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1993 DIGILAW 145 (KER)

Manager, S. v. P. M. High School VS State

1993-03-08

K.G.BALAKRISHNAN

body1993
Judgment :- The Manager of S.V.P.M. High School, Vadakkumthala East, Kollam is the ' petitioner in this Original Petition. The 5th respondent is the Headmaster of the school. The petitioner initiated disciplinary proceedings against the 5th respondent and he was placed under suspension. An enquiry was conducted. Three charges were framed against him. The Deputy Director of Education conducted enquiry and found that out of the three charges, one charge alone was found true. This related to the failure on the part of the Headmaster to attest the cash book in time for the period from 27-7-90 to 28-8-90. 2. Pursuant to the enquiry report, the Manager proposed to impose a penalty of compulsory retirement of the 5th respondent. The petitioner took steps to get prior approval of the D.E.O. to impose that punishment. The D.E.O. declined to grant permission and directed the petitioner to re-consider his decision. Petitioner again proposed to inflict the penalty of compulsory retirement and requested for the approval of the EKE.O. The D.E.O. by Ext.P7 order declined approval again stating that compulsory retirement could not commensurate with the charge proved against 5th respondent. This order of the D.E.O. was challenged by the petitioner under R.92 Chap.XIVA K.E.R. The Government after considering the revision held that the D.E.O. was justified in declining sanction for the compulsory retirement of the 5th respondent. The Government further observed that there shall be reduction of two increments of the 5th respondent without cumulative effect. This part of the order passed by the Government is challenged in this Original Petition. 3. It is contended on behalf of the petitioner that the petitioner challenged before the Government only the order passed by the D.E.O. declining approval to inflict the penalty of compulsory retirement and the Government was not justified in passing an order substituting the punishment proposed to be imposed by the petitioner. It is contended that as per the provisions of the K.E.R. no power vests with the Government to substitute a punishment under that circumstance. It is alleged that the Government can impose or alter the punishment only in a case where the order imposing the penalty itself is challenged before the Government. 4. It is contended that as per the provisions of the K.E.R. no power vests with the Government to substitute a punishment under that circumstance. It is alleged that the Government can impose or alter the punishment only in a case where the order imposing the penalty itself is challenged before the Government. 4. For a proper consideration of the issue raised by the petitioner, it is necessary to have an understanding of the other relevant provisions of K.E.R. Under S.11 of the Kerala Education Act, the Manager is the appointing authority of the teachers of aided school. Under S.12(2) of the Act 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 that behalf. Even for suspending a teacher beyond the period of 15 days, the manager should get the previous sanction of the educational authority. S.12A is a provision inserted in the K.E. Act by virtue of an amendment effected on 1-6-59. As perS.12a of the Act the Government or such other officer not below the rank of an Educational Officer, shall have 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. But this power conferred on the Government or such other officer authorised by the Government under R.12A(1) is subject to certain conditions. Before exercising the powers under sub-section the Government or the authorised officer as the case may be, shall intimate the manager regarding the circumstance requiring disciplinary action against the teacher concerned and give the manager a reasonable opportunity of taking disciplinary action; and 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. A plain reading of S.12A of the K.E.Act makes it clear that the Government cannot straight away initiate any disciplinary proceedings against any teacher of the aided school and impose any penalty that could be imposed under the Rules and the Government can take action only if the latter failed to discharge his obligation to take disciplinary action against the teacher and the manager shall be given reasonable opportunity to take such action. Detailed procedure has been prescribed under the Rules 67 to 77A of Chapter XIV(A) K.E.R. Rule 75 slates the procedure for imposing major penalties. R.75(11) slates that if the manager proposes to impose a penalty of reduction to a lower rank in seniority list or to a lower grade or post or time scale, or compulsory retirement or removal from service or dismissal from service or reduction of pension he shall get the previous sanction of the competent authority. 5. Rule 75-A of Chap. XIV(A) of K.E.R. is another provision introduced on 10-3-1970. This rule says that if the 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 intimation of the disciplinary proceedings he is not completing the disciplinary proceedings within two months from the date of initiation of the disciplinary action, or whether the Manager dropped the disciplinary proceedings without sufficient grounds or imposed a penalty not proportionate to the gravity of charge proved then the Government or the authorised officer as the case may be shall take appropriate disciplinary action against the teacher concerned. This provision also empowers the Government to impose penalty on the teacher. 6. In the instant case, the Manager challenged the order of the D.E.O. declining approval for the compulsory retirement of the 5th respondent. The Government under R.92 by virtue of the revisional power should have either confirmed or set aside the order but the Government cannot alter the punishment as it was beyond the scope of that revision. Government has got power under R.92(b) to impose any penalty or set aside, reduce, confirm or enhance the penalty imposed under this Rule. This is not a case where the Government initiated proceedings under S.12A of the K.E.Act or R.75 A of Chapter XIV(A) of K.E.R. 7. Learned counsel for the 5th respondent contended that by virtue of the power under S.12A the Government has got authority to impose any'punishment and it was also contended that the terms "disciplinary proceedings" used in S.22A(1) is distinct from the "disciplinary action" mentioned in S.12A(2)(a). I do not find any force in this argument. The counsel for the 5th respondent further contended that m this case the Manager was given opportunity to alter his punishment and he again imposed the same penalty, so the Government has got power to review the order. I do not find any force in this argument. The counsel for the 5th respondent further contended that m this case the Manager was given opportunity to alter his punishment and he again imposed the same penalty, so the Government has got power to review the order. It is true that the Manager had proposed to impose a penalty of compulsory retirement. When the D.E.O. declined to approve it, he should not have passed another order imposing the same penalty. But there is no rule prohibiting such a course. Under R.75 there should be some restrictive clause by which the Manager should be prohibited from going on changing the penalty. 8. As the Government had no power to alter the punishment, the impugned order passed by the Government is only to be set aside. In the instant case, the 5th respondent is to retire on 31-5-93. So, the Manager is directed to impose a penalty commensurate with the charges proved against the5th respondent. It may be noticed that the only charge proved against 5th respondent is that he did not attest the cash book for the period from 27-7-90 to 28-8-90. Necessary entries in the cash book are to be entered by the clerk and the duty of the Headmaster is only to attest the same. The clerk who failed to prepare the cash book was not subjected to any disciplinary proceedings. So, all other charges levelled against the 5th respondent Headmaster were found not true. So, the Manager can impose a penalty commensurate with the charge proved against the 5th respondent. The same shall be done within a period of two weeks from the date of receipt of a copy of this judgment. The Original Petition is disposed of as stated above.