MANAGER S M S N H S VAIKOM Vs. STATE OF KERALA
LAWS(KER)-1968-7-7
HIGH COURT OF KERALA
Decided on July 05,1968

MANAGER S.M.S.N.H.S., VAIKOM Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) IN this writ petition, the petitioner, the manager of the school in question, challenges the validity of Ext. P-6 order dated 11-10-1965 passed by the Regional Deputy Director of Public INstruction, the 2nd respondent. This order was confirmed by the government in revision ( Ext. RI ). The facts leading to this petition are: The 4th respondent was the headmaster of the school. He was placed under suspension by the petitioner on 3-6-1961, pending enquiry into certain charges against him and the matter was reported to the District Educational Officer, the 3rd respondent. The 3rd respondent made a preliminary enquiry into the charges, and gave permission to the petitioner to continue the 4th respondent under suspension pending enquiry into the charges. The charges against the 4th respondent were found proved by the 2nd respondent. Ext. P-1 is the enquiry report. It was sent to the petitioner for taking appropriate action in accordance with the provisions of Chap. 14a of the Kerala education Rules, hereinafter, referred to as the Rales. As the charges were grave and found proved, the petitioner proposed to dismiss the 4th respondent. He therefore issued notice to the 4th respondent to show cause why he should not be dismissed. The 4th respondent put in an explanation. After considering the explanation, the petitioner came to the conclusion that the 4th respondent should be dismissed from service For imposing the punishment, the petitioner requested for sanction of the 2nd respondent under R. 74 of Chap. 14a of the rules. The 2nd respondent by Ext. P2 dated 28-12-1964 suggested that reversion of the 4th respondent as a High School Assistant for a period of six months would be an adequate punishment, and directed the imposition of that punishment. The petitioner made a representation to the 2nd respondent against this direction, wherein he contended that the 2nd respondent has no authority to propose a lesser punishment. But, the 2nd respondent insisted upon the petitioner carrying out his direction in Ext. P-2, and told him that if he does not comply with the direction within ten days, proceedings will be started against him under R. 7 (1) of Chap. 3 of the Rules (Ext. P3 ). The petitioner then sent a letter to the 2nd respondent reiterating his contention that the 2nd respondent has no jurisdiction to order him to comply with the direction in ext. P-2. Thereafter the 2nd respondent framed charges against the petitioner for not complying with the direction (Ext. P-4 ). The petitioner submitted his explanation (Ext. P5 ). Then, the 2nd respondent passed an order on 11-10-1965 requiring the petitioner to show cause why he should not be declared unfit to be the manager of the school (Ext. P6 ). The petitioner filed a revision before government questioning Ext. P6, but, government dismissed the revision. Ext. RI is a copy of the order dismissing the revision. Thereafter, the 2nd respondent issued Ext. P-8 to the petitioner again asking for explanation, why he should not be declared unfit to be the manager of the school.
(2.) THE question for consideration is whether the 2nd respondent had jurisdiction to issue the direction in Ext. P-2. It was contended on behalf of the respondents that under R. 74 of Chap. 14a of the rules, the petitioner cannot dismiss the headmaster of the school without the previous approval of the 2nd respondent, as the power of the Director of Public instruction to grant or withhold approval to the proposal has been delegated to him. But, what Ext. P-2 has done is not to withhold approval for the punishment proposed by the manager, but to direct the manager to impose a different punishment. THE power to dismiss a teacher, including a headmaster, is vested in the manager, (see S. 12 (2) of the Kerala Education Act, and the Full Bench ruling of this Court in 1968 KLT. 556 ). It is contended on behalf of the respondents that s. 12 (2) does not negate the power of the Educational authorities to dismiss a teacher or headmaster, as the sub-section only enables the manager to exercise the power, and does not exclude the power of government to frame rules vesting the power in the educational authorities also, and that under R. 77 (2) of chap. 14a of the Rules, if a higher authority has imposed or declined to impose a punishment, the manager, a lower autho-ity, shall have no jurisdiction to proceed in respect of the same case. R. 77 (2) runs as follows: "where in any case a higher authority has imposed or declined to impose a penalty, a lower authority shall have no jurisdiction to proceed in respect of the same case. " In the judgment in 1968 KLT. 537, I had occasion to consider the question, whether the rule making authority can vest the power of dismissal or suspension in the educational authorities. I decided that the kerala Education Act did not visualise the vesting of this power in any other agency, and that the power, if vested in any other agency by the rule making authority, would be destructive of the power exclusively conferred on the manager by S. 12 (2) of the Kerala Education Act. This is what I said in the judgment in the above O. Ps. 1 think the Act recognised and affirmed the power of the manager to appoint teachers in aided schools subject to the rules and conditions laid down by the Government! The underlying purpose of the legislature in enacting S. 11 and 12 was to put restrictions upon the exercise of the power of appointment, dismissal or suspension by the Manager. It was not contended that the power was exercised by any agency other than the manager, when the Act came into force. There is no provision in the Act visualising the vesting of the power in any other agency. Then, why not I presume that the purpose of the Legislature was to recognise and affirm the power as the exclusive power of the manager but subject to restrictions. " S. 12 (2), standing by itself, is susceptible of the construction that the power of the manager to dismiss or suspend is not exclusive. It was to negative this argument, that I resorted to the, historical background, and said, that before the Act came into force the power was exercised only by the manager, and referred to the mischief resulting from the unbridled exercise of the power, and pointed out that "the remedy which the Legislature has resolved and appointed to cure the disease" was to put restrictions upon the exercise of that power. That resort to the background of the pre-existing law is relevant in such circumstances for construing a statute has long ago been laid down in Heydon's case, 3 Co. 7. a. (1584) where all the barons of the Exchequer declared: "that for the sure and true interpretation of all statutes in general four things are to be discerned and considered: (1) What was the common law before the making of the Act. (2) What was the mischief and defect for which the common law did not provide. (3) What remedy the Parliament had resolved and appointed to cure the disease of the Commonwealth. " The Supreme Court has followed the rule of interpretation laid down in Heydon's case in Bengal Immunity Co. v. State of Bihar AIR. 1955 s. C. 661. Suppose a manager refuses to impose the punishment of dismissal proposed by an educational authority, can the manager be proceeded against for violation of a lawful order by the educational authority? I think not. Suppose a manager insists upon dismissing a teacher, can the educational authority say, no, and direct the imposition of a lesser punishment, and take proceedings against the manager, for not implementing the direction of the educational authority? I would answer in the negative. Again, suppose a manager proposes a punishment, say reduction in rank, but the educational authority insists upon dismissal, what is to happen? If R. 77 (2) is valid, the punishment of dismissal must be imposed. But then, which is the authority which imposes the punishment of dismissal? Surely not the manager. Yet, under S. 12 (2) of the kerala Education Act, the power of dismissal is vested only in the manager. The power to impose restrictions on the power of the manager does not mean that the power itself can be arrogated. R. 77 (2), insofar as it gives the educational authorities the power to impose the punishments which is vested in the manager by S. 12 (2) may not be consistent with that sub-section. I think, the Full Bench ruling in 1968 KLT. 556 has decided that the power of manager in this behalf is exclusive. I therefore hold that S. 77 (2) should not stand in the way of adjudicating upon the rights of the parties in this case, as it is repugnant to s. 12 (2) of the Kerala Education Act. I quash Exts. P6 and P8 and also the order of government ext. RI and allow the writ petition. In the circumstances, there will be no order as to costs. Allowed.;


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