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1974 DIGILAW 159 (KER)

K. P. NARAYANA MENON v. STATE OF KERALA

1974-08-05

G.VISWANATHA.IYER, P.GOVINDA NAIR, V.BALAKRISHNA ERADI

body1974
Judgment :- 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 Chapter XIV (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 Chapter XIV (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 Chapter XIV (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 Chapter XIV (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 affor- '-' ding 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 and that therefore the order Ext. P16 should be set aside. The order Ext. P16 was admittedly passed without affor- '-' ding 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 and 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 Chapter XIV(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 21111961. 4. Elaborate and detailed procedure for the conduct of the enquiry before imposition of punishment is contained in R.75 in Chapter XIV (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 (he 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 Chapter XIV(A) of the Rules, and those appeals were dismissed. There were appeals by respondents 2 and 3 to the Director of Public Instruction, as indicated already under R.80 in Chapter XIV(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. 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 mis-conduct 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. 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 Chapter XIV(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. /. N. Sinha and another reported in AIR. 1971 S. C. 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 S.C. 308, Para.29, in Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta and others reported in AIR. 1962 S.C,1110, Associated Cement Companies Ltd. v. P. N. Sharma and another reported in AIR. 1965 S.C.1595, Lata Shri Bhagwan and another v. Ram Chand and another reported in AIR. 1965 S.C.1767, P. L. Lakhanpal v. The Union of India reported in AIR. 1967 S.C.1507, A. K. Karaipak and others v. Union of India and others reported in AIR. 1962 S.C,1110, Associated Cement Companies Ltd. v. P. N. Sharma and another reported in AIR. 1965 S.C.1595, Lata Shri Bhagwan and another v. Ram Chand and another reported in AIR. 1965 S.C.1767, P. L. Lakhanpal v. The Union of India reported in AIR. 1967 S.C.1507, A. K. Karaipak and others v. Union of India and others reported in AIR. 1970 S.C.150 and Purshottam Jadavji Jeni v. The State of Gujarat and others reported in AIR. 1971 S.C.1188. Justice Hegde in Union of India v. J. N. Sinha reported in AIR. 1971 S.C. 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 S.C.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. 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 S. C. 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 Co-operative Society Ltd. v. Joint Registrar (General) of Co-operative 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 S.C. 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 S.C. 40. We have carefully considered the Supreme Court decision in Union of India v. J. N. Singh and another. 1971 S.C. 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 S.C. 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 Co-operative Society Ltd. v. Joint Registrar (General) of Co-operative 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 Chapter XIV (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. 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 Chapter XIV (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. 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. 4. The learned Advocate General invited our attention to the first proviso to R.92 and sought internal support from the rule itself for his submission that there is by necessary implication an exclusion of the right of the manager of being heard, in the rule itself. If that be so, the principle of the decision in Union of India v. J. N. Sinha reported in AIR. 1971 S. C. 40 will be attracted and the manager will have to be denied the right to state his case before the revisional authority. There is difficulty in accepting this proposition enunciated by the Advocate General. The proviso relied on which has already been read only deals with the aspect of enhancement of punishment. R.92 confers on the Government the power to enhance the punishment. This may become necessary for the requirement of discipline and in the interest of the public as well as in the interest of the institution. The proviso relied on which has already been read only deals with the aspect of enhancement of punishment. R.92 confers on the Government the power to enhance the punishment. This may become necessary for the requirement of discipline and in the interest of the public as well as in the interest of the institution. There can be cases where a manager is excessively lenient or has been unjustifiably kind to a particular delinquent. So the power must be there with the Government to enhance the punishment in revision proceedings. This is a power which is similar to the one taken by the Government and the educational authorities under S.12A and it is natural that, before enhancing the penalty by the exercise of such power, he should be heard. This proviso therefore only deals with the matter in which the teacher alone is really concerned and can have no relevance if the Government reduce the punishment in which case the person who might be affected would be the manager. To read into this proviso, anything more and to discern from therein an implication that the manager need not be heard when the punishment is reduced by the exercise of the revisional power would be a misinterpretation of the proviso. We are therefore unable to read any implication arising from the proviso that the manager need not be heard or be allowed to make representations before the punishment is reduced. 