# ~ . ' ·-·-~· - -- .! LILLY KURIAN v. SR. 0LEWINA AND ORS

- **Citation:** [1979] 1 S.C.R. 820
- **Court:** Supreme Court of India
- **Decided:** 1978-09-15
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lilly-kurian-v-sr-0lewina-and-ors-7541
- **Pages:** 25

## Headnote

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LILLY KURIAN
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SR.
0LEWINA AND ORS.
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September 15, 1978
. •. ·_o ;;_· •.• _•
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~' [¥. 'V. t11ANDRAc11uo, c.J., R. s. SARKARIA, N. L. UNTWALL\,
_; _ _: : . . .
A. D. KosHAL AND A. P. SEN, 11~1
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c.,~onstitution of India-Article 30(1)-Scope a1nbit and n1Jiure of ri§lit" of
linguistic und religiouJ mi1t0ri1ies-Whether regulatory restrictions can be imposetl
-Whai are the litnits.:.....Iriterference l\--·iih ·righ1·10 appoint and dtsniiss- .teaching
~nd otlier staff-1Yhether providing a right of appeal-against dismissal permissible~
The Appellarit Y.'as appointed·as PrinciPal--of uio"Si. Joseph Training ·coueg~
for \Vomen,\Ernakulam ill the Year ·_1957.~ -In~Octobcr~_t969,·there was:'. an
unfortunate lliCiderit bctWcen the Appellant and one.Rajaratnam a·lecturCr Of tlt.C
College" placed on deputation by the Governffi.Cnt. On thC b"asis of a complaint'
by. Rajaratnam, the l\fmaging Board initiated disciplinary ·pr6ceedings .agaiJ¥t
the Apf>ellant.and appointed a retired Principal of a College-to be_an inquiry
Officer. The Appellant did not participate in the proce6dingS.
The Inqui_ry
Officer -held the Appellant guilty of. misconduct. A show cause . notice wit.3.
gi.ven to the Appellant. The AppcllMt however, filed a su.it challenging the
Validity of the proce"edings. An interim i.Ojunction was issued by the! Ch.ii Court
restraining the ~tanagement from implementing the decision, if any, taken· fu
the meeting. The l\fanaging Board after due notice to the· Appellant £60.nd
that the charges of misconduct .were proved.· Subsequently, the Court held that
the dismissal of the Appellant \V<loS legal and proper. During this period theAppellant \\'M functioning as a Principal aD.d had sent two· communications· tO
the Secretary to the Goverfiment calling for termination of" deputation of Rajil~
ratnai:ri."' The ~fainaging Bo<ird vie\\·ed ihe sending Of these communications by
the ·.Appellant without reference to it as an act of insubordination, and there.fore,
decided to conduct inquiry against the Appellant and she -y..·as suspended pending
inquiry.
A substitute Principal \Vas appointed.
The Appellant filed: an appeal
against the· Order of suspension and the Vice-Chancellor directed that the status
quo be maintained. The substitute Principal filed a suit for an injunction re:s:-
training the . appellant from functioning or interfering v.·ith the discharge of
duties of the substitute Principal which was granted by the ~funsif. The. ViCeChancenor by bis orders held that the orders of dismissal
and
suspension
passed against the Appellant were in breach of natural ju~tice. and fair play
and \Vere conseciuently illegal, null and void. He
therefore,
ilirected
the
~fanagement to allow the _Appellant to function as Principal. The
Kera-Ia
University Act, 1957 was enacted to reconstitute the University of Travancore
into a teaching University for the \vhole of the State of Kerala. The definifiorr
of "'teacher" in section 2(j) of the Act is wide enough to take in a Principail.
Section 19 empo\\·ers the Syndicate to make ordinances fixing the conditiOD.! of
service of teachers. The Ker.:..Ja University j\ct 1957 \Vas repealed by the Kerala
University Act, 1969. The earlier ordinances h:ive been saved and continued
under the new Act. Ordinarnce 33 provides for an appeal to the Vice-Chancellor
against any order passed by the Managemenf in respect of the penalties including
· penalty of dismis•al •
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L1LtY KURIAN V, tli\ViNA
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. The·Mana~ement filed a .suit in the Munsif's Court.
