(1.) This petition has come up before the Full Bench on the basis of an Order of Reference passed by a Division Bench of this Court. Para.1 to 5 of the Order of Reference may be usefully extracted as those paragraphs deal with the relevant provisions of the statute, the Kerala Education Act, 1958, and refer to the relevant rules in Chap.14(A) of the Kerala Education Rules, 1959, framed under the Act:
"Should the manager of a school who had imposed punishment on a teacher of the school after obtaining the requisite sanction as provided by R.74 in Chap.14(A) of the Kerala Education Rules (hereinafter called the Rules) be heard before an order revising and reducing the punishment in exercise of the power under R.92 in Chap.14(A) of the Rules is passed is the question arising for decision in this petition. Gopalan Nambiyar J. in referring this question to a Division Bench, said:
The question raised regarding the status of the Manager vis a vis the institution and in relation to disciplinary proceedings conducted by him against the teachers is important and far reaching and merits consideration by a Division Bench, and if necessary by a Full Bench.'
2. After a proper enquiry, the manager, the petitioner before us, by Exts. P11 and P12 orders, removed from service two teachers after obtaining the previous sanction from the appropriate educational authority, the Regional Deputy Director of Public Instruction. Appeals from the orders, Exts. P11 and P12, were dismissed by the orders Exts. P14 and P15. The Teachers then moved the Government under R.92 in Chap.14(A) of the Rules and the Government deemed it fit by Exts. P16 order to set aside Exts. P11 and P12 orders and reduce the punishment in the case of the Head Master (2nd respondent) to one of reduction in rank from the post of Head Master to that of an Assistant, and in the case of the 3rd respondent, the teacher, to one of withholding two increments. The order Ext. P16 was admittedly passed without affording any opportunity to the manager, the petitioner before us of making any representation or of being heard. Counsel for the petitioner has contended that this is violative of the principles of natural justice arid that therefore the order Ext. P16 should be set aside. Before we deal with this question, it is necessary to refer to some of the provisions in the Kerala Education Act, for short, the Act, and the Rules.
3. The power of appointment of teachers of aided schools is vested with the managers (S.11 of the Act). The restriction about such appointments by managers is by rules and conditions to be laid down by the Government in that those appointed must possess the qualifications prescribed under S.10 of the Act. S.12(2) implies that the manager of a school is the disciplinary authority with power to punish. The section however imposes restrictions in the power of punishment by providing that 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. R.74 in Chap.14(A) of the Rules insists that the previous sanction of the Director is necessary in the case of teachers in graduate scale and Headmasters of secondary schools and training schools. This is the provision that is applicable in this case. We have, however, to mention that the power conferred on the Director by this rule has been delegated to the Regional Deputy Director by notification published in Kerala Gazette dated 21-11-1961.
4. Elaborate and detailed procedure for the conduct of the enquiry before imposition of punishment is contained in R.75 in Chap.14(A) of the Rules and this enquiry has to be conducted by the appropriate educational authority or by the special officer appointed For that purpose. In this case, the enquiry was conducted by a special officer appointed for the purpose. He entered findings against the Headmaster and the teacher, respondents 2 and 3, and the manager, the petitioner, after obtaining the sanction as required by R.74 imposed the punishment of removal from service. There were appeals by respondents 2 and 3 to the Director of Public Instruction, as indicated already under R.80 in Chap.14(A) of the Rules, and those appeals were dismissed. It was thereafter that the revision under R.92 was taken before the Government, the first respondent, and the order Ext. P16 was passed.-- R.92 is in these terms:--
'92. Revision. Notwithstanding anything contained in these Rules the Government may, on their own motion or otherwise, after calling for the records of the case, revise any order passed by a subordinate authority which is made or is appealable under these Rules
(a) confirm, modify or set aside the order;
(b) impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order;
(c) remit the case to the authority which made the order or to any other authority directing such further action or inquiry as they consider proper in the circumstances of the case; or
(d) pass such other order as they deem fit:
Provided that --
(i) an order imposing or enhancing a penalty shall not be passed unless the person concerned has been given an opportunity of making any representation which he may wish to make against such enhanced penalty provided that such representation shall be based only on the evidence adduced during the enquiry.
(ii) if the Government propose to impose any of the penalties specified in items (iv) to (viii) of R.65 on a case where an enquiry be held and thereafter on consideration of the proceedings of such inquiry and after giving the person concerned an opportunity of making any representation which he may wish to make against such penalty, pass such orders as they deem fit.'
