KAMMARAN GURUKKAL Vs. THE ASSISTANT EDUCATIONAL OFFICER
LAWS(KER)-1974-10-16
HIGH COURT OF KERALA
Decided on October 30,1974

Kammaran Gurukkal Appellant
VERSUS
The Assistant Educational Officer Respondents

JUDGEMENT

K.K.NARENDRAN,J. - (1.) THE scope of interference by officers of the Department of Education in the matter of a suspension pending enquiry of a teacher of an Aided School made by the Manager of the school arises for consideration in this Original Petition.The petitioner is the Manager of Azhikode South U.P.School of which the 2nd respondent is the Headmaster.By Ext.P -1 order dated 28th November 1973 the petitioner suspended the 2nd respondent pending enquiry into certain charges against him.It is stated in Ext.P -1 that the suspension will be for a period of 15 days from the date of receipt of Ext.P -1 and the case of the respondents is that the 2nd respondent received Ext.P -1 only on 14th December 1973.Ext.P -1 suspension was pending enquiry into certain charges against the 2nd respondent.It seems one P.N.Sukumaran,Executive Committee Member,District Athletic Association,Cannanore submitted a complaint to the 1st respondent Assistant Educational Officer,Pappinisseri with a copy to the petitioner.As per the above complaint,the 2 nd respondent Headmaster certified as correct the date of birth of a pupil by name K.B.Basheer studying in Standard VII of the school and the date shown in that certificate was not the correct date of birth of that pupil.Moreover,on the strength of that certificate the pupil was able to compete in the sub -junior section of the Sports Meet held at the Baliapattom Panchayat ground on the 8th and 9th November 1973.Though as per his correct date of birth the said Basheer was not eligible to compete in the sub -junior section of the Sports Meet as he was not within the required age group,because of the false certificate given by the 2nd respondent the said pupil got an entrance to the sub -junior section and easily got the championship.The case of the petitioner is that on receipt of the above complaint on 23rd November 1973 at 4 p.m.the petitioner went to the school and asked the 2nd respondent to produce the school admission register and also the copy of the list of competitors sent up from the school for the said Sports Meet.According to the petitioner,the 2nd respondent not only did not comply with that request but he conducted himself in a manner most unbecoming of a teacher.It was under the above circumstances that Ext.P -1 suspension order pending enquiry was issued.
(2.) SUBSEQUENTLY ,the petitioner issued Ext.P -2 charge memo and the statement of allegations.The petitioner also reported the matter to the 1st respondent as per Ext.P -3 letter dated 23th November 1973.The 1st respondent thereupon conducted a preliminary investigation as required under rule 67(8)of Chapter XIV(A)of the Kerala Education Rules,1959 on 20th December 1973 and by Ext.P -4 order dated 26th December 1973 directed the petitioner to reinstate the 2nd respondent forthwith.It is against Ext.P -4 order that the petitioner has approached this Court by this Original Petition. The main contentions raised in the Original Petition are:As the 2nd respondent has admitted that the date of birth of the pupil K.B.Basheer furnished was incorrect,the 1st respondent ought to have found that there was a prima facie case for taking disciplinary action against the 2nd respondent keeping him under suspension pending enquiry.Under rule 67(1)of Chapter XIV(A)of the Kerala Education Rules,the petitioner as Manager of an Aided School has got the power to place a teacher under suspension if disciplinary action is pending or disciplinary action is contemplated against the teacher.In this case,it is clear from Ext.P -1 that disciplinary action was contemplated.So,under rule 67(1)the petitioner has every right to place the 2nd respondent under suspension.The objection taken by the 1st respondent that no reasons are stated in Ext,P -3 is also not tenable.Ext.P -3 communication sent to the 1st respondent will dearly indicate the reasons why suspension was resorted to.Reasons for taking disciplinary action and reasons for keeping the teacher under suspension are the same.The stand taken in Ext.P -4 that there is no reason to continue the suspension on the ground that the 2nd respondent and the Physical Education teacher have already given statements admitting the guilt at the preliminary investigation cannot also be correct.As per rule 67(1 ),the circumstances at the time of the issue of order of suspension are the circumstances to be taken into consideration.The contentions raised in the counter -affidavit filed by the 1st respondent Assistant Educational Officer are:The petitioner has only reported the fact of suspension and has not given reasons for suspension.Instead of giving the reasons for suspension,the petitioner gave only the reasons for taking disciplinary action.Rule 67(8)of Chapter XIV(A)of the Kerala Education Rules requires that the reasons tor suspension should be reported to the Educational Officer.As the Manager is empowered to place a teacher under suspension,so is the Educational Officer