The substitute Pflnoipal
also filed il further suit against the Appellant and the po<;tal authorities for
prohibitin& the postal authorities· from delivering and the Appellant from receiving
the articles addressed to the Principal of the College.
The Trial Coun dismissed the suits holding that the Appellate power con'
ferred on the Vice Chan

## Text

_Characters 0–39,959 of 67,907. This is a partial read: ask again with offset=39959 for what follows._

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LILLY KURIAN
v.
SR.
0LEWINA AND ORS.
:..:
r
--.
,. .•. ' .-.
. '
September 15, 1978
. •. ·_o ;;_· •.• _•
';
~' [¥. 'V. t11ANDRAc11uo, c.J., R. s. SARKARIA, N. L. UNTWALL\,
_; _ _: : . . .
A. D. KosHAL AND A. P. SEN, 11~1
..
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•
:·
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.-
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.
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•
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•
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•• '! !
c.,~onstitution of India-Article 30(1)-Scope a1nbit and n1Jiure of ri§lit" of
linguistic und religiouJ mi1t0ri1ies-Whether regulatory restrictions can be imposetl
-Whai are the litnits.:.....Iriterference l\--·iih ·righ1·10 appoint and dtsniiss- .teaching
~nd otlier staff-1Yhether providing a right of appeal-against dismissal permissible~
The Appellarit Y.'as appointed·as PrinciPal--of uio"Si. Joseph Training ·coueg~
for \Vomen,\Ernakulam ill the Year ·_1957.~ -In~Octobcr~_t969,·there was:'. an
unfortunate lliCiderit bctWcen the Appellant and one.Rajaratnam a·lecturCr Of tlt.C
College" placed on deputation by the Governffi.Cnt. On thC b"asis of a complaint'
by. Rajaratnam, the l\fmaging Board initiated disciplinary ·pr6ceedings .agaiJ¥t
the Apf>ellant.and appointed a retired Principal of a College-to be_an inquiry
Officer. The Appellant did not participate in the proce6dingS.
The Inqui_ry
Officer -held the Appellant guilty of. misconduct. A show cause . notice wit.3.
gi.ven to the Appellant. The AppcllMt however, filed a su.it challenging the
Validity of the proce"edings. An interim i.Ojunction was issued by the! Ch.ii Court
restraining the ~tanagement from implementing the decision, if any, taken· fu
the meeting. The l\fanaging Board after due notice to the· Appellant £60.nd
that the charges of misconduct .were proved.· Subsequently, the Court held that
the dismissal of the Appellant \V<loS legal and proper. During this period theAppellant \\'M functioning as a Principal aD.d had sent two· communications· tO
the Secretary to the Goverfiment calling for termination of" deputation of Rajil~
ratnai:ri."' The ~fainaging Bo<ird vie\\·ed ihe sending Of these communications by
the ·.Appellant without reference to it as an act of insubordination, and there.fore,
decided to conduct inquiry against the Appellant and she -y..·as suspended pending
inquiry.
A substitute Principal \Vas appointed.
The Appellant filed: an appeal
against the· Order of suspension and the Vice-Chancellor directed that the status
quo be maintained. The substitute Principal filed a suit for an injunction re:s:-
training the . appellant from functioning or interfering v.·ith the discharge of
duties of the substitute Principal which was granted by the ~funsif. The. ViCeChancenor by bis orders held that the orders of dismissal
and
suspension
passed against the Appellant were in breach of natural ju~tice. and fair play
and \Vere conseciuently illegal, null and void. He
therefore,
ilirected
the
~fanagement to allow the _Appellant to function as Principal. The
Kera-Ia
University Act, 1957 was enacted to reconstitute the University of Travancore
into a teaching University for the \vhole of the State of Kerala. The definifiorr
of "'teacher" in section 2(j) of the Act is wide enough to take in a Principail.
Section 19 empo\\·ers the Syndicate to make ordinances fixing the conditiOD.! of
service of teachers. The Ker.:..Ja University j\ct 1957 \Vas repealed by the Kerala
University Act, 1969. The earlier ordinances h:ive been saved and continued
under the new Act. Ordinarnce 33 provides for an appeal to the Vice-Chancellor
against any order passed by the Managemenf in respect of the penalties including
· penalty of dismis•al •
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L1LtY KURIAN V, tli\ViNA
821
. The·Mana~ement filed a .suit in the Munsif's Court.