We must refer to one other rule which has been relied on by counsel for respondents 2 and 3 as well as the Government Pleader appearing for the 1st respondent. This is R.81A, and it runs thus: --
'Managers are lower or subordinate authorities for the purpose of these Rules in relation to Educational Officers, Regional Deputy Directors, the Director, the Government or the authority empowered by the Government.'
5. There is an immense volume of case law on the principle of audi alterant partem. Certain principles have got crystalled and settled, by decisions. We may refer to two of these principles. The first of these is that there is a presumption that courts, and tribunals with trappings, procedures and functions similar to those of courts, must observe the rule and that in cases where the rule had not been applied, a Court in exercise of its jurisdiction under Art.226 of the Constitution may set at naught the decision taken without complying with the rule. In some situations a person who has a substantial interest in opposing may be held to be impliedly entitled to prior notice and opportunity to be heard. These principles point to the conclusion that the power under R.92 in. Chapter XIV (A) of the Rules which we consider is a quasi judicial power is for preventing extremely excessive or harsh punishments of teachers or for setting aside findings of misconduct which are based on no material or on such flimsy material that no reasonable person could have reached a conclusion of guilt. This is a limited power. The first proviso to R.92, which we have read, clearly indicates that it is a judicial procedure that is contemplated by the rule in that it provides that the teacher shall be heard before any enhancement of punishment is effected. The schools are private schools though aided ones and though they are obliged to conform to statutory requirements in various matters, the managers of such schools remain the appointing authorities of teachers and they also remain the disciplinary authorities in relation to the teachers and it is their primary responsibility, and certainly their main concern, that discipline should be maintained in the school. We assume that most of the managers, if not all, are interested in enforcing and maintaining such discipline. In cases of lapses on the part of the managers who may be too lax, the new amendment introducing S.12A enabling the educational authorities to take appropriate action for the purpose of maintaining discipline which is also in the interests of the public, supplies an omission. On the whole, we get the impression that the Act and the Rules have not infringed the right of the managers to appoint and to dismiss, when need be, but has only regulated the procedure in order to safeguard the interest of the teachers and that of the general public. Essentially therefore it is the concern of the managers to maintain discipline and to take appropriate action. This, we think, is in consonance with the principle that such matters should not be taken out of the purview of the managers. In any view, the Act, as we read it, has not done so. If these premises are correct, it cannot be gainsaid that these persons are interested in the outcome of any exercise of power under R.92 of Chap.14(A). Can they be ignored and an order passed behind their back Mathew J. had no doubt that this could not be done and he said so in a brief judgment without referring to authorities in O. P. No. 807 of 1965 and set aside an order passed in appeal without hearing the manager. A number of decisions of the Supreme Court have been cited before us. It is unnecessary to refer to all of them. The judgment in Union of India v. J. N. Sinha and another reported in AIR 1971 SC 40 summarises the law as has been laid down by the Supreme Court during the last decade in Gullappalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another reported in AIR 1959 SC 308 , Para.29, in Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta and others reported in AIR 1962 SC 1110 , Associated Cement Companies Ltd. v. P. N. Sharma and another reported in AIR 1965 SC 1595 , Lata Shri Bhagwan and another v. Ram Chand and another reported in AIR 1965 SC 1767 , P. L. Lakhanpal v. The Union of India reported in AIR 1967 SC 1507 , A. K. Karaipak and others v. Union of India and others reported in AIR 1970 SC 150 and Purshottam Jadavji Jeni v. The State of Gujarat and others reported in AIR 1971 SC 1188 . Justice Hegde in Union of India v. J. N. Sinha reported in AIR 1971 SC 40 summed up the position thus in Para.7 of the judgment :-
'7. Fundamental R.56(1) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Art.310 of the Constitution. But this 'pleasure' doctrine is subject to the rules or law made under Art.309 as well as to the conditions prescribed under Art.311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Karaipak v. Union of India, AIR 1970 SC 150, 'the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.' It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."
(2.) Considering the provisions and the principles laid down by the Supreme Court referred to in Para.5 of the Order of Reference and the decision of the Supreme Court in Union of India v. J. N. Sinha and another reported in AIR 1971 SC 40 and the summary of the principles contained in the judgment of the Supreme Court, extracted in Para.6 of the Order of Reference, the Division Bench expressed the opinion that
"We would have therefore allowed this Original Petition and set aside the order Ext. P16 which was passed without hearing the manager and without affording an opportunity to the manager to make bis representation."
