19 December 1996
Supreme Court


Case number: Appeal Civil 1538 of 1980






DATE OF JUDGMENT:       19/12/1996




JUDGMENT:                       J U D G M E N T Mrs. Sujata V.Manohar.J      St. Joseph’s  Training College  for Women, Ernakulam is an educational  institution  established  by  the  religious congregation of  Mother of Carmel of Carmel belonging to the Roman Catholic  Church. It  is  an  educational  institution established and  administered by  a religious  minority  and hence entitled  to the  Protection of  Article 30(1)  of the Constitution. The  college was  affiliated to the University of Kerala.      From  the   inception  of   the  college  in  1957  the appellant-Lilly Kurian  was the Principal of the college. It is her  case that  she was  persuaded by  the management  to accept the  Principalship of the college when it was started and she was persuaded to resign a class I Gazetted officer’s post in  Government service  for this purpose. The appellant also contends  that the  management had hoped that she would become a  nun. She, however, refused to become a nun and got married, after  which the  relations  between  her  and  the management deteriorated.  When one  of the nuns belonging to the religious  order  became  partially  qualified  for  the Principal’s post,  attempts were  made by  the management to remove the  appellant in  order  to  make  a  qualified  nun Principal of the College.      On account  of an  incident which  took  place  in  the college on  30th of  October, 1969 between the appellant who was the  Principal and  a Lecturer  Rajaretnam  who  was  on deputation to  the college,  complaints  were  made  by  the appellant as  well as  by Rajaratnem to the Management Board of the  college. The  management Board  thereupon decided to take  disciplinary   proceedings  against   the   appellant. According to  the management,  letters dated  11th November, 1969, 12th  November, 1969  and 13th  of November, 1969 were sent to  the appellant  under certificate of posting, giving her a  charge-sheet  and  calling  her  for  a  disciplinary enquiry to  be held on 16th of November, 1969. The appellant contends that she was on leave from 14.11.1969 to 17.11.1969 and was  out of  station. She received the letter of 13th of November, 1969  fixing the date of enquiry as 16th November, 1969 only  on 17th  of November, 1969. In the meanwhile, the



enquiry  was   held  ex-parte   against  the   appellant  on 16.11.1969. It  concluded on  19.11.1969.  On  13.12.1969  a show-cause notice  was issued to the appellant asking her to show-cause why penalty of removal from service should not be imposed upon her.      Thereupon the appellant on 18th of December, 1969 filed a  suit   being  O.S.819/69   before  the   Munsiff’s  court challenging  the  enquiry  proceedings  and  asking  for  an injunction to  restrain the management from implementing its decision. We  are not  referring  in  detail  to  these  and various  subsequent  proceedings  and  suits  filed  by  the management but only to certain relevant dates.      On 2nd  of January,  1970 an  order was  passed by  the management  dismissing   the  appellant  from  service.  The appellant filed an appeal from the order of dismissal to the Vice-Chancellor of  the Kerala  University  under  Ordinance 33(4) Chapter LVII of the Ordinances framed by the Syndicate of the  Kerala University. The Vice-Chancellor after staying the order  of dismissal  by  an  interim  order,  ultimately allowed her appeal on 19.10.1970.      In the  meanwhile, in  April 1970  a fresh disciplinary enquiry was instituted against the appellant by the Managing Board of  the College  on the  charge of  insubordination in view of  her having sent two communications to the Education Department to  terminate the  deputation of Rajaretnam. As a result, on  9th of  December, 1969  deputation of Rajaretnam was terminated  by the  Education Department.  The appellant was placed  under suspension  on  10th of April, 1970 in the second enquiry  and sister Lewina was appointed a substitute principal. The  appellant filed  an appeal  before the Vice- Chancellor under  the above  Ordinance. Both  these  appeals were heard  together by the Vice-Chancellor who allowed both these appeals  by the  above order  of 9.10.1970.  The Vice- Chancellor after  going in detail into the facts relating to the holding  of the  disciplinary enquiry  in November, 1969 came to the conclusion, inter alia, that there was a serious violation of  the principles  of natural  justice in holding the enquiry.  He therefore,  set aside,  the order passed by the management  and  passed  an  order  directing  that  the appellant should be allowed to continue as the principal.      In the  meanwhile, as  against the civil suit which was filed by  appellant in  the Munsiff’s  court, the management also filed  various suits.  Sister Lewina  who was appointed substitute Principal,  also filed  certain suits as a result of which,  in the  course of  this  litigation,  the  orders passed by the Vice-Chancellor reinstating the appellant were also challenged.  All these suits were heard together and by a common  judgment dated  6th of  December, 1972 the Munsiff upheld the  orders  of  the  Vice-Chancellor  and  permitted appellant to continue as the Principal.      Appeals were  filed before the District Judge from this common judgment  and order,  and from him to the High Court. Ultimately in  second appeal  a Division  Bench of  the High Court by  its judgment  and order  dated 19.7.1973 held that the Vice-Chancellor  who was  a Statutory  Tribunal  had  no power to  grant reinstatement.  On this  narrow  ground  the Division Bench  allowed the appeals of the management. While allowing the appeals the Division Bench held that ordinances 33(1) and  33(4) under  which a right of appeal to the Vice- Chancellor was  granted. were not in Violation of Article 30 (1) of the Constitution of India.      From the  judgment of  the Division  Bench appeals were filed before this Court by the appellant. This Court. by its judgment and  order dated  15.9.1978, (reported  in 1979 [1] SCR 821)  dismissed the  appeal of the appellant. This Court



