Research › Browse › Judgment

Kerala High Court · body

1980 DIGILAW 339 (KER)

KUNJUKUNJU v. STATE OF KERALA

1980-12-08

K.K.NARENDRAN

body1980
Judgment :- 1. The petitioner is the Manager of Gurudev High School, Piravanthoor. The 2nd respondent, an H.S.A. (Malayalam) of the school, was dismissed from service with effect from 27-2-1968 as per Ext. P-2 order dated 19-12-1970. The petitioner placed the 2nd respondent under suspension from 27-2-1968 on complaints of serious misconduct. The District Educational Officer, Kottarakkara gave permission to the petitioner to place the 2nd respondent under suspension till the disposal of the disciplinary proceedings as per order dated 8-3-1968. After the enquiry by the District Educational Officer, Kottarakkara, with the previous sanction, the petitioner dismissed the 2nd respondent from service. The 2nd respondent filed an appeal before the 3rd respondent-Director of Public Instruction against the dismissal. The 3rd respondent by Ext. P-3 rejected the 2nd respondent's appeal. 2. The 2nd respondent then filed O.S.No 87 of 1973 before the Munsiff's Court. Punalur against the dismissal. The suit was dismissed and the 2nd respondent filed an appeal before the Sub Court, Kottarakkara, which was also dismissed. Thereupon, a second appeal was filed before this Court which also met with the same fate. It seems, thereafter, the 2nd respondent filed an original petition before this Court in 1977 which was dismissed in limine. 3. It was thereafter that the 2nd respondent filed a revision before the 1st respondent-State on 7-4-1977. On 16-12-1978 the Ist respondent issued Ext. P-5 inviting the petitioner's objections against setting aside Ext. P-3 order of the Director of Public Instruction, in revision. On receipt of Ext. P-5, the petitioner by Ext. P-6 requested the 1st respondent for a copy of the petition filed by the 2nd respondent. As no reply was received, the petitioner again made a request by Ext. P-7. Then the 1st respondent sent Ext. P-8 reply stating that it was not on the revision petition of the teacher, but on the grounds mentioned in Ext. P-5 that the Government propose to set aside Ext.P-3 order of the Director of Public Instruction. By Ext. P-8 the Ist respondent again requested the petitioner to submit his objections to the grounds raised in Ext. P-5. The petitioner sent Ext. P-9 letter to the 1st respondent insisting for a copy of the petition filed by the 2nd respondent. In Ext. P-9 the petitioner raised certain objections also against the proposed interference by the 1st respondent. Then the 1st respondent passed Ext. P-5. The petitioner sent Ext. P-9 letter to the 1st respondent insisting for a copy of the petition filed by the 2nd respondent. In Ext. P-9 the petitioner raised certain objections also against the proposed interference by the 1st respondent. Then the 1st respondent passed Ext. P-10 setting aside Ext P-3 order of the 3rd respondent-Director of Public Instruction and directing the reinstatement of the 2nd respondent teacher Ext. P-11 is the Notification dated 1-11-1978 by which R.92 Chapter XIVA of the K.E.R, was amended. It was under R.92(2) as amended by this Notification that Ext. P-5 was issued to the petitioner. The petitioner challenges Exts. P-10 and P-11 in this original petition 4. A counter-affidavit has been filed on behalf of respondents 1 and 3. In Para.9 it is stated that the 2nd respondent filed a revision before the Ist respondent on 7-4-1977 and Ext. P10 order was passed after observing all the formalities required under the rules. A counter-affidavit has been filed by the 2nd respondent also. It is pointed out in Para.7 that immediately after the dismissal of the second appeal by this Court, the 2nd respondent filed a revision under R.92 Chapter XIV A of the K.E.R, before the 1st respondent. In Para.8 it is stated that there was no necessity for the 1st respondent to serve a copy of the 2nd respondent's revision on the petition as the grounds of interference were communicated by Ext. P-5. In Para.16 it is stated that Ext. P-5 was issued by the 1st respondent suo motu and not in pursuance of the 2nd respondent's revision. 5. Shri E. Subramaniam, the learned counsel for the petitioner, raised a number of contentions against Ext. P-10 order of the 1st respondent. The learned counsel also contended that Ext. P-11 amendment is ultra vires. The question is whether after receipt of a revision from the aggrieved teacher the State can have suo motu powers of revision under R.92 Chapter XIVA of the KER. and whether without furnishing a copy of the revision petition to the Manager can the State exercise the revisional powers under R.92. 