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1973 DIGILAW 181 (KER)

SR. LEWINA v. LILLY KURIEN

1973-07-19

G.VISWANATHA.IYER, V.P.GOPALAN NAMBIYAR

body1973
Judgment :- 1. These three appeals disclose an acute and acrimonious controversy raging between the Management of a private college and its Principal. The suits out of which the Second Appeals arise, and the one which has given rise to the appeal, were all disposed of by a common judgment by the trial court. The appeals against two of them were dismissed and that has given rise to the Second Appeals. The appeal against the third suit was preferred to the District Court and transferred to this Court for disposal. S. A. No. 341 of 1973 arises out of O. S. No. 110 of 1970 which was treated as the main suit; the reference to the exhibits and to the ranks of parties in the judgment of the trial court was as in the said suit. 2. The St. Joseph's Training College for Women, Ernakulam, is the college concerned. It was founded, and is being run, by the Congregation of the Mothers of Carmel, composed of Roman Catholics, a minority based on religion, under Art.30(1) of the Constitution. Smt. Lilly Kurien (1st Respondent is 'all these appeals) was the Principal of the College since 1957. On 30-10-1969 there was some incident an outburst of temper, followed by assault or attempt at assault in the college between the Principal and one Sri. Rajaratnam, a Lecturer in the college, on deputation by the Government. The versions of Sri. Rajaratnam and of the Ist Respondent about the incident differed, as to the offensive and the innocent roles in regard to the incident, each trying to put the other in the wrong. An enquiry into the incident was directed by the Board of Management, and a Retired Principal of the Maharaja's College, Ernakulam (Sri. P. Narayana Menon) was appointed Enquiry Officer While he was about to start the proceedings, the Ist Respondent sent Ext, A-6 notice dated 19-11-1969 to the President of the Board of Management, alleging malafides against the Board and questioning the legality of the appointment of the Enquiry Officer. The Enquiry Officer proceeded with the enquiry, the 1st Respondent not participating therein, and submitted his Report, finding the 1st Respondent guilty. Before any action followed pursuant to the Report, the 1st Respondent filed O.S. No. 819 of 1969, Munsiff's Court, Ernakulam, on 18121969 (Ext. A-4 is a copy of the plaint) for a declaration that all. The Enquiry Officer proceeded with the enquiry, the 1st Respondent not participating therein, and submitted his Report, finding the 1st Respondent guilty. Before any action followed pursuant to the Report, the 1st Respondent filed O.S. No. 819 of 1969, Munsiff's Court, Ernakulam, on 18121969 (Ext. A-4 is a copy of the plaint) for a declaration that all. proceedings taken by the Board of Management for enquiry were illegal, and for an injunction restraining the Enquiry Officer from proceeding with the enquiry. By order on I. A. No. 6784 of 1969 filed with the plaint, an interim injunction was granted on 19121969 against the implementation of any decision that might be taken by the Management, till final orders are passed on the injunction petition. On 19121969 Ext- A-1 order was passed by the Management (communicated to the 1st Respondent on 211970) dismissing the 1st Respondent from service, but stating that the order will take effect only after the disposal of I. A. No. 6784 of 1970. The said petition was dismissed by Ext. A-2 order on 17-1-1970 with a direction that the order of interim injunction will be allowed to be in force for a period of two weeks from that date to enable the Ist Respondent to file an appeal before the Vice Chancellor, as provided by Ordinance 33 (4) of Chapter LVII of the Ordinances passed by the Syndicate under the provisions of the Kerala University Act 1957. The 1957 Act bad been replaced by the University Act of 1969 which came into force on 28 21969; and even by the time Ext. A 2 order was passed on 171 1970, the 1st Respondent had instituted an appeal to the Vice Chancellor on 911970 against the order of dismissal by the Management. She also filed an appeal to the Sub Court against Ext. A-2 order which was dismissed on 30-6-1970 (vide Ext. A-16). The suit itself O. S.819 of 1969 was dismissed as withdrawn without permission to institute a fresh suit on the same cause of action by Ext. A-3 judgment dated 19 9 1972. It is represented by Counsel for the 1st Respondent that CRP. No. 63 of 1973 is pending in this Court against the said order. 3. All the while, the 1st Respondent had been functioning as Principal of the College. It was brought to light that she had sent two communications, Ext. A-3 judgment dated 19 9 1972. It is represented by Counsel for the 1st Respondent that CRP. No. 63 of 1973 is pending in this Court against the said order. 3. All the while, the 1st Respondent had been functioning as Principal of the College. It was brought to light that she had sent two communications, Ext. A14 dated 6101969, and Ext. A-13 dated 5111969, to the Secretary to the Government, Education Department, regarding Sri. Rajaratnam. The Management took exception to these communications having been sent without reference to it, and behind its back. The deputation of Sri. Rajaratnam was cancelled by the Government pursuant to the reports, against which, the Management filed O P. No. 5181 of 1969 in this Court. The 1st Respondent herein was the 4th Respondent. The writ petition was allowed (vide 1970 KLT. 407). The 1st Respondent filed appeal against the judgment, claiming to be aggrieved by certain observations made therein. The same was dismissed in limine on 18-7-1970 with the observation that she was an unnecessary party to that writ petition, and nothing said in the judgment can operate against her. (See Ext.B-10). For sending Exts.A-13 and A-14 without reference to the Management, and treating the same as insubordination, an enquiry was ordered against the 1st Respondent and she was suspended on 9 41970 pending enquiry. A substitute Principal, Sr. Lewina, (3rd appellant) was appointed. The 1st Respondent filed O. P. No. 1534 of 1970 in this Court against the order of suspension; and also filed an appeal to the Vice Chancellor against the same. The O.P. was dismissed on 19 61970 by Ext B-4 judgment, in view of the pendency of the appeal before the Vice Chancellor. The Vice Chancellor issued Ext. B-6 order dated 20 41970 that the status quo be maintained. In view of this order, the Management was presumably apprehensive that the 1st Respondent might force herself upon the College. Therefore O.S. 405 of 1970, Munsiff's Court, Ernakulam was filed by the new Principal appointed by the Management in the place of the 1st Respondent, for an injunction restraining the 1st Respondent from functioning and from interfering with her discharging the duties as Principal. An interim injunction was granted. The suit