The substitute Pflnoipal
also filed il further suit against the Appellant and the po<;tal authorities for
prohibitin& the postal authorities· from delivering and the Appellant from receiving
the articles addressed to the Principal of the College.
The Trial Coun dismissed the suits holding that the Appellate power con'
ferred on the Vice Chancellor by ordinance framed by the Syndical~ was a valid
confermen~ of power and even after the commencement Of the Kerala University
Act, 1969, both the Vice-Chancellor and Syndicate had cc;>ncurrent powers of
Appeal. It, therefore, upheld the orders of the Vice-Ohancellor directing reinstatement of the Appellant in service. On appeal the District Judge held
I\ that the orders of the Vice-C!llmcellor were perfectly valid and with junsdiction
and that his. direction to· the ManagementJ to continue the Appellant as Prine! raJ
was legal.
The Kerala High Court 'reversed the judgment of the Courts below
holding that: the conferment by the Syndicate of the right to appeal to a teacb.:r
against the 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 c-onJitions of service of teachers in private colleges in terms of s. 19(j) ot
the Kerala University Act, 1957, and the provisions for a right to appeal were
not violative of the rights guaranteed to the reiigious minorities under Anicte
30(1) and were, therefore, valid.
According to the High Court although the
Vice Chancellor had the power to heM" an appeal against an order of dismissal
he did not have expressly or impliedly, the power to order reinstatement or
even to grant a declaration that the services of the appellant bad been wrongly
terminated. It was held that a statutory tribunal like Vice-Choo.ceUor could
not grant such a relief as the same would amount to specifically enforcing tfie
contract of service.
Disrriissing the appeals the Court,
HELD : I.' The expression conditions of Service includes everything from the
stage 'of oppointinent to the stage of termination of ser\."ice and even beyond
and relates to matters pertaining to disciplinary action.
The High Court thus,
rightly held that the right of the appeal conferred by ordinance 33(4) forms
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\,part of the conditions of service and is, therefo:-e, valid.
[828F··G, 829A]
,,J · ;,,W.F. Province v. Suraj Narai111 75 I.A. 343, State of U.P. v. Babu Ra1i.< F
[1961] Z SCR 679 and State of M.P. and Ors. v. Shardul Singh, [1970] 3 S.CR.
302; relied on.
,
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2. Protection of the minorities is an article of faith in the Constitution of
India. The right is subject to the regulatory power of the State.
Article 30(1)
is not a charter for mal-administration; however reg'ulation, so th<f the right to
administer may be better exercised· for ·the benefits of the institlition, is permissible;. but ·the moment one goes beyond that 3.nd imposes what is in truth not a
inere regulation but an impairment of the right to· administer the Article co1nes
into play and the interference cainnot be justified by pleading the interests of
the general public, the interests justifying interference can only be the interests
of the n1iilority concerned. [837C-EJ
3. It is clear from the judgment in St. Xaviers College case that 7 out ot
9 judges held that the provisiO!ls containec\ i_n c[aijsei (b) of sub sections I ood 2
of Section 5l(A) of the Ac( therein'providing for the disciplinary control of Iii<>
20-549 SCI/78
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SUPREMI! COURT. REPOR.TS
[1979] 1 s.c.R.
M3I\3l1ement, over the staff pf its odueational institution wore not applicable
to an education institution established and managed by religious'aod linguistic
minorities. The reasons given by the majority were ~
the _power of the
1\-lanag~.ment to terminate the services of any member of the teachiiig or other
academic and non-academic staff was based on the relationship between the
employer and his employees and no encroachment can be made on Ihm right
to dispense with their servicee under the contract of employment, which was an
integral part of the right lo administer. [842B-D]
4. Tue High Court went wrong in holding that the Vice-Chancellor while
exercising the appellate powers under Ordinance 33(4) cannot Jirect reinstatement of a teacher or grant a declaration that his dismissal was wrongful.
).
