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N. Sukumara Pillai Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 3981 of 1968
Judge
Reported inAIR1972Ker226
ActsKerala Education (Amdendment) Act, 1969 - Sections 3(2); Kerala Education (Amendment and Validation) Ordinance, 1969 - Sections 1(2); Kerala Education Act, 1959 - Sections 12A; Kerala Education Rules - Rule 92
AppellantN. Sukumara Pillai
RespondentState of Kerala and ors.
Appellant Advocate Kalathil Velayudhan Nair and Co.
Respondent AdvocateGovt. Pleader
Cases ReferredVenkatachalam v. Bombay Dyeing and Mfs. Co. Ltd.
Excerpt:
constitution - punishment - section 12a of kerala education act, 1959 and section 1 (2) of kerala education (amendment and validation ) ordinance, 1969 - whether educational authorities have jurisdiction to impose punishments on teacher of aided school - in view of section 1 (2) of ordinance section 12a came into statue book from date in which act came into force - all orders passed by government and its officer will be orders passed under act amended by ordinance - order would be considered from date in which principal act came into force - section 12a assigned power to government officer to punish teacher of aided school. - - p8 has been challenged on the additional ground that there has been failure to exercise the jurisdiction vested in the government. clearly expressed this view..........p7, and p8 passed by the educational authorities in purported exercise of their powers under the kerala education rules framed under the kerala education act. 1958. the short argument raised before us is that in view of the full bench ruling of this court in asst. educational officer v. p. r. mammoo. : air1969ker9 . it is dear that the educational authorities have no competence to impose punishments on teachers or headmasters of aided schools and therefore all these orders must be set aside as having been passed without jurisdiction. the case could have easily been disposed of by setting aside these orders in view of the pronouncement of the full bench in the above said decision but for the intervention of the kerala education (amendment and validation) ordinance, 1969 (hereinafter.....
Judgment:

Govindan Nair, J.

1. The main question that arises in this petition is about the validity of the orders. Exts. P1, P2, P3, P4, P5, P6, P7, and P8 passed by the educational authorities in purported exercise of their powers under the Kerala Education Rules framed under the Kerala Education Act. 1958. The short argument raised before us is that in view of the Full Bench ruling of this Court in Asst. Educational Officer v. P. R. Mammoo. : AIR1969Ker9 . it is dear that the educational authorities have no competence to impose punishments on teachers or headmasters of aided schools and therefore all these orders must be set aside as having been passed without jurisdiction. The case could have easily been disposed of by setting aside these orders in view of the pronouncement of the Full Bench in the above said decision but for the intervention of the Kerala Education (Amendment and Validation) Ordinance, 1969 (hereinafter referred to as the Ordinance) and the pass-ing of the Kerala Education (Amendment) Act. 1969 (for short the Act) replacing the Ordinance. In view of the Ordinance and the Act it is contended on behalf of the respondents that the orders are valid and should not be interfered with. We shall examine this question. Before that we may state the facts. The orders Exts. P1, P2, P3 and P4 were passed by the District Educational officer imposing various punishments on the headmaster, the petitioner before us. Ext. P5 is the order in appeal from Ext. P3 passed by the Regional Deputy Director of Public Instruction. Ext. P6 is the order in appeal from Ext. P4. by the same authority. Ext. P7 is another order passed in appeal by the Regional Deputy Director of Public Instruction. The original order of the District Educational Officer which eave rise to Ext P7 has not been produced before us. From Ext. P1 order, it is stated, that an appeal had been taken to the Regional Deputy Director of Public Instruction but that the Regional Deputy Director of Public Instruction did not deal with that appeal and therefore a revision was taken before the Government under Rule 92 of Chapter XIV-A of the Kerala Education Rules. This revision was rejected by Ext. P8 and Ext. P8 has been challenged on the additional ground that there has been failure to exercise the jurisdiction vested in the Government. We shall deal with this contention separately. To complete the facts, we shall refer to Ext. P9 also which is an order passed bv the Government on the representation made bv the petitioner soon after Ext. P8. By Ext. P9 order this representation was rejected.

2. The question whether the educational authorities have jurisdiction to impose punishments on teachers of aided schools will have to be answered with reference to the provisions in the Ordinance. By Section 2 of the Ordinance a new section. Section 12A. has been introduced in the Kerala Education Act. What is more significant is. by Sub-section (2) of Section 1 of the Ordinance it is provided that the Ordinance shall be deemed to have come into force with effect from the 1st day of June. 1959, That was the date on which the Kerala Education Act came into force. The effect of this provision in the Ordinance is to make Section 12A introduced in the Kerala Education Act to take effect from the 1st June. 1959. There was a further provision under Section 3 of the Ordinance which we may extract:

'3. Validation of certain proceedings. -- Notwithstanding any law Judgment decree or order of any court, all disciplinary proceedings purported to have been taken and penalty imposed or other orders made therein in respect of a teacher of an aided school by the Government or any officer of the Government under the Kerala Education Act, 1958 (6 of 1958) and the rules issued thereunder, before the publication of this Ordinance shall be deemed to have been validly taken, imposed or made as the case may be under the provisions of the said Act as amended by this Ordinance'

3. This, we believe, is a provision by way of abundant caution. Even without this provision in view of the promulgation of the Ordinance with retrospective effect from 1st June. 1959 we may have to assume for all purposes that action taken before the amendment was taken as authorised by Section 12A of the Act. This is clear from the decision of the Supreme Court in Venkatachalam v. Bombay Dyeing and Mfs. Co. Ltd. : [1958]34ITR143(SC) . We shall extract Section 12A.

