Subordinate or Delegated Legislation

C.J. Abraham, Registrar, High Court of Kerala

(Formerly Additional Secretary, Kerala Legislative Assembly)

The volume of Legislative work in every Legislature is on the increase year after year on account of governmental activities extending to more and more fields of human activity. The process of law making has also become more complicated; but at the same time the law has to be correct in technical details. In such circumstances the Legislature does not have enough time to calmly deliberate on all the complicated and technical details of the provisions of the Legislative measures brought before it Hence the practice is for the Legislature to lay down broad principles of any Legislation and delegate to the Executive the duty and power to frame regulations, rules, bye-laws, schemes etc. in conformity with the principles embodied in the Legislation. This power of Legislation given to the Executive being subordinate to the supreme Legislative power of the Legislature is known as subordinate or delegated Legislation.

It is now an accepted proposition that any matter which essentially constitutes the Legislative policy of the Ltate should not be delegated by the Legislature to the Executive. The principle is that the supreme Legislative authority of the Legislature in essential Legislative policy matters shall not be abdicated to any other body. In regard to any Legislation on hand the Legislature will lay down a policy or standard for the guidance of the delegated authority. Once when the Legislature has provided in a statute the principle of a new law, the Executive may by means of the delegated power of Legislation, make regulations, rules, bye-laws etc. to work out the application of the law within the principles and suitable to the changing circumstances. When rules, regulations, bye-laws etc. are framed by the Executive in exercise of the powers delegated to it by statute, such rules etc. will have the force of law and the same binding power as any provision of the principal statute.

There are parliamentary measures to scrutinise whether the agency to which Legislative power is delegated exercises the power within limits. In India both in the Lok Sabha and in the Legislative Assemblies of the States there is the Committee on Subordinate Legislation to scrutinise and report to the Lok Sabha and the Legislative Assemblies whether the powers to make regulations, rules, bye-laws etc. conferred by the Constitution or delegated by the Legislature are being properly exercised within such delegation. Each regulation, rule, bye-law etc. framed in pursuance of the provisions of the Constitution or the Legislative functions delegated by the Legislature to a subordinate authority shall be numbered and published in the Government Gazette immediately after it is promulgated. After such publication it is the duty of the Committee on Subordinate Legislation to consider—

(i) Whether it is in accord with the general objects of the Constitution or the Act pursuant to which it is made;

(ii) Whether it contains matter, which in the opinion of the Committee, should more properly be dealt with in an Act of the Legislature;

(iii) whether it contains imposition of any tax;

(iv) whether it directly or indirectly bars the jurisdiction of the Courts;

(v) whether it gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power;

(vi) whether it involves expenditure from the Consolidated Fund of the State of Kerala or the public revenues;

(vii) whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made;

(viii) whether there appears to have been unjustifiable delay in its publication or in laying it before the Legislature; and

(ix) whether for any reason its form or purport calls for any elucidation.

If the Committee is of opinion that any order should be annulled wholly or in part, or should be amended in any respect, it shall report that opinion and the grounds thereof to the Assembly. If the Committee is of opinion that any other matter relating to any order should be brought to the notice of the Assembly, it may report that opinion and matter to the Assembly.

The Rules of procedure in the Legislature also provide that all regulations, rules, sub-rules, bye-laws etc. framed in pursuance of the Constitution or the Legislative powers delegated by the Legislatures to a subordinate authority shall be laid before the Legislature for the periods specified in the Constitution or the relevant Acts. This is to enable the Members of the House to consider the subordinate legislative measures in all its aspects and to move for amendments if necessary.

Apart from the above parliamentary check on the exercise of delegated power, all orders made in exercise of delegated power are subject to examination by courts at the instance of a third party, on a plea of ultra vires.

Thus delegated Legislation is an essential part of Legislation to enable easy and convenient working of the governmental machinery. But the delegated power shall be exercised carefully and within permitted limits.

Abkari Act - Bad Law ?

(P. Rajan, Advocate, Tellicherry)

The Abkari Act (1 of 1077) came into force in 1967 after suspending the provisions of the Prohibition Act and by making necessary amendments to the other 3 Acts which were in force - Cochin Abkari Act, Travancore Abkari Act and Madras Abkari Act. Even though a decade has elapsed after the enforcement of the Act it has not been subjected to necessary changes. The Act permits courts to award imprisonment which may extend to one year or three thousand rupees or both as the maximum and things like receptacles, utensils, apparatus etc. are also liable to confiscation.