It also fell into error in holding that the right of appeal before the ViceChancellor against the teachers of Private Colleges in the matter of suspension
and dismissal was not violative of the rights of religious
minorities under
Article 30(1) of the Constitution. [829B-Q]
c
AJ11ned<1bad St. Xaviers College Society and Anr. v. State of GujaraJ and
Allf. [1975] I SCR 173; relied on.
5. Unlike Article 19, the fundarnontal freedom under
Article
30(1)
is
absolute in terms; it is not made subject to any reasonable restrictions of the
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nature the fundamental freedoms enunciated in Article 19 may be subjected
to. ,All minorities, linguistic or religious have by article 30(1) an absolute
right to establish and administer educational institution of their- choice, and
any law or executive direction which seeks to infringe the substance of that
right under Article 30(1) wonld be to that extent void. [835F-G]
Rev. Sidhajbhai Sabhai v. State of Bombay, [1963) 3 S.C.R. 837.
E
6. The conferment of a right of appeal to an outside authority like the
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Vice-Chancellor under Ordinance 33(4) takes away the disciplinary power of
a minority educational authority. The right of the Vice Chancellor to veto the
disciplinary power of the minority institution is a clear interference with its
right. It amounts to a fetter on the riiht of administration under Article 30(1).
[837E-G]
7. The power of appeal conferred on the Vice
Chancellor
in
ordinance rJ
33(4) is not only a grave encroachment on the right of the institution to en- '
forre and cover discipline in its administration but it is uncanalised and un~
guided 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 unlimited
and undefined. The grounds on which the Vice Chancellor can interfere are
not defined and indeed, the powers are unlimited. He can even interfere agallist
the infliction of punishment. There is complete interference with the disciplinary power 6f a minority institution. In the absence of any
guidelines,
it
cannot be held that power of the Vice Chancellor under order 33(4) was
merely a check on mal-administration'. The ratio of St. Xavier Colleges case
is fully applicable. [842G-H, 843A-B]
8. Accordingly, the judgment of the Hiah Court setting
aside
the
two
orders of the Vice Chancellor upheld by this Court although for different
reasons.
[844E-FJ
CIVIL APPELLATE JUIUSDICTION : .. Civil Appeal Nos. 728-730 of
1975.
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LILLY KURIAN v. LEWINA (Seit, 1.)
823
· Appeals by Special Leave from the Judgment and Order dllted
19-7-1973 of the Kerala High Court in S.A. Nos. 340 and 341/73
and A.S. No. 176/73.
M. K. Ramamurthy, Amicus Curiae, S.
Balakrishnan, Amicus
Curiae, Miss R. Vaigai and Lilly Kurian (In person) for the Appellant.
V. A; Seyid Muhammed and K. R. Nambiar for the State of
Kerala.
L. N. Sinha (for RR l, 2 and 11 in CA 728), M. I. Joseph
•
(CA 729), l'. P. Singh, (C.A. 729, 728 and 730/78) A. G. Pud·
dissery (C.A. 730/75) and K. M. K. Nair for RR 1, 2, 11 and 12 in
C.A. 728, RR. 3, 11, 12 and 13 and RR 1, 3-5 in C.A. 730/75.
P. K. Keshava Pillai, Frank Anthony, M. K.
D. Namboodiry,
K. R. Choudhury, Baby Krishnan, B. Parthasarthi and Panduranga
Rao for the Interveners.
The Judgment of the Court was delivered by
SEN, J.-These appeals by special leave directed against the Judgment of the Kerala High Court dated July 19, 1973, raise a question
of far reaching importance.
The question is whether an educational
institution established and managed by a religious or linguistic minority
is bound by the provisions of Ordinance 3 3 ( 4), Chapter L VII of tha
Ordinances framed ·by the Syndicate of the University of Kerala,
under section 19(j) of the Kerala University Act, 1957.
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 Carma!, which is a religious society of Nnus belonging to
the. Roman Catholic Church, and is affiliated to the University of
Kera.la. It is administered by a Managing Board, and the Provincial
of the Congregation is its President.
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 Govemmen!.
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. Tllo Enquiry Qffic~r by hi&
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SUPRU1:E .. CQURT RE~ORT~
[197911 S.C.R.