5. The argument of the Advocate General was sought to be fortified by the authority of the decision of the House of Lords and particularly on the basis of the judgment of Lord Justice Sachs of the Court of Appeal. We do not think that the decision can appropriately be applied in interpreting R.92. The matter that arose before the Court of Appeal and later before the House of Lords in Pearlberg v. Varty reported in (1971) 1 WLR. 728 turned on certain complicated provisions which have been, if we may say so with respect, succinctly summarised by Lord Denning in his judgment in the Court of Appeal. We shall extract the summary: "THE FIRST SIX YEARS Suppose that in March 1957 the revenue authorities believe that the Crown has lost tax for many years past, and that the loss is attributable to the neglect of the taxpayer to make proper returns of his income. We shall extract the summary: "THE FIRST SIX YEARS Suppose that in March 1957 the revenue authorities believe that the Crown has lost tax for many years past, and that the loss is attributable to the neglect of the taxpayer to make proper returns of his income. The revenue authorities determine to take steps to make good the loss, They can assess him for the six years before 1957, which I will call the 'first six years'. They can make the assessment for those first six years, of their own motion, without the leave of anyone: see S.47(1) of the Income Tax Act 1952. They can, for instance, make an assessment on him for the year 1951-52 so as to make good the loss of tax in that year due to his neglect. If they make such an assessment, it becomes what is called 'the normal year', see S.51(1) of the Finance Act 1960. THE SECOND SIX YEARS Now suppose the taxpayer accepts that assessment for the 'normal year', as correct, so that it is finally determined in 1957: or suppose that the taxpayer appeals against that assessment for the 'normal year'. It may be many years before his appeal is finally determined. Let us assume that it is not finally determined for the ten years from 1957 until 1967. During the whole of the time, until it is finally determined, the revenue authorities, can go back for the six earlier years before the end of the 'normal year' 1951-52. I will call those earlier six years the 'second six years' back, see S.51(1), (2) and (3) of the Finance Act, 1960. The revenue can, for instance, make assessments on him for the earlier years 1945-46 onwards down to 19,50-51, provided that they do it for the purpose of making good a loss of tax due to his neglect. But, in the case of those 'second six years' the assessment may only be made 'with the leave of a general or special commissioner': see S.6 (1) (c) of the Income Tax Management Act 1964. One commissioner is enough, but they must get his leave. If there is an appeal against the assessment, the commissioner who gave the leave must not be present at the appeal: see S.6 (2) of the Income Tax Management Act 1964. One commissioner is enough, but they must get his leave. If there is an appeal against the assessment, the commissioner who gave the leave must not be present at the appeal: see S.6 (2) of the Income Tax Management Act 1964. THE THIRD SIX YEARS Now suppose that the revenue authorities in 1957 made such an assessment for the year 1945 46. That year 1945 46 then becomes what is called the 'earlier year': see S.51 (5) of the Finance Act 1960. The taxpayer appeals and it is many years before that appeal is finally determined. Let us suppose it is not finally, determined for the ten years from 1957 to 1967. During the whole of that time, until the assessment is finally determined, the revenue authorities can go back for six years before the end of the year 1945 46, which I will call the 'third six years' back. But in the case of the 'third six years' they have to get leave from two of the commissioners, and it is expressly provided that 'the person to be assessed shall be entitled to appear and be heard': see S.51 (4), (5), (6) and (7) of the Finance Act 1960. If the commissioners give such leave, the revenue authorities can make assessments on the taxpayer for the years 1939 40 onwards down to 1944 45. And so on for the 'fourth six years'. The process can be repeated again, but not further back than 1936. THE FACTS OF THIS CASE In this particular case the revenue authorities claim to go back for the 'second six years' but not for the 'third six years'. The facts are as follows: In March 1957, the revenue authorities made an assessment on the taxpayer, Mr. Pearlberg for the year 1951-52 for untaxed interest. It was within the 'first six years' back. So 1951-52 was the 'normal year'. He appealed against that assessment. The appeal was not determined for many years. The revenue told us that it has not been finally determined even now. In December 1967, the revenue authorities decided to charge Mr. Pearlberg, if they could, for the 'second six years' back. To do this they had to obtain leave from one commissioner. This requirement of leave is contained in S.6 (1) of the Income Tax Management Act 1964. [His Lordship read S.6 (1) and continued:]. In December 1967, the revenue authorities decided