TMI Blog1978 (9) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 President. 3. On 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 Maharaja's 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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) of 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 Munsiff's Court, Ernakulam for an injunction restraining the appellant from functionin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue the appellant as Principal in her office was also legal. He, accordingly dismissed the appeals. 9. The 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 to prescribe the duties and conditions of service of teachers in private colleges in terms of Section 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 I.L.R. [1969] Ker 642. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istent with its provisions, continue to be in force unless they are replaced. 12. The material provisions of Ordinance 33, Chapter LVII of the Ordinances framed by the Syndicate under Section 19(g) are as follows :- 33(1) Suspension : The management may at any time place a teacher under suspension where a disciplinary proceedings against him is contemplated or is pending. He shall be paid subsistence allowance and other allowances by the management during the period of suspension at such rates as may be specified by the University in each case. The teacher shall have right to appeal against the order of suspension to the Vice-Chancellor of the University within a period of two months from the date on which he receives the order of suspension. (2) Nature of penalties : The following penalties may for good and sufficient reasons be imposed on a teacher by the Management :- (i) Censure. (ii) Withholding of increment. (iii) Recovery from pay of any pecuniary loss caused to the institution/monetary value equivalent to the amount of increment ordered to be withheld. (iv) Reduction to a lower rank in the seniority list or to a lower grade or post. (v) Dismissal fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a right of appeal against the order of suspension to the Vice-Chancellor. Under Ordinance 33(4), a teacher shall be entitled to appeal to the Vice-Chancellor against any order passed by the management in respect of penalties referred to in items (ii) to (v) of Ordinance 33(2). Merely because a right of appeal is provided without defining the powers of the appellate authority, it cannot be implied that such right does not include the power to direct reinstatement. The conferment of a power to hear an appeal necessarily invests the appellate authority with the power to annul, vary or set aside the order appealed from. Such power is incidental to or is implied in, the power to hear an appeal. It necessarily has the power to grant an appropriate relief. Indeed, the extent of the appellate power under Ordinance 33(4) is not defined. When a teacher is dismissed from service, the Vice-Chancellor can not only direct reinstatement but also modify the nature of punishment. The whole matter is at large before him. 16. In V. Rev. Mother Provincial v. State of Kerala (supra) a Full Bench of the Kerala High Court while dealing with Section 56(4) of the Kerala University Act, 1969, observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re necessary for preserving harmony among affiliated institutions. It is urged that if the State has any role to play in the system of general education, its power cannot be confined merely to the laying down of a prescribed standard of education for minority educational institutions but should also extend to all necessary measures to secure an orderly, efficient and sound administration of such institutions. Once the role of the State in the system of general education is properly understood its regulatory power over the minority educational institutions, it is submitted, would depend upon the nature or type of the educational institutions set up by a minority and all other relevant factors, and no universal or general test can be laid down. The degree of permissive State control must depend upon the circumstances of each case. The right under Article 30(1) forms part of a complex and inter-dependent group of diverse social interests. There cannot be any perpetually fixed adjustment of the right and those social interests. They would need adjustment and readjustment from time to time and in varying circumstances. Undoubtedly, the management of a minority institution could not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly 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). 23. The appellant, who appeared in person, supplemented the arguments of the learned Counsel appearing as arnicas curiae and urged that if the Court does not uphold the powers of the Vice-Chancellor under Ordinance 33(4) it would be tantamount to negation of the State's regulatory power to prevent or cure the abuse of power by the management and throw the teachers to their arbitrary actions without any security of tenure. She urged that the religious, cultu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s destructive of the right itself. In matters relating to discipline, the process of decision must be left to the institution. 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 the 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). 26. learned Counsel appearing for the State of Kerala, however, while conceding that conferral of arbitrary and unguided powers on an outside agency like the Vice-Chancellor, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may prescribe reasonable regulations to ensure the excellence of the institutions to be aided. 30. 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. 31. 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 case. 32. In Rev. Sidhajbhai Sabhai v. State of Bombay [1963]3SCR837 Shah J. (as he then was) speaking for the Court, negatived an argument advanced on behalf of the State that a law could not be deemed to be unreasonable unless it was totally destructive or annihilative of the right under Article 30(1), stating : The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is 'not subject to reasonable restrictions. It is intended to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in matters educational. 36. In Rev. Father W. Proost and Ors. v. The State of Bihar and Ors. [1969]2SCR73 . Hidayatullah C.J. while dealing with Articles 29(1) and 30(1), said : In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution, seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied, although it is possible that they may meet in a given case. 37. Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes into play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of the minority concerned. 39. The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinary 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 right 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 Article 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 interest of the institution. 40. In St. Xaviers College v. Gujarat (supra) a Bench of nine Judges, by a maj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure inasmuch as it confers arbitrary power on the Vice-Chancellor to take away the right of administration of the minority institutions. Section 51A of the Act cannot, therefore, apply to minority institutions. 44. The provision for approval of the Vice-Chancellor was held to be bad because it acted as a check on administration. Further, it was held to confer arbitrary powers on the Vice-Chancellor because there was no guidelines on the basis of which the Vice-Chancellor could withhold his approval. 45. Jaganmohan Reddy J., speaking for himself and for Alagiriswami J. agreed with the opinion of Ray C.J. 46. In explaining the extent of regulatory control, Khanna J. stated : Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations, in any opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed : It was argued for the petitioners that Clause (1)(b) of Section 51A has the effect of vesting in the Vice-Chancellor a general power of veto on the right of the management to dismiss a teacher. The exact scope of the power of the Vice-Chancellor or of the officer of the University authorised by him in this sub-section is not clear. If the purpose of the approval is to see that the provisions of Sub-section 51A(1)(a) are complied with, there can possibly be no objection in lodging the power of approval even in a nominee of the Vice-Chancellor. But an uncanalised power without any guideline to withhold approval would be a direct abridgement of the right of the management to dismiss or remove a teacher or inflict any other penalty after conducting an enquiry. 51. The Learned Judge then proceeded to observe : The relationship between the management and a teacher is that of an employer and employee and it passes one's understanding why the management cannot terminate the services of a teacher on the basis of the contract of employment. Of course, it is open to the State in the exercise of its regulatory power to require that before the services of a teacher are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring 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. 55. An analysis of the judgments in St. Xaviers College's 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution over its teachers. The majority decision of St. Xaviers College's case squarely applies to the facts of the present case and accordingly 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 'teasing illusion', a 'promise of unreality'. 58. A distinction is, however, sought to be drawn between the provisions contained in Clauses (b) of Sub-section (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 confers on the Vice-Chancellor the power to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