was transferred to the Sub Court and numbered as O S.186 of 1972. S. A. No. 340 of 1973 arises out of the dismissal of the said suit. 4. An interim injunction was granted. The suit was transferred to the Sub Court and numbered as O S.186 of 1972. S. A. No. 340 of 1973 arises out of the dismissal of the said suit. 4. The Vice Chancellor heard the appeals against orders of suspension and dismissal. These were allowed by Exts. B-1 and B-2 orders dated 19-10-1970 communicated to the 1st Respondent on 24-10-1970. The Vice Chancellor held by these orders that there was violation of the principles of natural justice is passing Ext. A-1 order and the order of dismissal, cannot stand. The Management was directed to allow the 1st Respondent to continue as Principal. Before the orders were communicated, O.S. 110 of 1970 was filed by the Management on 22-10-1970 seeking an injunction restraining the 1st Respondent from functioning as Principal of the College. The Management also filed O P. No. 5855 and 5950 of 1970 against Ext. B-1 and B-2 orders. These writ petitions, after prolonged arguments, were withdrawn and dismissed by a Division Bench of this Court by Ext. B-3 order dated 7th January 1972. An amendment of plaint in O.S. No.110 of 1972 was sought by I. A. No. 139 of 1972 filed on 1011972 alleging that Exts. B-1 and B-2 orders were illegal and without jurisdiction. I.A. Nos. 1671 of 1972 and 3535 of 1972 were filed to implead the Vice Chancellor and the University. These were allowed by order dated 25101972. S.A. No. 341 of 1973 is against the dismissal of O.S. No. 110 of 1970, which was confirmed on appeal. 5. The 1st Respondent as the Principal of the College was approaching the postal authorities for delivery of the postal communications addressed to the Principal of the College. This provoked a tussle between the 1st Respondent and the substitute Principal, Sr. Lewina, appointed by the Management after suspension of the 1st Respondent. The latter filed O.S. No. 569 of 1972, Munsiff's Court, Ernakulam, against the 1st Respondent and the postal authorities for forbidding the one from receiving, and the other from delivering, the postal articles addressed to the Principal of the College. On transfer to the Sub Court, the same was numbered as O.S. 193 of 1972. It was dismissed; and against the dismissal, A.S. No. 33 of 1973 was filed in the District Court, which has been transferred to this Court for disposal as A.S.176 of 1973. On transfer to the Sub Court, the same was numbered as O.S. 193 of 1972. It was dismissed; and against the dismissal, A.S. No. 33 of 1973 was filed in the District Court, which has been transferred to this Court for disposal as A.S.176 of 1973. Such, in brief, are the circumstances giving rise to these appeals, 6. S. A. No. 341 of 1973: We shall first deal with S.A. No. 341 of 1973 which arises from the main suit O.S. No. 110 of 1970. Counsellor the Management contended that there was no right of appeal to the Vice Chancellor, against the order of dismissal (Ext. A-1) passed by the Management for a variety of reasons; assuming there was, such a right it was said, offended the rights of the religious minority to which the Management belonged, under Art.30(1) of the Constitution, and had been either destroyed by the provisions of the Kerala University Act 1969, or become incapable of exercise, as inconsistent with its provisions; and even if an appeal lay, and the Vice Chancellor was entitled to set aside the order of dismissal, he had no jurisdiction or power, to order, as he did, by Exts. B-2 the reinstatement of the 1st Respondent. We shall proceed to examine these contentions. 7. It is not disputed that the appeal to the Vice Chancellor was filed under Chapter LVII of the Ordinances framed by the Syndicate under S.19(b) of the Kerala University Act of 1957. Sub-Clauses (1) and (4) of Ordinance S3 provide for the right of appeal against the orders of suspension and dismissal. We may quote these provisions, and sub rule (5). "33 (1) SUSPENSION: The Management may at any time place a teacher under suspension where a disciplinary proceeding against him is contemplated or is pending. He shall be paid subsistence allowance and other allowances by the management during the period of suspension at such rates as may be specified by the University in each case. The teacher shall have right to appeal against the order of suspension to the Vice Chancellor of the University within a period of two months from the date on which he receives the order of suspension. (4) 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). (4) 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 60 days the appellant receives the order of punishment. 5. During the period of suspension, the teacher shall be paid a monthly subsistence allowance which shall not be less than one third of his monthly salary. When a teacher who had been dismissed, removed, compulsorily retired, or suspended, is reinstated, and the competent authority holds that the teacher has been fully exonerated or in the case of suspension that it was wholly unjustified, the teacher shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be provided the amounts already drawn as subsistence allowance shall be adjusted from the payments so made." We may only add that item (v) referred to in sub-rule (4) is the punishment of dismissal from service. The first ground against the right of appeal to the Vice Chancellor was that the same is against and beyond the provisions of the parent statute, namely the University Act 1957. That Act by S.2 0) defines "Teacher" as follows: "2 0) "Teacher" means a Professor, Assistant professor. Reader, Lecturer, Instructor or such other person imparting instruction or supervising or controlling research in any of the colleges or other educational institutions of the University." It was said that the Principal would not be comprehended within this definition, and that this was for the very good reason that he was the administrative head concerned mainly, if not exclusively, with the work of administration and supervision of the college, rather than with the academic side of teaching or imparting instructions. Attention was called to the First Statutes framed under the 1957 Act by the Senate in pursuance of the powers under S.15 (2) (ii) of the Act. Statute 9 of Chapter XXXVI of this Statute dealing with the Principal's responsibilities states that be shall be responsible for the internal management and administration of the college. Attention was called to the First Statutes framed under the 1957 Act by the Senate in pursuance of the powers under S.15 (2) (ii) of the Act. Statute 9 of Chapter XXXVI of this Statute dealing with the Principal's responsibilities states that be shall be responsible for the internal management and administration of the college. Statute I of Chapter I provides that all words and expressions used therein and defined in the Act, shall have the meaning