Civil Appeal No 8818 of 1983
From the Judgment and order dated 23121982 of the Madras High Court in WP No 220 221 and 222 of 1980
CS Vaidyanathan MN Krishnamani Parbir Chowdhary SR Bhat and KV Mohan for the Appellants
FS Nariman Harbans Lal Shanti Bhushan Harish N Salve HK Puri section Ramasubramaniam Rajen Mahapatra Miss Mridula Ray Mrs Kitty Kumarmangalam CV Subba Rao R Mohan and AV Rangam for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The important question which arises for determination in this appeal by special leave is whether sections 9 A 10 11 A 12 and 33 of the hereinafter referred to as the Act  are applicable to educational institutions established and administered by minorities which are protected by clause  1 of Article 30 of the Constitution of India
553 the highest grade in the art and science of Medicine and Nursing or in one or other of the related professions to equip them in the spirit of Christ for service in the relief of suffering and the promotion of health  Dr Ida Scudder a daughter of an American Medical missionary in India realising the need for more women doctors in India to give relief of the suffering women in particular started a one bed clinic in 1900 at Vellore in the State of Tamil Nadu
Within two years she set up a 40 bed hospital with the assistance of a group of medical women
Since her main desire was to train women as nurses and doctors who should go out to serve suffering women and children she started the training courses for nurses in 1906 and a medical school for women in 1918
The hospital and the medical school grew in their stature in course of time
The medical school was converted into a medical college with degree courses in 1942
In the year 1947 even men were admitted to the medical college as students
The hospital has since become an important medical institution in South India The hospital is being used for training the students of the medical college by providing clinical facilities
The medical college and the college of nursing in Vellore are affiliated to the University of Madras and they both go by the name the Christian Medical College
In the medical college the post graduate degree courses have also been started
In addition thereto post graduate diploma courses in different specialities have also been started
In the year 1982 when the common judgment of the High Court of Madras in the three writ petitions out of which this appeal arises was delivered there were about 500 students including post graduate students in the medical college 400 in college of nursing and about 164 in para medical courses
The medical college also conducts research into the fundamental causes of diseases their prevention and treatment
It is also claimed that the medical college is a pioneer in the development of higher specialities like Cardiology Neuro Surgery Psychiatry Thoracic Surgery Urology Gastro Enterology etc
The hospital in which the clinical facilities are provided to the students of the medical college is also a very big hospital which attracts large number of patients many of whom are treated as in patients
The college and the hospital are now being managed by respondent No 1 Association
In view of the heavy responsibilities undertaken by the college and the hospital it has become necessary to employ a large number of persons as teachers doctors nurses and other staff for running the college and the hospital and also administrative staff for the purpose of managing their affairs
The employees of the college and the hospital are paid salaries and allowances and are entitled to the usual conditions of service as are applicable to such employees in other medical colleges and hospitals in India
It is natural 554 that in a big establishment like the one under consideration between A the management and its employees there would be disputes with regard to the security of employment and other conditions of service
Sometime during the period 1975 1978 three employees namely Mr Gilbert Samuel a clerk in the Microbiology Department of the Christian Medical College and Hospital Mr M Devadoss a packer in the Central Sterile Supply Department of the Hospital and Mrs Yesudial a cook in the Staff  Student Nurses  Hostel of the Rural Health Center attached to the hospital were dismissed from service by the management
On an industrial dispute being raised by the Christian Medical College Hospital Employee s Union in respect of the dismissal of the above three persons the Government of Madras by its order dated 1921979 referred the following question to the Labour Court for adjudication Whether the non employment of Thiruvalargal Gilbert Samuel M Devadoss and Tmt
Yesudial is justified and if not to what relief each of them would be entitled to compute the relief if any awarded it terms of money if it could be so computed
 This reference was numbered as ID No 52 of 1979 on the file of the Labour Court one R Subramaniam a probationer Stenographer of the above institutions whose services had been terminated in 1975 at the end of the probationary period also raised an industrial dispute in 1978 and that case was also referred to the Labour Court by the State Government on 1141979
The question referred to the Labour Court read as follows Whether the non employment of Thiru R Subramaniam is justified if not to what relief he is entitled to compute the relief if any awarded in terms of money if it could be so computed
 This reference was numbered as ID No 84 of 1979 on the file of the Labour Court
Questioning the validity of the above two references the first respondent Association filed Writ Petition Nos 221 and 222 of 1980 on the file of the High Court of Madras for quashing the said refe 555 rences
The first respondent Association also filed Writ Petition No 220 of 1980 on the file of the High Court of Madras praying for a declaration that the provisions of the Act were unconstitutional and ultra vires and were inapplicable in entirety to the minority educational institutions protected by Article 301 of the Constitution of India like the Christian Medical College and the hospital attached thereto at Vellore
The first respondent Association pleaded that the hospital attached to the Christian Medical College formed an integral part of the college which was an educational institution established and administered by a minority and thus was also entitled to the protection of Article 301 of the Constitution of India
Secondly it was urged that the college and the hospital being minority institutions entitled to the protection of Article 301 of the Constitution of India any industrial dispute arising between the management and employees of the college and the hospital could not be adjudicated upon under the provisions of the Act as such adjudication amounted to interference with the right of the minority to administer the college and the hospital which together constituted an educational institution
It was also contended that the Act was not applicable to educational institutions generally irrespective of their being minority institutions or not The petitions were contested by the Union of India the State of Tamil Nadu the Christian Medical College and Hospital Employees  Union and the workmen concerned
The High Court after hearing the parties recorded the following findings 1
The Christian Medical College Hospital which was attached to the Christian Medical College was an educational institution 2
The Christian Medical College Hospital even though it was an educational institution was an industry within the meaning of the expression industry  given in the Act and 3
