Srinivasan J.
Whether the provisions of the Payment of Gratuity Act, 1972, hereinafter referred to as the 'Act', are applicable to the petitioner educational institution is the question to be determined by us.The petitioner contends that the Act is not applicable to it because (1) the petitioner is not a factory, mine, oilfield, plantation, port and railway company or a shop or establishment falling within the purview of the Act and (2) the petitioner is a minority institution entitled to the protection under Article 30(1) of the Constitution of India. The prayer in the writ petition is for a declaration that the Act is not applicable to the SIET Women's College run by the SIET Trust.
2. The facts leading to the filling of the writ petition are shortly these : One Smt. Muneera Begum, who was working in the Chemistry Department of the SIET Women's College was electrocuted and she died subsequently. A claim was made by her husband, the first respondent herein, and minor son, the third respondent herein before the Deputy Commissioner of Labour, who was the Additional Commissioner for Workmen's Compensation and it was settled whereupon sum of Rs. 5000/- was paid by the petitioner by way of compromise, though the petitioner's case was that the lady had weak heart and died on account of heart attack and not because of accident. Respondent 1 and 3 filed a petition before the Assistant Commissioner of Labour, who is the Controlling Authority under the Act, claiming the sum of Rs. 3900/- as gratuity due to the deceased lady. The petitioner filed a detailed counter contesting the claim on several grounds including the non-applicability of the Act to the institution. Soon after filing counter, the petitioner approached this Court with this writ petition for the issue of a writ of declaration that the Act is not applicable to the institution in question.
3. Though the respondents were served they did not choose to enter appearance. As the question involved is of some importance we appointed Shri K. Chandru as Amicus Curiae to help us in this matter. We place on record our gratitude and appreciation for the great assistance sincerely rendered by Shri K. Chandru in placing before us all the relevant authorities having a bearing on the case, but for which we might have had some difficulty in answering the question properly.
4. Section1(3) of the Act makes it applicable to (a) every factory, mine, oilfield, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which 10 or more persons are employed, or were employed on any day of the preceding 12 months; (c) such other establishments or class of establishments, in which 10 or more employees are employed on any day of the preceding 12 months, as the Central Government may, by notification, specify in this behalf. There is no dispute that the petitioner does not fall within clause (a) and clause (c). Accordingly to learned counsel for the petitioner clause (b) is not applicable as the petitioner is not a 'shop' or 'establishment' within the meaning of the Tamil Nadu Shops and Establishments Act which is the law for the time being in force in relation to shops and establishments in the State of Tamil Nadu. There is no substance in this contention in view of the decision of the Supreme Court in State of Punjab v. Labour Court, Jullunder and others (1981-I-LLJ-345). In that case it was held that Sec. 1(3)(b) of the Act applied to every establishment within the meaning of any law for the time being in force in relation to an establishment in a State and it was not necessary that the law should be one relating to shops and establishments. The law is expounded thus (p. 355) :".... Section 1(3)(b) speaks of" any law for the time being in force in relation to shops and establishments in a State
". There can be no dispute that the Payment of Wages Act is in force in the State of Punjab. Then, it is submitted, the Payments of Wages Act is not a law in relation to "shops and establishments". As to that the Payment of Wages Act is a statute which, while it may not relate to shops, relates to a class of establishments that is to say, industrial establishments. But, it is contended, the law referred to under S. 1(3) (b) must be a law which relates to both shops and establishments such as the Punjab Shops and Commercial Establishments Act, 1958. It is difficult to accept that contention because there is no warrant for so limiting the meaning of the expression "law" in the S. 1(3)(b). The expression is comprehensive in its scope, and can mean a law in relation to shops as well as separately, a law in relation to establishments, or a law in relation to shops and commercial establishments and a law in relation to non-commercial establishments. Had S. 1(3)(b) intended to refer to a single enactment, surely the appellant would have been able to point to such a statute, that is to say, a statute relating to shops and establishments, both commercial and non-commercial. The Punjab Shops and Commercial Establishments Act does not relate to all kinds of establishments. Besides shops, it relates to commercial establishments alone. Had the intention of Parliament been, when enacting S. 1(3)(b), to refer to a law relating to commercial establishments, it would not have left the expression "establishments" unqualified. We have carefully examined the various provisions of the Payment of Gratuity Act, and we are unable to discern any reason for giving the limited meaning to S. 1(3)(b) urged before us on behalf of the appellant. Section 1(3)(b) applies to every establishment within the meaning of any law for the time being in force in relation to establishment in a State. Such an establishment would include an industrial establishment within the meaning of S. 2(ii)(g) of the Payment of Wages Act ....
