Judgment :- 1. Does the Kerala Education Act curtail the ordinary recognised right of the disciplinary authority, the Manager, to accept or reject the findings of the enquiry officer? This, in turn, raises the question of interpretation and application of R.75 in Chap.14-A of the Kerala Education Rules (KER for short). This question not specifically posed and considered in any decided or reported cases, even according to the counsel for both parties, arises for determination in this writ appeal and the Original Petition under Art.226 of the Constitution. The facts, in brief, are these: 2. Disciplinary proceedings were initiated as early as 1973 by the Manager of an Aided Educational Institution, against two members of the non-teaching staff, a Clerk, Shri George Thomas and a Menial staff, Shri T. Cherian. Both of them were suspended pending enquiry. The continuance of the suspension became illegal for want of necessary sanction of the educational authorities. The Manager, therefore, adopted the dubious procedure of reinstating them and suspending them afresh. However, they had to be reinstated, but not until they obtained orders from the higher authorities in the Education Departments, the Government and eventually directions from this Court in writ jurisdiction. The conduct of the Manager in refusing to comply with the orders of reinstatement was, strongly condemned by this Court in earlier writ proceedings when he was described as "recalcitrant". Justice Khalid, as His Lordship then was, observed thus: "This writ petition makes a sad reading, in as much as the Government have not shown, a recalcitrant Manager, his proper place, in spite of the fact that he attempted to disobey the orders of the superior officers on more than one occasion". 3. The Manager, naturally, was disqualified as per the KER and the challenge against that order before this Court was also unsuccessful. By the time, his wife, who was the Headmistress of the institution, retired from service on attaining the age of superannuation and was eligible for the Managership of the School. She thus became the Manager. 3. The Manager, naturally, was disqualified as per the KER and the challenge against that order before this Court was also unsuccessful. By the time, his wife, who was the Headmistress of the institution, retired from service on attaining the age of superannuation and was eligible for the Managership of the School. She thus became the Manager. The disciplinary proceedings against the two delinquent non-teaching staff had to be continued The following charge had been framed against Shri George Thomas, the Clerk: "Shri George Thomas while working as a Clerk in T.M.V.M H S., Vettiyar conspired with Shri T. Cherian Full-time menial of the school and removed the voucher file containing payment of special fees for the year 1971-72." Against the Menial Staff Shri T. Cherian, the charge framed read thus: "T. Cherian while working as full-time menial in T.M.V.M.H.S, Vettiyar conspired with Shri George Thomas and removed the school records (Vr. file) for the year 1971-72". 4. The District Educational Officer. Mavelikkara, was appointed as the enquiry officer. He was the only officer competent to conduct the enquiry as per the KER. He conducted the enquiry The parties, the delinquents and Manager, co-operated in the enquiry. On the side of the management, nine persons were examined, including the former Manager, the husband of the present Manager. The witnesses were allowed to be cross-examined. The District Educational Officer found, after a close and careful consideration of the evidence, that the charges against both of them were not proved and that they can be exonerated. 5. After the receipt of the enquiry report, the Manager disagreed with the findings of the enquiry officer and issued a memo to the two persons stating that it was proposed to impose 'the extreme punishment of dismissal, and calling for their explanation. These memo's are challenged in the writ petitions. The writ petition filed by Shri T, Cherian, Full-time Menial. O.P. No. 1509 of 1983, was dismissed by a learned single judge holding that the writ petition was premature, it was unnecessary to express any view on the merits and that "whatever be the merits of the petitioner's contentions, in regard to facts and law, this Court should not interfere with the impugned notice at this stage". Writ Appeal No. 724 of 1983 is filed against this Judgment. When the Original Petition filed by the Clerk. Writ Appeal No. 724 of 1983 is filed against this Judgment. When the Original Petition filed by the Clerk. Shri George Thomas, came up for hearing later before another learned single judge, that write petition was directed to be beard along with the appeal. That is how both matters are jointly heard now. 6. The only question raised before us is as to the jurisdiction of the Manager to discard the findings of the enquiry officer and the counsel on both sides invited a decision, on an interpretation of R.75(11), Chap.14-A of the KER, by this Court, as similar questions are likely to arise in other cases. Before we refer to the relevant provision of the Act and the Rules, it is necessary to make a passing reference to the accepted position regarding enquiry by disciplinary authorities. 