CWP-25172-2018 (O&M) -1-
CWP-31340-2018 (O&M)
CWP-2985-2019
CWP-31342-2018 and
CWP-31336-2018 (O&M)
DPSG PALAM VIHAR GURUGRAM VS RAJNI SHARMA AND ANOTHER
Present: Mr. A.S. Talwar, Advocate for the petitioner.
Mr. Ajay Bhardwaj, Advocate
Mr. Shiv Kumar Rana, Advocate for the respondents.
This bunch of writ petitions has been filed under Article 226/227 of the Constitution of India, CWP No. 25172 of 2018 being the lead case, for issuance of a writ in the nature of certiorari for quashing order dated 18.07.2018 (Annexure P-6) passed by the Education Tribunal, Gurugram.
In brief, the case set up is that respondent No. 2 was under contractual employment of DPSG, Palam Vihar, Gurugram and was served with a termination order dated 16.11.2017. The said order was challenged before the Education Tribunal wherein an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) was filed, praying that since there is an arbitration agreement between the parties and therefore, the matter should be referred to arbitration. The Education Tribunal vide order dated 18.07.2018 dismissed the application filed under Section 8 of the 1996 Act. Aggrieved against the said order, the present writ petition has been filed.
Learned counsel appearing on behalf of the petitioner would submit that as per Section 20 of the Haryana School Education Act, 1995, the Managing Committee of every recognized private school shall enter into a written contract of service with every employee of such school and as per Section 20(3)(e) of the said Act, any dispute arising out of any breach of contract between the employee and the managing committee with regard to pay and other allowances, leave of absence, age of retirement, contributory provident fund and other benefits and any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employee, will be referred to arbitration. Once a contract of service has been entered into specifying terms and conditions of service of an employee, his allowances, age of retirement, etc. and a dispute arises with regard thereto including a dispute regarding dismissal or removal from service or reduction in rank, the matter has to be referred to arbitration.
Learned counsel appearing for the petitioner would further argue that even though the Education Tribunal has been set up in terms of the judgment rendered by the Hon'ble Supreme Court in TMA Pai Foundation and others Vs. State of Karnataka and others (2002) 8 SCC 481, it would not be able to adjudicate a dispute which has arisen between the employer and employee in case a service contract has been entered into between them, containing a clause for arbitration. It is also argued that the service contract has been duly signed by both parties and therefore, the matter has to be necessarily referred to arbitration, which has not been done in the present case, as the application under Section 8 of the Act of 1996 stands dismissed.
The question that arises for consideration is whether an Education Tribunal can entertain the matter where a service contract has been entered into between the parties containing an arbitration clause. Counsel for the parties would seek time to assist the Court on the issue.
Adjourned to 31.07.2023. A photocopy of this order be placed on the file of each connected case.
(JAISHREE THAKUR) JUDGE March 23, 2023 Pankaj
From India, Gurgaon
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CWP-31340-2018 (O&M)
CWP-2985-2019
CWP-31342-2018 and
CWP-31336-2018 (O&M)
DPSG PALAM VIHAR GURUGRAM VS RAJNI SHARMA AND ANOTHER
Present: Mr. A.S. Talwar, Advocate for the petitioner.
Mr. Ajay Bhardwaj, Advocate
Mr. Shiv Kumar Rana, Advocate for the respondents.
This bunch of writ petitions has been filed under Article 226/227 of the Constitution of India, CWP No. 25172 of 2018 being the lead case, for issuance of a writ in the nature of certiorari for quashing order dated 18.07.2018 (Annexure P-6) passed by the Education Tribunal, Gurugram.
In brief, the case set up is that respondent No. 2 was under contractual employment of DPSG, Palam Vihar, Gurugram and was served with a termination order dated 16.11.2017. The said order was challenged before the Education Tribunal wherein an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) was filed, praying that since there is an arbitration agreement between the parties and therefore, the matter should be referred to arbitration. The Education Tribunal vide order dated 18.07.2018 dismissed the application filed under Section 8 of the 1996 Act. Aggrieved against the said order, the present writ petition has been filed.