5. The Employees 'Provident Funds and Miscellaneous Provisions Act, 1958 is applicable to the petitioner as all educational institutions have been notified as 'establishments' within the meaning of the said Act by the Central Government under Section1 (3)(b) of that Act, (Vide Notification S.O. 986 dated February 19, 1982). Hence, the petitioner is an 'establishment' within the meaning of a law for the time being in force in relation to establishments in the State. One of the contentions urged by learned counsel for the petitioner is that the law referred to in Section1 (3)(b) of the Act should be a law already in force in the concerned State and not any law which comes into force subsequently. We do not agree with this contention. The question has to be decided only when it arises before the Court. If at the time when the question arises before the Court for consideration, there is a law in force in relation to shops or establishments in a State, then the Act will apply to all shops and establishments within the meaning of such law. There is no necessity for the relevant law to have been in forced already when the Act was passed in 1972. However, that argument will not apply to the Employee' Provident Funds and Miscellaneous Provision Act, 1952, as that came into force long prior to the passing of the Payment of Gratuity Act. Even assuming that the contention of learned counsel is acceptable, it cannot escape the applicability of the Act as the petitioner is an establishment within the meaning of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952.
6. The petitioner is also an 'establishment' as defined by Section 2(c) of other Tamil Nadu Payment of Subsistence Allowance Act (43 of 1981). That Section reads as follows :- "establishment" means any place where any industry, trade, business, undertaking, manufacture, occupation or service is carried on, and with respect to which the executive power of the State extends, but does not include ---(i) any office or department of the Central or the State Government; or
(ii) a railway administration; or
(iii) any mine or oil field; or
(iv) any major port; or
(v) any public sector undertaking of the Central Government.
Explanation :- For the purpose of this clause "any public sector undertaking of the Central Government" means an establishment owned, controlled or managed by -
(1) the Central Government or a department of the Central Government.
(2) a Government company as defined in Section617 of the Companies Act, 1956 (Central Act I of 1956) and owned or controlled by the Central Government;
(3) A Corporation established by or under a Central Act, which is owned, controlled or managed by the Central Government."
" Industry"is defined in Section2(e) of that Act as" an industry as defined in Section2(j) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947)" *
. An educational institution is an 'industry' within the meaning of the Industrial Dispute Act, as elucidated by the Supreme Court in Bangalore Water Supply & Sewerage Board Etc. v. A. Rajappa and Other Etc. (1978-I-LLJ-349). Section2(j) of the Industrial Disputes Act defines an 'industry' as
"any business, trade undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen."*
The amendment of the definition sought to be introduced by the Industrial Disputes (Amendment) Act, 1982 (46 of 1982) excluding educational institutions from the purview thereof, has not yet come into force.
7. A Division Bench of the Allahabad High Court has in U. P. Co-operative Union and others v. Prabhu Dayal Srivastava and others 1988 (57) FLR 70 held that the world "establishment" as used under Section 1(3)(b) and Section 1(3)(c) of the Act connotes an organised body of men and women employed where the relationship of employer and employee comes into existence. The Division Bench has taken the view that the Act being a progressive, Social and beneficial legislation, the construction that promotes the purpose of legislation should be preferred to a literal construction. Relying upon the meaning of the word 'establishment' as found in the dictionaries.The Bench held that the Act would apply to an apex-co-operative society registered under the U.P. Co-operative Societies Act, 1965.
8. The result of the above discussion leads to the conclusion that the petitioner is an 'establishment 'falling within the purview of Section 1(3)(b) of the Act and the contention to the contrary urged by learned counsel for the petitioner should be rejected.
9. That leads us to the next limb of the argument of the petitioner that the Act is not applicable to minority institutions. According to the petitioner, Article 30(1) of the Constitution of India will invalidate any law that will impinge upon the right guaranteed under that Article to the minorities.Learned counsel submits that the provisions of the Act, if made applicable to the petitioner institution, will directly interfere with the right of the petitioner to administer the educational institution practically reducing it to a nullity. Learned counsel places reliance on the rulings of the Supreme Court in St. Xaviers College v. State of Gujarat 1974 AIR(SC) 1389, 1975 (1) SCR 173, 1974 (1) SCC 717, 1974 AIR(Pat) 101, 1969 AIR(Ker) 191, 1988 AIR(Orissa) 250 , The Gandhi Faiz-E-Am College, Shahjahanpur v. University of Agra and others 1975 AIR(SC) 1821, 1975 (2) SCC 283, 1975 (3) SCR 810 and Lilly Kurian v. Sr. Lewina and others 1979 AIR(SC) 52, 1978 LIC 1644, 1979 (1) SLR 26, 1979 (2) SCC 124, 1979 (1) SCR 820, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134, 1979 SCC(L&S) 134. In the course of arguments it is also submitted by learned counsel for the petitioner that the petitioner institution came under the State Government grant-in-aid scheme only from 1st April, 1979 and prior to that date, the institution was not receiving any grant or aid from the Government. According to learned counsel, Smt. Muneera Begum, the employee concerned in this case died on 27th November, 1978, prior to the date on which the institution came under the grant-in-aid scheme. According to learned counsel, all the employees including Smt. Muneera Begum were employed on specific terms and conditions of service which did not provide for or contemplate payment of gratuity. It is argued that in such circumstances, if the provisions of the Act are made applicable to the institution, and in particular to the institution in question, it will be a clear violation of the right guaranteed to the petitioner by Article 30(1) of the Constitution of India According to him, it will tantamount to annihilation of the rights.