It seems that the Act is rather 'tight-lipped'. It does not speak much about the procedure to be followed by the Excise Officials regarding seizure, custody and sending of the articles seized to the court. The only section is S.53, which empowers the police officer to take charge of and keep in custody the articles seized under the Act. Sealing of the sample is to be done by the police officer in charge of the Police Station with his seal This is the only Section which says about the procedure to be followed that too after the seizure. The Act does not compel the officers to secure the presence of witnesses at the time of seizure or to affix the signature or thumb impression as the case may be, of the person from whom the article is seized on the bottle or container. This gives sufficient opportunity to the detecting hands to do things in their favour for a successful prosecution Various High Courts including our High Court decided very many issues under this Act and other Excise Acts in favour of the accused persons. Even then there is difficulty in accepting case-laws as such. There is much difference between case-law and statutory law. Trial Courts can't accept the former as such because facts and circumstances of each case may vary. In short, case law is metal in the mine unlike statutes.

To safeguard the interests of the person from whom article is seized, time is to be fixed for sending the article or sample of the same to the court; otherwise, there could be no difficulty in tampering with the article seized. The Act permits one to carry or possess 4 1/2 liters of Indian made foreign liquor. But the definition given in the Act for foreign liquor and country liquor needs illustrations. Many of the prosecutions under this Act are for carrying or possessing illicit liquor. But illicit liquor is not defined. Permission is given to the Excise Officers to impose penalty for avoiding prosecutions and detecting hands can award the sentence. So the natural tendency will be to increase the number of seizures without complying with the procedural formalities. To safeguard the interests of the individuals necessary changes are to be made to make the Act self contained.

Suspension of an Aided School Teacher Under Te K.E.R.

(M. P. R. Nair, Bar-at-Law)

Chapter XIV-A of the Rules under Kerala Education Act dealing with the conditions of services of aided school teachers provides under Rule 67(7) for the power that can be exercised by the educational authority consequent on an order of suspension passed by the manager. This sub-rule is intended to act as a restraint on an arbitrary exercise of the power of suspension conferred on the manager in respect of a teacher (or of a member of the non-teaching staff) of an aided school. The power of appointment to the posts of teaching and non-teaching staff in an aided school is vested in the manager under the Kerala Education Act. The ancillary powers such as the power to order suspension pending enquiry and the power to impose punishments consequent upon dis­ciplinary proceedings also vest in the manager although very recently an Ordin­ance has been passed by the Government of Kerala empowering the government or any officer not below the rank of an Educational Officer authorised by the govern­ment in this behalf to initiate disciplinary proceedings against the teacher of an aided school, to suspend him pending enquiry and impose upon him all or any of the penalties-prescribed under the Kerala Education Rules.

2. I am concerned in this note only so far as the power of the Manager is concerned to initiate disciplinary action against the teacher of an aided school-Under S.12 of the Kerala Eduction Act the manager may for sufficient reasons suspend a teacher for a period not exceeding 15 days without prior sanction of the officer authorised by the government’ in this behalf. These reasons must necessarily relate to one or more of those specified in Rule 67 (1), Chapter XIV-A of the Kerala Education Rules namely (i) when a disciplinary proceeding against a teacher is contemplated or is pending;

(ii) when a case against him in respect of any criminal offence is under investigation or trial;

(iii) when final orders are pending in the disciplinary proceedings, if the authority considers that in the then prevailing circumstances it is necessary, in public interest, that the teacher should be suspended from service.

3. When one or more of these grounds are disclosed, the manager may suspend a teacher pending enquiry for a period not exceeding 15 days. If the manager desires that the suspension of the teacher has to be extended beyond a period of 15 days, sanction, as stated earlier, has to be obtained from an officer authorised by the government in this behalf. Rule 67(7) of Chapter XIV-A provides for the manner in which the period of suspension can be extended be­yond 15 days. The manager who is of the opinion that the period of suspension is to be extended beyond 15 days reports the matter together with the reasons for suspension to the Educational Officer, and if the suspension is in respect of the headmaster of a secondary school or a training school, he reports the matter to the Regional Deputy Director. The Educational Officer in respect, of a teacher, and Regional Deputy Director in respect of a headmaster in a secondary school or a training school, then conducts a preliminary investigation into the grounds for suspension. The authority concerned then directs the manager to reinstate the teacher with effect from the date of suspension, if the authority is satisfied that there exists no valid ground for the suspension, The manager then has two alternatives namely; (i)to reinstate the teacher forthwith or(ii) to show satisfactory cause for non-compliance with the order of reinstatement. In the latter case, the authority considers the explanation submitted by the manager for non-compliance with the direction to reinstate the teacher and then it is open to the department to disburse the pay and allowances of the teacher as if the teacher were not suspended and recover the amount so disbursed from the manager. There is thus a deemed reinstatement. If on the other hand, the authority is satisfied that there are valid grounds for such suspension the authority may accord premission to the manager to place the teacher under suspension beyond the period of 15 days. The rule further makes it imperative that the authority shall: pass orders permitting suspension or otherwise within the said 15 days.