Learned counsel appearing on behalf of the petitioner would submit that as per Section 20 of the Haryana School Education Act, 1995, the Managing Committee of every recognized private school shall enter into a written contract of service with every employee of such school and as per Section 20(3)(e) of the said Act, any dispute arising out of any breach of contract between the employee and the managing committee with regard to pay and other allowances, leave of absence, age of retirement, contributory provident fund and other benefits and any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employee, will be referred to arbitration. Once a contract of service has been entered into specifying terms and conditions of service of an employee, his allowances, age of retirement, etc. and a dispute arises with regard thereto including a dispute regarding dismissal or removal from service or reduction in rank, the matter has to be referred to arbitration.
Learned counsel appearing for the petitioner would further argue that even though the Education Tribunal has been set up in terms of the judgment rendered by the Hon'ble Supreme Court in TMA Pai Foundation and others Vs. State of Karnataka and others (2002) 8 SCC 481, it would not be able to adjudicate a dispute which has arisen between the employer and employee in case a service contract has been entered into between them, containing a clause for arbitration. It is also argued that the service contract has been duly signed by both parties and therefore, the matter has to be necessarily referred to arbitration, which has not been done in the present case, as the application under Section 8 of the Act of 1996 stands dismissed.
The question that arises for consideration is whether an Education Tribunal can entertain the matter where a service contract has been entered into between the parties containing an arbitration clause. Counsel for the parties would seek time to assist the Court on the issue.
Adjourned to 31.07.2023. A photocopy of this order be placed on the file of each connected case.
(JAISHREE THAKUR) JUDGE March 23, 2023 Pankaj
From India, Gurgaon
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The Apex Court, in the historic case of Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation (2018) 16 SCC 299, had ruled that in all civil cases, a stay granted by a court shall automatically expire at the end of 6 months from the date of the order.
Can the Educational Tribunal start hearing in this matter?
From India, Gurgaon
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Can the Educational Tribunal start hearing in this matter?
From India, Gurgaon
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Previous details of this matter are given below.
Delhi Public School Ghaziabad Society (CBSE Affiliation number is 530101) had taken over Chiranjiv Bharati School (CBSE Affiliation number is 530101) on 1st April 2016 and issued a letter stating that you are now an employee of DPSG under the same terms and conditions as those you had signed with Chiranjiv Bharati School. However, in 2018, without providing any prior notice, DPSG informed you that your job was terminated and there was no need for you to come to school.
DPSG, with affiliation number 530101, obtained CBSE affiliation in 2019. How can DPSG terminate your job in January 2018 when you were an employee of Chiranjiv Bharati School since 2001, which was taken over by DPSG in 2016?
You appealed to the education tribunal, after which DPSG filed an application in the Educational Tribunal Gurgaon, requesting arbitration. The education tribunal judge dismissed the application, stating that there was no valid agreement between the teacher and DPSG, hence it could not be referred to arbitration. Subsequently, in 2018, DPSG obtained a court order from the High Court stating that proceedings would continue but no final order would be passed.
To date, there has been no resolution in this matter, causing a delay in achieving justice.
From India, Gurgaon
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Delhi Public School Ghaziabad Society (CBSE Affiliation number is 530101) had taken over Chiranjiv Bharati School (CBSE Affiliation number is 530101) on 1st April 2016 and issued a letter stating that you are now an employee of DPSG under the same terms and conditions as those you had signed with Chiranjiv Bharati School. However, in 2018, without providing any prior notice, DPSG informed you that your job was terminated and there was no need for you to come to school.
DPSG, with affiliation number 530101, obtained CBSE affiliation in 2019. How can DPSG terminate your job in January 2018 when you were an employee of Chiranjiv Bharati School since 2001, which was taken over by DPSG in 2016?
You appealed to the education tribunal, after which DPSG filed an application in the Educational Tribunal Gurgaon, requesting arbitration. The education tribunal judge dismissed the application, stating that there was no valid agreement between the teacher and DPSG, hence it could not be referred to arbitration. Subsequently, in 2018, DPSG obtained a court order from the High Court stating that proceedings would continue but no final order would be passed.
To date, there has been no resolution in this matter, causing a delay in achieving justice.
From India, Gurgaon
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The matter has not reached finality, so at this stage, no party can state that they have won or lost. The Honorable court has not considered the matter on its merits and has fixed the matter for hearing all the parties on 31.07.23 on the question of whether the Tribunal can hear the matter or whether it has to be referred for arbitration as per the service contract. Hopefully, the court would hear the matter on that date, and you can be sanguine of success.
From India, Mumbai
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1593From India, Mumbai
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