empowered to investigate into the grounds of suspension.The petitioner should have reported to the Educational Officer the reasons which would prejudice the disciplinary action against the teacher if the teacher was allowed to work in the school during its pendency.Rule 67(8)does not set any limit to the scope of the preliminary investigation.It is for the Educational Officer to decide whether there were valid grounds for suspension.The question whether the 2nd respondent is likely to tamper with the records and influence the witnesses who are Assistant Teachers has been examined in detail in Ext.P -4 order directing reinstatement.The 2nd respondent first filed a counter -affidavit in CM.P.No,10 of 1974 and thereafter on 9th February 1974 filed a counter -affidavit in the Original Petition.The contentions of the 2nd respondent in the above counter -affidavit are:As the 2nd respondent has admitted in the preliminary investigation that he attested the list which contained the names and dates of birth and other particulars of the pupils in question,there is no question of tampering with the school records and as such there is no necessity to keep him under suspension any further.The 2nd respondent has also admitted in the preliminary investigation that the dates of birth were not correct.The mistake committed was a bona fide mistake and as soon as the 2nd respondent came to know of that he immediately reported it to the 1st respondent.Subsequent he collected all the details and sent a further report to the 1st respondent and on the basis of these reports the 1st respondent did not permit those pupils who were not really eligible to compete in the district competition.Charge No.2 in Ext.P -2 charge memo is denied.Once it is found in the preliminary investigation that there are no valid grounds,the 1st respondent has to order reinstatement.The 2nd respondent also in the counter -affidavit filed in C.M.P.No.10 of 1974 has narrated in detail certain circumstances to show that the petitioner really acted mala fide in the matter.According to the 2nd respondent when the post of Headmaster of the School fell vacant on 1st April 1969,overlooking his claims the petitioner appointed one Vasumathy as Headmistress and ultimately he was appointed as Headmaster by the petitioner only after the disposal of two Original Petitions filed before this Court in that connection.Even after the disposal of the above Original Petitions,since the petitioner did not actually post the 2nd respondent as Headmaster,the 2nd respondent had to file O.P.No.5527 of 1972 for contempt against the petitioner and then only the 2nd respondent was actually appointed as Headmaster by the petitioner.The end respondent further states that in the light of what happened prior to his actual appointment as Headmaster the present suspension is really vindictive and is only a measure to wreak -vengeance against him.
(3.) THE power to suspend an Aided School Teacher is governed by section 12(2)of the Kerala Education Act,195a and rule 67 of Chapter XIV(A)of the Kerala Education Rules,1959.Section 12(2)reads: 12.( 2)No teacher of an aided school shall be dismissed,removed or reduced in tank by the Manager without the previous sanction of the officer authorised by the Government in this behalf,or placed under suspension by the Manager for a continuous period exceeding fifteen days without such previous sanction.'' Rule 67(1)of Chapter XIV(A)of the Rules reads: 67.( 1)The Manager may at any time place a teacher under suspension(a)when disciplinary proceedings against him are contemplated or are pending;or(b)when a case against him in respect of any criminal offence is under investigation or trial or(c)when the final orders are pending in the disciplinary proceedings,if the authority considers that in the then prevailing circumstances it is necessary,in public interest,that the teacher should be suspended from service. (2)¦¦¦¦¦ ;. (3)¦¦¦¦¦ ;. (4)¦¦¦¦¦ ;. (5)¦¦¦¦¦ ;. (6)¦¦¦¦¦ ;. (7)Whenever a teacher is placed under suspension he shall be paid such subsistence and other allowances as may be allowed to Government servants: Provided that no teacher shall be placed under suspension by the Manager for a continuous period exceeding 15 days without the previous sanction of the Regional Deputy Director of Public Instruction in the case of Headmasters of secondary schools and training schools and of the Educational Officer in other cases. (8)Where the order of suspension is made by the Manager,he shall on the same day report the matter together with reasons for the suspension to the Educational Officer and where the suspension is in respect of the Headmaster of secondary school and Training school such reports shall he sent to the Region Deputy Director also in addition to the Educational Officer.The Regional Deputy Director if die suspension is in respect of Headmaster of a secondary school or training school and the Educational Officer in other cases shall thereupon make a preliminary investigation into the grounds of suspension.If on such investigations the authority is satisfied that there was no valid,grounds for the suspension he may direct the manager to reinstate the teacher with effect from the date of suspension,and thereupon the teacher shall forthwith be reinstated by the manager.If the teacher is not actually reinstated the teacher shall be deemed to have been on duty.It shall then be open to the Department to disburse the pay and allowances to the teacher as if he were not suspended and recover the amount so disbursed from the manager.If on such investigations it is found that there are valid grounds for such suspension permission may be given to the manager to place the teacher under suspension beyond 15 days,if necessary.The authority mentioned above shall pass orders permitting the suspension or otherwise within the said 15 days.