10. The constitutional validity of the Act vis-a-vis Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution was upheld by a Division Bench of this Court in Jeevanlal (1929) Limited and others v. Controlling Authority under the payment of Gratuity Act and others (1982-I-LLJ-86) Though the judgment was challenged in appeal before the Supreme Court, the question of Constitutional validity was not raised and the appeal was dismissed on merits. Vide Jeevanlal (1929) Ltd. etc. v. Appellate Authority Payment of Gratuity Act and others etc. etc. (1984-II-LLJ-464). The question whether the provisions of the Act would be violative of Article 30(1) of the Constitution if applied to institution established and administered by minorities appears to be res integra. To determine the constitutional validity of a measure or a provision, regard must be had to its real effect and impact on the fundamental right. For that purpose it is necessary to understand the scope and amplitude of the fundamental right guaranteed by the Article.
11. Article 30(1) of the Constitution reads thus :-
"All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice"*
The clause is a counter-part of the rights guaranteed by Article 26. While Article 26 of the Constitution guarantees the freedom to establish and maintain institutions for religious and charitable purposes, this clause guarantees the rights of minorities to establish and administer educational institutions. The clause is also complementary to Article 29(1) of the Constitution. While the said Article preserves the right of a minority community to maintain its language or script, this clause enables a community to run its educational institutions and tries to solve the problem of linguistic minorities. It implies the right of a minority community to impart instructions to the children of its community in its own language. The clause confers two rights (1) right to establish an institution and (2) the right to administer it. The latter part of the clause indicates that the protection under the clause is available even with reference to institutions established prior to the coming in force of the Constitution.
12. In re. The Kerala Education Bill, 1957 (A.I.E. 1958 S.C. 956), the Supreme Court considered in detail the nature and content of the right guaranteed under Article 30(1) of the Constitution on a reference made by the president of India under Article 143(1) of the Constitution of India. One of the questions considered by the Court was whether all the provisions of the Kerala Education Bill offended clause (1) of Article 30 in any particulars or to any extent. The majority held that clause 3(5), clause 8(3) and clauses 9 to 13 offend Article 30(1) of the Constitution, so far as Anglo Indian Educational Institutions entitled to grant under Article 337 were concerned and as regards other minorities, not entitled to grant as of right under any express provision of the Constitution, but were on receipt of aid or desired such aid and also as regards Anglo Indian Educational Institutions in so far as they are receiving aid in excess of what are due to them under Article 337, clause 8(3) and 9 to 13 did not offend Article 30(1) but clause 3(5) in so far as it made such educational institutions subject to clauses 14 and 15 offended Article 30(1). It was also held that clause 3(5) in so far as it made the new schools established after the commencement of the Bill subject to clause 20 offended Article 30(1). Venkatarama Aiyar, J. who gave the discenting opinion held that excepting clauses 14 and 15 of the Bill, the other provisions of the Bill did not offend the Article. It is not necessary for the purpose of this case to set out in detail the provisions of the relevant clauses of Kerala Education Bill. What is relevant herein is the statement of law as expounded by the Supreme Court in that case. The following passages bring about the scope of the content of the right guaranteed by Article 30 of the Constitution :
".... The first point to note is that the Article gives certain rights not only to religious minorities but also to linguistic minorities. In the next place, the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the Article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular educational also. In other words, the Article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a through, good general education to their children. The next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the Article under consideration are the words "of their own choice". It is said that the dominant word is "choice" and the content of that Article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Art. 30(1) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves. The educational institutions established or administered by the minorities or to be so established or administered by them in exercise of the rights conferred by that Article may be classified into three categories, namely, (1) those which do not seek either aid or recognition from the State (2) those which want aid, and (3) those which want only recognition but not aid.The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid of recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate the claim of the State to insist that in order to grant aid, the State may prescribe regulations to ensure the excellence of the institutions to be aided.
The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under Art. 30(1). We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law." *
13. The question arose for consideration in Rev. Sidhrajbhai Sabbai and others v. State of Gujarat and others 1963 AIR(SC) 540, 1963 (3) SCR 837, 1962 KerLJ(SC) 135, 1962 KerLJ 135, 1962 KerLJ SC) 135 whether a direction by the State Government or the Director of Education to compel a minority community to reserve 80% of seats in the training college for the Government nominated teachers offended the provisions of Article 30(1) of the Constitution of India. While striking down the validity of the direction as infringing the fundamental freedom guaranteed under Article 30, Shah, J. summed up the position in law as follows :-
"The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedom guaranteed by Art. 19 it is not subject to reasonable restrictions. It is intend to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institutions, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Art. 30(1) will be but a "teasing illusion", a promise of unreality. Regulations which mat lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation 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 making the institution an effective vehicle of education for the minority community or other persons who resort to it." *
14. In D. A. V. College, Bhatinda etc., v. The State of Punjab and others 1971 AIR(SC) 1731 and in D. A. V. College, Jullunder etc., v. The state of Punjab and others 1971 AIR(SC) 1737, 1971 (2) SCC 269, 1971 (S) SCR 688, 1955 AIR(Cal) 194 questions under Articles 29 and 30 of the Constitution of India arose with reference to Arya Samajis in Punjab. It was held that Arya Samajis were a part of the Hindu community forming a religious minority with a distinct script of their own and were entitled to claim the protection under the said Articles. The right of minority community to preserve its language, script and culture and to establish and administer educational institutions of its choice was reiterated and it was held that there was implicit in such fundamental right to impart instructions to children of the community in their own language. It was observed by Jagan Mohan Reddy, J. that no inconvenience of difficulties, administrative or financial, can justify the infringement of guaranteed rights. While upholding the validity of a clause which empowered the University to prescribe the regulations governing the service and conduct of the teachers, it was observed as follows :-