'12A. Disciplinary powers of Government over teachers of aided schools.-

(1) Notwithstanding anything contained in Section 11 or Section 12 and subject to such rules as may be prescribed, the Government or 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.'

4. Even if the position is not as stated above it is clear from Section 3 of the Ordinance that the orders in this case, or at least such of them which were pass-ed before the passing of the Kerala Education (Amendment) Act. 1969. must be deemed to have been passed by virtue of the power conferred on the educational authorities under Section 12A introduced in the Kerala Education Act by the Ordinance. In other words, we have to assume that the Kerala Education Act always contained this section enabling action being taken under that section by the Government or its Officers. There will therefore be no difficulty in upholding these orders. But it is urged that by the repeal of the Ordinance by the Kerala Education (Amendment) Act. 1969 -- Section 3 -- a different result must follow. Though Section 3 of this Act repealed the Ordinance. It contained a saving provision in Sub-section (2) thereat Section 3 is in these terms:

'3. Repeal and Saving.-- (1) The Kerala Education (Amendment and Validation) Ordinance. 1969 (3 of 1969) is hereby repealed.

(2) Notwithstanding such repeal any-thing done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken in exercise of the powers conferred under the principal Act as amended by this Act'

5. The view has been taken by Gopalan Nambivar J- in O P. No 154 of 1969 (Ker) and by Isaac J. in O. P No 1044 of 1969 (Ker) that the saving provision in Sub-section (2) of Section 3 of the Act will not save orders which were validated by the Ordinance. This view has been taken on the ground that the saving provision will apply only to those orders that were passed after the date of the Amendment of the Kerala Education Act by the Ordinance: in other words, after the date of the Ordinance. On a reading of Sub-section (2) of Section 3 alone of the Act it may appear so because Section 3 (2) says that the repeal will not affect 'anything done or any action taken under the principal Act as amended by the said Ordinance'. Isaac J. clearly expressed this view in two sentences in the judgment in O P. No. 1044 of 1969 (Ker). which we may extract:

'Ext. P1 is not an action taken under the principal Act as amended by the Ordinance; it was taken before the Ordinance was issued.'

Gopalan Nambivar J. also took the same view though he expressed himself thus:

'Nor can Section 3 of Act 31 of 1969. which provides for repeal of Ordinance 3 of 1969 and for regarding action taken in exercise of the powers conferred under the principal Act as amended in 1969 save situation. For. obviously Section 3 (2) of Act 31 of 1969 can have reference only to valid actions, done or taken under the principal Act. and not to acts and actions which are ultra vires as expounded by the Full Bench decision.'

6. With respect, we have to differ from this view, because we feel that the provision in Section 1(2) of the Ordinance had not been brought to their notice and the effect of that provision had not been considered. In view of Section 1 (2) of the Ordinance, which we have already adverted to above, it is clear that Section 12A came into the statute Book from the 1st day of June. 1959. It is no doubt a legal fiction. But then in matters such as these a legal fiction is as real as anything else and the full effect of this legal fiction has to be given effect to. This means that Section 12A must for all purposes be deemed to have been in the statute book from 1-6-1959 and therefore all orders passed by the Government and its officers will be orders passed under the Act as amended by the Ordinance. In this view, the meaning that has to be given to 'anything done or any action taken under the principal Act as amended by the said Ordinance' must take in not only orders passed after the date on which the Ordinance came into force but also orders passed before the Ordinance, which too had been validated and which too are deemed to have been passed under the Act as amended by the Ordinance. This is what is sought to be saved by Sub-section (2) of section 3 of the Kerala Education (Amendment) Act. 1969. It is impossible to read down the section and limit it so that the saving only relates to orders passed after the date of the Ordinance. We therefore negative the main contention urged by counsel on behalf of the petitioner that these orders en bloc were cassed without jurisdiction.

7. Then what remains is a short question, which relates to the validity of Ext. P8 order. This order only states.

'.....the Government regret their inability to comply with the request because of the administrative difficulties and other reasons which render re-consideration of the punishments impossible.'

8. The order was passed in exercise of jurisdiction vested in Government under Rule 92 in Chapter XIV-A of the Kerala Education Rules. Administrative difficulties or other difficulties cannot be grounds for rejecting the revision. Ext P8 order has therefore to be set aside and the Government directed to re-consider the matter and pass fresh orders. Counsel on behalf of the State pointed out that the order (Ext P8) was dated 27-1-1069 and that this writ petition, which was filed only on 16th September 1969 was belated. It is seen that the petitioner had moved the Government on 4-3-69 and craved that his revision may be considered on the merits. This request was declined only by order dated 9-5-1969. and it is not urged that this petition was not filed within the usual permissible time after the receipt by the petitioner of Ext. P9. In the circumstances of this case we consider that there has been no delay in approaching this Court. The order Ext. P8 is therefore set aside and we direct the Government to take back the revision to its file and deal with it in accordance with the provisions of Rule 92 of Chanter XIV-A of the Kerala Education Rules and pass appropriate orders. The petition is dismissed in all other respects. No order as to costs.


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