1. The petitioner in these writ petitions is the Christian Medical College, Vellore Association, which has been registered in 1947 under the Societies Registration Act (21 of 1860). Clause (2) of the Memorandum of Association reads as follows :
'The object of the association is the establishment, maintenance and development of a Christian Medical College and Hospitals in India were women and men shall receive an education of the highest grade in the art and science of medicine and nursing or in one or other of the related professions to equip them, in the spirit of Christ, for service in the relief of suffering and the promotion of health.'
2. As seen from the history and statistics of the Christian Medical College and Hospital, Vellore, Dr. Ida Soudder, a grand daughter of the First American Medical Missionary in India realizing that the basic need in India was women doctors as custom did not allow women to be treated by men and to relieve the suffering of women in particular started a one-bed clinic in 1900 and set up a 40 beds hospital within two years with a group of medical women. But her main desire was to train women doctors who would go out to serve suffering women and children. Thus training courses for nurses (1906) and a medical school for women (1918) came into being. The hospital and the medical school were growing and the medical school became a medical college with degree courses in 1942. The historic change came in 1947 when men also were admitted to the medical college in response to the national need. The educational programmes of the college and the services of the main and branch hospitals have also expanded steadily. The motto adopted by Christian Medical College is 'not to be ministered unto but to minister.' Consistent with this and the desire of the founder, Dr. Ida Soudder, to train doctors, the objective of the Christian Medical College Association remains :
'The imparting of education of the highest grade in the art and science of medicine and nursing or in one or the other of related professions, to equip them in the spirit of Christ for service in the relief of suffering and the promotion of health.'
3. The association has been formed by the Christian religious minority community. The association is running and administering a medical college and a college of nursing in Vellore, both of which are afflicted to the University of Madras, going by the name of 'The Christian Medical College.' Now the medical college has both graduate and post-graduate courses in Medicine. Besides the Graduate Medical Course leading to M.B.B.S. degree, there are Post-Graduate Diploma Courses in eleven different specialities and Post-Graduate Degree Courses M.D., or M.S., or Ph.D., in twenty-three different specialities.
4. At present it is stated that there are 500 students including post-graduate students in the medical college and 400 in the college of nursing, about 164 in para medical courses and every year about 100 students including post-graduate students are admitted to the medical college, 160 to the college of nursing and 114 for the para medical courses. The medical college also conducts research into the fundamental causes of diseases, their prevention and treatment. The institution also claims to be a pioneer in India in the development of higher specialities like Cardiology, Neuro-Surgery, Psychiatry, Thoracic Surgery, Urology, Gastro-Enterology, etc.
5. Sometime during the period 1975-78, three employees, viz., Gilbert Samuel, clerk in the Microbiology Department of the christian Medical College and H. M. Devadoss, packer, in the Central Sterile Supply Department of the hospital and Smt. Yesudial, a cook in the staff and student nurses hostel of the Rural Health Centre attached to the hospital were dismissed from service on certain grounds of serious misconduct.
6. In G.O. Ms. No. 275, Labour and Employment, dated 19th February, 1979, the following question was referred to the Labour Court for adjudication :
'Whether, the non-employment of Sri Gilbert Samuel, Sri M. Devadoss and Smt. Yesudial is justified, and if not, to what relief each of them would be entitled; to compute the relief, if any awarded in terms of money, if it could be so computed.'
This was numbered as Industrial Dispute No. 52 of 1979, on the file of the Labour Court.
7. One R. Subramaniam who was stated to be a probationary stenographer of the institution and whose services had been terminated in 1975 at the end of the probationary period also raised an industrial dispute in 1978 about the termination of his probation and that issue was referred in G.O. Ms. No. 605 L. and E., dated 11th April, 1979, and the issue refereed reads as follows :
'Whether the non-employment of Sri R. Subramaniam is justified, if not to what relief he is entitled to compute the relief, if any awarded, in terms of money, if it could be so computed.'
This was numbered as Industrial Dispute No. 84 of 1979, and both these are pending adjudication in the Labour Court.