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 Munsiff's 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 mee.ting 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 th•at the charges of misconduct were
proved. The appellant was accordingly directed to handover all
papers, files, vouchers and documents connected with the College to
Sr. Lewina, Profossor, without further delay, stating that the order
for her dismissal from
service would
be implemented immediately
after the decision of the Munsiff on the
applic>ation for temporary
injunction.
On 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
prbna
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 ViceChancellor 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 L VII of the Ordinance framed by the Syndicate, against· the
order of dismissal.
The Vice;Chancellor by his order dated January
24, 1970, staY,ed the operation of the order of dismissal.
The suit
filed by the appellant was subsequently dismissed .bY the Munsiff as
withdrawn.
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ff
It appears that the appellant was a)! t!i"wl,lile fuooti911ing.as principal of the College.
It was brought to ·ligjlt,),hat she h~<l- sent two
communications ·dated October ·G,o; 1969, 'and.:No\'e!llb.er· 5,- 1969, to
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LILLY KURIAN v. LEWINA (Sen, !.)
825
the Secretary to the Government, Education Department, calling for
termination of deputation· of Rajaratnam, appointed as a Lecturer fn
the College by the Management, •as a result of which his deputation
was cancelled by the Government on December 9, I 969. The Managing Board viewed the sending 0f 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 ViceChancellor against the order of suspension under Ordinance 33 (1) of
Chapter L Vil, 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 focce 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 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 confirmed.
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The Vice-Chancellor, University of Kerala, by his two
orders
dated October 19, 1970 held that the order of dismissal from service
E
and the order of suspension passed against the appellant were in
breach of the rules of natural justice and fmr play and were consequently illegal and null and . void, and
accordingly direeted
t.he
Management to allow her to function as Principal.
Before the orders
were communicated, the Management filed the suit O.S. No. 110 of
I!
1970 in the Munsiff's Court, Ernakulam on Octob,r, 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 delivery of lett.ers
addressed to , the
Principal at her residence.
The non-delivery of letters creoated a dead-
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lock in the administration of the College.
On July
22, 1972, the
<ubstitute Principal, Sr. Lawine accordingly filed a suit O.S. No. 569
of 1972 in the Munsiff's Court, Ernakulam against the appellant and
the Postal Authorities -for prohibiting the one from receiving ~n·d the
other from delivering, thec'postal articles addressed to the Principal of
the College. All the tllree suits pending in the Munsiff's Court, ErnakuH
lam were transfllffed/''by'th~' otiler of the District Judge, Ernakulam
to the !st Additional Sub-Court, Ernakulam for disposal.
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826
SUPREME COURT 11.EPOll.TS
(1979) l s.c.11..
The trial court by its judgment dated December 6, 1972 dismissed
the suits holding that the appellate power conferred on the ViceChance!lor by els. ( 1) and ( 4) of Ordinance 33, Chapter LVII of the
Ordinance framed by the Syndicate under s. 19(j) of the Act, wasa
valid conferment of power on the Vice-Chancellor and even after the
commencement of the Kerala University Act, ! 969, both the ViceChancellor 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
appeals.
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
pennissible limits of the power to 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 Kera/a(').
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. In reaching the conclusion, the High Court observes
that this, in effect, "amounts to eviscerating the right of appeal to the
Vice-Clrancellor, but the remedy lies elsewhere", in the light of the
authorities cited by it.
The Kerala University Act,
1957, "the Act", as the preamble
shows, was enacted to reconstitute the University of Travancore into
a teaching University for the whole of the State of Kerala. Section
2(a) defines "college" to mean a college maintained by, or affiliate<!
(I) I. L. R. f 196912 Kera la 642 ..
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LILLY KURIAN v. LEWINA (Sen, J,)
827
to the University.
TI1e definition of "teacher" in section 2(j) of the
Act is wide enough to take in a Principal, as any 'other person imparting instruction'. Section 5(viii) confers power on the University to
affiliate to itself colleges wit)lin the State in accordance with the conditions to be prescribed in the statutes regarding management, salary
aud terms of service of members of the staff, and other such matters,
and to withdraw affiliation from colleges.