Even though the Christian Medical College and the hospital attached thereto constituted an industry they together constituting an educational institution established and administered by a minority sections 9 A 10 11 A 12 and 33 of the Act would not be applicable to them by virtue of Article 301 of the Constitution of India
Accordingly the High Court quashed the references made under section 101c of the Act to the Labour Court
Aggrieved by the judgment of the High Court the Christian Medical College Hospital 556 Employees  Union and one of its workman have filed this appeal by special leave
The principal question which arises for determination in this case is whether the Act which is passed with the twin object of preventing industrial disputes and the settlement of such disputes between employers and employees is applicable to educational institutions which are protected by Article 301 of the Constitution of India
Article 301 of the Constitution of India provides as follows All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice  In Re
The Kerala Educational Bill 1957 1959 SCR 995
this Court construed Article 301 of the Constitution of India and held thus The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities
In the next place the right conferred on such minorities is to establish educational institutions of their choice
It does not say that minorities based on religion should establish educational institutions for teaching religion only or that linguistic minorities should have the right to establish educational institutions for teaching their language only
What the Article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice
Pages l052 l053    
The next thing to note is that the Article in terms gives all minorities whether based on religion or language two rights namely the right to establish and the right to administer educational institutions of their choice
Page 1053 
The right to administer cannot obviously include the right to maladminister
Page 1062    The meaning of Article 30I of the Constitution of India was again considered by a Constitution Bench of this Court in the Ahmedabad St Xavier s College Society  Anr etc
vs 5tate of Gujarct  Anr
  Ray CJ Observed in the above decision thus 557 The minority institutions have the right to administer institutions
This right implies the obligation and duty of the minority institutions to render the very best to the students
In the right of administration checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service
The right to administer is to be tempered with regulatory measures to facilitate smooth administration
The best administration will reveal no trace or colour of minority
A minority institution should shine in exemplary eclectism in the administration of the institution
The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character
Regulations which will serve the interest of the students regulations which will serve the interest of the teachers are of paramount importance in good administration
Regulations in the interest of efficiency of teachers discipline and fairness in administration are necessary for preserving harmony among affiliated institutions
Pages 196 197         
In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy
Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution
The right of a minority to administer its educational institution involves as part of it a correlative duty of good administration
Page 200 Mathew J discussing what type of action by the State would amount to the abridgement of the right guaranteed under Article 301 of the Constitution of India observed at page 265 266 thus The application of the term abridge  may not be difficult in many cases but the problem arises acutely in certain types of situations
The important ones are where a law is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right 558 is secondary or indirect
Measures which are directed at other forms of activities but which have a secondary or direct or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated
As we have already said such measures would include various types of taxes economic regulations laws regulating the wages measures to promote health and to preserve hygiene and other laws of general application
By hpothesis the law taken by itself is a legitimate one aimed directly at the control of some other activity
The question is about its secondary impact upon the admitted area of administration of educational institutions
This is especially a problem of determining when the regulation in issue has an effect which constitutes an abridgement of the constitutional right within the meaning of Article 132
In other words in every case the court must undertake to define and give content to the word abridge  in Article 1321
The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgement
So even if an educational institution established by a religious or linguistic minority does not seek recognition affiliation or aid its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right
Regular tax measures economic regulations social welfare legislation wage and hour legislation and similar measures may of course have some effect upon the right under Article 30I
But where the burden is the same as that borne by others engaged in different forms of activity the similar impact on the right seems clearly insufficient to constitute an abridgement
If an educational institution established by a religious minority seeks no recognition affiliation or aid the state may have no right to prescribe the curriculum sllabi or the qualification of the teachers  Underlining by us
559 machinery for investigation and settlement of industrial disputes between employers and workmen in accordance with the decisions of the International Labour organisation
The Act provides for a machinery for collective bargaining
The object of industrial adjudications has therefore been to be a countervailing force to counteract the inequalities of bargaining power which is inherent in the employment relationship
In one of the commentaries on the Act the need for and the character of industrial adjudication is described as follows The law governing industrial relations is one of the vitally important branches of the law the legal system on which depends the social and economic security of a very large majority
The parties to the industrial disputes present an infinite permutations of attitudes on economics politics and human relations
General consensus on the methods of resolving them is beyond reach
The core of modern industrial law therefore consists of the problems dealing with the conflict arising between the industrial employers and their employees relating to employment and social security
The study of industrial law therefore necessarily concerns itself with the struggle of industrial workmen for security
It is the security of job the minimum standard of living of his future and that of his children and conversely the fear of insecurity which bedevil the worker
In other words security is the keystone in dealing with the industrial relations between the industrial employers and their workers
The industrial worker therefore is the focal point  of any legal enquiry in the industrial relations
In the words of Prof Forkosch the sociologist may see the worker as a human being caught in congeries of frustrations complexes and urges a mind that cannot cope with the baffling contradictions of the modern society