6. R.92 Chapter XIVA of the KER. as it stood on 16-12-1978 when Ext. P-5 was issued, reads: "92. and whether without furnishing a copy of the revision petition to the Manager can the State exercise the revisional powers under R.92. 6. R.92 Chapter XIVA of the KER. as it stood on 16-12-1978 when Ext. P-5 was issued, reads: "92. Revision: (1) 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 in respect of matters contained in this Chapter which is made or is appealable under these Rules (2) Nothing contained in the proviso to sub-rule (1) shall be deemed to require the Government to give an opportunity for personal bearing to the person concerned and it shall be sufficient if (i) where the Government propose to revise an order on their own motion, a copy of the grounds on which the order is proposed to be revised, or (ii) where the Government propose to revise an order in pursuance of a revision petition filed by a party, a copy of the revision petition, is furnished to the person concerned along with a notice requiring him to make representation, if any, in the matter in writing within a period specified in the notice and the Government pass final orders in revision after consideration of such representation." No doubt, the State have suo motu powers of revision under R.92. But, in this case, the 2nd respondent teacher filed a revision before the 1st respondent-State on 7-4-1977. When the party files a revision, no question of exercising suo motu powers of revision arises. Otherwise, the words 'suo motu' will have no meaning. So, an authority which has got suo motu powers of revision will have suo moto powers when once the aggrieved party invokes the revisional jurisdiction by filing a revision. In this case also, it cannot be denied that the 1st respondent-State initiated action under R.92 only after the 2nd respondent teacher submitted his revision. The question of communicating the grounds on which the order is proposed to be revised arises only when the State propose to revise the order suo motu. In this case also, it cannot be denied that the 1st respondent-State initiated action under R.92 only after the 2nd respondent teacher submitted his revision. The question of communicating the grounds on which the order is proposed to be revised arises only when the State propose to revise the order suo motu. It is clearly stated in R.92 (2)(ii) that when the order is proposed to be revised on a revision petition filed by a party, a copy of the revision petition is to be furnished to the opposite party along with a notice requiring him to make representation, if any. Admittedly, no copy of the revision petition was given to the petitioner Manager. As pointed out above, after the aggrieved teacher invoking the revisional jurisdiction by a petition, the State have no option to exercise its suo mote powers of revision under the rule and dispose of the matter. As giving a copy of the revision petition to the opposite party is mandatory under R.92(2)(ii), the 1st respondent-State cannot pass orders in revision without complying with R.92(2)(ii). Hence Ext. P10 order passed by the 1st respondent is an order without jurisdiction and the same is set aside. 7. By Ext. P11 amendment R.92 as it stood then was renumbered as sub-rule (1) of that rule and sub-rule (2) was inserted. An explanation was also added to sub-rule (1) specifying that the person concerned in the proviso to sub-rule (1) and in sub-rule (2) shall include the Manager of a school. The effect of sub-rule (2) is that it denies a personal hearing to the person concerned before the revisional authority. At the same time it insists that the person concerned should be given an opportunity to make his representation in writing by giving him the grounds on which the order is proposed to be revised in the case of a suo motu revision and by forwarding a copy of revision petition when the aggrieved party files a revision. The powers under R.92 are only revisional powers and not appellate powers. By the procedure insisted by sub-rule (2) it cannot be said that a Manager is denied an effective opportunity of representing case before the revisional authority. Rules of natural justice do not insist that in all cases personal hearing must be given. Ext. P11 amendment is perfectly legal and valid. 9. By the procedure insisted by sub-rule (2) it cannot be said that a Manager is denied an effective opportunity of representing case before the revisional authority. Rules of natural justice do not insist that in all cases personal hearing must be given. Ext. P11 amendment is perfectly legal and valid. 9. The original petition is therefore allowed to the extent indicated above. There will be no order as to costs. Allowed.