7. The power of dismissal is vested in the appointing authority. An enquiry has to be conducted before an order of dismissal is made. The enquiry has to conform to the principles of natural justice. The appointing authority, thus the disciplinary authority, can delegate its power of conducting the enquiry to any other person or authority. The appointing authority does not thereby abdicate its function. The enquiry officer has to submit the records of the enquiry along with its findings to the disciplinary authority. The disciplinary authority may accept or reject the findings and when the findings are rejected, the disciplinary authority will have to give its reasons. It may arrive at a provisional conclusion whether a major punishment should be imposed or not. The enquiry report and the findings of the enquiry officer with the provisional conclusion regarding penalty are communicated to the concerned officer to give him a reasonable opportunity of showing cause against the punishment sought to be imposed. The final order is made by the disciplinary authority thereafter. These are all accepted principles as would be clear from several decisions, especially in Pradyat Kumar v. C. J. of Calcutta (AIR 1956 SC 285) and in Union of India v. H C. Hoel AIR 1964 SC 364: (1964) 1 SCWR 28. The power to dismiss can be conferred by a statute on any authority higher than the appointing authority. 8. The power to dismiss can be conferred by a statute on any authority higher than the appointing authority. 8. The observations of the Supreme Court in Union of India v. H. C Hoel AIR 1964 SC 364 relied on by Shri Rama Shenoy, counsel for the first respondent, are thus apposite. "...It is obvious that the enquiry officer held the enquiry against the respondent as a delegate of the appellant. That indeed is the character which the enquiry officer inevitably occupies when he holds a departmental enquiry at the instance of the Government. The object of the enquiry is plain. It is to enable the Government to hold an investigation into the charges framed against a delinquent public servant, so that the Government can, in due course, consider the evidence adduced and decide whether the said charge are proved or not. The interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position that the charges are framed by the Government and it is the Government which is empowered to impose punishment on the delinquent public servant. Therefore, on principle, it is difficult to see how the respondent is justified in contending that the findings recorded by the enquiry officer bind the appellant in the present case." "Besides, it would be apparent that if the respondent's argument is valid, then the second notice would serve very little purpose. If at that stage, the Government is bound to accept the findings of the enquiry officer, the opportunity which is intended to be given to the public servant to show cause not only against the proposed punishment but also" against the findings recorded against him, would be defeated, because on the respondent's case Government cannot alter the said findings. In our opinion the contention raised by the respondent is patently unsound and must be rejected." "In Ibis connection, we may add that unless the statutory rule or the specific order under which an officer is appointed to hold an enquiry so requires, the enquiry officer need not make any recommendations as to the punishment which may be imposed on the delinquent officer in case the charges framed against him are held proven at the enquiry; if. however, the enquiry officer makes any recommendations, the said recommendations like his findings on the merits are intended merely to supply appropriate material for the consideration of the Government. Neither the findings, nor the recommendations are binding on the Government, vide A N.D. Silva v Union of India 1962 Supp.1 SCR 968." 9. And now to the Kerala Education Act and the Rules. The Manager, undoubtedly, as the appointing authority, had the unqualified right to dismiss the members of his teaching and non-teaching staff prior to the Act and the Rules. The Act recognised and affirmed this power subject to certain restrictions. S.12 of the Act expressly stated "no teacher of an aided school shall be dismissed, removed, reduced in rank or suspended by the manager without the previous sanction of the officer authorised by the Government". The procedure to take disciplinary action was prescribed under rules in Chap.14-A. However, R.67 provided that not only the manager, but also the Educational Officer, the Deputy Director or the Director or the Government, may at any time, place a teacher under suspension. The validity of this rule was successfully challenged in the decision reported in Mamoo v. Manager, Moovery M.L.P. School (1968 KLT. 537). Justice Mathew observed thus: "The question is not whether the power of the manager to suspend under S.12(2) can co-exist with the power of the educational authorities or Government under R.67(1). but whether the underlying purpose of the Legislature was to recognise and affirm the exclusive power of the manager in this behalf and put restrictions upon its unbridled exercise If the paramount aim evinced by the Legislature was to recognise and affirm the pre-existing exclusive power to the manager in this behalf, a rule making authority cannot thwart it by a rule vesting the power concurrently in other agencies also That will be repugnant to the legislative aim. The power cannot be wielded by a hand different from the hand