said:  (1)  that  the  expression  "conditions  of  service" includes everything  from the  stage of  appointment to  the stage of  termination of service and also relates to matters pertaining to  disciplinary   action. The  right  of  appeal forms a part of the conditions of service and is. therefore, valid.      (2) The protection of minorities which is granted under Article 30  (1) is  subject to  the regulatory  power of the State. This  regulatory power,  power, however,  is for  the purpose of  preventing maladministration  or  for  promoting better administration of the minority institution or for its benefit. But  if it  impairs the  right  of  a  minority  to administer the  institution, it  cannot be  justified on the ground  that   such  interference  is  in  public  interest. Interference would  be Justified only in the interest of the minority concerned.  (3) That  the power of appeal which was conferred  on   the  Vice-Chancellor  in  ordinance  33  (4) amounted to  an encroachment on the right of the institution to enforce  discipline in  its administration because it was an uncanalised  and unguided power. The grounds on which the Vice-Chancellor could  interfere were  not defined  and  his power of interference was unlimited. He could even interfere with the  punishment which  was inflicted. This would affect the disciplinary  power of  a minority  institution. In  the absence of  any guidelines,  such a  power    could  not  be considered as  merely  a  check  on  maladminstration.  This Court, therefore,  set aside  the two  orders of  the  Vice- Chancellor though  for reasons different from those given by the Division  Bench of the Kerala High Court. This Court did not examine the merits of the claim made by the appellant in this view of the matter.      During the Pendency of appeal before the Supreme Court, the Kerala University Act, 1974 came into force on 9.8.1974. Under Section  61 of  the Kerala University Act, 1974 it was provided as follows:-      ‘61. Past  disputes   relating   to      service  conditions  of  teachers:-      Notwithstanding, anything contained      in any  law for  the time  being in      force, or  in any  judgment, decree      or order  of  any  court  or  other      authority,--      (a)  any   dispute    between   the      management of a private college and      any   teacher   of   that   college      relating  to   the  conditions   of      service of  such teacher pending at      the commencement  of this Act shall      be decided  under and in accordance      with the provisions of this Act and      the Statutes made thereunder:      (b)  any   dispute    between   the      management of a private college and      any   teacher   of   that   college      relating  to   the  conditions   of      service of  such teacher, which has      arisen after the 1st day of August,      1967,  and  has  been  disposed  of      before the commencement of this Act      shall, if  the  management  or  the      teacher applies  to  the  Appellate      Tribunal in  that behalf  within  a      period of  thirty  days  from  such      commencement,   be   reopened   and      decided  under  and  in  accordance