The Division Bench, however, desisted from doing so in view of the pronouncement of this Court by another Division Bench in A. Raghavan v. D. E. O. Attingal, reported in 1971KLT 658, and the ruling of this Court in Super Rubbers (P) Ltd. & Others v. State of Kerala & another reported in 1972 KLT 989 wherein the view had been expressed that the principles stated by Mathew J. in President, Commonwealth Cooperative Society Ltd. v. Joint Registrar (General) of Cooperative Societies reported in 1969 KLT 580 is "subject to the principles laid down by the Supreme Court in Union of India v. J. N. Sinha and another reported in AIR 1971 SC 40", perhaps implying that the principle stated in 1969 KLT 580 is not in accordance with that laid down by the Supreme Court in AIR 1971 SC 40. We have carefully considered the Supreme Court decision in Union of India v. J. N. Singh and another. We see nothing in this judgment which militates against the view expressed by Mathew J. in President, Commonwealth Cooperative Society Ltd. v. Joint Registrar (General) of .Cooperative Societies reported in 1969 KLT 580.
(3.) it is no doubt true that the principles of natural justice are not akin to embodied rules or the provisions in a statute and must necessarily vary, and depend on the scope and ambit of the statute, the power exercised, the question determined and various other factors. What the. Supreme Court said was with reference to R.56(i) of the Fundamental Rules and considering all the circumstances, the court was able to infer that there was an implied negativing of the right of being heard. In the light of that pronouncement the question to be considered is whether there is anything in R.92 in Chap.14(A) of the Kerala Education Rules, 1959, which by implication negatives the right of a manager of being heard. Before we examine the wording of the rule and the arguments of the learned Advocate General based on the first proviso to the rule, it is necessary to repeat what has already been said in the reference order regarding the scheme of the Act and the provisions therein. The power of appointment and the power to take disciplinary action is vested in the manager under the provisions of the Act notwithstanding that that power is hedged in by regulations and restrictions embodied in the Act and as detailed in the rules that have been framed under the Act. Nevertheless the Act recognises the fact that discipline is a matter which is primarily the concern of the manager. We can see no other reason for providing that the enquiry in cases of what we may term the 'major misconducts' should be conducted as provided by R.75 in Chap.14(A) of the Kerala Education Rules, 1959, by the appropriate educational authority but that he should after having completed the enquiry and having drawn up the report and having entered the findings forward the report along with the other matters mentioned in the rule to the manager, and that the manager thereafter should determine what punishment should be imposed. The punishment is to be imposed by the manager. The fact that prior approval should be obtained before the punishment is actually effectuated does not touch the question of the right of the authority to impose the punishment. The necessity for obtaining the approval is another safeguard, as we see it, in the interests of the teachers, with a view to ensure that the imposing of punishment is not motivated by extraneous considerations such as vindictiveness or even bias which may at times we hope rarely result in excessively higher punishment being imposed. The section, S.12(2) of the Kerala Education Act, 1958, itself makes the position clear and the rules framed for the purpose of the section naturally cannot go beyond the section and have only explained the provision in the section. The fact that S.12A has been introduced does not touch the question. As we see it, the section is only for the purpose of safeguarding the interest of the public who have a general interest in the educational institutions being properly run in a disciplined manner by disciplined teachers, particularly so when public funds are spent for the upkeep of the institution. Essentially therefore the power of punishment is with the manager. And in a case like the one before us where approval for the proposed punishment was granted, the punishment had been imposed and the appeal taken by the teacher from that imposition had been dismissed, to suggest that the manager can be ignored at the stage of revision under R.92 by the State and that without affording him an opportunity to state his case the Government can set aside the punishment legally and legitimately imposed under the provisions of the statute and the rules and approved by the appellate authority is to ignore the provisions in the statute and against those provisions to make the manager a non entity. As we indicated earlier, the maintenance of discipline in an educational institution such as a school is the primary concern of the manager. This is as it should be. Interfering with those authorities of the manager would have only one effect: complete disruption of discipline in educational institutions which can have calamitous results. It is refreshing that the Act and the Rules have recognised this aspect.;