recognised and affirmed by the Legislature. The theoretical possibility of the coexistence of this power in the abstract in diverse hands need not deter me in coming to this conclusion since the exclusive power in this behalf was in the manager when the Act was passed and a concurrent power was not intended to be given to any other agency by the Act. The theoretical possibility of the coexistence of this power in the abstract in diverse hands need not deter me in coming to this conclusion since the exclusive power in this behalf was in the manager when the Act was passed and a concurrent power was not intended to be given to any other agency by the Act. I think the policy of the Act was to affirm the pre-existing power of the manager in the matter of appointment, dismissal or suspension but subject it to the restrictions mentioned in the Act and not partition it among the manager, the educational authorities and Government, so that it may be exercised by all This decision was affirmed in Assistant Educational Officers. Mamoo (1968 KLT 556 (FB)). 10. Thereafter, the Act was amended and S.12A was inserted with effect from 1-6-1959 reading thus: 12A. Disciplinary powers of Government over teachers of aided schools-.-(1) Notwithstanding anything contained in S.11 or S.12 and subject to such rules as may be prescribed, the Government of such officer not below the rank of an Educational Officer, as may be authorised by the Government in this behalf, shall have power to take disciplinary proceedings against a teacher of an aided school and to impose upon him all or any of the penalties specified in the rules made under this Act (2) The Government or the officer authorised under sub-section (1), as the case may be may suspend a teacher of an aided school when any disciplinary proceedings is proposed to be taken against him under that sub-section or when such disciplinary proceedings are pending. Provided that: (a) before exercising the powers under sub-section (1) the Government or the authorised officer as the case may be, may intimate the manager regarding the circumstances requiring disciplinary action against the teacher concerned and give the manager a reasonable opportunity of taking disciplinary action; and (b) if the manager fails to take appropriate action it shall be open to the Government or the authorised officer to take appropriate disciplinary action against the teacher concerned." 11. R.67 was substituted and R.75A added which read thus:-75A. Disciplinary Powers of the Government or the authorised Officer. Notwithstanding anything contained in R.75. R.67 was substituted and R.75A added which read thus:-75A. Disciplinary Powers of the Government or the authorised Officer. Notwithstanding anything contained in R.75. If a Manager does not initiate appropriate action against the teacher, within a month from the date of intimation as specified in S.12(A) or after initiation of the disciplinary proceedings he is not completing the disciplinary proceedings within two months from the date of initiation of the disciplinary action, or if according to Government or the authorised Officer the Manager dropped the disciplinary proceedings without sufficient grounds or imposed a penalty not proportionate to the gravity of charges proved then the Government or the authorised Officer as the case may be shall take appropriate disciplinary action against the teacher concerned. But in extraordinary cases for reasons to be recorded in writing the Director may on the application of the manager extend the time allowed to the manager to complete the disciplinary action. The procedure prescribed in R.75 shall mutatis mutandis be followed by the Government or the prescribed authority in the matter of imposing major penalties." 12. Thus the exclusive power of dismissal available to the manager earlier is now vested concurrently in other departmental agencies as well, subject, of course, to certain conditions. 13. R.75 in Chap.14-A prescribed the procedure for imposing major penalties and clause (1)(b) provided for the appointment of an enquiry officer. This clause reads thus: "The Manager shall forward the records of the case with a request to the Deputy Director. 13. R.75 in Chap.14-A prescribed the procedure for imposing major penalties and clause (1)(b) provided for the appointment of an enquiry officer. This clause reads thus: "The Manager shall forward the records of the case with a request to the Deputy Director. (Education) in the case of Headmasters of High schools and Training Schools or to the Educational Officers in other cases, that the formal enquiry may be conducted by that officer or any other officer not below the rank of an Assistant Educational Officer authorised by that officer or an officer of the department appointed by the Director or Government." The enquiry officer has to conduct the enquiry and at the conclusion of the enquiry, he has to prepare a report and record his findings on each of the charges with the reasons therefor and Clause.10 and 11 provided thus: "After the inquiry the inquiring authority shall forward the record of inquiry to the manager" "If the Manager is of opinion that any of the penalties specified in items (iv) to (viii) of R.65 should be imposed, he shall (a) Furnish to the teacher a copy of the report of the Inquiring 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 representation shall be based only on the evidence adduced during the enquiry. (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." 