    with the provisions of this Act and      the Statutes  made thereunder as if      it had  not been  finally  disposed      of."      Under section  60(7) or  the said  Act,  the  Appellate Tribunal may,  after giving  the parties  an opportunity  of being heard  and  after  such  further  enquiry  as  may  be necessary pass  such  order  thereon  as  it  may  deem  fit including  an   order  of   reinstatement  of   the  teacher concerned. Under  Section 65 the Appellate Tribunal shall be a judicial  officer not  below the  rank of a District judge nominated by  the Chancellor  in consultation  with the High Court. In  View of  these provisions  and  particularly  the provisions of  Section 61  the  appellant  filed  two  fresh appeals before  the Appellate Tribunal constituted under the Kerala University  Act of 1974 being appeals 4 of 1974 and 8 of  1974.  These  appeals  were  allowed  by  the  Appellate Tribunal by its judgment and order of 26th of May, 1977. The Tribunal also came to a conclusion similar to the conclusion which was  arrived at by the  Vice-Chancellor in the earlier proceedings and held, inter alia, that there was a violation of the  principles of  natural  justice  while  holding  the disciplinary enquiry. It also set aside the orders passed by the management and directed reinstatement.      The  order  of  the  Tribunal  was  challenged  by  the management before  the High  Court  in  revision.  Two  writ petitions were  also filed  before the  High  Court  by  the management and  by sister Lewina in which the constitutional validity of  Section 60(7) and Section 61 were challenged by the  management   as  violation   Article   30(1)   of   the Constitution. All  these matters  were placed  before a Full Bench of  Kerala High  Court consisting of five judges. This was because, in an earlier Full Bench judgment of the Kerala High Court in the case of Benedict Mar Gregorios v. State of Kerala &  Ors. (1976  KLT 458)  the court  had examined  the Validity of  Sections 60 and 61 of the Kerala University Act of  1974   and  upheld   the  constitutional  Validity.  The management of  the said college had contended that this view required reconsideration  in the  light of  the judgment  of this Court  of  15th  of  September,  1978  in  the  earlier proceedings  between   the  appellant  and  the  respondents chellenging the  orders of  the Vice-Chancellor.  In view of this contention  a larger  Full Bench  was constituted.  The Full Bench  by its common judgment and order dated 29.8.1979 has struck  down Sections 60(7) and Section 61 of the Kerala University Act. 1974 as Violating  Article  30(1)   of   the Constitution  of   India.  The   present  appeal   is  filed challenging this judgment and order of the Full Bench of the Kerala High Court.      To complete  the  history  of  litigation  between  the appellant and  the respondents  it seems that in the present litigation before  the Appellate Tribunal, the appellant had not impleaded  sister Lewina  as a party respondent. To make good this  lacuna, the  appellant in  1977 filed three fresh appeals before  the Tribunal being appeals 15 to 17 of 1977. These appeals  have been dismissed by the Appellate Tribunal on 5.9.1981  in view  of the  present Full Bench judgment of the Kerala  High Court which was delivered on 29.8.1979. The appellant filed  a revision  before the High Court from this judgment and  order of the Tribunal which was ultimately not prosecuted by  the appellant  and  was  dismissed  for  non- appearance of the appellant on 23.1.1987.      On 17th  of April,  1985 the  Mahatma Gandhi University Act, 1985  came into  force which  became applicable  to the said institution.  Under  Section  63(6)  of  this  Act  any



