to give certainty and definiteness to rights and obligations. If the course of trial is inordinately long, the chances of miscarriage of justice and the expenses of litigation increase alike. Relief granted to an aggrieved party after a lapse of years loses much of its value and sometimes becomes totally infructuous.
Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah (Supreme Court of India) is an exemplary case of as to how delay is defeating the cause of justice. In this case, the landlord, aged 54 years, sought to evict his tenant on the ground of his personal need to carry on his own business. When the matter finally reached the Supreme Court after a lapse of 33 years, in view of the protracted litigation bonafide requirement may not exist at that time. The landlord, at the age of 87 years, was not supposed to start a new business. Such is the basis of the ubiquity of the comment ‘Justice delayed is justice denied’.
>>> The foundation of this right::: Right to Speedy Justice : ::: lies in the Supreme Court of Indiajudgment in Hussainara Khatoon v. State of Bihar where Justice Bhagwati observed, “No procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just’ and it would fall foul of Article 21 of the Constitution.
There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
>>> The Supreme Court of India has time and again delivered landmark judgments that have lead to consequential and direct benefits in service matters.
‘Delay’ in the context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the Court. In an adjudicatory system, whether inquisitorial or adversarial, an expected life span of a case is an inherent part of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in dispensation of justice.
The judiciary faces a large backlog of cases which in the end results in denial of real access to the courts on account of delay that takes place in many cases in dispensation of justice.
>>> The Apex Court referred to its earlier decisions wherein the right to speedy trial in criminal cases was recognized. It observed that “(t)he legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental inquiries has been emphasized by this Court on numerous occasions.”
The Supreme Court specifically referred to the decision of a Constitution Bench in the case of Abdul Rehman Antulay v. R.S. Nayak, 1992 (1) SCC 225, wherein it had been held that the right to speedy trial is a fundamental right implicit in Article 21 of the Constitution and in which detailed directions were issued in this regard.
The Supreme Court applied the legal principle evolved in the aforesaid Antulay case in service law jurisprudence and held that the impugned decision of the Delhi High Court in the present case setting aside the decision of CAT which had directed that the appellant’s suspension would not be extended beyond 90 days from 19.3.2013, could not be sustained in view of the pronouncement of the Constitution Bench in the aforesaid Antulay case.
>>> “In the case of educational institutions…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. It would, therefore, be appropriate that an educational tribunal be set up in each district in a state, to enable the aggrieved teachers to file an appeal.” The judgment reads, “Till a specialised 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.”
The 11-judge bench of the Supreme Court in 2002 in a case - TMA Pai Foundation and Ors vs State of Karnataka and Ors observed that disputes between the management and staff of educational institutions must be decided speedily and without incurring excessive costs.
Accordingly, the court considered it appropriate that an educational tribunal be set up in each district in a state to enable the aggrieved teacher to file an appeal against the decision of the management concerning disciplinary action or termination of service.
1. India is a land of diversity -- of different castes, peoples, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is eduction. The state, with its limited resources and slow-moving machinery, is unable to fully develop the genius of the Indian people very often t he impersonal education that is imparted by the state, devoid of adequate material content that will make the students self-reliant only succeeds in producing potential pen-pushers, as a result of which sufficient jobs are not available.
Q.5(b): A:……….. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a Judicial officer of the rank of District Judge.
Q.5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to- day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency.
Q.10 Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Article 14 and 15(1), in the same manner and to the same extent as minority institutions? and
Q.11 What is the meaning of the expressions "Education" and "Educational Institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A:………………. The expression "education" in the Articles of the Constitution means and includes education at all levels from the primary school level up to the post-graduate level. It includes professional education. The expression "educational institutions" means institutions that impart education, where "education" is as understood hereinabove.
Supreme Court of India
T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors
Bench: Quadri, S.S.M. (J), Pal, Ruma (J), Variava, S.N. (J), Balakrishnan, K.G. (J) Reddi, P.V. (J), Bhan, Ashok (J) Pasayat, Arijit (J)
>>> The Educational Tribunals Bill, 2010 was introduced.