14. These apart, R.74 in the same Chapter insists that the penalty of compulsory retirement, removal or dismissal from service can be imposed by the Manager only with the previous sanction of the specified educational officers. These rules applicable to teachers are extended to the non-teaching staff under R.7 of Chap.24-B. 15. The disciplinary jurisdiction of the Manager, very extensive as they were, has necessarily to be defined and confined within certain prescribed limits in public interest, especially when the institutions are receiving substantial financial aid from the State. These rules applicable to teachers are extended to the non-teaching staff under R.7 of Chap.24-B. 15. The disciplinary jurisdiction of the Manager, very extensive as they were, has necessarily to be defined and confined within certain prescribed limits in public interest, especially when the institutions are receiving substantial financial aid from the State. The restrictions imposed by the Act and the rules thus stem from the natural distrust in a biased Manager acting arbitrarily and the legitimate anxiety, to safeguard the interests of the large number of the teaching and non-teaching staff of these schools, and to create an impartial atmosphere for the conduct of the enquiry. A neutral authority, an educational officer, is thus specified by the Act itself for the conduct of the enquiry with no choice left to the Manager. The Act thus controls his discretion and commands the appointment of the educational officer as the enquiry authority. (When this officer conducts the enquiry as enjoined by the Act, can the Manager still be given the discretion to discard his finding to enable him to proceed further against the delinquent staff, for, then, the purpose for which the statute itself designated the enquiry officer is defeated. Moreover, under the Rules, the enquiry officer is an authority higher in status than the Manager. This higher status is recognised in R.81A itself. It is difficult to visualise a situation where the findings of a higher authority as an enquiry officer can be straightaway rejected by the subordinate authority functioning as the Manager. The legislative intention thus seems to be clear that the Act and the Rules do not intend to give any power to discard the finding of innocence entered by the enquiry officer. To this extent, in the peculiar circumstances prevailing in this State, when almost all the educational institutions controlled by Managers or Corporate management are brought under the statutory grip of the Act and the Rules, the Act has made a clear departure from the general principles applicable to ordinary disciplinary enquiry. 16. This view is strengthened by the further fact that the punishment can eventually be imposed only if the educational officer grants sanction. It is too much to expect that when the educational officer finds a teacher not guilty after an enquiry, the Manager can expect to get sanction to impose punishment from the educational officer himself. 16. This view is strengthened by the further fact that the punishment can eventually be imposed only if the educational officer grants sanction. It is too much to expect that when the educational officer finds a teacher not guilty after an enquiry, the Manager can expect to get sanction to impose punishment from the educational officer himself. To permit the Manager to proceed with the enquiry even after the teacher has been found to be not guilty, is thus only an exercise in futility. 17. It is significant to note that clauses, 10 and 11 of R.75 only provide that after the inquiry, the inquiry authority shall forward the record of the enquiry to the Manager and if the Manager is of opinion that any of the major penalties should be imposed, he has to take the next step of giving the delinquent staff an opportunity to make a representation. This provision is in marked contrast to the provision contained in the Kerala Civil Services (Classification, Control & Appeal) Rules, where R.15(11) reads thus: "The Disciplinary Authority, where it is not the Government, shall if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. Where the Disciplinary Authority is Government, it shall consider the records of the inquiry and where it is considered necessary to depart from the findings of the Inquiring Authority, record its provisional findings on each charge with reasons thereof." Same is the rule. 15(2) of the Central Civil Services (Classification, Control and Appeal) Rules, which runs as follows: 'The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose." 18. It, therefore, seems to be clear that when the Manager proposes to take action under Clause.11 of R.75, when be proposes to issue notice proposing the penalty to be imposed, he is bound by the finding of the independent impartial statutory authority, the educational officer. A fortiori, it follows that the Manager has no jurisdiction to discard the finding of "not guilty" entered by the educational officer and proceed to issue notice proposing a provisional punishment. A fortiori, it follows that the Manager has no jurisdiction to discard the finding of "not guilty" entered by the educational officer and proceed to issue notice proposing a provisional punishment. The jurisdiction under clause.2 of R.75 cannot thus arise where the educational officer, after an enquiry as contemplated under the Act and the Rules, finds that the member of the staff is innocent. 