Section 15 (2)(ii) enjoins
that the Senate shall make, amend or repeal statutes of its own motion
or on the motion of the Syndicate. The powers of the Syndicate are
enumerated in section 19, the relevant provisions of which read :
"19. Powers of the Syndicate-Subject to the provisions
of this Act and the Statutes, the _Executive Authority of the
University including the general superintendence and control
over the institutions of the University shall be vested in the
Syndicate; and subject likewise, the Syndicate shall have the
following powers, namely :-
A
B
c
(a) to affiliate institutions in accordance with the condiD
tions prescribed in the Statutes;
(b) to make Ordinance and to amend or repeal the same;
x
x
x
x
x
x
x
x
(j) to fix the emoluments and prescribe the duties and
E
the conditions of service of teachers and other employees in Private Colleges."
The Kerala University Act, 1957 was repealed by the Kerala
University Act, 1969 which ca.me into force with effect from February
28, 1969. Section 75 (2) of the Act provides that the statutes, ordinances, rules and byefaws in force immediately before the commencement of the Act shall, in so· far as they are not inconsistent with its
provisions, continue to be in force unless they are replaced.
The material provisims 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 duriag the period of suspension at such rates as
may be specified by the University in each case. The teacher
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shall have. right to app·~al 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 pena!t•~s : The following penalties may
for good and sufficient reasms be imposed on a teacher by
the Ma'nagement :-
( 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 i·a the seniority list or to
a lower grade or post
( v) Dismissal from service.
D
The Management shall b~ the Discipli'nary Authority in
imposing the penalties.
x
x
x
x
x
x
x
( 4) Appeal : A teacher shall be entitled to appeal to the
Vice-Chancellor of the University against any order pa55ed
E
by the management in respect of the penalties referred to in
items (ii) to (v).
Such ·appeal shall be submitted within a
period of 60 days the appel\a·at receives the order of punishment."
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The expression "conditions of service" covers a wide , range,
as
exphined by the Privy Council in N.W.F. Province v. Suraj Narain(')
which was approved by this Court in State of U.P. v. Babu Ram.(')
These decisions and ahso a later decision of this Court in State of M.P.
· & Ors. v. Shardul Singh(") have made it clear that the expression
'conditions of service' bcludes everything from the stage of appointment to the stage of terminatio'n of service and even beyond,
and
relates to matt.ors 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 contaihed
in
Chapter
LVII of the Ordinances. The Management of a private college under
Ordinance 33 (2) i• constituted the appointing and the disciplinary
(1) 75 I. A 343.
(2) [1961] 2 S. C. R. 679.
(3) [1970] 3 . C. R. 302.
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LILLY KURIAN v. LEWINA (Sen, J.)
829
authority in respect of imposition of punishment. 111 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. wro'ng in two ways. Firstly, it fell
hlto an error in holding that the Vic•,-Chancellor while exercising the
appellat!" 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 3 3 ( 1 ) and ( 4) , h1 the matter of suspension and dismissal, was not violative of the rights of religious minorities under
article 30(1) of the Constitution.
Under Ordinance 33 ( 1), a teacher placed under suspension, has a
right of app,al agai\J5t the order of suspension to the Vice-Chancellor.
Uader Ordinance 33(4), a teacher shall be entitled to appeal to the
Vice-Chancellor against any order passed by the management in
resp,ct 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 tile power to annnl, 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 tile appellate power under Ordinance 33(4) is
'not defined. When a teacher is dismissed from service,
the
ViceChancellor can not only direct reinstatement but also modify the
natu.re of punishment. The whole matter is at large before hinl.
In V. Rev. Mother Provincial v. State of Kera/a (supra) a Full
Bench of the Kerala High Court while dealing with section 56(4) of
the Kerala University AcJ., 1969, observed that the right of appeal to
the Syndicate, which being a large body comprising of as many as
seventeen members will be subject to pnlls and pressures, was not a
body which could be e·atrusted with a judicial. function of this nature.