Legislative Brief The Educational Tribunals Bill, 2010
>>> However, despite the directions by The 11-judge bench of the Supreme Court in 2002 in a case - TMA Pai Foundation and Ors vs State of Karnataka case, many states failed to constitute educational tribunals e.g; Haryana government and Chandigarh administration, Uttrakhand, Assam etc………………..and those that constituted devised their own tactics to claim lack of jurisdiction of tribunals, for Teachers.
The employers: be it state/govt/aided/unaided/private establishment etc devise their own tactics and strategies to keep employees and teachers out of ambit of courts/tribunals.
----In most of the cases, aggrieved teachers and employees of private unaided schools were not allowed to invoke the jurisdiction of the high court as the relationship between the school and the teacher was purely contractual and private in nature. Hence teachers were constrained to continue their services with private schools at the whims and fancies of the school management.
Moreover as it usually happens: The employers: be it state/govt/aided/unaided/private establishment etc devise their own tactics and strategies to keep employees and teachers out of ambit of courts/tribunals………………………..
The teachers of private unaided schools, in Punjab, were being denied hearing of their cases by the Educational Tribunal on the ground of "lack of jurisdiction"………………………….. by provisions of a February 7, 2008 notification, which takes away the jurisdiction over unaided posts from the purview of the Educational Tribunal.
Only after repeated directions and strictures passed by the High Court, the Punjab government had set up the Tribunal. As per the apex court judgment, an Educational Tribunal is required so that the employees, who are working in private unaided, as well as aided educational institutions, do not have to rush to ordinary civil courts and may get the redressal of their grievances expeditiously.
Though the Punjab State government had set up the Tribunal in 2008, ……………….
………..it did not inform the HC that while constituting the body, the Punjab Government had also notified an amendment whereby all college teachers working against unaided posts were taken out of the jurisdiction of the tribunal. On the other hand, no provision was made in the said notification of February 7, 2008 to bring in the teachers working on unaided posts in the recognised schools for adjudication of their disputes pertaining to termination from service or those related to disciplinary action taken by managements.
Later the statement was made by M S Sandhu, Secretary to Punjab Government, Department of Higher Education, in an ongoing public interest litigation (PIL) filed by Advocate H C Arora, that Educational Tribunal is entitled to hear and decide all disputes in all educational institutions, aided or unaided.
----This tactic and injustice was undone while decided a PIL
Punjab and Haryana High Court at Chandigrah in CWP No. 1535 of 2010 (H.C. Arora vs State of Punjab and other)
ISSUES RAISED IN PIL:
In this PIL, the petitioner had prayed for quashing provisions contained in Section (4) (iv) of the notification dated 7.2.2008 to the extent the said provisions excluded the employees working on unaided posts in the affiliated colleges from the definition of 'employees” to be covered under the jurisdiction of the Punjab Educational Tribunal; and for issuance of direction to the State Government to bring the 'teaching as well as non-teaching employees not working on the aided posts' in the privately managed recognized schools and affiliated colleges also under the jurisdiction of the 'Punjab Educational Tribunal’
The Educational Tribunal shall have jurisdiction to hear all cases of dispute between the Managing Committees and the employees, as defined in this Act, and the Punjab Privately Managed Recognized Schools Employees (Security of Service) act, 1979.” It is thus clear that Punjab Legislative Assembly has bestowed original jurisdiction upon the newly created Educational Tribunal to hear and decide all disputes in all Educational Institutions whether aided or unaided. The instant writ petition deserves to be dismissed as it is made on wrong averments.
3. That it is further stated that a combined reading of section 3,4,5 and 6 of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 as amended upto date has only restricted the jurisdiction of Director Colleges to hear and decide the disputes regarding dismissal of removal from service of Employees who are not working on aided posts.
However, the ambit of Punjab Educational Tribunal has not been restricted in any manner.”
In our view the said averments adequately address the issues favorably and no further grievance survives. In view of the affidavit placed on the record by the State of Punjab, this writ petition has become in fructuous ad stands disposed of as such.