19. The Act provided a complete disciplinary Code for the aided educational institutions. Thus, the legislative intention to assure a reasonable impartial and effective enquiry, the prescription of a designated authority higher than the Manager as an enquiry officer, with no choice of selection left to the Manager, the adoption, not by accident but by design, of a terminology different from similar provisions applicable to civil servants, lead to the irresistible conclusion that the Manager is bound by the finding of the enquiry officer regarding the innocence of the delinquent staff and he has no power to proceed further to impose any punishment. The scheme and intent of the Act and the Rules, the content and context of Clause.11 of R.75 indicate that the statutory scheme of disciplinary proceedings for imposing major punishment excluded the ordinary jurisdiction of the Manager to convert a finding of not guilty by the enquiry officer into a finding of guilt. 20. Shri Rama Shenoy sought to rely to some extent on the analogy of Art.311(2) as it stood prior to the Constitution (Fifteenth Amendment) Act, 1963. We are afraid that even this analogy does not advance his contention. Regarding the content of Art.311(2) as it then stood, reviewing all .the earlier decisions and tracing the history of this constitutional provision. the Supreme Court in Union of India v. Tulsiram Patel (1985)3 SCC. 398 observed thus quoting from Lall's case: "...Rule 55 is concerned that the civil servant shall be informed "of the grounds on which it is proposed to take action", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him". In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical, It is on that stage being reached that the statute gives the civil servant the opportunity for which sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an inquiry under Rule SS. it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry." and held: "To summarise: the reasonable opportunity envisaged by the provision under consideration includes: (a) an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which be can only do if the competent authority, after the inquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant." 21. It is thus evident that when the rule states that after the receipt of the records of the enquiry and the findings of the enquiry officer, the next step is required only 'if the Manager is of opinion that any of the major penalties should be imposed', it is evident that on the quantum of punishment, the Manager is given the power to issue notice to give a further opportunity to the delinquent member. On the finding of innocence recorded, therefore, no question of inflicting any punishment arises and no right to take action under clause II accrues. On the finding of innocence recorded, therefore, no question of inflicting any punishment arises and no right to take action under clause II accrues. 22. The decisions of this Court, cited at the Bar in Chandan Kunhi v. State of Kerala (ILR 1977(1) Kerala 111) and in the Manager, Palliprom U.P. School v. State of Kerala (ILR 1974 (2) Kerala 555) related to the sanction required before the penalty is imposed and did not touch this question. The Division Bench ruling in Janaki v. Asst. Educational Officer (1978 KLT 273) considered only the question whether the enquiry officer could in his report direct reinstatement of the delinquent staff. This decision also is of no help to the Manager. 23. We, therefore, hold that the Manager did not have jurisdiction to issue the notices Exts. P6 and P10 proposing to impose a major punishment of dismissal after the enquiry officer entered a finding that the charges against the Clerk and the Menial Staff were not proved The notices are thus quashed and the Original Petitions stand allowed to that extent. 24. In this view, we have taken, we have not considered the contention that the notices were issued mala fide; though Shri S. A. Nagendran, appearing for the appellants and Shri T. P. Kelu Nambiar appearing for the petitioner laid considerable stress on the previous proceedings and the observations made by this Court. 25. We may also add that our conclusion does not deprive the Manager of his remedies available under the Act. On our conclusion that the finding of innocence by the enquiry authority is binding on the Manager, it follows that it is a formal expression of a decision and is therefore an order which can be challenged in revision under R.29 in Chap.14-A of the rules. We do not express any opinion whether it is also not appealable under R.64 in the same Chapter. No other points raised. In the result, W. A. No. 724 of 1983 is allowed; we set aside the judgment of the learned single judge and allow O P. No. 1500 of 1983 filed by Shri T Cherian, Full time Menial, and O. P. No. 1564 of 1983 filed by Shri George Thomas, Clerk, and quash the notices Exts. P6 and P10 issued by the Manager. The parties will bear their costs. Allowed. P6 and P10 issued by the Manager. The parties will bear their costs. Allowed. As we are not satisfied that any substantial question of law of general importance which needs to be decided by the Supreme Court arises in this case, leave to appeal to the Supreme Court prayed for is refused. Leave refused.