There is therefore as Prof Otto Kahn Freund points out everywhere a constant need for finding a judicium finium regundorum between collective bargaining and legislation of all kinds as instruments for the regulation of conditions of employment wages and hours holidays and pensions health safety and welfare and even increasingly social security See OP Malhotra The Law of Industrial disputes Fourts Edn Vol
I 1985 Introduction page XX Section 2k of the Act defines an industrial dispute 560 dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non employment on the terms of employment or with the conditions of labour of any person
The Act provides for the constitution of works committees in industrial establishments employing 100 workmen or more and they are charged with the duty of removing causes of friction between the employer and workmen in the day to day working of the establishment and promoting measures for securing amity and good relations between them
Industrial peace is most enduring where it is founded on voluntary settlement and the works committees are entrusted with the duty of providing a machinery for the settlement of disputes
Section 12 of the Act provides for the appointment of Conciliation officers in order to negotiate between the managements and their workmen and to bring about settlement if possible
If the conciliation proceedings fail the Conciliation officer has to make a report to the appropriate Government accordingly
A reference to an Industrial Tribunal of a dispute under section 10 of the Act is made where both parties to an industrial dispute apply for such reference or where the appropriate Government considers it expedient so to do
An award of a Tribunal may be in operation for a period of one year subject to the provisions of section 19 of the Act
The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto such obligation arising from the imposition of restraints on the rights of strike and lock out which must remain inviolate except where considerations of public interest override such rights
The Industrial Tribunals or Labour Courts constituted under the Act are presided over by persons having judicial experience such as a person who is or has been a Judge of the High Court or who has been for a period not less than three years a District Judge or an Additional District Judge or a person who has not less than five years  service as presiding officer of a Labour Court constituted under any law for the time being in force or who holds a degree in law of a University established by law in any part of India and is holding or has held an of fice not lower in rank than that of Assistant Commissioner of Labour under the State Government for not less than ten years
The Presiding officer of a Labour Court should also possess substantially the same qualifications and they are set out in section 7 of the Act
Section 9 A of the Act which is one of the sections the applicability of which to a minority educational institution is questioned provides that no employer who proposes to effect any change in the conditions of service 561 applicable to any workman in respect of any matter specified in the Fourth Schedule to the Act shall effect such change without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected or within twenty one days of giving such notice except in certain cases which are mentioned in the proviso thereto
This section was introduced since there was a persistent demand that notice should be given whenever it was proposed to make any change in the conditions of service of the workmen
Section 11 A of the Act confers powers on the Labour Courts Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen
It provides that where an industrial dispute relating to the discharge or dismissal of a workmen has been referred to a Labour Court Tribunal or National Tribunal for adjudication and in the course of the adjudicational proceedings the Labour Court Tribunal or National Tribunal as the case may be is satisfied that the order of discharge or dismissal was not justified it may by its award set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions if any as it thinks fit or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require
On the basis of the materials on record the Tribunal is empowered to pass an appropriate order under section 11 A of the Act
Section 33 of the Act provides that the conditions of service etc
Of the employees should remain unchanged under certain circumstances during pendency of proceedings before an arbitrator or a conciliation officer or a Board or of any proceeding before a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute
It further provides that no employer shall in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding or for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceedings is pending
If the conditions of service relate to any matter not connected with the dispute or if the misconduct of the workman is not connected with the dispute the management should seek the approval of the authority concerned and comply with the other conditions mentioned in the proviso to section 332 of the Act
Section 333 of the Act provides that in the case of protected workmen the express permission of the authority concerned should be obtained before any such action is taken
Section 33 A of the Act pro H 562 vides for the making of an application before a conciliation officer A Board an arbitrator a Labour Court Tribunal or National Tribunal for appropriate relief if section 33 of the Act is contravened
Thus it is seen that the Act is one which is enacted as a social security measure in order to ensure welfare of labour and it falls within one or the other of entry 22 Trade Unions industrial and labour disputes entry E3 23 social security and social insurance employment and unemployment and entry 24 welfare of labour including conditions of work provident funds employer s liability workmen s compensation invalidity and old age pensions and maternity benefits in the List III of the Seventh Schedule to the Constitution of India
The Act generally applies to all industries irrespective of the religion or caste to which the parties belong
It applies to industries owned by the Central and the State Governments too
Any decision given by the Industrial Tribunal or a Labour Court under the Act is subject to judicial review by the High Court under Article 226 of the Constitution of India and an appeal to this Court under Article 136 of the Constitution of India The Labour Court the Industrial Tribunal the High Court and this Court while dealing with matters arising out of the Act have to deal with them objectively
The smooth running of an educational institution depends upon the employment of workmen who are not subjected to victimisation or any other kind of maltreatment
The conditions of service of workmen in all institutions including minority educational institutions have to be protected in the interest of the entire society and any unfair labour practice such as hiring and firing  termination or retrenchment of the service of a workman on irrational grounds will have to be checked
The Act makes provisions in respect of these matters
The Act being a general law for prevention and settlement of industrial disputes cannot be construed as a law which directly interferes with the right of administration of a minority educational institution guaranteed under Article 30 1 of the Constitution of India The law is not enacted with the object of interfering with any such right
