[Kerala Education Rules] Aided School Not Bound By Procedure For Dismissal Where Teacher Is Convicted On Criminal Charge: Kerala High Court

The Kerala High Court recently held that a teacher in an aided school governed by the Kerala Education Act (hereinafter, 'the Act') and the Kerala Education Rules (hereinafter, 'the KER'), can be dismissed from service on the basis of conviction in a criminal case, without following the procedures prescribed under Rules 65, 74 and 75 of Chapter XIVA KER.

The Division Bench comprising Justice P.B. Sureshkumar and Justice Sophy Thomas referred to Rule 77A of KER which stipulates that where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. Explaining its scope the bench observed:

"...where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, the authority taking action under the Rule, may consider the circumstances of the case and pass such orders thereon as it deems fit. In other words, where a penalty is imposed on a teacher on the ground of his conduct which had led to his conviction on a criminal charge, it is not necessary to follow the procedure prescribed in Rule 75 and the competent authority is empowered to pass appropriate orders in such cases as it deems fit."

The appellant, who was a teacher in an aided school, was dismissed from service without following the procedures prescribed in Rules 65, 74 and 75 of the KER, upon his conviction in a criminal case.

The case against him was that he had shown obscene pictures to a girl child while conducting classes. It was the appellant's case that a teacher in an aided school governed by the Act, and KER could not have been dismissed from service, even on the basis of his conviction in a criminal case, without following the procedures prescribed in the Rules. When a writ petition was filed before the Single Judge, the same was dismissed at the admission stage itself, relegating the appellant to the alternative remedy available to him. It is against this decision of the Single Judge that the appellant filed the present writ appeal. 

Rule 65 of the KER prescribes the penalties that may be imposed on teachers of aided schools provided that no punishment shall be imposed without giving the person affected an opportunity to show cause against the action proposed to be taken. Rule 74 stipulates that the teachers of aided schools shall be dismissed from service only with previous sanction of the Director. Rule 75 states the detailed procedure for imposing major penalties, including the penalty of dismissal from service.

The Court in this case was of the firm view that since the writ petition had been instituted raising a pure question of law, the Single Judge ought to have entertained the same.

At the outset, the Court noted that Rule 77A of the KER which starts with a non obstante clause to exclude the application of Rules 75, 76 and 77, while dealing with the matters covered therein. The Court rejected the argument the order of dismissal would be vitiated for non-compliance of the procedure in Rule 75, in view of the aforementioned provision Rule 77A, inasmuch as the penalty had been imposed on the appellant on the ground of conduct which had led to his conviction on a criminal charge. 

The Court also went on to reject the appellant's argument that the penalty of dismissal from service can be imposed by the Manager only with the previous sanction of the Director. Taking note of the requirements in Rule 75(11) that prescribes the steps to be taken by a Manager if he is of the opinion that the penalty of dismissal from service should be imposed on a delinquent teacher, the Court said:

"If sub-rule (11) of Rule 75 is the substantive provision which mandates the previous sanction of the competent authority for imposing major penalties, inasmuch as the requirements contained in Rule 75 do not apply to a case where a penalty is imposed on a teacher on the ground of conduct which led to his conviction on a criminal charge, by necessary implication, the requirement of previous sanction of the competent authority for imposing major penalties does not apply to such cases. We take this view also for the reason that our constitutional scheme is that there shall not be any kind of restriction on a disciplinary authority in the matter of taking appropriate action against a delinquent employee on the ground of conduct which had led to his conviction on a criminal charge". 

The Court thereby further rejected the argument by the appellant that Section 12 of the Act which also stipulates that no teacher of an aided school shall be dismissed by the Manager without the previous sanction of the officer authorised by the Government in this behalf. It opined that KER had been framed by virtue of the power conferred on the Government under Section 12(1) regulating the conditions of service of teachers in aided schools, and thus required to be read as part of the main enactment. 

"In other words, the provisions contained in Chapter XIVA KER including Rule 77A is part of sub-section (1) of Section 12. If the provisions contained in Chapter XIVA KER is part of sub-section (1) of Section 12, sub-section (2) of Section 12 cannot be understood as a provision, inconsistent with the provisions contained in sub-section (1) of Section 12. In other words, the provisions need to be interpreted harmoniously. If that be so, the appellant cannot be heard to contend that previous sanction of the competent authority is required for dismissing a teacher from service on the basis of his conviction in a criminal case. Needless to say, the contention of the appellant that Ext.P7 order (order of dismissal of the teacher) is vitiated for non-compliance of the provisions contained in Rule 75 is without substance and is liable to be rejected," the Court added. 

The appellant had also relied upon Note 2 to Rule 65 which provides that "No punishment shall be imposed without giving the person affected an opportunity to show cause against the action proposed to be taken". The Court noted that Rule 65 pertains to the various penalties that could be imposed upon teachers of aided schools, while Rule 75 stipulates the procedure for imposing major penalties.

The Court thus observed,

"Inasmuch as we have found that Rule 75 does not apply where a penalty is imposed on a teacher on the ground of conduct which had led to his conviction on a criminal charge, we are of the view that, by necessary implication, it has to be held that the similar provision contained in Rule 65 also does not apply to such cases. Any other interpretation to Rule 65, according to us would go against our constitutional scheme that no kind of opportunity of hearing need be given to an employee before imposing upon him a penalty on the ground of conduct which had led to his conviction on a criminal charge."

The appeal was thus dismissed. 

The appellant was represented by Advocates C.S. Manilal, S. Nidheesh, and Kunjappeasow Rainge. Senior Government Pleader A.J. Varghese appeared on behalf of the respondents. 

Case Title: Mahesh Thampi v. The Deputy Director of Education & Ors. 

Citation: 2023 LiveLaw (Ker) 218 

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