MANAGER PALLIPROM, U.P. SCHOOL Vs. STATE OF KERALA
HIGH COURT OF KERALA
Manager Palliprom, U.P. School
STATE OF KERALA
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(1.) THE petitioner is the manager of an aided upper primary school;and the 4th respondent is a teacher in that school.Disciplinary action was taken by the petitioner against the 4th respondent on ten charges.The charges were enquired into by the 3rd respondent,the Assistant Educational Officer,Cannanore North,who by his order Ext.P -3 dated 10th February 1969 found the teacher guilty of eight charges.The first among those charges was that the teacher contracted a marriage with a lady teacher in that school on 17th April 1963,while he had a wife and children.The manager accepted the findings,and called upon the teacher in accordance with the provisions of sub -rule(11)of rule 75 in Chapter XIV(A)of the Kerala Education Rules,1959(hereinafter referred to as the rules)to show cause why he should,not be dismissed from service.The manager also forwarded an application,Ext.P -4 dated 2nd May 1969,to the 2nd respondent,the District Educational Officer,Cannanore,seeking his sanction to impose the above proposed punishment.The D.E.O.by his order,Ext.P -5 dated 20th August 1969,refused to grant sanction stating that the rule prohibiting a teacher from contracting another marriage,while he has a wife living,came into force only on 1st October 1964,and that the first charge against the teacher could not be sustained,since the offending marriage was contracted by him on 17th April 1963 before the said rule came with force.Regarding the remaining 7 charges,the D.E.O.stated that they were not of such a serious nature as to warrant dismissal of the teacher from service.The manager submitted a representation,Ext.P -6 dated 8th September 1969 before D.E.O.pointing out that contracting a marriage by a teacher who has a wife living was prohibited by rule 18 in Chapter XIV -B of the Rules,which came into force on 1st June 1959,that the finding of the D.E.O.that contracting of such a marriage was not prohibited on 17th April 1963,when the teacher did it,was an obvious error on the face of the record,and that his view that the other charges found against the teacher were not enough to warrant a punishment of dismissal from service was not justified.That representation was summarily rejected by the D.E.O.by his order Ext.P -7 dated 22nd April 1971 stating that he had no jurisdiction to review his own order.Then the manager filed a representation,Ext.P -8 dated 18th December 1971 before the Government,the first respondent to revise the order Ext.P -5.That was rejected by the Government by its order,Ext.P -9 dated 30th August 1972,stating that the Government examined the case in detail,and that it was of the view that there was no reasonable ground to interfere with the orders of the D.E.O.This petition has therefore been filed to quash Exts.P -5,P -7 and P -9,and to issue a writ of mandamus directing respondents 1 to 3 to accord sanction to the petitioner to dismiss the 4th respondent from service.
(2.) THE Government has filed a counter -affidavit stating in detail all the facts of the case.It has accepted the finding of the enquiry officer that the teacher was guilty of eight of the ten charges made against him.It has also admitted that the finding of the District Educational Officer that the teacher was not guilty of the charge of bigamy was wrong.However it has sought to justify its order refusing to grant sanction for the dismissal of the teacher on the ground that the punishment proposed was a little too harsh considering the nature of the charges against the teacher.The Government has put the matter in paragraph 7 of its counter -affidavit as follows:"
7.The teacher has been held guilty of several charges including the bigamous marriage.Permission for dismissing the teacher was declined by the 2nd respondent on the presumption that in 1963 when the teacher married,such bigamous marriage was not prohibited.It is true that rule 18,Chapter XIV(B ),Kerala Education Rules was in force at that time.Under that rule no teacher who has a wife living shall contract another marriage without obtaining the permission of the Government.But the 1st respondent has rejected the request of the petitioner on the ground that there are lesser punishments like removal from service,compulsory retirement,stoppage of increment and downgrading etc.the imposition of any one which would be sufficient.Dismissal from service is a disqualification for future appointment.The charges against the petitioner do not appear to be so serious as to merit dismissal ;.
It appears that both the District Educational Officer and the Government have misconceived the scope of clause(c)of sub -rule(11)of rule 75 in Chapter XIV(A)of the Rules.Sub -rule(11)reads:"
11.If the Manager is of opinion that any of the penalties specified in items(iv)to(viii)of rule 65 should be imposed,he shall "
(a)Furnish to the teacher a copy of the report of the Enquiring 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 inquiry.
(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 ;.
(3.) FROM the above provision,it is clear that it is the manager,who is the disciplinary authority.It is for the manager to examine the records of the enquiry,and then take a decision whether the teacher is guilty of any of the charges and if so what punishment should be awarded to him.Clause(c)is only intended for the protection of a teacher against any malafide or unwarranted penalty that may be imposed against him by a manager.The competent authority mentioned in the above clause is not an appellate authority in respect of the manager's decision either in the matter of his finding on the charges or the penalty proposed to be imposed on the teacher.At the same time the sanction is not one to be automatically or mechanically granted.The competent authority has to consider whether there is any material to support the finding,or the materials on which the finding is based are such on which any tribunal entrusted with the task of finding on a question of fact would act.If not,the competent authority should not grant the sanction.Again it has to consider whether the penalty proposed has any reasonable bearing to the charges found against the teacher.If it is out of all proportion regarding the nature of the charges or it is one which would shock the conscience of a reasonable tribunal,then the competent authority should not grant the sanction.Except under the above circumstances,the competent authority is bound to grant the sanction sought for by the manager.;
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