It clearly falls within the observation of Mathew J in St Xavier s College case supra that regular tax measures economic regulations social welfare legislation wage and hour legislation and similar measures may of course have some effect upon the right under Article 301
But where the burden is the same as that borne by others engaged in different forms of activity the similar impact on the right seems clearly insufficient to constitute an abridgement
 It is however argued on behalf of the first respondent Association that the application of the provisions of the Act will result in the abridgment of the right of the management of minority educa 563 tional institutions to administer such institutions since there is always a chance in the course of an industrial adjudication that the Tribunal or the Labour Court as the case may be may pass an order setting aside an order of dismissal or removal of a workman passed by the management and reinstating him in service or making an order altering the conditions of service of workmen contrary to the agreement entered into with them
It is urged that such adjudication results in the attenuation of the power of the management to dismiss or remove a workman as and when it likes
It is also stated that the minority educational institution is likely to be exposed to constant and endless litigation which would again adversely affect the right of the minority to establish and administer an educational institution guaranteed under Article 301 of the Constitution of India
Reliance is placed in support of the above propositions on the decision of this Court in the St Xavier s College case supra
In that case the Court held that clause b of sub section 1 and clause b of sub section 2 of section 51 A of the Gujarat University Act 1949 were violative of Article 301 of the Constitution of India so far as the minority educational institutions were concerned
The Court also held that section 52 A of that Act was also violative of Article 301 of the Constitution of India
The contentions of the parties urged in that case and the conclusion reached by the Court are briefly stated in the judgment of Khanna J at pages 243 244 which read thus Clause a of sub sections 1 and 2 of section 5 lA of the impugned Act which make provision for giving a reasonable opportunity of showing cause against a penalty to be proposed on a member of the staff of an educational institution would consequently be held to be valid
Clause b of those sub sections which gives a power to the Vice Chancellor and officer of the University authorised by him to veto the action of the managing body of an educational institution in awarding punishment to a member of the staff in my opinion interferes with the disciplinary control of the managing body over its teachers
It is significant that the power of approval conferred by clause b in each of the two sub sections of section 5 lA on the Vice Chancellor or other officer authorised by him is a blanket power
No guidelines are laid down for the exercise of that power and it is not provided that the approval is to be withheld only in case the dismissal removal reduction in rank or termination of service is malafide or by way of victimisation or other similar cause
The conferment of such blanket power 564 on the Vice Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious inroad on the right of the managing body to administer an educational institution
Clause b of each of the two sub sections of section 51A should therefore be held to be violative of article 301 so far as minority educational institutions are concerned
Section 52A of the Act relates to the reference of disputes between a governing body and any member of the teaching other academic and non teaching staff of an affiliated college or recognized or approved institution connected with the conditions of service of such member to a Tribunal of Arbitration consisting of one nominated by the governing body of the college or as the case may be of the recognised or approved institution one member nominated by the member of the staff involved in the dispute and an Umpire appointed by the Vice Chancellor
Section 52A is widely worded and as it stands it would cover within its ambit every dispute connected with the conditions of service of a member of the staff of an educational institution however trivial or insignificant it may be which may arise between the governing body of a college and a member of the staff
The effect of this section would be that the managing committee of an educational institution would be embroiled by its employees in a series of arbitration proceedings
The provisions of section 52A would thus act as a spoke in the wheel of effective administration of an educational institution
It may also be stated that there is nothing objectionable to selecting the method of arbitration for settling major disputes connected with conditions of service of staff of educational institutions
It may indeed be a desideratum
What is objectionable apart from what has been mentioned above is the giving of the power to the Vice Chancellor to nominate the Umpire
Normally in such disputes there would be hardly any agreement between the arbitrator nominated by the governing body of the institution and the one nominated by the concerned member of the staff
The result would be that the power would vest for all intents and purposes in the nominee of the Vice Chancellor to decide all disputes between the governing body and the member of the staff connected with 565 the latter s conditions of service
The governing body would thus be hardly in a position to take any effective disciplinary action against a member of the staff
This must cause an inroad in the right of the governing body to administer the institution
Section 52A should therefore be held to be violative of article
301 so far as minority educational institutions are concerned  emphasis added
We are of the view that the decision in the St Xavier s College case supra is distinguishable from the present one
Clause b of the two sub sections of section 51 A of the Gujarat University Act 1949 conferred a blanket power on the Vice Chancellor or other officer authorised by him to approve or not any recommendation made by the management regarding the dismissal removal reduction in rank or termination of service of a workman
The said Act did not furnish any guidelines regarding the exercise of that power which was in the nature of a veto  power
Secondly section 52 A of the Gujarat University Act 1949 which required the disputes between the governing body and any member of the teaching staff other academic and non teaching staff of an affiliated college or recognised or approved institution connected with the conditions of service of such member to be referred to a Tribunal of Arbitration consisting of one nominated by the governing body of the college or as the case may be of the recognised or approved institution one member nominated by the member of the staff involved in the dispute and an Umpire approved by the ViceChancellor was held to be an unconstitutional interference with a right guaranteed under Article 301
Of the Constitution of India as it was likely to involve the minority educational institutions in a series of arbitration proceedings and that the power vested in the Vice Chancellor to nominate an Umpire to decide all disputes between the governing body and the members of the staff connected with the latter s conditions of service would make virtually the Vice Chancellor the person who would have the ultimate voice in the decision of the Tribunal of Arbitration