In tilat view, it held that sub-~ection (4) suffers from the defect of the
appeal being to a forum which seems to be entirely unsuitable for the
purpose, being unreasonable, and so much against tile interests of the
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institution, that it can hardly be justified either as a regulation of, or as
a reasonable restriction on the power of the manag~mcnt. Incidentally,
it observed :
"Though the appeal lies not, as one would have expected, to a judicial or quasi-judicial tribunal but to an executive
body which, having regard to its comp<l6ition, would hardly
be able to produce what is ordinarily called
a
speaking
order."
The High Court has react more into the Full Bench decision than
there is, and from the mere observation that the proper remedy against
a;zy abuse of the disciplinary power would be an appeal, seem to
assume that a provision like Ordihance 33(4) would not affect the
right guaranteed to a minority under Article 30(1 ), in matters pertaining to discipline. On the contrary, the Full Bench observed :·--
"TI1e Vice-Chancellor can hardly be expected to have the
time to deal with such matters, and in any case, the lcY:lg
delay that will necessarily be involved would, by itself rehde-r
the managing body's powers of disciplinary control largely
ineffectual."
It is contended on behalf of the appellant that the right to administer guaranteed by Article 30( 1) of the Constitution does not carry
with it a 'right to maladminister'. It is urged that while autonomy in
admiitlstration means right to administer effectively and to manage and
conduct the affairs of the institution, the University will always have
a right to sec that there is no maladministraticm. If there
is
maladministration, the University must take steps to cure the same.
The
right to administer is, therefore to be tampered with regulatory
measures to facilitate smooth administration. Regulations which
will
serve the interests of the students, regulations which will
serve the
interestl; of the teachers are of paramount importance under good
administration. Regulations b the interest of efficiency of teachers, diBcipline and fairness in administration are necessary for preserving harmony among affiliated institutiohs. It is urged that if the State has any
role to play in the system of general education, its power camiot be
confined merely to the laying down of a prescn'bed standard of education for minority educational institutions but should also extend to all
necessary measures to secure an orderly, efficient and sound admmistration of such institutions. Once the role of the State in the system of
general educ;ition is properly understood its regulatory power over the
minority educational institutions, it is submitted, would depend upon
the :iature or type of the educational institutions set up by a minority
a'nd all other relevant factors, and no universal or general test can be
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LILLY KURIAN I', LEW!NA (Sen, J,)
831
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 diven;e
social
interests, There cannot be any perpetually fixed adjustment of the right
and those social interests, They would need adjustment and readjustment from tim~ to time and in varying circumstances,
Undoubtedly,
the management of a minority institution could not be displaced by the
regulat-Ory measure, But the State has a power to regulate through the
age::icy of the University the service conditions of teache11S and
to
secure a fair procedure in the matter of disciplinary action against
them, These safeguards must necessarily result in the security of tenure
of teachers and must attract competent and qualified staff and
thus
could ultimately improve the ~xcellence and efficiency of the educational institution,
It is further urged that the reconciliation of minority rights in
education with wider social and educational objectives is
inevitably
necessary and this involves the judicial task of balancing the guaranteed rights under Article 30 (1) with social, national or educational
values sought to be regulated or protected by the impugned legislation,
It has to bo kept in mi:ld that today the education has to be so
designed which would subserve not only the well being of the citizens
in the intellectual, ethical and financial spheres but would inculcate
amongst tbem a scns•o of individual and social consciousness to contribute to the welfare ffnd prosperity of an egalitarian society,
rt is,
therefore, urged that Ordinance 33 ( 4) , Chapter LVII of the Ordiuances framed by the Syndicate under s,l9(j) of the Act is
not
violative of Article 30 (1) as it seeks to ensure justice and fair
play
to the teachers against arbitrary actions of the management
It is next urged that the Vice-Chancellor, while exercising his
uppellate power under Ordinance 33 ( 4) is i:ldeed clothed with tbe
State's inherent judicial power to deal with disputes lntween the
parties and determine them on the merits, fairly and objectively,
It is urged that the contention that the impugned order passed by
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the Vice-Chancellor under Ordinance 33 ( 4) affects the fundamental
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rights of minority religious institutions under Article 30(1), is based
on a complete misconception about the true nature and character of
judicial process and of judicial decisions, If this basic and judicial
aspect of the judicial process is borne in mind, it is submittted, it would
be plain that the decision given by th~ Vice-Chancellor cannot be said
to affect the fundamental rights guaranteed under Article 30(1), The
II
remedy for a person aggrieved by tl1e decision of a competent judicial
tribunal is to approach for redress a superior tribunal, if there be one,
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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, dil'.'clive principles of State policy and broad ideals of the
Constitution. Article 30 (I) enables the minorities to establish
and
administer educaticmal 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 obtai·n benefits but to reject
obligations of statutory rights. We fail to see the relevance of these
submissions while adjudging the validity of Ordinance 33 (I) a:ad ( 4)
in the light of Article 30(1 ).