teacher aggrieved  by an  order imposing  on him  any of the penalties which  are specified  in that  sub-section  has  a right to appeal to the Appellate Tribunal constituted. under the said  Act on  the grounds which are set out in that sub- section. This  Act and  its appeal  provisions seem  to have been drafted  bearing in  mind the decision of this Court in The Ahmedabad  St. Xaviers  College Society and another etc. v. State  of Gujarat  and another  (AIR 1974 SC 1389). Under Section 62(c) of the Mahatma Gandhi University Act, 1985 any dispute arising  or pending  between  the  management  of  a private college  and the  teacher of that college in respect of any  matter coming  under clause  (a) or  (b),  shall  be decided in accordance with the provision of this Act and the Statutes made  thereunder. Once  again, the  appellant filed fresh appeals  before  the  Appellate  Tribunal  constituted under the said Act, basing her right to file such appeals on Section 62(c). she also claimed damages of Rs.5,55,000/- for wrongful dismissal,  The Appellate  Tribunal, by  its  order dated  25.8.1987,   dismissed  the  appeals  filled  by  the appellant on  the ground  that there  was no pending dispute before it  at the  time when  the Mahatama Gandhi University Act, 1985  or the  Ordinance which  preceded it,  came  into force.      This appeal  before us  from the Full Bench decision of the Kerala  High Court,  therefore, appears  to be the final round of  litigation between  the parties. Do Sections 60(7) and 61  of the  Kerala University  Act, 1974 violate Article 30(1) of  the Constitution?  Under Section 60(7) any teacher who is  aggrieved by  an order  passed in  any  disciplinary proceedings can fine an appeal before the Appellate Tribunal constituted under  the Act.  The Appellate  Tribunal has the power, after  giving the  parties an  opportunity  of  being heard and after further such enquiry as may be necessary, to pass such  order in  appeal as it may think fit including an order of  reinstatement of the teacher concerned. Section 61 gives a  right of  appeal to  a teacher  in respect  of past disputes which  are spelt out there. This Court, in the case of St.  Xavier College  (supra) observed  in connection with Article 31(1)  that the right conferred on the religious and linguistic minorities to administer educational institutions of their  choice is not an absolute right. This right is not free  from  regulation.  just  as  regulatory  measures  are necessary for  maintaining  the  educational  character  and content  of   minority  institutions,  similarly  regulatory measures are  necessary for  ensuring orderly, efficient and sound administration.  The right  to administer  is not  the right to maladminister. The Court (page 1399 para 41) made a distinction  between   a  restriction   on  the   right   of administration. It  said, "The  choice in  the personnel  of management is  a part  of the administration. The university will take steps to cure the same".      In dealing with Section 52(a) of the Gujarat University Act which  provided for reference of any dispute between the governing body and any member of the teaching other academic and  non-teaching  staff  of  an  affiliated  college  to  a Tribunal of  Arbitration, the court held that in the case of a minority  institution such  held that  in the  case  of  a minority institution  such reference  will introduce an area of litigous  controversy inside the educational institution. The domestic  jurisdiction of  the governing  body would  be displaced and  a new  jurisdiction will  be  created  in  an outside body.  Hence such  a provision  would not apply to a minority institution.      The decision of this Court in the case of the appellant herself in Lilly Kurian v. Sr. Lewina and Ors. (1979 [1] SCR



821) is  more directly   on  point in the present case. This Court held  that the  conferment of  a right of appeal to an outside authority  (like the  Vice-Chancellor in  that case) took away  the disciplinary  power of a minority educational authority,  particulary  because  the  appellate  power  was unlimited and  undefined. The  grounds  on  which  he  could interfere had not been defined and he had unlimited powers, including  the   power  to  interfere  with  the  punishment imposed. Such  an unguided  and  unchannelised  power  which could be  exercised in  appeal constituted interference with the right  of a  minority institution  to administer its own institutions. It could not be construed merely as a check on maladministration. The  same is  the position  with Sections 60(7) and  61 of  the Kerala  University Act  of 1974.  Once again, the power of appeal is "unchannelised" and "unguided" and the Appellate Tribunal can even order reinstatement of a dismissed teacher.  In the  light of  the ratio laid down by these decisions, the Full Bench of the Kerala High Court, in the impugned  judgment, has  rightly held that Section 60(7) and Section  61 of  the Kerala  University  Act,  1974  give powers to  the Appellate  Tribunal that  are uncanalised and unguided. These  Sections are,  therefore, inconsistent with the  fundamental   rights  guaranteed   to   religious   and linguistic minorities  by Article 30(1) of the Constitution. We do not see any reason to take a different view. Obviously we  are  not  concerned  in  the  present  appeal  with  the provisions of  the Mahatma Gandhi University Act, 1985 which confers very    different  and  more  specific  and  limited appellate powers on the Appellate Tribunal.      Taking an  overall view  of the  matter,  however,  and considering  all   the   circumstances   we   thought   some compensation needs to be paid to the appellant. We put it to counsel during the course of hearing. Counsel had no comment to make  on the question of quantum. The appellant has urged that the  enquiry against  her was  not conducted  in a fair manner and  that she  has lost many years of useful service. She had  joined as the Principal of this College when it was newly founded  on being  persuaded by the management to give up a  Class I Gazetted Officer’s post. She also said she had spent a  lot of  money in  pursuing the  litigation. We feel that  ends  of  justice  will  be  met  if  she  is  awarded compensation. Learned counsel for the respondents 2 to 4 has very fairly agreed to abide by our directions.      We direct respondents 2,3 and 4 in these appeals to pay to the  appellant compensation  of Rs.3,50,000/- in full and final  satisfiction   of  all   her  claims   against  these respondents. We  hope that  this will  put  an  end  to  all existing and  any further litigation between the parties who have been  litigation between  the  parties  who  have  been litigating since  1969 on  various  fronts.  The  appeal  is disposed of accordingly. No order as to costs.