There was also no check on the question whether the dispute was one which deserved to be considered by the Tribunal of Arbitration
In the instant case there is no room for such contingency to arise
A reference under the Act has to be made by the Government either when both parties requested the Government to refer an industrial dispute for adjudication or only when it is satisfied that there exists an industrial dispute
When an industrial dispute exists or is apprehended the conciliation officer should first consider whether it can be settled after hearing both the parties and it is only 566 when his efforts to bring about a settlement fail and he makes a report accordingly to the appropriate Government the Government is called upon to take a decision on the question whether the case is a fit one for reference to the Industrial Tribunal or the Labour Court
It is only when a reference is made by the Government the Industrial Tribunal vi the Labour Court gets jurisdiction to decide a case
It cannot therefore be said that each and every dispute raised by a workman would automatically end up in a reference to the Industrial Tribunal or the labour Court
Secondly the circumstances in which the Industrial Tribunal or the Labour Court may set aside the decision arrived at by the management in the course of a domestic enquiry held by the management into an act of misconduct of a workman are evolved by a series of judicial decisions
In Indian Iron  Steel Co Ltd and Another vs Their workmen 1958 SCR 667 this Court has observed that the powers of an industrial tribunal to interfere in cases of dismissal of a workman by the management are not unlimited and the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management
It will interfere a where there is want of good faith b when there is victimisation or unfair labour practice c when the management has been guilty of the basic error or violation of the principles of natural justice and d when on the materials before the Court the finding is completely baseless or perverse
It cannot therefore be said that the Industrial Tribunal or the Labour Court will function arbitrarily and interfere with every decision of the management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry
The power exercisable by the Industrial Tribunal or the Labour Court cannot therefore be equated with the power of veto  conferred on the Vice Chancellor under clause b of either of the two sub sections of section 51 A of the Gujarat University Act 1949
As we have already said earlier the decision of the Industrial Tribunal or the Labour Court is open to judicial review by the High Court and by this Court on appeal
Section 11 A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court
The power under section 11 A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under section 11 A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned
The Industrial Tribunal or the Labour Court has to give reasons for its EMPLOYEES UNION vs CM COLLEGE VENKATARAMIAH J 567 567 decision
The decision of the Industrial Tribunal or of the Labour Court is again as already said subject to judicial review by the High A Court and this Court
In Lilly Kurian vs Sr
Lewina and Ors J 1979 1 SCR 820 this Court was required to consider a provision which was more or less similar to the provisions in St Xavier s College case supra
The Court held that the conferment of a right of appeal to an outside authority like the Vice Chancellor which took away the disciplinary power of a minority educational institution was violative of Article 30 1 of the Constitution of India since the said power was uncanalised and unguided in the sense that no restriction had been placed on the exercise of the power
Explaining his own decision in Lilly Kurian s case supra AP Sen J has observed recently in Mrs Y Theclamma vs Union of India and Ors  that while the right of the minorities religious or linguistic to establish and administer educational institutions of their choice could not be interfered with restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof can validity be prescribed
He further held that regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action and that the endeavour of the court in all the cases had been to strike a balance between the constitutional obligation to protect what was secured to the minorities under Article 301 of the Constitution of India and the social necessity to protect the members of the staff against arbitrariness and victimisation
Accordingly AP Sen J held that section 84 of the Delhi School Education Act 1973 was designed to afford some measure of protection to teachers of minority institutions without interfering with the management s right to take disciplinary action
According to the learned Judge section 84 which provided that where a management committee of a recognised school intended to suspend any of its employees such intention should be communicated to the Director and no such suspension should be made except with the prior permission of the Director was not invalid
The learned Judge emphasised his earlier view expressed in Lilly Kurian s case supra that the right guaranteed under Article 301 of the Constitution of India was subject to the regulatory power of the State and that Article 301 of the Constitution of India was not a charter for maladministration
In doing so the learned Judge followed the observation made by Chinnappa Reddy J in Frank Anthony Public School Employees  Association vs Union of H 568 India and others   which read as follows Section 84 would be inapplicable to minority institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a management proposed to suspend an employee but we see that it is not so
The management has the right to order immediate suspension of an employee in case of gross misconduct but in order to prevent an abuse of power by the management a safeguard is provided to the employee that approval should be obtained within 15 days
The Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension
The provision appears to be eminently reasonable and sound and the answer to the question in regard to this provision is directly covered by the decision in All Saints High School where Chandrachud CJ and Kailasam J upheld section 33a of the Act impugned therein
 In All Saints High School Hyderabad etc etc
vs Government of Andhra Pradesh and Ors
  etc
a provision imposing certain restrictions on the power of suspension of a teacher by a minority educational institution which was contained in clauses a and b of sub section 3 of section 3 of the Andhra Pradesh Recognised Private Educational Institution Control Act 1975 was upheld by Chandrachud CJ at pages 937 939 thus Section 33a provides that no teacher employed in any private educational institution shall be placed under suspension except when an inquiry into the gross misconduct of such teacher is contemplated
Section 33b provides that no such suspension shall remain in force for more than a period of two months and if the inquiry is not completed within that period the teacher shall without prejudice to the inquiry be deemed to have been restored as a teacher
The proviso to the sub section confers upon the competent authority the power for reasons to be recorded in writing to extend the period of two months for a further period not exceeding two months if in its opinion the inquiry could not be completed within the initial period of two months for reasons directly attributable to the teacher