8. Writ Petition No. 221 of 1980, has been filed by the petitioner-association praying for the issue of a writ of certiorari to quash G.O.Ms. No. 605, dated 11th April, 1979 and Writ Petition No. 222 of 1980, has been filed praying for the similar relief of certiorari to quash G.O.Ms. No. 275 dated 19th February, 1979. The petitioner-association has also filed Writ Petition No. 220 of 1980, in which they have prayed for a declaration, declaring that the provisions of the Industrial Disputes Act, 1947, are unconstitutional and ultra vires and inapplicable in its entirely to minority educational institutions, as they deprive the fundamental right under Art. 30 of the constitution of India of institution such as the petitioner-Christian Medical College and Christian Medical College Hospital, Vellore.
9. The contention of the petitioner in all these writ petitions is that the Christian Medical College Hospital is a teaching hospital attached to the Christian College and that the college and hospital forms one integral part. The college and the attached teaching hospital is thus one educational institution to which the Industrial Disputes Act is not applicable. The other contention of the petitioner is, the institution is a minority institution entitled to the protection under Art. 30(1) of the Constitution and that the various provisions of the Industrial Disputes Act in so far as they are applicable too the petitioner are ultra vires of the fundamental rights of the petitioner to administer a minority educational institution guaranteed under Art. 30(1) of the Constitution. Thus three questions arise for consideration namely, -
(1) Whether the Christian Medical College Hospital as an attached teaching institution of the Christian Medical College is an 'Educational Institution';
(2) Whether the Industrial Disputes Act is not applicable to educational institutions; and
(3) Whether, in view of Art. 30, the Industrial Disputes Act is not applicable to minority educational institutions.
10. The learned Counsel for the petitioner referring to the Directory of Medical Colleges in India published by the Ministry of Health and Family Welfare, Government of India pointed out that there are 295 Government hospitals and 79 private hospitals in Tamil Nadu of which only 25 are hospitals attached to Government and Private Medical Colleges. In all other States also not all the hospitals are attached to medical colleges and only a few hospitals are mentioned in the directory itself as a hospitals attached to medical colleges and only a few hospitals are mentioned in the directory itself as hospitals attached to medical college. Item (78) of the directory relates to Christian Medical College, Vellore. After giving a brief history of the college it gives Christian Medical College Hospital, Vellore as one of the hospitals attached to the Christian Medical College, Vellore. The report of the inspection of the Christian Medical College by the Inspector of the Medical Council of India in 1980, gives the following particulars :
'The college is situated about four miles away from the main hospital in a 186.75 acres area. The hospital is situated in the town of Vellore on 32.93 acres area. The non-clinical departments of Anatomy, Physiology, Bio-Chemistry and Pharmacology as well as departments of Community Health, Psychiatry, Rehabilitation Institutions and Rural Hospitals are situated in the college campus, while other departments are situated in the hospital.
There are six lecture theatres in the college while the hospital has four lecture theatres each with a seating capacity of eighty students. Audio-visual aids are available. There are two auditoriums. Norman Auditorium is in the hospital and it has seating capacity of 600. Soudder Auditorium is in the college and it has seating capacity of 999. There are two examination halls. The central library has to sections, one in the college and the other in the hospital. Hostel facilities are available both at the college and at the hospital campus. At the college, under-graduate students, M.Sc. students and post-graduate students of pre-clinical department are accommodated. In terms para medical students and nursing students are accommodated at the respective hostels situated in the hospital campus. About 375 seats are available in the hostels. All teaching staff members have been provided with furnished accommodation in the hospital/college campus.'
The Christian Medical College Hospital is, in this report also, shown as one of the teaching hospitals attached to the college. The heads of departments, professors lectures and demonstrators, except those relating to non-clinical departments are the doctors who are in charge of the respective work in the hospitals as also teaching.
11. S. 2(a) of the Indian Medical Council Act, 1956, defines 'approved institution' as meaning a hospital, health centre or other such institution recognized by a university as an institution in which a person may undergo the training, if any, required by his course of study before the award of any medical qualification to him. S. 17 relating to inspection of examinations states that
'the committee shall appoint such number of medical inspectors as it may deemed requisite to inspect any medical institution, college, hospital or other institution where medical education is given, or to attend any examination held by any university or medical institution for the purpose of recommending to the Central Government recognition of medical qualifications granted by that university or medical institution.'