so defined; and Clause.9 of S.10 of the 1957 Act dealing with the Vice Chancellor and his duties and responsibilities, states that he is to exercise such other powers and to perform other functions as may be prescribed by Statutes. From these provisions, the next phase of the argument was that the definition of a 'teacher', enlarged by an Ordinance framed by the Syndicate in 1967, in Chapter LVII of the Ordinances, to 'the effect that "teachers shall mean Principals" etc. travels beyond the provisions of the parent Act and the First Statute thereunder, and therefore the said definition and the conferment of a right of appeal on the Principal under the provisions of sub-clauses (1) and (4) of Ordinance 33 suffer from the same infirmity. The Syndicate's power to make an Ordinance providing for a right of appeal against dismissal, was itself disputed. We cannot accept any of these contentions of Counsel for the Management. The definition of "Teacher" in S.2 0) of the Act is, in our opinion, wide enough to take in a Principal, as any "other person imparting instruction." Teacher' is the genus of which 'Principal' is only a species; and the powers of administrative control and supervision superimposed on him would not destroy bis basic trait and character as 'teacher'. We do not therefore think that Ordinance 33 when it framed the definition of 'teacher' to mean Principals, Professors etc. for the limited purpose of Chapter LVII of the Ordinances, was going beyond the provisions of the parent Act. Toe decision in J. K. Chowdhuri v. R. K Dutta (AIR. 1958 SC 722) where the dismissal by the Governing body, of the Principal and Professor of the Gurucharan College, under the provisions of the Gauhati University Act, was held to be outside the provisions of the Act, in so far as the same related to the Office of the Principal, is distinguishable on facts. 1958 SC 722) where the dismissal by the Governing body, of the Principal and Professor of the Gurucharan College, under the provisions of the Gauhati University Act, was held to be outside the provisions of the Act, in so far as the same related to the Office of the Principal, is distinguishable on facts. The Act there contained separate definitions of 'Principal' and 'teacher'; and from the context and the content of the provisions, it was clear enough that the disciplinary action complained of, could operate only on the 'teacher' and not on the 'Principal'. Such is not the position here. 8. Was Ordinance 33 of Chapter LVII of the Ordinance then outside the powers of the Syndicate? S.19(b) of the 1957 Act provides for the powers of the Syndicate to make Ordinances. Clauses (g), (h), (i), 0) and (x) stressed for various purposes and at various stages, may be extracted: "19. Powers of the Syndicate Subject to the provisions of this Act and the Statutes 1 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) to (f):... (g) to prescribe the qualifications of teachers . (i) in the colleges, and (ii) in the institutions maintained by the University on the recommendation of the Board of Selection. (h) to appoint teachers and other employees of the University; fix their emoluments and prescribe their duties and the conditions of their service; (i) to suspend and dismiss teachers and other employees of the University, after giving them reasonable notice, provided that the employees so punished shall have a right of appeal to a Tribunal appointed by the Chancellor whose decision shall be final and binding. 0) to fix the emoluments and prescribe the duties and the conditions of service of teachers and other employees in private colleges; (x) to see that a written contract governs the relationship between the teachers and management of private institutions." The only provision to which Ordinance 33 which provided a right of appeal to the Vice Chancellor was traced, was S.190); and the argument on the side of the 1st Respondent and for the Vice Chancellor was that'conditions of service' include disciplinary proceedings and therefore would cover the provision for a right of appeal. To expound the meaning and the gamut of the term'conditions of service', reliance was placed on the Privy Council decision in North-West Frontier Province v. Suraj Narain (AIR. 1949 P.C. 112). In that case, dealing with the first of the questions raised, namely whether the right of dismissal was a 'condition of service' within the meaning of S.243 of the Government of India Act 1935, it was observed: "On the first question apart from consideration whether the context indicates a special significance to the expression "conditions of service", Their Lordships are unable, in the absence of any such special significance, to regard the provisions which prescribe the circumstances under which an employer is to be entitled to terminate the services as other-wise than conditions of service, whether these provisions are contractual or statutory; they are therefore of the opinion that the natural meaning of the expression would include such provision " The principle was approved by the Supreme Court in Pradyat Kumar Base's case (AIR. 1956 SC. 285). Again in State of Uttar Pradesh v. Shardul Singh (1970 (1) SCR. 108), it was ruled that conditions of service may comprise matters from appointment to termination and include even matters relating to pension. 9. But it was said by Counsel for the Management that the context in which the expression 'conditions of service' has been used in the various clauses of S.19 of the Act set out earlier, would indicate that the said expression has no such wide or comprehensive import. It was said that if it had such import to cover disciplinary action and a right of appeal therefrom, then the express provision for right of appeal against suspension and dismissal in clause (i) of S.19, would be redundant and unnecessary, when clause (h) had already made a provision to prescribe "the conditions of service of teachers and other employees of the University". Therefore, it was said, that the context indicated that a right of appeal over disciplinary matters was outside the scope of the terra 'conditions of service' occurring in clause 0). This was sought to be reinforced by reference to clause (x) which empowers the Syndicate to see that a written contract governs the relationship between the teachers and management of private institutions. This was sought to be reinforced by reference to clause (x) which empowers the Syndicate to see that a written contract governs the relationship between the teachers and management of private institutions. We could not escape the feeling that the different clauses in S.19 on which Counsel placed reliance could certainly have been framed with greater precision and care. But we cannot see our way to agree with Counsel that in the context, matters of disciplinary control and action over teachers of private colleges are not comprehended within the term'conditions of service.' Clauses (h) and (i) are capable of plausible explanation, that while 'conditions of service' including matters of disciplinary control were generally provided for under clause (h), two grave instances of disciplinary action, namely, suspension and dismissal of teachers, were taken out by the legislature in its wisdom for separate treatment and specific statutory provision for appeal, in clause (i). S.19 0) being comprehensive in its scope, Ordinance 33 of Chapter LVII was within its purview. 