With respect I find it difficult to agree with Brother 569 Fazal Ali that these provisions are violative of article 301
The question which one has to ask oneself is whether in the normal course of affairs these provisions are likely to interfere with the freedom of minorities to administer and manage educational institutions of their choice
It is undoubtedly true that no educational institution can function efficiently and effectively unless the teachers observe at least the commonly accepted norms of good behaviour
Indisciplined teachers can hardly be expected to impress upon the students the value of discipline which is a sine qua non of educational excellence
They can cause incalculable harm not only to the cause of education but to the society at large by generating a wrong sense of values in the minds of young and impressionable students
But discipline is not to be equated with dictatorial methods in the treatment of teachers
The institutional code of discipline must therefore conform to acceptable norms of fairness and cannot be arbitrary or fanciful
I do not think that in the name of discipline and in the purported exercise of the fundamental right of administration and management any educational institution can be given the right to hire and fire  its teachers
After all though the management may be left free to evolve administrative policies of an institution educational instruction has to be imparted through the instrumentality of the teachers and unless
they have a constant assurance of justice security and fair play it will be impossible for them to give of their best which alone can enable the institution to attain the ideal of educational excellence
Section 33a contains but an elementary guarantee of freedom from arbitrariness to the teachers
The provision is regulatory in character since it neither denies to the management the right to proceed against an erring teacher nor indeed does it place an unreasonable restraint on its power to do so
It assumes the right of the management to suspend a teacher but regulates that right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and unless the inquiry is in respect of a charge of gross misconduct
Fortunately suspension of teachers is not the order of the day for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educational excellence can be considered to be violative of the right given by article 301
The limitation of the period of suspension initially to two 570 months which can in appropriate cases be extended by another two months partakes of the same character as the provision contained in section 33a
In the generality of cases a domestic inquiry against a teacher ought to be completed within a period of two months or say within another two months
A provision founded so patently on plain reason is difficult to construe as an invasion of the right to administer an institution unless that right carried with it the right to maladminister
I therefore agree with Brother Kailasam that sections 33a and 33b of the Act do not offend against the provisions of article 301 and are valid In view of the observations of this Court in All Saints High School s case supra Frank Anthony Public School s case supra and Y Theclamm s case supra it has to be held that the provisions of the Act which provide for the reference of an industrial dispute to an Industrial Tribunal or a Labour Court for a decision in accordance with judicial principles have to be declared as not being violative of Article 301 of the Constitution of India
It has to be borne in mind that these provisions have been conceived and enacted in accordance with the principles accepted by the International Labour organisation and the United Nations Economic Social and Cultural organisation
The International Convenent on Economic Social and Cultural Rights 1966 which is a basic document declaring certain specific human rights in addition to proclaiming the right to work as a human right treats equitable conditions of work prohibition of forced labour provision for adequate remuneration the right to a limitation of work hours to rest and leisure the right to form and join trade unions of ones  choice the right to strike etc
also as human rights
The Preamble of our Constitution says that our country is a socialist republic
Article 41 of the Constitution provides that the State shall make effective provision for securing right to work
Article 42 of the Constitution provides that the State shall make provision for securing just and humane conditions of work and for maternity relief
Article 43 of the Constitution states that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers agricultural industrial or otherwise work a living wage conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities
These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management
Even the management of a minority educational institution has 571 got to respect these rights and implement them
Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in this case which are brought into force in the country
Due obedience to those laws would assist in the smooth working of the educational institutions and would facilitate proper administration of such educational institutions
If such laws are made inapplicable to minority educational institutions there is every likelihood of such institutions being subjected to maladministration
Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment unemployment security of work and other conditions of workmen it cannot be said that the right guaranteed under Article 301 of the Constitution of India is violated
If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages as the case may be due to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit is Article 301 violated Certainly not
Similarly the right guaranteed under Article 301 of the Constitution is not violated if a minority school is ordered to be closed when an epidemic breaks out in the neighbourhood if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school
In the same way if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose
Laws are how passed by all the civilised countries providing for such a machinery
The Act with which we are concerned in this case is an Act which has been brought into force for resolving such industrial disputes
Sections 10 11 A 12 and 33 of the Act cannot therefore be construed as interfering with the right guaranteed under Article 301 of the Constitution of India
Similarly section 9 A of the Act which requires the management to issue a notice in accordance with the said provision in order to make changes in the conditions of service which may include changes in the hours of work leave rules introduction of new rules of discipline etc cannot be considered as violative of the right guaranteed under Article 301 of the Constitution of India
The High Court was in error in thinking that the power of the Industrial Tribunal or the Labour Court under the Act was uncanalised unguided and unlimited and in thinking that the said power was equivalent to the power of the Vice Chancellor or any other officer nominated by him functioning under 572 the Gujarat University Act 1949 which was the subject matter of decision in the St Xavier s College case supra
Accordingly we are of the view that the provisions of sections 9A 10 llA 12 and 33 of the Act are applicable to the minority educational institutions like the Christian Medical College and hospital at Vellore also