>>> The state of Haryana thru; HARYANA GOVERNMENT HIGHER EDUCATION DEPARTMENT NOTIFICATION issued notification Dated: the 2nd March, 2015
In pursuance to the judgment dated 30-10-2002 of the Hon'ble Supreme Court of India in TMA Pai Foundation and others Versus State of Karnataka 2002 (8) SCC 481 wherein the Hon'ble Court has observed that for the redressal of grievances of employees of aided/ unaided educational institutions who are subjected to punishment or termination of services a mechanism will have to be evolved by constituting appropriate tribunals. The right of filing appeals would lie before the district and session. judges or Additional district and session judges till the tribunals are set up.
It is notified that the District and Session Judges in the State of Haryana have been authorized to hear the appeals of the employees of aided/ unaided educational institutions against decision of management within their jurisdiction, by the Hon'ble Punjab & Haryana High Court, Chandigarh vide No. 23414 Gaz. il/IX.C.ll dated 10-8- 2005. The tribunals already notified by the Hon'ble High Court will also bear appeals of Employees of aided/unaided colleges against the orders of management.
>>> Still the question was raised before Punjab & Haryana High Court:
Whether the Educational Tribunal has jurisdiction to decide all "service disputes" other than matters arising out of disciplinary action?
The brief background, leading to the aforesaid questions, is that the Supreme Court in a judgment reported as T.M.A. Pai Foundation & others Vs. State of Karnataka & others (2002) 8 SCC 481 has directed constitution of Educational Tribunals.
In T.M.A.Pai Foundation's case (supra), the Supreme Court inter alia observed that the teachers and the institutions exist for the students and not vice versa. 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. It was observed that the Management of a private unaided educational institution should conduct disciplinary enquiry keeping in view the principles of natural justice.
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.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a Judicial Officer of the rank of District Judge.
After the aforesaid order was passed by the Supreme Court, a Circular was issued by the Registrar General of this Court on 03.04.2008, authorizing all the District & Sessions Judge in the State of Haryana to hear appeals of the employees of aided/unaided Medical/Dental/Ayurvedic/ Homeopathic/Educational Institutions against the decision of Management within their jurisdiction.
Later, the State Government issued the following notification on 28.05.2008:-
"No.18/18/07-2HBIV in pursuance of the judgment dated 30.12.02 of the Hon'ble Supreme Court of India in TMA Pai Foundation and others Vs. State of Karnataka (2002) 8 SCC 481, wherein Hon'ble Court has observed that for the redressal of grievances of employees of aided / unaided Medical/Dental/ Ayurvedic/Homeopathic Educational Institutions, who are subjected to punishment or termination of services, a mechanism will have to be evolved by constituting appropriate tribunals.
The right of filing appeals would lie before the District & Sessions Judge or Addl. District & Sessions Judges till the Tribunals are set up.
It is notified that all the District & Sessions Judges in the State of Haryana have been authorized by the Hon'ble Punjab and Haryana High Court, Chandigarh vide their No.11233 Gaz.II/IX.CII, dated 03.04.2008 to hear the appeals of the employees of aided/unaided Medical/Dental/Ayurvedic/ Homeopathic/Health Educational Institutions against the decisions of Management within their jurisdiction.
Subsequently, on 07.05.2013 another Notification has been issued by the Haryana Government, which reads as under:
"No.7/45-2010 PS(2) - In pursuance of the judgment dated 30.12.2002 of the Hon'ble Supreme Court of India in TMA Pai Foundation and others Vs. State of Karnataka (2002) 8 SCC 481, wherein Hon'ble Court has observed that for the redressal of grievances of employees of unaided educational institutions, who are subjected to punishment or termination of services, a mechanism will have to be evolved by constituting appropriate tribunals. The right of filing appeals would lie before the District & Sessions Judge or Addl. District & Sessions Judges till the Tribunals are set up.
Accordingly, District & Sessions Judges in the State of Haryana have been authorized to hear appeals of employees of aided/unaided technical education institutions against decision of Management withint their jurisdiction by the Hon'ble Punjab and Haryana High Court, Chandigarh vide No.23414 Gaz.II/IX.CII, dated 10.08.200_. The Tribunals already notified by the Hon'ble High Court will also hear appeals of employees of aided/unaided schools against the orders of Management.