( Clauses 2,3,4,5 and 6 which are not relevant for the purpose of this case are omitted.) No doubt,the Manager is the appointing authority.So the power to take disciplinary action should also necessarily vest with the Manager.This can only be controlled and regulated to the extent there are restrictions imposed by the Act and the Rules.The Act and the Rules recognise that primarily the Manager is the authority concerned with the discipline of the teachers.The mere fact that restrictions are there will not by themselves divest the disciplinary powers of the Manager who is the appointing authority.Both section 12 of the Act;and rule 67 of Chapter XIV(A)of the rules recognise this basic fact.Under section 12(2)the Manager has the power to place a teacher under suspension but for suspension beyond 15 days previous sanction of the department is necessary.Under rule 67(1)it is clear beyond a shadow of doubt that the Manager can place a teacher under suspension when disciplinary proceedings against a teacher are contemplated or are pending.It is the admitted case of all the parties in the case that disciplinary proceedings were contemplated when the order of suspension was issued.As per rule 67(8 ),the Manager has to report the suspension with reasons for the same to the Educational Officer and the Educational Officer is to make a preliminary investigation into the grounds of suspension.The rule further empowers the Educational Officer to direct the Manager to reinstate the teacher if in the preliminary investigation it is found that there were no valid grounds for suspension.So,the direction for reinstatement can be given only if it was found in the preliminary investigation that there were no valid grounds for suspension.Whether there were valid grounds for suspension or not is to be decided with reference to rule 67(1)which empowers the Manager to order a suspension pending enquiry.As per rule 67(1 ),suspension can be resorted to when disciplinary proceedings against the teacher are contemplated or are pending.So,in every case where disciplinary proceedings are contemplated or are pending,the Manager has got the power to suspend a teacher.If that power is there,as long as the disciplinary proceedings are pending,the Educational Officer cannot give a direction under rule 67(8)to reinstate a teacher because it cannot be said that there were no valid grounds for suspension.Moreover,it is the existence of the valid grounds on the date of the suspension that really matters and it is not the position as available at the time of the preliminary investigation that is to be taken into consideration.The necessity to keep the teacher under suspension any further is not a matter which is relevant for consideration in giving or not giving permission to the Manager to place the teacher under suspension beyond 15 days.No doubt,the Manager has no power to keep a teacher under suspension beyond 15 days without the previous sanction of the Educational Officer under rule 67(8 ).But at the same time,that permission cannot be arbitrarily denied.In the matter of giving that permission,rule 67(1)is the provision which has to be kept in mind.When rule 67(1)is complied with,the Educational Officer cannot refuse permission to the Manager under rule 67(8)to keep the teacher under suspension beyond 15 days.The necessity to keep the teacher under suspension further or the apprehension whether the records will be tampered with or it will become impossible to conduct an impartial enquiry into the matter if the teacher was reinstated,are not at all considerations which are relevant in passing an order under rule 67(8 ).Looking at the matter in the above perspective,the reasons given in Ext.P -4 order for directing reinstatement of the 2nd respondent are not reasons which should have weighed with the respondent in deciding the question whether he should give permission to the petitioner to keep the 2nd respondent under suspension beyond 15 days.In this view,the fact that the 2nd respondent admitted the mistake or the guilt becomes immaterial.The fact that the petitioner in Ext.P -3 did not say anything further by way of reasons for the suspension cannot also in any way affect the matter.It is clear from Ext.P -3 why the 2nd respondent was placed under suspension.It that be so,why should further reasons be given especially in view of the clear wording of rule 67(1)of Chapter XIV(A)of the rules. ;


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