Similarly, S. 18 authorizes the council to appoint visitors to inspect the medical institutions, college hospital or other institutions where medical education is given S. 33 enables the council to make regulations to carry out the purposes of the Act and one of the specified matters with respect to which regulation had been made is 'the standards of staff, equipment, and accommodation, training and other facilities for medical education.'
12. The Medical Councils of India has issued regulations relating to the standard requirements for a medical college for 100 admissions annually. These regulations are divided into three parts. Part I dealing with 'accommodation in the college and its associated teaching hospitals', Part II with 'staff - teaching and technical'; and Part III with 'equipment in the college departments and in the hospitals.' So far as teaching hospitals are concerned, the regulations read :
Accommodation be provided for Administrative Officer's room; nursing superintendent's room for nurses waiting hall for the men and women visitors for patents, enquiry office, store room linen room, accommodation for resident staff including registrars, housemen and post-graduates.
One clinical lecture theatre to be provided in the hospital to accommodate not less than 150 students of the pattern recommended of the college departments. Accommodation for one central registration and one statistics department may be provided. (Sanitary annexes to be provided as on required basis)
Clinical departments in the hospital.
Number of beds required for the purposes of clinical teaching should be 700. They may be distributed in the following manner.
Total number of beds 700.
Department of Medicine :(1) General Medicine 200(2) Pediatrics 40(3) Psychiatry 16(4) Tuberculosis 16(5) Dermatology and venereology 16(6) Infectious Diseases 16-------304------- Note : It is better, wherever possible, to utilize the facilities available in larger tuberculosis, infectious diseases and mental hospitals for training in these specialities.
Department of Surgery :(1) General Surgery 200(2) Pediatrics 16(3) Ophthalmology 40(4) Otorhinolaryngology 16(5) Orthopaedics 20(6) Dental 4--------296-------- Department of Obstetrics and Gynaecology :
(1) Obstetrics 50(2) Antenatal 10(3) Gynaecology 40------100------ Note : The number of beds in the Department of Obstetrics and Gynaecology may be suitably increased to provide for sufficient number of cases for students.
Beds should also be made available for other specialities viz., Cardiology, Thoracic Surgery, Neurology, Neurosurgery, Endrocrinology, etc., as these specialities are developed.
(Nearly one-third each of the total number of beds is to be distributed to General Medicine and General Surgery, remaining one-third to be distributed to other branches, keeping in view that units of ancillary branches should not have less than sixteen beds each except Dental. For purposes of enumeration of beds on the above scale of distribution units of Dermatology and Venereology may be taken as one.)
Clinical Departments - Indoor :
Medicine, Surgery, Midwifery and Gynecology. Accommodation to be provided for :
(1) Professor's Unit with accommodation for his staff.
(2) Honorary Physicians/Surgeons/Obstetricians/Registrars.
(3) Demonstration room for small groups (10 to 15) of students.
(4) Ward laboratories of students and staff.
(5) Examination and treatment rooms.
(6) Ward sister/nurses rooms.
(7) Ward pantry.
(8) Duty students room for men and women.
(9) Store rom for linen and other equipment.
(10) Mobile patients dining room.
Above are to be located in the respective blocks.
Following additional accommodation may be provided in the departments specified below :
I Department Medicine :
(1) Cardiac laboratory with electrocardiographic room and facilities for screening the patients. The University of Madras have also issued instructions and the relevant portions are extracted below :
'Final M.B.B.S. and Degree Examination : 28.
Course of study. - The course of study shall extend over three years subsequent to the second M.B.B.S. Examination which shall be spent at a hospital or hospitals recognized or approved by the university and shall cover courses in special Pathology, Medicine including Pediatrics, Surgery including Orthopedics and Ear, Nose, Throat, Obstetrics and Gynecology and Preventive and Social Medicine.
Note : Each students during this period of clinical clerkship and surgical dressership in the wards shall have continuously in his sole charge as clinical clerk and dresser respectively, not less that five beds.
In calculating the number of beds available of teaching purposes all beds which are so used can be included but provision of beds available for teaching purposes shall be such that number of bed to students annually admitted into there college does not fall below the ratio 5 : 1 of which no more than one-third shall be devoted to General Medicine and one-third to General Surgery.'