Learned counsel for the petitioners have vehemently argued that the Circular of the High Court dated 03.04.2008 only crystallizes the Forum for hearing of the appeals against the action of the Management. The High Court has no legislative competence to determine the scope of the appeals to be presented before the learned District & Sessions Judges including
Additional District & Sessions Judges. Therefore, the words in the Circular 'against the decision of the Management' have to be read in the context of directions of the Supreme Court, which contemplates constitution of Educational Tribunal only against the action of the Management as a consequence of disciplinary proceedings. The District Judges, so empowered, can only decided those appeals, which are against the decision of the Management pertaining to dismissal, removal and reduction in rank etc. The issues relating to pay fixation……………………. cannot become subject matter of adjudication by the Educational Tribunal. It is argued that some of the orders of this Court holding that the Educational Tribunal has the power to decide all disputes between the Management and the teachers is not made out from the reading of the judgment nor there is any Statute, which contemplates the filing of appeals in such matters before the Educational Tribunal.
It is pointed out that Haryana School Education Act, 1995 (for short 'the Act') deals with disciplinary proceedings against the teachers, but it does not provide for a Forum to challenge the order of the Management, therefore, the order of the Supreme Court has to be read in that context so as to provide right of appeal against the decision of the Management regarding the disciplinary proceedings alone. It is contended that the dispute resolution in respect of pay fixation of the teachers of aided / unaided institution has to be by the Civil Court in the absence of any other Forum created under the Statute.
On the other hand, learned counsel for the respondents argued that the basic intention of the court to constitute Educational Tribunal as per the directions of the Supreme Court in T.M.A.Pai Foundation's case (supra), is that the teachers should not be made to fight their claims before the Civil Court. Therefore, all disputes which could be decided by the Civil Court would be required to be decided by the Educational Tribunal.
It may be noticed that on 29.10.2013, learned Additional Advocate General, Haryana sought time to examine the provisions of the Act, its scope and the powers to be exercised by the Educational Tribunal in terms of the judgment of Supreme Court in T.M.A.Pai Foundation's case (supra). Thereafter, Mr. Poonia made a statement on 14.11.2013 that the State Government is contemplating amendment in the Act to provide disputes settlement mechanism between the teachers and the management of the recognized schools within six months. It was stated that such mechanism will address issues of disputes regarding pay-scales and disciplinary proceedings.
The notification dated 28.05.2008 specifically does not specify as to which orders passed by the management would be appealable, but it is notified that all the District & Sessions Judges have been authorized by the High Court to hear appeals of the employees of aided/unaided Medical/Dental/Ayurvedic/ Homeopathic/Educational Institutions against the decision of Management within their jurisdiction. In other words, the circular of this Court contemplating 'Forum' has been adopted by the State for the purposes of presentation of appeals. Such decision to provide an appeal against the decision of the Management would include all orders which the Management pass in relation to employee of the institution. Such decision to contemplate filing of an appeal against the decision of the Management shall be deemed to be taken in exercise of executive powers of the State in terms of Article 162 of the Constitution of India in the absence of any other legislative enactment dealing with the issue.
The education including technical education, vocational and technical training of Labour specifically falls in Entry 25 of List III of 7th Schedule to the Constitution. However, in terms of Article 243G of the Constitution read with 11th Schedule, Adult and non-formal education is a function assigned to institution of rural self-government. Similarly, Entry 13 of 12th Schedule read with Article 243W empowers the Urban Local Bodies to promote education. In fact, the subject of education may fall in one or the Kumar Vimal other Entry of the 7th Schedule, but it could not be pointed out that there is 2013.11.27 11:44 I attest to the accuracy and integrity of this document Chandigarh C.R.No.4315 of 2012 any other legislation on the subject of teachers and the management of aided or unaided educational institutes in the States except the Act. In the absence of any specific Statute enacted by the Parliament, to regulate the terms of employment of teachers of the educational institutions and the State having enacted the Act, prima facie, it appears that all disputes relating to pay scales and disciplinary proceedings etc. would fall within the legislative competence of the State Government.