10. As for the argument that under S.10 (9) of the 1957 Act, the supplementary powers of the Vice Chancellor should be prescribed by Statutes and therefore the right of appeal, conferred by the Ordinance is not valid or proper, we are not impressed by it. It is enough to point to Clause.6 of S.10 of the Act, which makes it the imperative duty of the Vice Chancellor to ensure that the provisions of the Act, Statutes and Ordinances are faithfully observed and carried out. In the face of this provision, we do not think that the Vice Chancellor, of all persons, should be justified In refusing to hear an appeal provided for under Ordinance 33. 11. Assuming that a right of appeal has been properly provided for under the 1957 Act, read with the Statutes and the Ordinances, Counsel for the Management had still two further contentions; first that the said right of appeal offends the rights of the religious minorities under Art.30 (1) of the Constitution; and next, that the said right either lapsed with the passing of the Kerala University Act 1969, or could not be kept alive thereafter, being inconsistent with the provisions of the latter Act. To these arguments we shall now turn. 12. To these arguments we shall now turn. 12. We do not think Counsel is well-founded in bis contention that a right of appeal as such against the dismissal of a teacher (or Principal) by the Management of a private college offends the provisions of Art.30 (1). A Full Bench of this Court, of which one of us was a member, which considered the provisions of S.53 (9) and S.56 (2) and (4) of the Kerala University Act 1969, has, in clear and unambiguous terms pronounced in V. Rev. Mother Provincial v. State of Kerala (1969 KLT. 749) that the right of appeal as such is not violative of the rights of religious minorities under Art.30 (1) of the Constitution; but it struck down the provisions for appeal, as, under them, the right of appeal was conferred on the Syndicate, a body which was regarded as unsuitable to deal with the appeal (See pages 772 and 774 of 1969 KLT.). The mode of exercise of the right was what was found to be offensive. The decision was carried up in appeal to the Supreme Court (See State of Kerala v. V. Rev. Mother Provincial (1970 KLT. 630), and was affirmed. An application for review was preferred to the Supreme Court. The Supreme Court made it clear that it did not consider the vires of sub-sections (1), (2), (3) and (9) of S 53 and sub-sections (2) and (4) of S.56 with reference to Art.30 (i) of the Constitution. After amendment of the 1969 Act by Act 13 of 1971, the provisions were again challenged before a Division Bench of this Court in Rt. Rev. Dr. M. M. John v. Govt. of Kerala (1971 KLT. 875). It is enough to notice that the provisions under S.53 (9) for an appeal to the Vice Chancellor, and under S.56 (4) to an Appellate Tribunal were both sustained as not offending Art.30 (I). In the light of the judgment of the Full Bench of this Court in 1969 KLT. 749 and the later Division Bench in 1971 KLT. 875, we are not prepared to say and indeed cannot hold that the provision for a right of appeal as such, against disciplinary action taken by the Management, offends Art.30 (1) of the Constitution. 13. In the light of the judgment of the Full Bench of this Court in 1969 KLT. 749 and the later Division Bench in 1971 KLT. 875, we are not prepared to say and indeed cannot hold that the provision for a right of appeal as such, against disciplinary action taken by the Management, offends Art.30 (1) of the Constitution. 13. That takes us to the question whether the right of appeal provided under the 1957 Act and Statutes, either lapsed with the 1969 Act or was rendered incapable of continuance. Little was said to show it lapsed. Whether it was continued depends on S.75 (2) of the 1969 Act, which reads: 75(2). The Statutes, Ordinances, rules and bye-laws in force immediately before the commencement of this Act shall, in so for as they are not inconsistent with the provisions of this Act, continue to be in force until, they are replaced by the Statutes, Ordinances, rules or bye-laws framed under this Act." The First Statutes under the 1969 Act were promulgated only on 6-3-1972. Counsel for the Management contended that S.75(2) is inapplicable, first, because, Ordinance 33 framed under the 1957 Act was ultra vires, and therefore not a'law in force'; and second, because, assuming the Ordinance to be a'law in (ores it was inconsistent with the provisions of the 1969 Act. We have considered and rejected the various grounds on which the Ordinance was claimed to be ultra vires, and need not go over the same ground again. We therefore cannot agree with Counsel for the Management that Ordinance 33 was not a'law in force.' At the same time, we wish to guard ourselves against being understood as having expressed any view on the point argued by Counsel for the 1st Respondent that the expression'law in force' only means that the law should be physically on the Statute book irrespective of its vires or validity. 14. Dealing with the question whether Ordinance 33 was inconsistent with the provisions of the 1969 Act, we are faced with the position that clauses (2) and (4) of S.56 which provided respectively for the previous sanction of the Vice Chancellor before dismissal, removal or reduction in rank of a teacher, and for a right of appeal to the Syndicate by the teacher against disciplinary action, were struck down by the Full Bench of this Court in V. Rev. Mother Provincial v. State of Kerala (1969 KLT. 749). The result is that these clauses should be regarded as if they never existed in the Statute. Counsel for the Management had a contention that clauses (2) and (4) were in force and effect from 28-2-1969 when the Act was passed, till the date of delivery of judgment by the Full Bench on 19th September 1969. We note this contention only to reject it, and because both Counsel for the Management and for the 1st Respondent, in the tenacity with which this legal duel was waged, were anxious that every one of the contentions urged by them should be noted, and none should be taken as having been given up, lest they should be prejudiced when the matter is carried up further. 