13. Medical education is directed towards imparting and training in the knowledge and skills used in the study, treatment and prevention of disease and in the maintenance of good health. The spirit of rational enquiry may be considered the starting point of medical education, because it introduced the practice of observation and reasoning regarding disease. Rational interpretation and discussion lead themselves to teaching and thus the formation of medical schools, Christian religion greatly contributed to both learning and teaching of Medicine, because it favoured as acts of Christian piety not only the protection and care of the sick but the establishment of institutions where collections of sick people encouraged observation, analysis and discussion among physicians by furnishing excellent opportunities for comparison. Though with the rise of some Western European universities in the early stages, the teachers of Medicine were in some measure drawn away for the life of hospitals, later on the value of hospital experience and the training of the student's sight, hearing and touch in studying disease were reasserted.
14. This return to the bedside aided the hospitals in their long evolution from dwelling places of the poor, the diseased, and the infirm, maintained by charities to the well-equipped, efficiently places of today, used by every part of the community maintained by charity or at public, expense, and staffed by trained nurses, physicians, surgeons, and lay assistants.
15. The following is generally the pattern of medical education. The pre-medical courses required in most countries emphasized the subjects of physics, chemistry and biology. A pass in these subjects from a recognized secondary school was required. The courses in physics, chemistry and biology were required in order to make it possible to present subsequently the subjects of anatomy, physiology, biochemistry, and pharmacology with precision and economy of time to minds prepared in scientific method and content.
16. The medical schools began their work with the study of the structure of the body and its formation anatomy, histology and embryology. Consequently, or soon, thereafter, came the studies related to function, i.e., physiology, biochemistry, pharmacology, and, in most colleges, biophysics. Usually, after the microscopic study of normal tissues (histology) bad begun, the student was introduced to pathological anatomy, bacteriology, immunology, parasitology, - in short, to the agents of disease and the changes that they cause in the structure and functions of the tissues. Courses in medical psychology, biostatistics, and public health sometimes were given in the first two or two and a half years of the medical course. Two or more clinical years of an effective curriculum were characterized by active student participation in small group conferences and discussion, a decrease in the number of formal lectures, and an increase in the amount of contact with patients in teaching hospitals and clinic. Through work with patients, under the supervisions and guidance of experienced teachers, students learned methods of obtaining comprehensive, accurate, and meaningful accounts of illness, how to conduct physical examinations, and how to develop judgment in the selection and utilization of laboratory diagnostic aids. During this period they learned to apply the knowledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities. On completion of medical school, the physician usually sought graduate training and experience in a hospital under the supervision of competent clinicians and other teachers. Persons seeking further graduate education and training to qualify themselves as specialists or to fulfil requirements for a higher academic degree subsequently become hospital residents or fellows. The second type of advanced training is known as post-graduate education. It consisted of courses and training opportunities of from a few days to several months in duration, designed to enable physicians to learn of new development within their special areas of concern.
17. In some cases hospitals were created expressly for teaching and research in medicine, a typical example of which in Johns Hopkins Hospital at Baltimore, United States. This example has been followed in United States in a number of cases. (Vide Encyclopedia Britannica, Vol. II, 15th Edition, pages 809 and 810.)
18. The history of the Christian Medical College and Hospital, Vellore, and the objective of its founder as stated earlier leave no doubt that the objective in the starting of the Christian Medical College Hospital is the imparting of education of the highest grade in art and science of medicine and nursing or in one or any one of the other related professions, to equip them in the spirit of Christ for service in the relief of suffering and promotion of health. It is also in evidence that all the doctors in the Christian Medical College Hospital are teaching staff, except the trains (house-surgeons). It may be there are other employees like sweepers, cooks, stenographers, clerks, cashiers, technicians, accountants, ward attenders, electricians, etc., who may be termed as lay assistant but since it is the co-ordinative effort of all concerned that makes the institution as a teaching hospital, the employment of such persons would not in any way affect the institution being an educational institution.
19. The course of and pattern of medical education, the requirements under the Medical Council Act and the regulations made thereunder and the university regulations, the need for an attached teaching hospital, the objectives of the founder and the history of the petitioner-association and the college and hospital leave no doubt in our mind that the primary purpose of the attached teaching hospital is teaching and training medical students.
20. For the foregoing reasons we are of the view that the Christian Medical College Hospital which is attached to the Christian Medical College is an educational institution.
