Case: Lilly Kurian Vs. Sr. Lewina And Ors

which it applies. Again, we have not to consider here either the wisdom or unwisdom of such a provision or the validity of any part of section 51A of the Act on the ground that it violates any fundamental right other than the ones conferred by Art. 30(1) of the Constitution. Dwivedi J. stated: The purpose of s. 51A is to check this kind of misuse of the right to fire an employee. So the Vice-Chancellors power of approval is not unguided and unreasonable. After the Chancellor, the Vice-Chancellor is the nex t highest officer of the University. It should be presumed that in granting or withholding approval he would act according to reason and justice. 37. When the matter goes before the Vice-Chancellor for approval, both the management and the teacher or the member of the non-teaching staff should be heard by him. Hearing both parties is necessarily implied, because without hearing either of them it will be difficult for him to make up his mind whether he should grant or withhold approval to the action proposed by the managing body of the educational institution. It would also follow that while granting approval or disapproval, the Vice-Chancellor should record reasons, for the exercise of his power is subject to control by courts. The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, mala fide or illegal.An analysis of the judgments in St. Xaviers Colleges case (supra) clearly shows that seven out of nine Judges held that the provisions contained in clauses (b) of sub- sections (1) and (2) of section 51A of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educational institutions. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made on this right to dispense with their services under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the University authorised by him, uncanalised, unguided and unlimited power to veto the actions of the management. According to the majority view, the conferment an such blanket power on the Vice-Chancellor and his nominee was an infringement of the right of administration guaranteed under Art. 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in clauses (b) of sub-sections (1) and (2) of section 51A of the Act had the effect of destroying t he minority institutions disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted by the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor or an officer of the University authorised by him. On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures. The power of appeal conferred on the Vice-Chancellor under Ordinance 33(4) is not only a grave encroachment on the institutions right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined; and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside a n order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items- (ii) to (v) of Ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under ordinance 33(4) was merely a check on maladministration. 38. As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basis. 39.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The expression conditions of service covers a wide range, as explained by the Privy Council in N.W.F. Province v. Surai Narain which was approved by this Court in State of U.P. v. Babu Ram. These decisions and also a later decision o f this Court in State of M.P. &Ors. v. Shardul Singh have made it clear that the expression conditions of service includes everything from the stage of appointment to the stage of termination to service and even beyond, and relates to matters pertaining to disciplinary action. Thus, the expression conditions of service as explained in the decisions of the Privy Council and of this Court includes the power to take disciplinary action. The rules regarding these matters are contained in Chapter LVII of the Ordinances. The Management of a private college under Ordinance 33(2) is constituted the appointing and the disciplinary authority in respect of imposition of punishment. In the course of any disciplinary proceeding, a right of appeal before the Vice-Chancellor is given to a teacher dismissed from service under Ordinance 33(4) of the Ordinances. The High Court thus rightly held that the right of appeal conferred by Ordinance 33(4) forms part of the conditions of service and, therefore, is valid.The High Court was, however, wrong in two ways. Firstly, it fell into an error in holding that the Vice- Chancellor while exercising the appellate powers under Ordinance 33(4), had not the power to direct reinstatement of a teacher or grant a declaration that his dismissal was wrongful. It also fell into an error in holding that a right of appeal before the Vice-Chancellor given to the teachers of private colleges under Ordinance 33(1) and (4), in the matter of suspension and dismissal, was not violative of the rights of religious minorities under article 30(1) of the ConstitutionThe remedy for a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.Lastly it is urged that the rights of the religious and linguistic minorities in respect of their educational institutions, however, liberally construed, cannot be allowed to dominate every other fundamental rights, directive principles of State policy and broad ideals of the Constitution. Article 30(1) enables the minorities to establish and administer educational institutions of their choice but it is said they cannot be entitled to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtain benefits but to reject obligations of statutory rights. We fail to see the relevance of these submissions while adjudging the validity of Ordinance 33(1) and (4) in the light of Article 30(1)There is direct interference with this right. The post of principal is of pivotal importance in the life of a college, around whom wheels the tone and temper of the institution, on whom depends the continuity of its traditions, maintenance of discipline and the efficiency of its teaching. The character of the institution depends on the right choice of the principal by the management. The right to choose the principal is perhaps the most important facet of t he right to administer a college. In the same way, the right to dispense with the services of the principal is an equally important facet of the same right. The imposition of any trammel, thereon, except to the extent of prescribing the requisite qualifications and the experience or otherwise fostering the interests of the institution itself, cannot but be considered as a violation of the right warranted under Article 30(1)Thus, a contention based on the absolute freedom from State control of the minorities right to administer their educational institutions was expressly negatived in this case. The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed.The right of a minority community to establish and administer educational institutions of their choice was subject matter of decision by this Court in more than one caseProjection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minoritys choice enshrined in Article 30(1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permiss ible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the gene ral public; the interests justifying interference can only be the interests of the minority concerned.The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinar y power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference with the disciplinary power of the minority institution. The State may regulate the exercise of the ri ght of administration but it has no power to impose any restriction which is destructive of the right itself. The conferment of such wide powers on the Vice-Chancellor amounts in reality, to a fetter on the right of administration under Artic le 30(1). This, it seems to us, would so affect the disciplinary control of a minority educational institution as to be subversive of its constitutional rights and can hardly be regarded as a regulation or a restriction in the in terest of the institution.While seven Judges who constituted the majority upheld the provisions of clauses (a) of sub-section (1) and (2) of section 51A, as they provided for a reasonable opportunity of showing cause against a penalty to be imposed as being regulatory, they held that clauses (b) of sub-sections (1) and (2) of section 51A of the Act, which confer a blanket power on the Vice-Chancellor to interfere with the disciplinary control of the management of a minority educational institution over its teachers, make a serious inroad on the right of the minority to administer an educational institution guaranteed under Article 30(1)As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basisIncidentally, the Kerala University Act, 1969 has been repealed by the Kerala University Act, 1974, which has come into force with effect from August 18, 1974. Section 65 of that Act confers power on the Government to constitute an Appellate Tribunal. Any teacher aggrieved by an order in any disciplinary proceedings taken against him may under section 60(7) appeal to the Appellate Tribunal and the Appellate Tribunal may, after giving parties an opportunity of being heard, and after such further inquiry as may be necessary, pass such orders thereon as it may deem fit, including an order of reinstatement of the teacher concerned. Section 61 of the Act provides that (i) pending disputes between the management of a private college and any teacher relating to t he conditions of service are to be decided under and in accordance with the provision the Act, and (ii) past disputes of such nature which have arisen after August 1, 1967, and had been disposed of before the commencement of the Act, shall, if the management or the teacher applies to the Appellate Tribunal in that behalf within thirty days of the commencement of the Act, be reopened and decided in accordance with the provisions of the Act. We have been informed that the appell ant has filed an appeal before the Appellate Tribunal, Kerala under section 61 (a) of the Kerala University Act, 1974. We refrain from making any observation with regard to that appeal. We wish to say that the validity of sections 60(7), 61 and 65 was not in question before us, and so we express no opinion in regard thereto