15. With clauses (2) and (4) of S.56 of the 1969 Act struck down, the continuance of the right of appeal granted under Ordinance 33 passed under the the 1957 Act, does not appear to us to be inconsistent with the provisions of the 1969 Act. There was a potential right of appeal, capable of fructification, even under the 1969 Act. S.56(1) of the said Act provides that the conditions,of service of teachers of private colleges, including conditions relating to pay, pension, Provident Fund, gratuity, Insurance, and age of retirement, shall be such as may be prescribed by Statutes. In prescribing 'conditions of service', the Statutes could provide for a right of appeal. For that reason we see no inconsistency. The further contention of Counsel that under S.17(2) (b) of the 1969 Act, the Statutes have to be passed by the Senate, and therefore the continuance of a right of appeal provided by Ordinance made by the Syndicate, under the previous Act, is inconsistent with the provisions of the later Act, does not appeal to us. On the principle of the decision of the Supreme Court in South India Corporation v. The State of Kerala (AIR. 1964 SC. 207) we are inclined to think that Statutes and Ordinance validly passed under the 1957 Act are not rendered invalid under the 1969 Act, merely because the body or authority to pass them under the latter Act is different from that provided under the earlier one. 1964 SC. 207) we are inclined to think that Statutes and Ordinance validly passed under the 1957 Act are not rendered invalid under the 1969 Act, merely because the body or authority to pass them under the latter Act is different from that provided under the earlier one. The subordinate legislation, validily passed by an authority competent to pass the same under the 1957 Act, does not in our view get invalidated or rendered inconsistent, because the body which passed it has lost its competence, or the same has been transferred to a different body. For these reasons, we are of the opinion that the right of appeal provided by Ordinance 33 survived the passing of the 1969 Act, and was continued under its provisions. 16. Counsel for the Management would contend that the right of appeal under S.56 (4) of the 1969 Act which was struck down, was to a different forum (Syndicate) than was provided under the 1957 Act (Vice Chancellor), and therefore the continuance of the latter right was inconsistent. S.56 (4) which was struck down is to be regarded as non est. Even if it were not so, we are not prepared to discern inconsistency from the mere difference in the forum for appeal. 17. We may here notice the contention of Counsel for the Ist Respondent, that the plea that the right of appeal provided by Ordinance 33 is ultra vires the provisions of the 1957 Act, and the Statute framed thereunder was not expressly raised in the pleadings. While, in the strict sense, this is so, being a pure question of law which was argued in the courts below, we did not preclude Counsel for the Management from raising it before us. Counsel for the 1st Respondent also raised the plea not strictly coveted by the pleadings that the Management is precluded from contending that there was no right of appeal, by reason of res judicata, estoppel or by the principle of approbate and reprobate, or under any other legal norm suitable to the facts and circumstances for defeating the Management's plea. For the one thing, unlike the plea about the ultra vires nature of the right of appeal under Ordinance 33, the plea thus sought to be raised is not a pure question of law, which does not involve investigation of facts. For the one thing, unlike the plea about the ultra vires nature of the right of appeal under Ordinance 33, the plea thus sought to be raised is not a pure question of law, which does not involve investigation of facts. For another, we are not satisfied, after hearing Counsel, that the Management has been precluded on any known principles of law. It is true that in the course of the protracted proceedings between the parties, to which we have referred in the course of the judgment, the Management can be found to have either itself stated or accepted the position stated by the 1st Respondent, that there was a right of appeal to the Vice Chancellor. This Court in Ext. B-4 judgment and the court below in Ex. A-2 order, on the application for injunction, proceeded on the basis that there was a right of appeal to the Vice Chancellor. But we find no material to hold that it was any representation of the Management that induced the 1st Respondent to file an appeal or to suffer prejudice by doing so. On the other hand, we should think that the appeal was filed only on the independent assessment of the position by the 1st Respondent. We see no foundation for any plea of estoppel or of approbate and reprobate. 18. As for the plea of res judicata, strong reliance was placed on Ext. B-3 judgment of this Court dated 71 1972, where, after the O. Ps. challenging Exts. B-1 and B-2 were argued at some length, they were withdrawn and dismissed. There was no expression of opinion on the merits of any of the contentions now urged before us, and therefore nothing in Ext. B-3 judgment can operate as res judicata. But it was said that the withdrawal of the O. Ps. without permission of the Court to institute a fresh suit in respect of the subject-matter of the O. Ps. would preclude the Management under the provisions of 0.23, R.1, Sub-rule (3) of the CPC. Apart from the difficulty as to whether the provisions of Order, 23, R.1 of the CPC. are in terms, or on principle, applicable to writ petitions, there is the further difficulty that Ext. B-3 order does not either refuse or grant the permission contemplated by the Rule. Apart from the difficulty as to whether the provisions of Order, 23, R.1 of the CPC. are in terms, or on principle, applicable to writ petitions, there is the further difficulty that Ext. B-3 order does not either refuse or grant the permission contemplated by the Rule. It states that no question of granting permission can arise as the same was not asked for. The bar against institution of a fresh suit in respect of the subject-matter withdrawn or abandoned can arise under 0.23, R.1 (3) only if the permission is refused by the court after the requisite satisfaction. Here the mind of the court was not at all addressed to the question of according or refusing permission. There is also the fact that before Ext. B-3 judgment was pronounced on 711972, the suit O. S.110 of 1970 had been instituted on 22101970 (before Exts. B-1 and B-2 were communicated on 24101970). But Counsel for the 1st Respondent would state that on I. A. No. 1031 of 1972 filed on 1011972 the plaint was amended, challenging Exts. B-1 and B-2, and that the Vice Chancellor and the University were impleaded only subsequently by T. A. No. 1671 of 1972 filed on 23 5 1972 and I.A. No. 3535 of 1972 filed on 6101972. All these petitions were allowed only by order dated 25 101972. In O.S. No. 405 of 1970 also, the requisite amendments were sought for only after Ext. B-3 judgment. Even with these facts, we are unable to hold that the Management has precluded itself from agitating its contention that no appeal lay to the Vice Chancellor. 