"Clause 18, however, in our view, does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the larger interests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect of age of superannuation or prescribe minimum qualifications for teachers to be employed by such Institutions either generally or in particular subjects. Uniformity in the conditions of service and conduct of teachers in all non-Govt. Colleges would make for harmony and avoid frustration. Of course while the power to make ordinances in respect of the matters referred to is unexceptional, the nature of the infringement of the right, if any, under Article 30(1) will depend on the actual purpose and import of the ordinance when made and the manner in which it is likely to affect the administration of the educational institution, about which it is not possible now to predicate."*
15. Once again the matter had to be considered in detail by the Supreme Court by a specially constituted Bench of nine judges in The Ahmedabad St. Xaviers College Society and Another etc. v. State of Gujarat and Another 1974 AIR(SC) 1389, 1975 (1) SCR 173, 1974 (1) SCC 717, 1974 AIR(Pat) 101, 1969 AIR(Ker) 191, 1988 AIR(Orissa) 250
, when certain provisions of Gujarat University Act, 1949, Were challenged as offending the provisions of Article 30(1) of the Constitution of India. The majority held that Sections 33-A, 40, 41, 51-A(*)(b), 51-A(2)(b) and 52-A of the Gujarat University Act did not apply to institutions established and administered by linguistic and religious minorities. It was reiterated by the Court that Article 30(1) covers institutions imparting general secular education, as the object of Article 30 is to enable children of minorities to go out in the world fully equipped and that it will be wrong to read Article 30(1) as restricting the right of minorities to establish and administer educational institutions of their choice only to cases where such institutions are concerned with language, script or culture of the minorities. It was observed that measures which would regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions and that those regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and they do not violate any fundamental right of the minority institutions under Article 30. The majority expressed the view that the right conferred on the religious and linguistic minority to administer educational institutions of their choice is not an absolute right and it is not free from regulations. It is pointed out that just as regulatory measures are necessary for maintaining the educational character, and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. It was also observed that regulations are necessary to see that there are no divisive of disintegrating forces in administration as education develops the ethos of the nation and education should be a great cohesive force in developing integrity of the nation. Learned counsel for the petitioner placed reliance on the following passage found in the judgment :-... The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institutions have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In others words, the minority institutions want to have the right to admit students of their choice to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution .............
We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational institutions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right which is guaranteed : they secure the proper functioning of the institution, in matters educational (see observations of Shah, J. in Rev. Sidhrajbhai Sabhai 1963 AIR(SC) 540, 1963 (3) SCR 837, 1962 KerLJ(SC) 135, 1962 KerLJ 135, 1962 KerLJ SC) 135. Further, as observed by Hidayathullah, C.J., in the case of very Rev. Mother Provincial 1970 AIR(SC) 2079, 1970 (2) SCC 417, 1971 (1) SCR 734, 1970 KLT 630, the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations that must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standard of excellence expected of educational institutions or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.
"It is the argument of learned counsel that the permissible regulations contemplated by the Supreme Court are only those which would improve the standards of education imparted by the institutions. According to him, the provisions of the Act do not have anything to do with the academic matters, but they impinge on the right of the minority to manage the institution and use its properties and assets for the benefit of the institution.
16. In the very same judgment it is pointed out by the Supreme Court that it is permissible to make regulations for ensuring regular payment of salaries before a particular date of the month and for spending the funds of the institution for purposes of education or for the betterment of the institution. It was held that a regulation designed to prevent maladministration of educational institutions cannot be said to offend Clause (1) of Article 30 of the Constitution. In our opinion, the Special Bench of nine Judges did not break any new ground on the interpretation of Articles 29 and 30 of the Constitution and it reiterated only the law laid down by the Supreme Court in the prior cases.
17. The following observation of Mathew, J. speaking for himself and for Chandrachud, J. in St. Xavier's case 1974 AIR(SC) 1389, 1975 (1) SCR 173, 1974 (1) SCC 717, 1974 AIR(Pat) 101, 1969 AIR(Ker) 191, 1988 AIR(Orissa) 250 is relevant for the purpose of this case :-..." *
In considering the question whether a regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is necessary to have regard to what regulation the appropriate authority may make and impose in respect of an educational institution established and administered by a religious minority and receiving no recognition or aid. Such an institution will, of course, be subject to the general laws of the land like the law of taxation, law relating to sanitation, transfer of property, or registration of documents, etc., because they are laws affecting not only educational institutions established by religious minorities but also all other persons and institutions. It cannot be said that by these general laws, the State in any way takes away or abridges the right guaranteed under Article 30(1). Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. It is a total misconception to say that because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an abridgment of the right .......The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgment. So, even if an educational institution established by a religious or linguistic minority does not seek recognition, affiliation or aid, its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right. Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course, have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. If an educational institution established by a religious minority seeks no recognition, affiliation or aid, the State may have no right to prescribe the curriculum, syllabi or the qualification of the teachers.