Before concluding we feel that it is appropriate to refer to some decisions of the Supreme Court of the United States of America in which it has construed some of the provisions of the Constitution of the United States of America which appear to confer absolute rights
It is interesting to note that the right to enter into a contract which was considered to be an absolute right at one stage is no longer construed as a bar on the legislature making a law imposing restrictions on the managements in order to advance the welfare of the labour
The Fourteenth Amendment to the Constitution of the United States of America provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States nor shall any State deprive any person of life liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws
The liberty  guaranteed by this clause was variously defined by the Supreme Court of America as will be seen hereinafter
In the early years it meant almost exclusively liberty of contract 
The concept of liberty of contract  was elevated to the status of an accepted doctrine in Allgeyer vs Louisiana  Applied repeatedly in subsequent cases as a restraint on state power freedom of contract was also alluded to as a property right as is evident in the language of the Court in Coppage vs Kansas  which said that included in the right of personal liberty and the right of private property partaking of the nature of each is the right to make contracts for the acquisition of property
Chief among such contracts is that of personal employment by which labour and other services are exchanged for money or other forms of property
If this right be struck down or arbitrarily interfered with there is substantial impairment of liberty in the long established constitutional sense
emphasis added
In Lochner vs New York  1905 a law restricting employment in bakeries to ten hours per day and 60 hours per week was held to be an unconstitutional interference with the right of adult labourers to contract with respect to their means of livelihood
In Adair vs United States  1908 a statute attempting to outlaw yellow dog  contracts whereby as a condition of obtaining employment a worker had to agree not to join or to remain a member of a union were voided on grounds of unconstitutional impairment of freedom of contract or more particu 573 larly of the unrestricted right of the employer to hire and fire
In this case the Supreme Court of the United States of America went to the extent of holding that it was a part of every man s civil rights that he should be left at liberty to refuse business relations with any person whomsover whether the refusal rested upon reason or was the result of whim caprice prejudice or malice and with his reasons neither the public nor third person had any legal concern
This was done during the first decade of this century
But during 1930s liberty  in the sense of freedom of contract judicially translated into what Justice Black has labelled the Allgeyer Lochner Adair Coppage constitutional doctrine lost its potency as an obstacle to the enforcement of legislation calculated to enhance the bargaining capacity of workers as against that already possessed by their employers Vide Lincoln Federal Labour Union vs Northwestern Iron  Metal Co  1949
It is now settled in the United States of America that neither the contract  clause nor the due process  clause had the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health safety good order comfort or general welfare of the community and that this power can neither be abdicated nor bargained away and is inalienable even by express grant and that all contract and property or other vested rights are held subject to its fair exercise
In view of the change in the attitude of the Court laws regulating hours of labour labour in mines employment of children in hazardous occupations payment of wages minimum wages laws workmen s compensation laws and collective bargaining have been upheld in recent years even though the right guaranteed by the Fourteenth Amendment had been once construed as an absolute right not alienable by any consideration of public weal
Two other provisions of the Constitution of the United States of America which appear to confer absolute rights have also been construed as rights which may be regulated by the statute in the public interest in exercise of its police powers and they are the religious freedom and the freedom of expression
The relevant part of the First Amendment to the Constitution of the United States of America reads that the Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press
 In Reynolds vs United States  1879 the question for consideration was whether the conviction of a member of the Mormons faith under a law prohibiting polygamy despite the fact that an accepted doctrine of his church which then imposed on its male members the duty to practice polygamy was valid or not
The Supreme Court of the United States of America rejecting the contention of the 574 accused based on the right which guaranteed the free exercise of religion observed thus  
There never has been a time in any State of the Union when polygamy has not been an offense against society cognizable by the civil courts and punishable with more or less severity
In the face of all this evidence it is impossible to believe that the constitutional guaranty of religion freedom was intended to prohibit legislation in respect to this more important feature of social life
Marriage while from its very nature a sacred obligation is nevertheless in most civilized nations a civil contract aud usually regulated by law
Upon it society may be said to be built and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal 
An exceptional colony of polygamists under an exceptional leadership may some times exist for a time without appearing to disturb the social condition of the people who surround it but there cannot be a doubt that unless restricted by some form of constitution it is without the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion
In our opinion the statute immediately under consideration is within the legislative power of Congress
It is constitutional and valid as prescribing a rule of action for all those residing in the territories and in places over which the United States have exclusive control
This being so the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute
If they are then those who do not make polygamy a part of their religious belief may be found guilty and punished while those who do must be acquitted and go free
This would be introducing a new element into criminal law
Laws are made for the government of actions and while they cannot interfere with mere religious belief and opinions they may with practices
Suppose one be lieved that human sacrifices were a necessary part of religious worship would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice or if a wife religiously believed it was 575 her duty to burn herself upon the funeral pile of her dead husband would it be beyond the power of the civil government to prevent her carrying her belief into practice So here as a law of the organization of society under the exclusive dominion of the United States it is provided that plural marriages shall not be allowed
Can a man excuse his practices to the contrary because of his religious belief To permit this would be to make the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself
