Case: Lilly Kurian Vs. Sr. Lewina And Ors

Smt. Lilly Kurian, the appellant herein, was appointed as Principal of the St. Joseph Training College for Women, Ernakulam in the year 1957. The College was established by the Congregation of the Mothers of Carmal, which is a religious society of Nnus belonging to the Roman Catholic Church, and is affiliated to the University of Kerala. It is administered by a Managing Board, and the Provincial of the Congregation is its PresidentOn October 30, 1969, there was an unfortunate incident between the appellant and one P. K. Rajaratnam, a lecturer of the College, placed on deputation by the Government. On the basis of a complaint by Rajaratnam, the Managing Board initiated disciplinary proceedings against the appellant and appointed a retired Principal of the Maharajas College, Ernakulam, to be the Enquiry Officer. The appellant did not participate in the proceedings. The attitude adopted by the appellant unfortunately was one of supreme indifference, taking the stand that the Managing Board had no competence whatsoever to initiate any such disciplinary action. The Enquiry Officer by his report dated November 27 , 1969, held the appellant guilty of misconduct. The Secretary of the Managing Board accordingly served her with a notice dated December 2, 1969 stating that a meeting of the Board was to be held on December 19, 1969, to consider the representation, if any, made by her and also the punishment to be imposed, on the basis of the findings recorded by the Enquiry Officer.In the wake of the disciplinary action, on December 16, 1969, the appellant filed a suit O.S. No. 819 of 1969 in the Munsiffs Court , Ernakulam, challenging the validity of the proceedings of the Managing Board. On December 19, 1969 the Munsiff issued an interim injunction restraining the Management from implementing the decision, if any, taken by it at the meeting to be held on that day. A meeting of the Board had, in fact, been held and a decision was taken to remove the appellant from service. The Provincial of the Congregation by virtue of her office as the President of the Managing Board, by order dated January 2, 1970, dismissed the appellant from service. It was stated that the Managing Board had after giving due notice to the appellant, and on a careful consideration of the enquiry report, and the findings thereon, found that the charges of misconduct were proved. The appellant was accordingly directed to hand over all papers, files, vouchers and documents connected with the College to Sr. Lewina, Professor, without further delay, stating that the order for her dismissal from service would be implemented immediately after the decision of the Munsiff on the application for temporary injunctionOn January 17, 1970, the Munsiff held that the dismissal of the appellant was free from any infirmity and was by the competent authority, that is the Managing Board, and, therefore, she had no prima facie case. The Munsiff accordingly vacated the injunction with a direction that temporary injunction already issued will remain in force for two weeks to enable the appellant, if she wanted to move the Vice Chancellor and obtain from him a stay of the order of dismissal. The appellant had, in the meanwhile, on January 9, 1970; already filed an appeal before the Vice-Chancellor under Ordinance 33(4), Chapter LVII of the Ordinance framed by the Syndicate, against the order of dismissal. The Vice- Chancellor by his order dated January 24, 1970, stayed the operation of the order of dismissal. The suit filed by the appellant was subsequently dismissed by the Munsiff as withdrawn.It appears that the appellant was all the while functioning as principal of the College. It was brought to light that she had sent two communications dated October 6, 1969, and November 5, 1969, to the Secretary to the Government, Education Department, calling for termination of deputation of Rajaratnam, appointed as a Lecturer in the College by the Management, as a result of which his deputation was cancelled by the Government on December 9, 1969. The Managing Board viewed the sending of these communications by the appellant without reference to it as an act of insubordination, and, therefore, decided to conduct an enquiry against the appellant and she was suspended pending enquiry . A substitute Principal, Sr. Lewina, was appointed and the appellant was relieved of the duties on April 10, 1970. On April 13, 1970 the appellant filed an appeal to the Vice Chancellor against the order of suspension under Ordinance 33(1) o f Chapter LVII, and the Vice-Chancellor by his order dated April 20, 1970 directed that the status quo be maintained. In view of this order, the Management was presumably apprehensive that the appellant might force herself upon the College. The substitute Principal, Sr. Lewina, appointed by the Management in place of the appellant accordingly on July 2, 1970 filed the suit O.S. No. 405 of 1970 in the Munsiffs Court, Ernakulam for an injunction restraining the appellant from functioning and from interfering with her discharging the duties as Principal. The Munsiff granted a temporary injunction, in the terms prayed for, which was subsequently confirmedThe Vice-Chancellor, University of Kerala , by his two orders dated October 19, 1970 held that the order of dismissal from service and the order of suspension passed against the appellant were in breach of the rules of natural justice and fair play and were consequently illegal and null and void, and accordingly directed the Management to allow her to function as Principal. Before the orders were communicated, the Management filed the suit O.S. No. 110 of 1970 in the Munsiffs Court, Ernakulam on October, 22, 1970, seeking an injunction restraining the appellant from functioning as Principal of the College and obtained a temporary injunction. While these two injunctions were in force, the appellant wrote to the Superintendent of the Post Offices demanding deli very of letters addressed to the Principal at her residence. The non-delivery of letters created a dead lock in the administration of the College. On July 22, 1972, the substitute Principal, Sr. Lawine accordingly filed a suit O.S. No . 569 of 1972 in the Munsiffs Court, Ernakulam against the appellant and the Postal Authorities for prohibiting the one from receiving and the other from delivering, the postal articles addressed to the Principal of the College. All the three suits pending in the Munsiffs Court, Ernakulam were transferred, by the order of the District Judge, Ernakulam to the 1st Additional Sub-Court, Ernakulam for disposal.The trial court by its judgment dated December 6, 1972 dismissed the suits holding that the appellate power conferred on the Vice Chancellor by cls. (1) and (4) of Ordinance 33, Chapter LVII of the Ordinance framed by the Syndicate under s. 19(j) of the Act, was a valid conferment of power on the Vice-Chancellor and even after the commencement of the Kerala University Act, 1969, both the Vice Chancellor and the Syndicate had concurrent powers of appeal. It, therefore, upheld the orders of the Vice- Chancellor directing reinstatement of the appellant in service. On appeal, the District Judge, Ernakulam by his judgment dated March 17, 1973 held that the orders of the Vice-Chancellor were perfectly valid and within jurisdiction, and that his direction to the Management to continue the appellant as Principal in her office was also legal. He, accordingly dismissed the appealsThe Kerala High Court, however, by its judgment dated July 19, 1973 reversed the judgment and decree of the court below and decreed the plaintiffs suit holding that (i) the conferment by the Syndicate of a right of appeal to a teacher against his order of dismissal from service to the Vice-Chancellor cannot be said to be in excess of the permissible limits of the power t o prescribe the duties and conditions of service of teachers in private colleges in terms of s. 19(j) of the Act, and (ii) the provisions for a right of appeal contained in Ordinance 33(1) and (4), Chapter LVII of the Ordinance were not violative of the rights guaranteed to the religious minorities under Article 30(1), and were, therefore, valid, following certain observations of its earlier Full Bench decision in V. Rev. Mother Provincial v. State of Kerala. According to the High Court, although the Vice-Chancellor had the power to hear an appeal against an order of dismissal under Ordinance 33(4), he had not, expressly or impliedly, the power to order reinstatement or even to grant a declaration that the services of the appellant had been wrongly terminated. It held that a statutory tribunal like the Vice-Chancellor could not grant such a relief as the same would amount to specifically enforcing the contract of service.

Reasoning:
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