"We find it impossible to subscribe to the proposition that State necessity is the criterion for deciding whether a regulation imposed on an educational institution takes away or abridges the right under Article 30(1). If a legislature can impose any regulation which it thinks necessary to protect what in its view is in the interest of the State or society, the right under Article 30(1) will cease to be a fundamental right. It sounds paradoxical that a right which the Constitution makers wanted to be absolute can be subjected to regulation which need only satisfy the nebulous and elastic test of State necessity. The very purpose of incorporation this right in part III of the Constitution in absolute terms in marked contrast with the other fundamental rights was to withdraw it from the reach of the majority. To subject the right today to regulations dictated by the protean concept of State necessity as conceived by the majority would be to subvert the very purpose for which the right was given.
18. Learned counsel for the petitioner placed reliance on the following observations made by Krishna Iyer, J. in The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and others (supra) :" *
The pith of Shri Frank Anthony's submission is that the command of the University to include even the Principal, the head appointed by that very management to be in plenary charge of the education imparted in the college, is an invasion of the minority right. Freedom from any from of external pressure, however well-meant and beneficient, is the soul of the right to administer, if one may paraphrase his contention. This is simply countered by the words of Khanna, J :
"It would be wrong to assume that an unrestricted right as in Article 30 postulates absence of regulations. Regulations can be prescribed in spirit of the unrestricted nature of the right."*
(at p. 1423). All the other learned Judges who are party to St. Xavier 1947 AIR(SC) 1389 and all the earlier rulings have negatived the untouchable absoluteness urged by the managements. Equally fallacious is the simplistic submission which appears to have appealed to the High Court that Art. 30 is disturbed only when the right is destroyed, not when it is damaged. St. Xavier has dispelled doubts in this behalf : Abridgment of the constitutional right is as obnoxious as annihilation. To cripple is to kill".
It is worthwhile pointing that on the facts of the case, it was held that a statute of Agra University requiring that the Managing Committee of the College shall include the Principal of the College and the senior most member of the teaching staff was valid as it would only improve the administration and not to inhibit the autonomy if the community.
19. Learned counsel placed reliance on the following passage in the judgment of the Supreme Court in Lilly Kurian v. Sr. Lewina and others (supra) :" *
Protection of the minorities is an article of faith in the Constitution of India, The right to administration of institutions of minority's choice enshrined in Article 30(1) means 'management of affairs' of the institution. The right is, however subject to the regular power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible, but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the general public, the interests justifying interference can only be the interests of the minority concerned".
On the facts of the case it was held that the conferring of a right of appeal to the Vice-Chancellor against an order of dismissal from service made against a teacher took away the disciplinary power of the minority educational authority and amounted to interference therewith. It was held to be a fetter on the right of administration under Article 30(1) of the Constitution and it was considered to be a restriction and not a regulation. In so far as the general principles of law are concerned, the Court did not make any deviation.
20. In Rt. Rev. Magr. Netto v. Govt. of Kerala 1979 AIR(SC) 83, 1979 (1) SCC 23, 1979 (1) SCR 609, a rule in Kerala Education Rules, 1959, enabling the education authorities of the State to refuse permission to a minority community to admit girl students in the school run by the community in which as a matter of fact, only boy students were admitted for more than 25 years was held to be not applicable to the minority community on the ground that it would violate-Article 30 (1) of the Constitution, if made applicable to the community.
21. In the All Saints High School etc. etc. v. The Government of Andhra Pradesh and other etc. etc. 1980 AIR(SC) 1042, 1980 (1) SLR 716, 1980 (2) SCC 478, 1980 (2) SCR 924, after referring to several earlier decisions of the Court, it was stated thus :-" *
These decisions show that while the right of the religious and linguistic minorities to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standard and maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of service which prescribed minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their service are terminated are all permissible measures of a regulatory character".
21-A Mr. Chandru brought to our notice a judgment of the Punjab and Haryana Court in Christian Medical College and Brown Memorial Hospital, Ludhiana and another v. Regional Provident Fund Commissioner, Chandigarh and two others 1983 (62) FJR 215. It was held in that case that a notification issued by the Central Government under Section 1(3)(b) of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, making the Act applicable to "every establishment known as a hospital", was valid and the notification would include a hospital even if it is part of a College. One of the contentions put forward before the Court was that the institutions run by the petitioners in that case were minority institutions and the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, could not be made applicable. Reliance was placed on the decisions of the Supreme Court in Sidharajbhai's case (supra) and Rev. Father W. Proost's case 1969 AIR(SC) 465, 1969 (2) SCR 73, 1962 AIR(Guj) 88, 1969 (1) SCJ 700. Rejecting that contention it was held that the 1952 Act having been enacted by the State for the benefit of the workers in the establishment would apply to the institution and the rulings of the Supreme Court referred to would not apply to the facts of that case. There is not much of a discussion of the relevant question in that case.