to charge Mr. Pearlberg, if they could, for the 'second six years' back. To do this they had to obtain leave from one commissioner. This requirement of leave is contained in S.6 (1) of the Income Tax Management Act 1964. [His Lordship read S.6 (1) and continued:]. In pursuance of that request, the inspector of taxes, on December 19, 1967, made an application for leave to make assessments on Mr. Pearlberg, on a printed form No. 64D-2." Only Lord Justice Sachs expressly rested the conclusion on the principle of exclusion. The passage is thus: "It thus seems to me a very evenly balanced question whether the legislature intended a complete exclusion of the subject's right in natural justice to have some opportunity of making representations. The difficulty of finding the correct answer is increased by the fact that in 1964 it was probably not appreciated either by the draftsman or by the legislature that preliminary hearings might to some extent be the subject of rules of natural justice similar to those of final proceedings: and it may be argued that the. legislature should not be deemed to have excluded rights which they did not have in mind. In these circumstances my views as to the answer fluctuated more than once both during the hearing before the court and also afterwards when the issue fell to be considered on an analysis of the submissions that had been made. In the end I have with some hesitation and regret come to the conclusion that the omission in S.6 (1) of any reference to a right to make in limine representations contrasts so strikingly with the right given by S.51 (7) that the revenue's submission should be upheld and the appeal should accordingly be dismissed. Thus the question does not arise as to what would be the effect of a contrary conclusion on the proceedings in the instant case or in cases where the revenue has collected tax upon additional assessments. That question was only lightly touched on arguendo and no authorities cited.so it would serve no useful purpose for me to express a view on the position. I would merely observe that in cases of high authority conflicting views have been expressed on this question." 6. We have fortunately no such difficulty in interpreting R.92. That question was only lightly touched on arguendo and no authorities cited.so it would serve no useful purpose for me to express a view on the position. I would merely observe that in cases of high authority conflicting views have been expressed on this question." 6. We have fortunately no such difficulty in interpreting R.92. We may add that the House of Lords in appeal did riot rest the decision on the principle of exclusion. What has been decided has been correctly summarised in the Headnote to the decision in Pearlberg v. Varty reported in (1972) 2 All. E.R. 6, which we shall extract: "(i) S.6(1) made no provision for the taxpayer to be heard, in contrast to S.51(7) which specifically gave the taxpayer a right to appear and be heard on an application to make an assessment in respect of a year ending earlier than six years preceding the end of the normal year; the wording of S.6 (1) describing the procedure whereby the commissioner must be satisfied by an inspector or other officer of the Board, was more naturally to be understood as meaning that the application was to be ex parte and that the taxpayer therefore had no right to be heard; " (ii) the function of the commissioner in granting leave under S.6 (1) was administrative and not judicial; when, prior to 1965, the commissioner himself had the responsibility of making assessments under S.51 (3) of the 1960 Act his decision was purely administrative and there was no requirement that he should afford the taxpayer an opportunity to be heard; the purpose of S.6 (1) of the 1964 Act was to protect the taxpayer by retaining the commissioner's power to decide whether a late assessment was to be made or not; there was nothing in the 1964 Act to indicate that his decision was being converted from an administrative to a judicial or quasi-judicial one; (iii) the decision of the commissioner to give leave did not make any final determination of the rights of the taxpayer; where the person affected by the decision could be heard and could then put forward all the objections which he could have preferred on the making of the application it by no means followed that he suffered an injustice in not being heard on that application; Per Viscount Dilhprne. Whether the commissioner's function in deciding to give leave is judicial or administrative he must act fairly and be satisfied that there are reasonable grounds for believing that tax has or may have been lost owing to fraud, wilful default or neglect." 7. The decision therefore is not of much help in deciding the question before us. We think, with great respect that what Mathew J., has stated in President, Commonwealth Co-operative Society Ltd. v. Joint Registrar (General) of Co-operative Societies reported in 1969 KLT. 580 without any elaborate discussion and without any reference to authority, simply, but forcibly, lays down the correct principle. We wish to add only one more word and that is in. regard to the decision in A. Raghavan v. D. E. O., Attingal reported in 1971 KLT. 658. We should not be understood as expressing any opinion on the correctness or otherwise of the decision which is based on the interpretation of R.6 of Chapter IX of the Kerala Education Rules. 8. In the light of the above, we set aside the order Ext. P16 and allow this Original Petition. We direct the parties to bear their respective costs.