The subsequent notification dated 07.05.2013 does not change the scope or jurisdiction of the Educational Tribunal in any substantial manner. Therefore, any decision of the Management could be challenged by way of an appeal before the Educational Tribunal. Consequently, we find that though the Supreme Court in T.M.A.Pai Foundation's case (supra), directed constitution of Educational Tribunal relating to disciplinary matters, but in view of the decision of the State Government, taken in exercise of the executive powers of the State, the decision of the Management regarding pay scale can also be subject matter of appeal before the Educational Tribunal.
In view of the above discussion, we concluded as under:
(ii) In respect of second question, the notification of the State Government constituting Educational Tribunal will include all service disputes arising out of an order passed by the Management, as appealable to the Educational Tribunal. Such right to appeal is not arising in view of the judgment in T.M.A.Pai Foundation's case (supra), but in exercise of the executive powers of the State.
(iii) The State Government shall consider appropriate amendments in the Haryana School Education Act, 1995 in the light of statement made by Mr. Poonia before this Court expeditiously.
Punjab-Haryana High Court
Management Of S.D. Model Senior ... vs District Judge -Cum- Service ... on 27 November, 2013
>>> Punjab-Haryana High Court decided that teacher/employee of even private establishment should approach ‘Educational Tribunal’ first than coming direct to High Court.
Through the present petition, the petitioner who was an employee of respondent No.2- Management Development Institute (hereinafter referred to as the 'Institute') has challenged the termination of his services. He has further prayed for the issuance of a direction to the respondents to reinstate him as Director of the respondent-Institute with all consequential benefits.
Raising a preliminary issue, learned Senior counsel for respondents No.2 and 5 while relying on notification dated 02.03.2015 issued by the Government of Haryana seeks dismissal of the present writ petition on the ground that the petitioner has an efficacious alternate remedy of filing an appeal against the order of termination of his services before the Educational Tribunal, Gurgaon.
The above referred Notification dated 02.03.2015 on which reliance is placed, reads as under :-
" HARYANA GOVERNMENT HIGHER EDUCATION DEPARTMENT NOTIFICATION Dated: the 2nd March, 2015 No.24/21-2011-C-IV(3)- In pursuance to the judgment dated 20.10.2002 of the Hon'ble Supreme Court of India in TMA Pai Foundation and others versus State of Karnataka 2002(8) SCC 481 wherein the Hon'ble Court has observed that for the redressal of grievances of employees of aided/unaided educational institutions who are subjected to punishment or termination of services, a mechanism will have to be evolved by constituting appropriate tribunals. The right of filing appeals would lime before the district and session judges or Additional district and session judges till the tribunals are set up.
It is notified that the District and Session Judges in the State of Haryana have been authorized to heard the appeals of the employees of aided/unaided educational institutions against decision of management within their jurisdiction, by the Hon'ble Punjab and Haryana High Court, Chandigarh vide No.23414 Gaz.II/IX.C.II dated 10.08.2005. The tribunals already notified by the Hon'ble High Court will also bear appeals of Employees of aided/unaided colleges against the orders of management.
Learned counsel for the petitioner further submitted that respondent No.2-Institute was under the persuasive control of the Industrial Finance Corporation of India Limited and therefore, being "State" within the meaning of Article 12 of the Constitution of India was amenable to the writ jurisdiction of this Court. To buttress this submission, counsel for the petitioner relied upon a Division Bench judgment of the Delhi High Court in LPA No.723 of 2004 titled as 'Bernard D'mello versus Industrial Finance Corporation Limited', decided on 05.10.2006, wherein it has been held as under :-
"16. After considering the arguments advanced and the judgments of the Hon'ble Supreme Court cited by counsel and the other findings of the learned Single Judge noted by us, we hold that the IFCI and the Central Government has sufficient control on the MDI. Hence, the reasoning of the learned single Judge in so far as the maintainability of the writ petition under Article 226 in respect of public functions is JYOTI SHARMA 2015.05.30 09:33 I attest to the accuracy and authenticity of this document Chandigarh concerned, based on the established position of law and we hereby affirm the said view."