22. In Frank Anthony Public School Employees' Association v. Union of India and others 1986 (2) Scale 805, 1986 (4) SCC 707, 1987 LIC 427, 1987 (1) LLN 53, 1987 (1) SCR 238, 1987 (1) SLR 133, 1987 (2) ATC 35, 1987 (54) FLR 353, 1987 AIR(SC) 311, the provisions of Delhi School Education Act (18 of 1973) were challenged. It was held that Section12 of the Delhi School Education Act, which made the provisions of Chapter IV inapplicable to unaided minority institutions, was discriminatory and void except to the extent that it made Section 8(2) inapplicable to unaided minority institutions. A declaration was granted to that effect and the Union of India and the Delhi Administration and its officers were directed to enforce the provisions of Chapter IV except Section8(2) of the Delhi School Education Act in the manner provided in the Chapter in the case of the Frank Anthony Public School. Chapter IV of the Delhi School Education Act dealt with the terms and conditions of service of the employees of recognised private schools. sub-section(2) of section8 of that act stipulated that subject to any rule that may be made no employee of a recognised private school may be dismissed, removal or reduced in rank nor shall his services be otherwise terminated except with the prior approval of the Director. Excepting that sub-section, the Court held that the other Sections in Chapter IV which provided for scales of pay, allowances, medical facilities, pension, gratuity, provident fund etc., of the employees of a recognised private school did not jeopardise the rights of the minority institutions guaranteed under Article 30 of the Constitution. Section10 of the Delhi School Education Act required that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and prescribed the procedure for enforcement of the requirement. The Section was held to be a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It was held that the regulation contained in the Section did not in any way detract from the fundamental right guaranteed by Article 30 (1) of the Constitution to the minority institutions to administer their educational institutions. The significance of the ruling in the context of the present case lies in that a provision relating to conditions of service including payment of salary, gratuity etc., was held to be a permissible regulation. The following observations made by the Court in that case are apposite :-" *
The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowance and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Art. 30(1) of the Constitution. The management of a minority educational institution cannot be permitted under the guise of fundamental right guaranteed by Art. 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to a administer the institution when it denies the members of its staff the opportunity to achieve the very object of Art. 30(1) which is to make the institution an effective vehicle of education".
One of the submissions made by the counsel before the Court was that the institution may have to close down if they have to pay higher salary and allowances to members of staff. Rejecting the submissions, the Court observed as follows :-" *
As we said earlier the excellence of the institution is largely dependent on the excellence of the teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation enjoyed by the institution for its excellence, it is unnecessary to seek to apply provisions like Section10 of the Delhi School Education Act to the Frank Anthony Public School. On the other hand, we should think that the very contribution made by the teachers to earn for the institution the high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other institution to which Section 10 applies regarding the fear expressed by Shri Frank Anthony that the institute may have to close down we can only hope that the management will do nothing to the nose to spite the face, merely to 'put the teachers in their proper place. The fear expressed by the management here has the same ring as the fear expressed invariably by the management of every industry that disastrous results would follow which may even lead to the closing down of the industry if wage scales are revised.
". 23. The reasoning of the Supreme Court though expressed mainly with reference to teachers, will equally apply to other employees of the educational institutions and they cannot be confided to the teaching staff.
24. The same Delhi School Education Act came up for consideration once again before the Supreme Court in Mrs. Y. Theclamma v. Union of India and Others 1987 AIR(SC) 1210, 1987 (54) FLR 618, 1987 (2) JT 165, 1987 LIC 907, 1987 (3) SLJ 20, 1987 (2) SLR 253, 1987 (1) Scale 781, 1987 (2) SCC 516, 1987 (2) SCR 974. In that case, the validity of Section8(4) of the Act was challenged in relation to minority institutions, but it was upheld by the Court as a provision designed to afford some measure of protection to the teachers of such institutions without interfering with the management's right to take disciplinary action. It was held that before suspending a teacher, it was incumbent on the management of the institution to obtain the prior permission of the Educational Officer as provided in the Act. Rejecting a contention that there was a conflict between the decisions of the Supreme Court in Frank Anthony's case (supra) and the Lilly Kurian case (supra), the Court held that those decisions unequivocally laid down that while the right of the minorities, religious or linguistic, to establish and administer educational institutions of their choice could not be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining excellence thereof could validly be prescribed. The Court observed as follows :-" *
It cannot be doubted that although disciplinary control over the teachers of a minority educational institutions is with the management, regulations can be made for ensuring proper conditions of service for the teachers and also for ensuring a fair procedure in the matter of disciplinary action. As the court laid down in Frank Anthony Public School's case, the provision contained in sub-section(4) of S.8 of the Act is designed to afford some measure of protection to the teachers of such institutions without interfering with the management's right to take disciplinary action. Although the court in that case had no occasion to deal with different ramifications arising out of sub-section(4) of S.8 of the Act, it struck a note of caution that in a case where the management charged the employee with gross misconduct, the Directors is bound to accord his approval to the suspension. It could been seen that the endeavour of the Court in all the cases has been to strike a balance between the constitutional obligation to protect what is secured to the minorities under Art. 30(1) with the social necessity to protect the members of the staff against arbitrariness and victimisation".
