- (1.) The ambit of the powers of the District Educational Officer under R.74 Chap.14(A) of the Kerala Education Rules, 1959, for short the K. E. R., in the matter of giving previous sanction to the Manager of an Aided School for imposing the penalty of compulsory retirement, removal, or dismissal from service arises for consideration in this original petition. The vires of R.75(11)(c) of Chap.14(A) of the K. E. R. also is questioned in this original petition. The petitioner is the Headmaster Manager of the Peralam Aided Upper Primary School. On the basis of certain allegations against the 3rd respondent craft teacher, the petitioner placed him under suspension as per proceedings dated 18-4-1972. The Assistant Educational Officer, Payyannur by Ext. P1 proceedings dated 4-5-1972 granted permission to the petitioner to place the 3rd respondent under suspension beyond the period of 15 days. Thereafter, the charges levelled against the 3rd respondent were enquired into by the Assistant Educational Officer and by Ext. P2 proceedings dated 9-5-1973 the Assistant Educational Officer found the two charges levelled against the 3rd respondent to be true. Thereupon, the petitioner forwarded to the 3rd respondent a copy of the enquiry report of the Assistant Educational Officer with a show cause notice why the 3rd respondent should not be removed from the staff of the school. To that the 3rd respondent submitted Ext. P3 representation. On receipt of Ext. P3 the petitioner by Ext. P4 letter dated 16-8-1973 moved the 2nd respondent District Educational Officer, Kasaragod for previous sanction to impose the penalty of removal from service upon the 3rd respondent. But the 2nd respondent by Ext. P5 proceedings dated 24-12-1974 informed the petitioner that the charge "Attempt of immoral behaviour towards the girl pupil has not been proved beyond doubt and directed the petitioner to reconsider the case in the light of the above 'findings' arrived at by the 2nd respondent. Thereupon, the petitioner again moved the 2nd respondent by Ext. P6 letter dated 8-1-1975 pointing out that the Assistant Educational Officer who conducted the enquiry has given a finding that the charge of 'attempt of immoral behaviour towards the girl pupil' was proved and by Ext. P6 the petitioner again requested the 2nd respondent to give him sanction for imposing the penalty of removal from service upon the 3rd respondent. But the 2nd respondent by Ext. P7 again directed the petitioner to exclude the charge of attempt of immoral behaviour towards the girl pupil and proceed. The petitioner questions the above proceedings, Exts. P5 and P7, in this original petition. Exts. P8 to P12 produced along with the original petition throw light into the previous conduct of the 3rd respondent, which is far from satisfactory. A counter affidavit has been filed on behalf of respondents 1 and 2 and the stand taken by the 2nd respondent in refusing previous sanction by Exts. P5 and P7 is justified in the counter affidavit. The petitioner has filed a reply affidavit also.
(2.) Learned counsel for the petitioner contends that the 2nd respondent who did not accord previous sanction to the petitioner for imposing the penalty of removal from service cannot go behind the findings in the enquiry report arrived at by the Assistant Educational Officer. Learned counsel further contends that under the K. E. R. the 2nd respondent who has to decide only the question of granting previous sanction has no business whatsoever to give a finding on any of the charges against the delinquent teacher. On the question of the vires of R.75(11)(c), learned counsel refers to S.11 and 12 of the Kerala Education Act, for short the Act, and contends that the powers of an Aided School Manager, who is the appointing authority, cannot be abridged by the above R.75(11)(c) Learned Government Pleader contends that after the enactment of S.12A, not only the Manager, but the Department and the State have got disciplinary powers and hence the vires of R.75(11)(c) cannot now be questioned.