19. It remains to notice only the last contention raised by Counsel for the Management that the Vice Chancellor by Exts. B-1 and B-2 orders could not direct a reinstatement of the 1st Respondent. We have little doubt that Ext. B-2 does direct reinstatement. It stated not only that the order of dismissal is set aside but that "the Management will allow her (1st Respondent) to continue in her place as Principal of the St. Joseph's Training College, for Women. Ernakulam". Had the Vice Chancellor the power to direct reinstatement? It was contended that the remedy of reinstatement amounts to specifically enforcing a contract of employment and therefore is outside the purview of a statutory Tribunal like the Vice Chancellor. We were taken through a welter of authorities on this point. Joseph's Training College, for Women. Ernakulam". Had the Vice Chancellor the power to direct reinstatement? It was contended that the remedy of reinstatement amounts to specifically enforcing a contract of employment and therefore is outside the purview of a statutory Tribunal like the Vice Chancellor. We were taken through a welter of authorities on this point. For the Management, reliance was placed on Dr. R. S. Dutt v. University of Delhi (AIR. 1958 SC. 1050). In that case, Dr. Meghnad Saha as Arbitrator held that Dr. Dutt had been wrongly dismissed by the University and ordered that he be taken back in service. The High Court and the Supreme Court in proceedings against the award held that the award disclosed a patent error, as the same amounted to specifically enforcing a contract of personal service, against the provisions of S.21 of the Specific Relief Act. In the U. P. State Warehousing Corporation v. Chandra Kiran Tyagi (AIR. 1970 SC. 1244), after examination of the authorities, the law was summarised as follows: "23. From the two decisions of this Court, referred to above, the position in law is thai no declaration to enforce a contract of personal service will be normally granted. But there are certain well-recognised exceptions to this rule and they are: To grant such a declaration in appropriate cases regarding (1) a public servant who has been dismissed from service in contravention of Art.311. (2). Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute." The two decisions of the Supreme Court referred to in the above paragraph were Dr. Dutt's case (AIR 1958 SC 1050) and Tiwari's case (AIR 1964 SC 1680). In the latter of these, the law had been stated in the same terms, as in the paragraph quoted above. It was held in the U. P. Warehousing Corporation's case (AIR 1970 SC 1244) that the Statute concerned did not guarantee any statutory status to the Respondent, nor impose any statutory obligation on the appellant Board. In such circumstances, it was held that the violation of Regulation.16(3) in regard to the dismissal complained of, would entitle the Respondent, Tyagi, only to a claim for damages, but not for reinstatement, nor for a declaration that the termination of service was wrong. In such circumstances, it was held that the violation of Regulation.16(3) in regard to the dismissal complained of, would entitle the Respondent, Tyagi, only to a claim for damages, but not for reinstatement, nor for a declaration that the termination of service was wrong. In Vidyaram v. Sree Jai Narain College (AIR 1972 SC 1450), the case-law on the point has been referred to. It was held that the College in that case was not a statutory body and that the aggrieved teacher, Vidyaram, was not entitled to reinstatement or to a declaration of nullity in regard to the termination of service The single judge of the High Court had found that the termination was in violation of natural justice. On appeal, the Division Bench held even if there was violation of natural justice, the order of termination could not be quashed as the same would amount to specifically enforcing the contract of service. The Supreme Court sustained the said judgment. It once again affirmed the propositions laid down in Tiwari's case (AIR. 1964 SC. 1680), and repeated in Tyagi's case (AIR. 1970 SC. 1254). In K. P. Mathai v. The Principal, Regional Engineering College, Calicut (1972 KLT.135) a learned judge of this Court held that the Management of the Regional Engineering College is not a statutory body. The latest decision of the Supreme Court on the point, is Sirsi Municipality v. Gecelia Kern Francis Tellis (1973 I-S C. W.R. 555). We have been taken fully through the gamut of these decisions and the cases referred to therein. It is enough for us to state that we can find no support for the proposition that where the termination of service of an employee even one who is entitled to a statutory status has been made by an authority or body which is nor a statutory body or authority, the relief of reinstatement or of a declaration can be granted. We cannot hold that the Management of the College in this case was a statutory body or Board. In R. v. National Arbitration Tribunal (1947 (2) AER. 693), Lord Goddard, C. J., had occasion to consider whether the Tribunal had power to order reinstatement. We cannot hold that the Management of the College in this case was a statutory body or Board. In R. v. National Arbitration Tribunal (1947 (2) AER. 693), Lord Goddard, C. J., had occasion to consider whether the Tribunal had power to order reinstatement. The learned Chief justice observed: "It seems to me a strong thing to say, looking at this Regulation which alone gives force to the order, that a power is thereby impliedly given to the Tribunal to grant a remedy which no court of law or equity has ever considered they had power to grant." The decision was considered by the Federal Court in Western Indian Automobile Association v. Industrial Tribunal, Bombay (AIR. 1949 FC.111). It was held that having regard to the wide definition of the term 'Industrial Dispute', in the Industrial Disputes Act and to the object and purpose of the Tribunal and the industrial law, the Tribunal could grant the relief of reinstatement of a workman dismissed from service. In the course of its judgment, the Court observed: "The award of the Tribunal may contain provisions for settlement of a dispute which no court could order if it was bound by ordinary law, but the tribunal is not fettered in any way by these limitations. In Vol. I of "Labour Disputes and Collective Bargaining" by Ludwig Teller, it is said at page 586 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of a new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing agreements In our opinion, it is a true statement about the functions of an industrial tribunal in labour disputes." We cannot, by any parity of reasoning, hold that the Vice Chancellor invested with the right of appeal under Ordinance 33 framed under the 1957 Act, had either expressly or impliedly, a power to order reinstatement. Such a power seems to us to be inconsistent with S.19(x), which