25. In Christian Medical college Hospital Employees' Union and another v. Christian Medical college, Vellore Association and others (1988-I-LLJ-263), it was held that the Industrial Disputes Act which is a general law for prevention and settlement of industrial disputes cannot be said to interfere with the right of the minorities to establish and administer educational institutions and that the application of the provisions of that Act will not result in the abridgment of the said right. The Court observed as follows (p. 271, 276-280) :-" *
The Act generally applies to all industries irrespective of the religion or caste to which the parties belong. It applies to industries owned by the central and the State Government too. Any decision given by the Industrial Tribunal or a Labour Court under the Act is subject to judicial review by the High court under Art. 226 of the Constitution and an appeal to this Court under Art. 136 of the Constitution. The Labour court, the Industrial Tribunal, the High Court and this Court while dealing with matters arising out of the Act have to deal with them objectively. The smooth running of an educational institution depends upon the employment of workmen who are not subjected to victimisation or any other kind of maltreatment. The conditions of service of workmen in all institutions including minority educations institutions have to be protected in the interest of the entire society and any unfair labour practice, such as 'hiring and firing', termination or retrenchment of the service of a workmen on irrational grounds will have to be checked. The Act makes provisions in respect of these matters. The Act being a general law for prevention and settlement of industrial disputes cannot be construed as a law which directly interferes with the right of administration of a minority educations institution guaranteed under Art. 30(1) of the Constitution. The law is not enacted with the object of interfering with any such right. It clearly falls with the observation of Mathew, J. in St. Xavier's College case (supra) that
"regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course, have some effect upon the right under Art. 30 (1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment"*
.In view of the observations of this Court in All Saints High Schools' case (supra), Frank Anthony Public School's case (supra) and Y. Theclamma's case (supra) it has to be held that the provisions of the Act which provide for the reference of an industrial dispute to an Industrial Tribunal or a Labour Court for a decision in accordance with judicial principles have to be declared as not being violative of Art. 30(1) of the Constitution. It has to be borne in mind that these provisions have been conceived and enacted in accordance with the principles accepted by the International Labour Organisation and the United Nations Economic, Social and Cultural Organisation. The International Covenant on Economic, Social and Cultural Rights, 1966 which is a basic document declaring certain specific human rights in addition to proclaiming the right to work as a human right treats equitable conditions of work, prohibition of forced labour, provision for adequate remuneration, the right to limitation of work hours, to rest and leisure, the right to form and join trade unions of one's choice, the right to strike etc. also as human rights. The preamble of our Constitution says that our country is a socialist republic. Article 41 of the Constitution provides that the State shall make effective provision for securing right to work. Article 42 of the Constitution provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Article 43 of the Constitution states that the State shall endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. These rights which are enforced through the several pieces of labour legislation in India have got to be applied to every workman irrespective of the character of the management. Even the management of a minority educational institution has got to respect these rights and implement them. Implementation of these rights involves the obedience to several labour laws including the Act which is under consideration in this case which are brought into force in the country. Due obedience to those laws would assist in the smooth working of the educational institutions. If such laws are made inapplicable to minority educational institutions, there is every likelihood of such institutions being subjected to maladministration. Merely because an impartial tribunal is entrusted with the duty of resolving disputes relating to employment, unemployment, security of work and other conditions of workmen, it cannot be said that the right guaranteed under Art. 30(1) of the Constitution of India is violated. If a creditor of a minority educational institution or a contractor who has built the building of such institution is permitted to file a suit for recovery of the money or damages, as the case may be, due to him against such institution and to bring the properties of such institution to sale to realise the decretal amount due under the decree passed in such suit, is Art. 30(1) violated ? Certainly not. Similarly the right guaranteed under Art 30 (1) of the Constitution is not violated, if a minority school is ordered to be closed when an epidemic breaks out in the neighborhood, if a minority school building is ordered to be pulled down when it is constructed contrary to town planning law or if a decree for possession is passed in favour of the true owner of the land when a school is built on a land which is not owned by the management of a minority school. In the same way, if a dispute is raised by an employee against the management of a minority educational institution such dispute will have necessarily to be resolved by providing appropriate machinery for that purpose. Laws are now passed by the civilized countries providing for such a machinery. The Act with which we are concerned in this case is an Act which has been brought into force for resolving such industrial disputes. Sections 10, 11-A, 12 and 33 of the Act cannot, therefore, be construed as interfering with the right guaranteed under Art. 30(1) of the Constitution. Similarly, S.9A of the Act, which requires the management to issue a notice in accordance with the said provision in order to make changes in the conditions of service which may include changes in the hours of work, leave rules, introduction of new rules of discipline etc., cannot be considered as violative of the right guaranteed under Art. 30(1) of the Constitution. The High Court was in error in thinking that the power of the Industrial Tribunal or the Labour Court the Act was uncanalised, unguided and unlimited and in thinking that the said power was equivalent to the power of the Vice-Chancellor or any other officer nominated by him functioning under the Gujarat University Act, 1949 which was the subject matter of decision in the St. Xavier's College case (supra). Accordingly we are of the view that the provisions of Ss. 9A. 10, 11A, 12 and 33 of the Act are applicable to the minority educational institutions like the Christian Medical College and Hospital at Vellore also.Having given our very anxious consideration to the right of the minorities guaranteed under Art. 30(1) of the Constitution of India and the necessity for having a general law which regulates the relationship between employers and workmen and after balancing the two interests we have come to the conclusion that the decision of the High Court is liable to be set aside and the three writ petitions filed before the High Court should be dismissed.