The appellant, who appeared in person, supplemented the arguments of the learned counsel appearing as amicus curiae and urged
that if the Court does not uphold the powers of the Vice-Chancellor
under Ordinance 33 ( 4) it would be ta:atamount 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,
cultural a'nd
linguistic minorities though deserve
a
generous
and
sympathetic
treatment, cannot at the same time be absolved of their obligations to
conform to the norms of natural justice and fair employment.
In assailing the view of the High Court, learned counsel for the
Management contends that the right of administration
of
minority
educational institutions rests with the Management and the right of
appointment, suspension and dismissal of the staff also is
part and
parcel of the administration. In a private college, t'he appointing and
disciplinary authority is the management. Ordinance 33 relating to the
service conditions of teach~rs in private colleges· authorises the \_
management to take any disciplinary proceedings. The University has
no power to interfere into the administration of the college or into the
disciplinary action taken agai'nst a member of the staff. The creation of
an appellate authority like the Vice-Chancdllor, which is an outside
agency, itself is an illegal abridgment of the
right of management
enshrined in Article 30(1). That apart, directing a dismissed Principal,
who is the academic h~ad of the college, to hold office against the
wishes of the founders of the college without specific power in that
regard, is an anathema to the right of adminisiration guaranteed by
Article 30( 1) of the Constitution. If the Vice-Chancellor were to
have power of rebstatement of a dismissed teacher, the restllt would
be, in effect, appointing a person against the will of the founders of the
institution. The conferment of such a power on the Vice.Chancellor is
destructive of the right of management. In support of the contention
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ULLY KURIAN v. LEWINA (Sen, J.)
833
that Ordinance 33 (I) and ( 4)
were violative of Article 30(1),
reliance was placed on the decision in Ahmedabad St. Xa.viers College
Society & Anr. v. State of Gujarat & Anr.(').
\.
Learned counsel for the interveners contends that the interposition
of an outside authority like the Vice-Chancellor, demits
the
entire
discipli:iary po'WW of a minority educational institution to the ViceChance,:lor. Under Ordinance 33 ( 4) the Vice-Chancellor has
the
power to veto i:s disciplinary control. There is complete 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
1o impose any "restriction' which is destructive of the right itself.
In
matters relati"ag to discipli"ne, the process of decision musr be left to
1he institution. There is direct interference with this right. The post of
principal is of pivotal importance in the life of a college, around whom
wheds the tone and temper of the institution, on whom depends the
continuity of its traditions, maintena-:ice 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 importa1)J facet of the right to adminis'-
ter a college. In the same way, the right to dispense with the servio~s
of the principal is a:i 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 b" considered as a
violation of the right warranted under Article 30 ( 1 ) .
' '
Learned counsel appearing for the State of Kerala, however, while
conceding that conferral of arbitrary and unguided powers on an out-
.L side agency like the Vice-Chancellor, would be destructive of the right
of management under Article 30 (I), contends that the power of the
Vice-Chancellor under Ordinance 33(4) to hear an appeal agai:ist an
order of dismissal does not suffer from this vice. He tries to limit the
appellate power of the Vice-Chancellor under.Ordinance 33(4) to a
case where the action of the management is ma/a fide or where the
order of dismissal is a nullity or where the management has acted
i':t
breach of the rules of natural justice. When so read, it is urged, that
the conferment of the right of appeal to the Vke-Chancellor in case
of disciplinary powers of a minority educational institution, amounts
only to a regulation of such power, and, therefore, Ordinance 33 ( 4) is
not violative of Article 30 ( l ) .
Article 30( I) of the Constitution provides :-
(I) (19751 I S. C. R. 173.
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"30.