21. It was held in University of Delhi v. Ram Nath 1963 II L.L.J. 337, that the work of imparting education conducted by educational institution like the University of Delhi and the college run by it is not an industry within the meaning of S. 2(j) of the Industrial Disputes Act. Nor can the educational institution be considered as employers within the meaning of S. 2(g) or that the work of teaching carried on by them as an industry. However, the correctness of this judgment was considered by a larger Bench of the Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa : (1978)ILLJ349SC . After quoting extensively the reasoning in University of Delhi case (supra), and after a consideration of the same the learned Judges held in Para 91, at page 392 of 1978 I L.L.J. :
'Our conclusion is that University of Delhi case (supra), was wrongly decided and that education can be and is, in its institutional form, an industry.'
We may also point out that one of the contentions raised supporting the decision in University of Delhi case (supra), was the predominant activity of the university was teaching and since teachers do not come within the purview of the Act, only the incidental activity of the subordinate staff would fall within its scope, but that could not alter the predominant character of the institution. The Supreme Court made the following observation in regard to this contention in Para 87, at page 390 of 1978-I L.L.J. :
'We may deal with these contentions in a brief was, since the substantial grounds on which we reject the reasoning have already been set out elaborately. The premises relied on is that the bulk of the employees in the university is the teaching community. Teachers are not workmen and cannot raise disputes under the Act. The subordinate staff being only a minor category of insignificant numbers, the institution must be excluded, going by the predominant character test. It is one thing to say that an institution is not an industry. It is altogether another thing to say that a large number of its employees are not 'workmen' and cannot therefore, avail of the benefits of the Act and so the institution ceased to be an industry. The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The trust test is the predominant nature of the activity. In the case of the university or an educational institution, the nature of the activity is, ex-phypothesi, education which is service to the community, Ergo, the university is an industry. The error has crept in, if we may say so with great respect, in mixing up the numerical strength of the personnel with the nature of the activity.'
22. In this passage the conclusion in University of Delhi case (supra), that the teacher are not workmen was left untouched. In fact, in the earlier passage in para 113, the learned Judges made the following observations at page 388 para 82 of 1978-I L.L.J. :
'... Two reasons are given to avoid the conclusion that imparting education is an industry. The first ground relied on by the Court is based upon the preliminary conclusion that teachers are not 'workmen' by definition. Perhaps, they are not, because teachers do not to manual work or technical work. We are not too sure whether it is proper to disregard, with contempt, manual work and separate it from education, nor are we too sure whether in our technological universe, education has to be excluded. However, that may be a battle to be waged on a later occasion by litigation and we do not propose to pronounce on it at present.'
23. Sri V. K. Thiruvenkatachari, the learned Counsel for the petitioner, is therefore, right in his contention that Bangalore Water Supply case (supra), specifically left the ruling in University of Delhi case (supra), that a teacher is not a workman within the definition in the Industrial Dispute Act undisturbed and that ruling so far as that question is concerned now still holds the filed. But there could be no doubt that education is in its institutional form an industry. We have, therefore, to hold that the Christian Medical College. Hospital, even as an educational institution, is an Industry within the meaning of the Industrial Disputes Act.
24. That leads us to the question whether various provisions of the Industrial Disputes Act, in so far as they are applicable to the petitioner-minority institution, are ultra vires the fundamental rights of the petitioner to administer a minority educational institution guaranteed under Art. 30 of the Constitution. All minorities linguistic or religious, have by Art. 30(1) an absolute right to establish and administer educational institutions of their choice and any law or executive direction which seeks to infringe the substance of that right would to that extent be void. However, as observed by the Supreme Court in Kerala Education Bill, 1957 case, A.I.R. (1958) S.C. 956 :
'the minority cannot surely ask for aid or recognition for an educational institutional run by them in unhealthy surrounding, without any competent teachers possessing any semblance of qualifications, and which does not maintain even a fair standard of teaching or which teachers mattes subversive of the welfare of the scholar. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against he claim of the State to insist that in order to grant and the State may prescribe reasonable regulations to ensure the excellence of he institutions to be aided.'