enjoins on the Syndicate to see that a written contract governs the relationship between teachers and private management, and S.34 and 35 which again provide for appointment under a contract and for reference to arbitration in cases of disputes under the contract. Such a power seems to us to be inconsistent with S.19(x), which enjoins on the Syndicate to see that a written contract governs the relationship between teachers and private management, and S.34 and 35 which again provide for appointment under a contract and for reference to arbitration in cases of disputes under the contract. These provisions are meant to secure the sanctity of contract and proceed on the lines of commercial arbitration rather than of industrial adjudication. A feeble attempt was made to spell out such a power from the provisions of clause (5) of Ordinance 33, which we have extracted earlier. But we do not think that a subordinate body, such as the Syndicate in this case, intended to confer so far reaching a power on a statutory Tribunal by so furtive a process. We are therefore satisfied that there was no jurisdiction on the part of the Vice Chancellor to direct reinstatement in service of the 1st Respondent or even to grant a declaration that the services of the 1st Respondent had been wrongly terminated. If these could not be done directly, they could not be done indirectly by setting aside the order of dismissal. It may be open to him to find in the appeal that the termination of service offends the principles of natural justice or the relevant statutory provisions or is otherwise unlawful, and leave the 1st Respondent to pursue her remedy for damages for wrongful termination of service, and the University, to take such coercive or administrative steps against the college and the Management, as it may be advised to take. But on the authorities, as we understand them, we are afraid he cannot do more. We are only too well aware that this, in effect, amounts to eviscerating the right of appeal to the Vice Chancellor; but the remedy, on the state of authorities cited, does not lie in our hands. We note that the Amendment Act 13 of 1971 has conferred a power of reinstatement on the Appellate Tribunal. We allow Second Appeal No. 341 of 1973 and reverse the decrees of the courts below and grant the plaintiffs a declaration that. Ext. B-2 order of the Vice Chancellor to the extent it directed that Ext. We note that the Amendment Act 13 of 1971 has conferred a power of reinstatement on the Appellate Tribunal. We allow Second Appeal No. 341 of 1973 and reverse the decrees of the courts below and grant the plaintiffs a declaration that. Ext. B-2 order of the Vice Chancellor to the extent it directed that Ext. A-1 order of dismissal be set aside and that the 1st Respondent be continued as the Principal of the College, is illegal and without jurisdiction; and also an injunction as prayed for in the suit. The direction in the decrees of the courts below that the suspension and dismissal of the 1st Respondent be set aside and that the 3rd Appellant herein is not competent to function as Principal, will stand deleted. We are surprised to find these directions in a decree, which should plainly and simply have dismissed the plaintiffs' suit, and done no more. Parties will bear their costs throughtout. S.A. No. 340 of 1973 20. This arises out of the suit filed by Sister Lewina the substitute Principal for an injunction against the 1st Respondent. It was dismissed on the ground that the 1st Respondent was continuing as the Principal of the College by reason of Exts. B1 and B-2 orders which were upheld; and therefore, the new Principal was not entitled to seek the reliefs prayed for. In view of our finding that the Vice Chancellor had no jurisdiction or power to direct reinstatement of the 1st Respondent or to declare directly or indirectly the termination of her service as null and void, it follows that the new Principal's suit was maintainable, and she is entitled to the reliefs prayed for. We therefore allow S.A. No. 340 of 1973 and grant the 1st plaintiff in O.S. No. 405 of 1970 the declaration that she is the newly appointed Principal in the place of the 1st Respondent, and the injunction prayed for, restraining the 1st Respondent herein from interfering with her functioning as Principal. Parties will bear their costs throughout. A.S. No. 176 of 1973. 21. The suit out of which this appeal arises really seems to be unnecessary in view of our decision in the other two appeals, viz. S.A. Nos. Parties will bear their costs throughout. A.S. No. 176 of 1973. 21. The suit out of which this appeal arises really seems to be unnecessary in view of our decision in the other two appeals, viz. S.A. Nos. 340 and 341 of 1973, This appeal was transferred for disposal by this Court as the questions arising for determination were the same as, or closely connected with, those arising in the other two suits, against which SA. Nos. 340 and 341 of 1973 were pending in this Court. We have decided the said questions in those second appeals. As a result of our decision in those second appeals, it follows that the substitute Principal, Sr. Lewina has been validly appointed Principal, and the 1st Respondent cannot claim back the office of the Principal by reason of the order of reinstatement in Ext. B-2. We therefore allow this appeal and grant the plaintiff-appellant, the injunction prayed for. Parties will bear their costs throughout. G. Viswanatha Iyer J. 1A. I agree. On one question raised I wish to add few sentences of my own. 2A. One important contention of the appellant that Ordinance 33(4) of Chap.57 of the Ordinances, by which the Vice Chancellor is constituted an appellate authority and a right of appeal is given to a teacher against the disciplinary proceedings taken against him by the management, is illegal and ultra vires the University Act of 1957. In support of this contention the learned counsel for the appellant referred to the various provisions of that Act. S.19(h) relates to the power of the Syndicate to appoint teachers and other employees of the University, fix their emoluments and prescribe their duties and conditions of service. S, 19(i) confers a power on the Syndicate to suspend and terminate the service of teachers and other employees of the University and that is made subject to a right of appeal to a Tribunal constituted by the Chancellor. S.190) empowers the Syndicate to fix the emoluments and prescribe the duties and conditions of service of teachers and other employees in private colleges. S.190) empowers the Syndicate to fix the emoluments and prescribe the duties and conditions of service of teachers and other employees in private colleges. According to the counsel, these powers of the Syndicate will show that whereas the Syndicate is given the necessary powers to appoint and terminate the services of the teachers and other employees of the University the University or the Vice