"26. It will be futile to contend after the pronouncement of the Supreme Court in the above case that the provisions of the Payment of Gratuity Act would be violative of Article 30(1) of the Constitution of India if applied to minority institutions.
27. In All Bihar Christian Schools Association and Another v. State of Bihar and others 1988 AIR(SC) 305, 1987 (4) JT 491, 1988 (2) SLR 1, 1987 (2) Scale 1200, 1988 (1) SCC 206, 1988 (2) SCR 49, 1988 PLJR 7
, the Supreme Court placed reliance on the observations made in Christian Medical College Hospital Employees' Union case (supra) and held that guarantee of freedom to a minority institution under Article 30(1) did not permit the minority institution to act contrary to law and order, law of contract, industrial laws or other general laws which are enacted for the welfare of the society. It was pointed out that if the minorities' claim for immunity from the law of the land is upheld that would be unreasonable and against the interest of the minority institutions themselves. It was held in that case that the provisions of Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 were constitutionally valid.
28. We have already referred to the judgment of the Punjab and Haryana High Court in the Christian Medical College and Brown Memorial Hospital (supra). There was an appeal against the said judgment in the Supreme court besides a writ petition under Article 32 of the Constitution of India by the same party. The appeal as well as the writ petition were dismissed by the Supreme Court, but they gave a direction to the Provident Fund Commissioner not to levy any damages if the College and the Hospital paid up all the arrears of contribution as demanded by the Commissioner in accordance with the terms to be imposed by the Commissioner for payment of such arrears. It was also held that in view of the special circumstances of the case, the employees will not be entitled to claim interest on the arrears. Apparently, the challenge against the validity of the Government Notification under the Employees' Provident and Miscellaneous Provisions Act was given up at the time of arguments before the Supreme Court. (Vide Christian Medical College and Brown Memorial Hospital v. The Regional Provident Fund Commissioner, Chandigarh and others, (1988-II-LLJ-379).
29. In a similar writ petition by D.A.V. College and another against the Regional Provident Fund Commissioner and others, the Supreme Court held that the educational institutions are governed by the Employees Provident Fund and Miscellaneous Provisions Act, 1952. (Vide D. A. V. College and another v. Regional Provident Fund Commissioner and others (1988-II-LLJ-218). Directions similar to those given in Christian Medical College and Brown Memorial Hospital case (1988-II-LLJ-379) were issued in that case also.
30. Learned counsel for the petitioner contended that the recent decisions of the Supreme Court rendered in 1987 and 1988 are contrary to the pronouncement of the Special Bench of nine Judges in The Ahmedabad St. Xaviers college society and another v. State of Gujarat and another 1974 AIR(SC) 1389, 1975 (1) SCR 173, 1974 (1) SCC 717, 1974 AIR(Pat) 101, 1969 AIR(Ker) 191, 1988 AIR(Orissa) 250
and that the law laid down in the later decisions is not good law. It was also contended that this Court is free to follow the nine Judges Bench Judgment and ignore the later judgments rendered by Benches constituting 2 or 3 Judges. We do not agree with any of the above contentions. We do not find any conflict between the ruling in St. Xaviers College case (supra) and the rulings in the later decisions. All the later decisions draw inspiration only from the observations made in St. Xaviers College case (supra). There is no deviation from the principles recognized and enunciated in that case as well as the earlier cases. The contentions put forward by learned counsel for the petitioner in this regard are rejected.
31. Yet another contention put forward by learned counsel for the petitioner is that the institution will not be reimbursed or compensated by the Government if any gratuity is paid on account of the employee concerned, as the College came under State Government grant-in-aid scheme only from 1st April 1979, long after the death of the employee in this case. The contention is without any substance as the question of reimbursement or compensation by the Government is wholly irrelevant. It is held in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V. R. Rudani and others (1989-II-LLJ-324) that the management of the concerned educational institution was bound to make payments relating to salary and other benefits to the staff whether the Government would compensate the management therefor or not. The relevant passage in the judgment reads as follows (p. 327) :" *
We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless the State Government compensates, it will not make full payment to the staff. We cannot accept such a contention."
Hence, the fact that grant-in-aid was availed of by the institutions only after the death of the concerned employee is wholly irrelevant and the petitioner cannot take shelter under the same and avoid the liability to pay gratuity to the deceased employee.
32. We have no doubt that the provisions of the Payment of Gratuity Act would only amount to regulations in the interests of the minority institutions and not otherwise. Even though the language of Article 30(1) of the Constitution is absolute in terms, the rights guaranteed therein have to be exercised by the minority communities in an organised society governed by the law which involves regulation of the rights which in turn do not hinder but help the effective exercise of those rights. Such regulatory laws do not impair or destroy the substance of the right. In our view, the analysis of the decisions of the Supreme Court referred to above leads to only one conclusion that the provisions of the Payment of Gratuity Act are applicable to minority communities also and they do not in any manner impinge upon the rights guaranteed under Article 30(1) of the Constitution of India.
33. The result is that this writ petition has to fail and is here by dismissed.
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