In view of the above, counsel for the petitioner stated that at the most notification dated 02.03.2015 would provide an alternate remedy to the petitioner and that would not constitute a bar towards the maintainability of the present writ petition before this Court.
A plain reading of the notification dated 02.03.2015, leads me to an irresistible conclusion that the notification covers within its ambit the disputes of employees pertaining to their punishment or termination of their services with the management of any aided and unaided Educational Institution in the State of Haryana.
Still further, this issue was considered and decided by a Division Bench of this Court in 'Management of S.D. Model Senior Secondary School and another versus District Judge-cum-Service Tribunal and another, 2014(2) PLR 89, wherein it was held that the notification issued by the State of Haryana while constituting Educational Tribunals was not arising in view of the judgment of the Apex Court in T.M.A. Pai Foundation's case (supra) but was in the exercise of executive powers of the State of Haryana. Para No.23 (ii) of the judgment, which is relevant is reproduced below:-
"(ii) In respect of second question, the notification of the State Government constituting Educational Tribunal will include all service disputes arising out of an order passed by the Management, as appealable to the Educational Tribunal. Such right to appeal is not arising in view of the judgment in T.M.A. Pai Foundation's case (supra), but in exercise of the executive powers of the State."
In view of the above, I can safely hold that the Educational Tribunals which have been constituted through notification dated 02.03.2015, are not just for settling disputes pertaining to service matters of employees of only private Educational Institutions but covers all aided/unaided Educational Institutions in the State of Haryana.
Further, a perusal of the above reproduced conclusion arrived at by the Division Bench in Management of S.D. Model Senior Secondary School's case (supra) shows that all service disputes of employees of aided and unaided Educational Institutions in the State of Haryana can be adjudicated upon by the Educational Tribunals.
It is true that respondent No.2-Institute would be an amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India being "State" within the meaning of Article 12 of the Constitution of India but as observed earlier in view of the fact that the petitioner has an effective efficacious alternate remedy, I am not inclined to entertain the present writ petition at this stage.
No special circumstances have been shown to me by the counsel for the petitioner which would compel me to interfere at this stage while exercising my writ jurisdiction under Article 226 of the Constitution of India.
The Educational Tribunal is manned by a District Judge who by virtue of the post that he holds and years of experience that he possesses cannot by any length of imagination not to be considered as an efficacious Forum especially when the Forum has been chosen by none other than the Apex Court in 'T.M.A. Pai Foundation's case (supra). All the issues raised by the petitioner with regard to the challenge to his impugned termination can effectively be gone into by the concerned District Judge who constitutes the Educational Tribunal.
Relegation of the petitioner to an efficacious alternate Forum at the very initial stage like the present one would not be prejudicial to the interest of any party especially when, in the peculiar facts of the case in hand, wherein the petitioner had earlier approached the Delhi High Court and then this Court, to direct the Educational Tribunal, Gurgaon, to decide the appeal, if any, to be filed by the petitioner against the termination of his services expeditiously but not later than 9 months from the date of filing of such appeal. The Educational Tribunal, Gurgaon, would also consider and decide the interim prayers to be made by the petitioner along with his appeal, if he chooses to file such an appeal, without any delay but of course by following procedure prescribed by law.
The interim protection given to the petitioner vide order dated 10.03.2015 shall continue for a period of 15 days from today enabling the petitioner in the meanwhile to prefer his appeal against his termination before the Educational Tribunal at Gurgaon.
Punjab-Haryana High Court
Mukul Gupta vs Ifci Ltd And Ors on 29 May, 2015
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The order was passed by a full bench of the high court, comprising Chief Justice (acting) K. Sreedhar Rao, Justice Arup Kumar Goswami and Justice Ujjal Bhuyan
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The teachers in other states, working with private/govt/aided/unaided establishment can unite to demand for Educational Tribunals in respective states and avail cost effective and speedy redreessal of grievances and complaints in all service related matters.