The Supreme Court further held in Rev. Sidhajbhai v. State of Gujarat : 1SCR792 , that regulations made in the true interest of efficiency of instruction, discipline, health, sanitation, morality, payable order and the like may undoubtedly be imposed. Such regulations are not restriction on the substance of the right which is guaranteed; they secure the proper functioning of the institution in matter educational. Thus regulations satisfying a duel test, namely, the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, would be valid.
25. The contention of the learned Counsel for the petitioner is that the authority of selection, appointment and dismissal of employees is one of essential ingredients of the right to manage an educational institution and that the relevant provisions of the Industrial Disputes Act are not consistent with the freedom of the minority institution in the management of the affair of the institution; nor can they be said to be directed to making the institution effective as an educational institution while retaining its character as a minority institution. Under S. 2(k) of the Industrial Disputes Act any dispute or difference between management and the workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person is deemed to be an industrial dispute. The definition is thus very widely worded and would cover within its ambit every difference or dispute connection with the condition of service of the employees of an educational institution, however, trivial or insignificant it may be and the Constitution Officers are empowered to intervene in every such dispute of difference. The petitioner further contended that S. 10 read with S. 12(5) of the Act confers very wide, and even absolute discretion on the Government to refer any dispute, real or apprehended, to the Labour Court or Tribunal for adjudication, thus providing for an unbridled interference by Government in the day-today administration and in the decision of the minority educational institutions. The power of the managing body to terminate the service of any teaching or any academic or non-academic staff based on the relationship between the employer and his employee, is an integral part of the right to administer, and S. 11A is a clear encroachment on such power.
26. We have already noticed that in Rev. Sidhajbhai v. State of Gujarat (supra) the Supreme Court held that the regulations in order to be valid must satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to make the institution and is conducive to make the institution an effective vehicle of education for the minority community or other person who resort to it. The right established by Art. 30(1) is not to be whittled done by so-called regulative measures conceived in the interest not of the minority educational institution, but of the Public.
27. In St. Xaviers College v. State of Gujarat : 1SCR173 , Mathew, J., with reference to the provisions of S. 51A of the Gujarat University Act, which provided among other that on member of the teaching, other academic and non-teaching staff of an affiliated college shall be dismissed or removal or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard and until, -
(a) he has been given a reasonable opportunity of making representation on any such penalty proposed to be inflicted on him; and
(b) the penalty to be inflicted on him is approved by the Vice-Chancellor or any other officer of the university authorized by the Vice-Chancellor in this behalf, observed;
'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 service 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 service of a teacher are terminated, he should be given an opportunity of being heard in his defence. But to require that for terminating the service of teacher after an inquiry has been conducted, the management should have the approval of an outside agency like the Vice-Chancellor or of his nominee would be an abridgment of its right to administer educational institution.'
28. S. 51A of the Gujarat University Act provided that any dispute between the governing body and any member of the teaching, other academic and non-teaching staff of an affiliated college or recognised or approved institution, which is connected with the conditions of service of such member, shall, on a request of the governing body, or of the member concerned be referred to a Tribunal or arbitration consisting of one member nominated by the governing body of the college or, as the case may be, the recognized or approved institution, one member nominated by the member concerned and an umpire appointed by the Vice-Chancellor and that the provisions of the Arbitration Act would apply to such arbitration proceedings. With reference to this provision, the Supreme Court observed as follows :
'This provision subserves no purpose and we feel no doubt that it will needlessly interfere with the day-to-day management of the institution. Any and every petty dispute raised by a member of the teaching or non-teaching staff will have to be referred to arbitration if it seem to touch the service condition. Arbitrations, not imparting education, will become the business of educational institutions. The section is in our opinion had in its application to minorities.'
29. We are of opinion these observations clearly apply to the provisions of Ss. 10 and 11A of the Industrial Disputes Act and the regulatory power could hardly justify investing different forum with power to review or set aside an order of dismissal, removal or reduction in rank.
30. The validity of Ordinance 33, Chapter LVII of the Ordinances framed by the Syndicate of University of Kerala, under S. 19(j) of the Kerala University Act. 1969, was in question in Lilly Kurian v. Sr. Lewina : 1SCR820 . The material provision reads as follows :
'The material provisions of Ordinance 33, Chapter LVII of the Ordinance framed by the Syndicate under S. 19(j) 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 of 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 :
(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 from service.
The management shall be the disciplinary authority in imposing the penalties.