(3.) S.11 and 12 of the Kerala Education Act, 1958 read: "11. Appointment of teachers in aided schools: Subject to the rules and conditions laid down by the Government, teachers of aided schools shall be appointed by the managers of such schools from among persons who possess the qualifications prescribed under S.10. 12. (1) Conditions of service of aided school teachers: (1) The conditions of service of teachers in aided schools, including conditions relating to pay, pension, provident fund, insurance and age of retirement, shall be such as may be prescribed by the Government. (2) No teacher of an aided school shall be dismissed, removed or reduced in rank 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 74 Chap.14(A) or the K. E. R. reads:- "74. The penalty of compulsory retirement, removal, or dismissal from service can be imposed by the Manager only with the previous sanction of the Director, in the case of teachers in the graduate teachers scale and Headmasters of Secondary Schools and Training Schools and of the District Educational Officer in the other cases." R.75(11) Chap.14(A) of the K. E. R. reads:- "75(11). If the Manager is of opinion that that any of the penalties specified in items (iv) to (viii) of R.65 should be imposed, he shall (a) Furnish to the teachers a copy of the report of the Inquiring Authority. (b) Give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not generally exceed one month such representation as he may wish to make against the proposed action provided that such representations shall be based only on the evidence adduced during the enquiry. (c) On receipt of the representation, if any and after taking into consideration the representation, final orders shall be passed by the manager imposing the penalty with the previous sanction of the competent authority." What is insisted by R.74 and 75(11)(c) Chap.14(A) of the K.E.R. is that the penalty of compulsory retirement, removal or dismissal from service can be imposed upon an aided school teacher by the Manager only with previous sanction. In this case, the penalty proposed is one of removal from service. So, for the imposition of that penalty, previous sanction of the District Educational Officer is required It is clear from S.12(2) of the Act that an Aided School Manager can impose the penalty of removal from service upon a teacher only with the previous sanction of the officer authorised by Government in that behalf. If this be so, the insistence in R.74 and 75(11)(c) Chap.14(A) of the K.E.R, that previous sanction must be obtained before an Aided School Manager imposes the penalty of removal from service cannot be in any way against the provisions of S.11 and 12 of the Act. So, I hold that R.75(11)(c) Chap.14(A) of the K. E. R. is intra vires of S.11 and 12 of the Act. Though under R.74 for the imposition of the penalty of removal from service upon an Aided School teacher the previous sanction of the District Educational Officer is necessary, the question is how far a District Educational Officer can refuse that sanction. Again, has the District Educational Officer any power under R.74 to give a finding on the charges enquired into and found proved by the Enquiring Authority. By no stretch of imagination, it can be said that the District Educational Officer can, under R.74, either give a finding on the charges in the enquiry or go behind the findings in the enquiry report. All what the District Educational Officer can consider under R.74 is whether the penalty proposed is commensurate with the gravity of the charges proved in the enquiry. If, for example, the charge proved is a silly one like an unauthorised absence for a day or two, and if a Manager purposes the penalty of removal from service, it goes without saying that the District Educational Officer can, under R.74, tell the Manager that the penalty proposed is not the one called for in the case and refuse previous sanction under the Rule. But, if the charge proved is of a serious nature, then, it goes without saying that under the rule the District Educational Officer will have no other go but to give sanction for the imposition of the major penalty proposed. The correctness of the findings in the enquiry report is not a question to be considered under R.74. It is a question which will have to be considered by the Appellate Authority under R.80 Chap.14(A) of the K.E R. in an appeal by the teacher against the imposition of the penalty. If the Appellate Authority comes to the conclusion that the charge levelled against the teacher in the enquiry was not, as a matter of fact, proved, it is for the Appellate Authority to interfere with the penalty imposed even if the same was imposed with the previous sanction of the District Educational Officer under R.74. In this case, one of the charges levelled against the 3rd respondent is of a serious nature. Not only that, the previous conduct of the 3rd respondent as revealed in Exts. P8 to P12 was also very unsatisfactory Ext. P11 apology he gave on 19-3-1971 speaks for itself. In such a case, it goes without saying that the 2nd respondent went wrong in refusing previous sanction under R.74 for the removal of the 3rd respondent from service. Hence, I set aside Exts. P5 and P7 and direct the 2nd respondent to consider Ext. P4 letter of the petitioner Manager in the light of what has been said in this judgment as expeditiously as possible and, at any rate, within two months from today. The original petition is allowed to the extent indicated above. There will be no order as to costs.;