Government could exist only in name under such circumstances
More recent decisions of the Supreme Court of America on the above question show that the said Court has always balanced the interest asserted by the Government against the claim of religious liberty accepted by the person affected and if the governmental interest is compelling and if no alternative forms of regulation would subserve that interest the claimant of the right is required to yield
Thus it is seen that the religious freedom guaranteed by the First Amendment is not absolute although the Court has tried to protect substantially the exercise of religious freedom by the citizens of the United States of America
Similarly as regards the right of free speech and expression the Supreme Court of the United States of America has observed in Whitney vs California  1927 thus But although the rights of free speech and assembly are fundamental they are not in their nature absolute
Their expercise is subject to restriction if the particular restriction proposed is required in order to protect the State from destruction or from serious injury political economic or moral
 It may be noted that the Constitution of the United States of America does not contain any clauses corresponding to Article 251 of the Constitution of India which guarantees freedom of conscience and free profession practice and propagation of religion subject to public order morality and health and to the other provision of of Part III of the Constitution of India and Article 252 of the Constitution which provides that nothing in this article shall affect the operation of H 576 any existing law or prevent the State from making any law a regulating or restricting any economic financial political or other secular activity which may be associated with religious practice   The Constitution of the United States of America also does not contain a provision corresponding to clause 2 of Article 19 of the Constitution of India which provides that nothing in sub clause a of clause 1 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said clause in the interests of the sovereignty and integrity of India the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
 Yet the right to liberty the right to religious freedom and the right of free speech though they appear to be asbolute have been construed to be subject to regulation by the State in exercise of its legitimate police powers
We have set out in some detail these aspects of the constitutional law of the United States of America in order to facilitate the construction of and the meaning to be given to our own constitution though we need not be guided always by what the Supreme Court of the United States of America says about its own constitution Having given our very anxious consideration to the right of the minorities guaranteed under Article 301 of the Constitution of India and the necessity for having a general law which regulates the relationship between employers and workmen and after balancing the two interests we have come to the conclusion that the decision of the High Court is liable to be set aside and the three writ petitions filed before the High Court should be dismissed
We accordingly allow this appeal set aside the common judgment of the High Court in Writ Petition Nos 220 to 222 of 1980 on the file of the High Court and dismiss the said writ petitions
The Labour Court to which the references have been made by the Government of Tamil Nadu shall now proceed to dispose of the said references in accordance with law
There shall be no order as to costs
HLC Appeal allowed


Summary:
The Services of the appellants who were Railway servants were terminated for reasons of national security under section 3 of the Railway Services Safeguarding of National Security Rules 1949
Notices served on them under that section to show cause charged them as follows Whereas in the opinion of the
General Manager you are reasonably suspected to be a member and office secretary of the B N Rly Workers  Union Communist sponsored and were thickly associated with communists such as Om Prakash Mehta B N Mukherjee R L Reddi etc in subversive activities in such manner as to raise doubts about your reliability and loyalty to the State in that though a Government employee you attended private meetings of the Communists carried on agitation amongst the Railway workers for a general strike from November 1948 to January 1949 evidently to paralyse communication and movement of essential supplies and thereby create disorder and confusion in the country and that consequently you are liable to have your services terminated under rule 3 Of the said Rules
Orders of suspension were passed on them
They made their representations
The committee of Advisers on enquiry and after examining them found that the charges were true and the General Manager acting on its report terminated the services of the appellants giving them a month s salary in lieu of notice
The appellants moved the High Court under article 226 of the Constitution and contended that the Security Rules contravened articles 14 191c and 311 of the Constitution and as such the orders terminating their services were void
The High Court did not decide the Constitutional validity of the Security Rules and dismissed the petitions on other grounds
Held that the words subversive activities occurring in Rule 3 Of the Railway Services Safeguarding of National Security Rules 1949 in the context of the objective of national security which they have in view are sufficiently precise in import to 1053 sustain a valid classification and the Rules are not thereforeinvalid as being repugnant to article 14 of the Constitution
Ananthanarayanan vs Southern Railway A I R 1956 Mad 220 disapproved
The charge shows that action was taken against the appellants not because they were Communists or trade unionists but because they were engaged in subversive activities
The orders terminating their services could not
therefore contravene article 191c of the Constitution since they did not infringe any of the rights of the appellants guaranteed by that Article which remained precisely what they were before
Article 311 of the Constitution can apply only when there is an order of dismissal or removal by way of punishment
As the terms of employment of the appellants provided that their services could be terminated on a proper notice and R 7 Of the Security Rules preserved such rights as benefits of pension gratuities and the like to which an employee might be entitled under the service rules there was neither premature termination nor forfeiture of benefits already acquired so as to amount to punishment
The order  terminating the services under R 3 Of the Security Rules stood on the same footing as an order of discharge under R 148 of the Railway Establishment Code and was neither one of dismissal nor removal within the meaning of article 311 of the Constitution
Article 311 had therefore no application
Parshotam Lal Dhingra vs Union of India Civil Appeal No 65 Of 1957 relied on
Satish Chandra Anand vs Union of India 1953 section C R 655 Shyam Lal vs The State of Uttar Pradesh and the Union of India  and State of Bombay vs Saubhagchand M Doshi Civil Appeal No 182 Of 1955 referred to
Although the Rules are clearly prospective in character materials for taking action against an employee thereunder may be drawn from his conduct prior to the enactment of the Rules
The Queen vs St Mary Whitechapel  and The Queen vs Christchurch   referred to