(3) Appeal - A teacher shall be entitled to appeal to the Vice-Chancellor of the university against any order passed by the management in respect of the penalties referred to in items (ii) to (v), Such appeal shall be submitted within a period of sixty days the appellant receives the order of punishment.'
31. After a consideration of the earlier judgments and that in St. Xavier College case (supra), the Supreme Court held :
'51. An analysis of the judgments in St. Xaviers College case (supra), clearly shows that seven out of nine Judges held that the provisions contained in Clause (b) of Sub-ss. (1) and (2) of S. 51A of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educational institutions. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made on this right to dispense with their services under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the university authorized by him, uncanalized, unguided and unlimited power to veto the actions of the management. According to the majority view, the conferral of such blanket power on the Vice-Chancellor and his nominee was an infringement of the right of administration guaranteed under Art. 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in Clause (b) of Sub-ss. (1) and (2) of S. 51A of the Act had the effect of destroying the minority institution's disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted by the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor or an officer of the university authorized by him. On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures.
52. The power of appeal conferred on the Vice-Chancellor under Ordinance 33(4) is not only a grave encroachment on the institution's right to enforce and ensure discipline in its administrative affairs but it is uncanalized and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined; and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside an order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items (ii) to (v) of the Ordinance 33(2), that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under Ordinance 33(4) was merely a ckeck on mal administration.
53. As laid down by the majority in St. Xaviers College case (supra), such a blanket power directly interferes with the disciplinary control of the managing body of the minority educational institution over its teachers. The majority decision in St. Xaviers College case (supra), 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 Art. 30(1) of the Constitution. If the conferral 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 Art. 30(1) will be, to use the well-known expression, a 'testing illusion,' a 'promise of unreality'.'
These observations squarely apply to the facts of this case. The definition of 'industrial dispute' under S. 2(k) is very widely worded and it would cover within its ambit every difference or dispute connected with the conditions of service of a member of the staff of an educational institution, however, trivial or insignificant it may be, which may arise between the management and a member of the staff. Therefore, any order of whatsoever kind passed by the management in respect of a member of the staff can be taken up for conciliation before the Conciliation Officer at the instance of the staff. Conciliation may be even against orders of the management which merely administer a warning or a censure or impose some other punishment or transfer or promotion, constituting purely managerial functions. Under S. 12(4), the Conciliation Officer is required to submit a full report to the Government on the facts and circumstances of the case, his efforts to bring about a settlement and the reasons for the failure of his efforts and on consideration of the report, the Government is given an absolute discretion to refer the dispute to the Labour Court or Tribunal for adjudication. The Labour Court on such reference is given wide powers including the power to differ both on the finding of misconduct arrived at by the management as well as the punishment imposed by the management. It is not restricted to scrutinizing whether the disciplinary proceeding has been conducted in conformity with the procedure laid down, as well as with the principles of natural justice, or whether it is an action mala fide or vindictively as a measure of victimization. The Labour Court or Tribunal is vested with the power to reopen the findings entered by the authority even after observing the principles of natural justice and determine for itself even pure questions of fact and the guilt or otherwise of the employee. It can modify, vary and set aside an order of discharge or dismissal and direct reinstatement of the employee on such terms and conditions as it thinks fit and give such other relief to the employee including the award of any lesser punishment in lieu of discharge or dismissal, even in cases where the misconduct has been duly established at the domestic enquiry. We are of the view that this power will seriously hamper the effective exercise by management of disciplinary control over the staff and in effect completely displaces the disciplinary authority of the management over its staff and vest it in outside authority. S. 33 requiring permission or approval of the Conciliation Officer, Labour Court or Tribunal, as the case may be, for altering the conditions of service or for taking disciplinary action against a member of the staff during the pendency of the proceedings and S. 9A imposing restrictions on the freedom of action making changes in the conditions of service, which may include changes in the hours of work, rest intervals, leave, introduction of new rules of discipline, improvement of plant or technique, etc., would really affect the right of the petitioner in its day-to-day administration of its educational institution. We are, therefore, constrained to hold that the provisions of Ss. 9A, 10 to 12 and 33 would not be applicable to the petitioner.
32. In the result, these writ petitions are allowed and the rule nisi is made absolute. No costs.