Chancellor has no right of appointment or termination of the service of a teacher or other employee in private colleges. Therefore the context, it is said, excludes any right is the Syndicate to constitute an appellate authority or to confer a right of appeal to it against an order of punishment for an aggrieved teacher. These provisions, no doubt, show that in respect of private colleges the right of appointment and termination of the service of a teacher in a private college is not conferred on the Syndicate and it is given the power only to prescribe 'the duties and the conditions of service' of teachers in private colleges. What is the scope of that expression and how far is it valid? The validity of delegating the legislative power and the scope of the expression "to prescribe the duties and conditions of service" had been the subject-matter of consideration and decision in a number of cases. In D. S.Garewal v. State of Punjab (AIR 1959 SC. 512) the Supreme Court had to consider the question whether the power to frame rules for the regulation of recruitment and conditions of service of All India Services can be delegated to the executive authority. Their Lordships have held that such delegation is permissible. In N. W. F. Province v. Suraj Narain (AIR. 1949 P. C. 112) at page 114, Para.9, it is observed thus: "On the first question, apart from consideration whether the context indicates a special significance to the expression "conditions of service", their Lordships are unable, in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise the conditions of the service, whether these provisions are contractual or statutory; they are therefore of opinion that the natural meaning of the expression would include such provisions." Again, a Full Bench of this Court in Assistant Educational Officer v. P. R. Mammoo (1968 KLT. 556) at page 562, Para.7, observed thus: "Even if the expression "the conditions of service of teachers" would normally include the constitution of authorities for appointment and dismissal of teachers, it cannot be held so when the latter matters have been particularly provided for elsewhere in the Act itself." All these proceed on the basis that the expression "conditions of service" includes everything from the stage of appointment to the stage of termination of service and also the constitution of authorities for appointment and dismissal. That being so, the only further question is whether the context in which the power is stated justifies the exclusion of these matters from the rule making power of the Syndicate. I do not think so. If the expression "conditions of service" is capable of being understood normally to include all the above matters, the fact that the right of appointment or termination of service of a teacher in private colleges is not conferred on the Syndicate, will not prohibit the Syndicate from making rules regarding those matters. A judicial or quasi-judicial scrutiny of a disciplinary action taken is generally done by way of an appeal and a right to have that scrutiny can be prescribed as part of the "conditions of service". It need not necessarily be done by the legislature alone. The rules regarding these matters are contained in Chap.57 of the Ordinances. The management of a private college is constituted the appointing and disciplinary authority. In respect of the imposition of some punishment in the course of any disciplinary proceeding a right of appeal before another body is given to the teacher under Ordinance 33(4) of the Ordinances. They all form part of the "conditions of service" and are therefore valid. 3A. But this provision relating to appeal to the Vice Chancellor is questioned as being in excess of the rule making power of the Syndicate. According to the appellant, the Syndicate having constituted the management as the appointing and disciplinary authority cannot confer a right of appeal to an outside body, as that will indirectly amount to interfering with the power of appointment and termination. This contention also cannot stand. No doubt, in the various service rules framed by the Government under Art.309 or under the Public Services Act a right of appeal is conferred to an aggrieved officer and the forum of appeal is also prescribed. This contention also cannot stand. No doubt, in the various service rules framed by the Government under Art.309 or under the Public Services Act a right of appeal is conferred to an aggrieved officer and the forum of appeal is also prescribed. That forum of appeal is invariably a higher officer in the hierarchy of officers constituting the appointing or.disciplinary authority. The reason is that the appellate decision being the final stage in the process of disciplinary proceeding an appeal should be to a body which is above, or can correct, the authority which inflicted the punishment. In the case of the University, the Vice Chancellor is under S.10 of the Act under a duty to see that the provisions of the Act, Statutes and the Ordinances are faithfully observed and carried out, and he may exercise all powers necessary for that purpose. Under this provision he has got such powers as are necessary to see that the rules regarding the disciplinary proceedings framed by the Ordinances are faithfully observed and carried out. Therefore, the conferment by the Syndicate of a right of appeal before him cannot be said to be in excess of the permissible limits of the power to prescribe the duties and conditions of service of teachers in private colleges. Though the Vice Chancellor is not a limb of the appointing or disciplinary authority for teachers in private colleges, he is the authority who has to see that the rules regarding the appointment and disciplinary proceedings are faithfully observed and carried out by the management, Whether there are good and sufficient reasons for imposing the penalty on a teacher by the management has necessarily to be considered by the Vice Chancellor as part of his duty. Of course, be may not be in a position to specifically enforce the contract of service in exercise of his power in appeal. Barring that, in substance there is no difference between the right of appeal given to a civil servant to a higher officer in the hierarchy of officers constituting the appointing and disciplinary authority and the right of appeal to the Vice Chancellor in the case of teachers in private colleges. This, according to me, enables the Syndicate to constitute the Vice Chancellor as the appellate authority. This, according to me, enables the Syndicate to constitute the Vice Chancellor as the appellate authority. Therefore, the contention of the appellant that the conferment of a right of appeal to a teacher and constituting the Vice Chancellor as the appellate authority are invalid cannot stand. The provision in the Ordinances namely Ordinance 33 (4) of Chap.57 is valid and is within the delegated power of the Syndicate under S.190) of the old Act. Allowed.