4. Cases of suspension of teachers in aided schools have been very many and since the remedies under Art. 226 of the Constitution are available to the teacher as well as to the manager, there are very many instances in which the aggrieved persons have invoked the jurisdiction of the High Court under Art. 226 of the Constitution. Rule 67 (7), it is submitted, has not yet been subjected to an authoritative interpretation by the High Court although there are decisions and decisions in which Rule 67(7)has come up for consideration in the High Court whe­ther oh petitions filed by the aggreived teacher or by the aggreived manager. The wording of Rule 67 (7) itself perhaps has not been happy or felicitous. But that is beside the point. It is a statutory rule and so Iong as it stands as such it has to be interpreted in accordance with the canons of Interpretation of Statutes. Perhaps it is one of those rules which is quite lengthy in the K.E.R. Besides it incorporates various matters which could perhaps have been worded in different rules for the sake of brevity and clarity.

5. It is perhaps for this reason that the Educational Officers have also not been able to understand and appreciate the full effect of this rule. There are cases and cases in which the educational authorities have purported to act under Rule 67(7) but made inadvertent departures from the strict scope of the rule. The investigation contemplated under this sub-rule is meant only for the purpose of deciding whether the manager has exercised the power of suspension arbit­rarily or whether there are or there are not valid grounds for keeping the teacher under suspension beyond a period of 15 days. As I have stated already, the grounds for suspension have been laid down under Rule 67(1) of Chapter XIV-A of the KER. From the nature of the wording in sub rule (7) of Rule 67 as also the nature of the duty cast on the educational officers to pass orders with­in the period of 15 days, it becomes clear that the investigation contemplated in Rule 67(7) is not an enquiry into the merits or demerits of the charges or for a final pronouncement on the maintainability or -otherwise of the charges, although that is being done in a number of cases by the educational officers. The investigation contemplated under Rule 67(7) is only meant to determine whether or not a prima facie case on the materials furnished by the manager has been disclosed that warrant suspension of a teacher beyond a period of 15 days so that a further enquiry as contemplated under Rule 75 in Chapter XIV-A of the KER. can effectively be conducted for imposing any of the penalties specified in items (iv) to (viii) of Rule 65 of Chapter XIV-A of KER., namely Reduction to a lower rank, Compulsory retirement, Removal from service, Dismissal from service, Reduction of pension.

6. The authority conducting the preliminary investigation has only to be satisfied that a primp, facie case has been made out by the manager and in such an event the manager will be entitled to an order to keep a teacher under sus­pension beyond a period of 15 days. The educational authorities without appreciating the full implications of the rule, invariably make a detailed enquiry into the charges themselves and proceed to pronounce on the merits of the charges by observations such as “the charge is dismissed”, or “the allegation is dismissed”. Rule 67(7) does not appear to confer such power at all, as has been held by the High Court in Kumaran v. The District Educational Officer, Ottapalam and others. In this case, the manager of an aided school suspended a teacher from service pending enquiry into certain charges framed against him. The D.E.O. who conducted a preliminary investigation under Rule 67(7) directed the manager to reinstate the teacher although the D.E.O. found that some of the charges were proved. Of the scope of the investigation under Rule 67(7), Eradi, J. observed as follows:

“......the District Educational Officer has proceeded to express his views as to whether or not the charges framed against the teacher are prima facie sustainable. I feel that any expression of opinion by this Court touching those nutters, at this stage, is not conducive to the holding of a proper enquiry under Rule 75 of Chapter XIV-A. It has however, to be observed that there is considerable force in the contention of the petitioner that the District Educational Officer in passing Ex. P3 has made certain observations and remarks in .his order which would tend to create an impression that he has already reached final conclusion on the merits of the charges framed against the teacher. This is certainly not expected to be done at the stage of passing an order under Rule 67 (7) because at that stage no full-fledged enquiry is conducted and the officer is expected only to record a prima facie finding a’s to whether or not there are circumstances warranting the continuance of the order of suspension against the teacher. If the Educational Officer does not restrict the scope of his decision to these limits at the stage of passing the order under Rule 67 (7) there is always the danger of one party or other being seriously prejudiced by reason of the officer committing himself to some particular view regarding the maintainability or other­wise of the charges before he has had the benefit of the entire evidence being placed before him......”

7. Such a preliminary investigation conducted, and the authority come ‘ to the conclusion that circumstances do not warrant the continuance of the order of suspension, an order for reinstatement of the teacher follows. The question then would be whether or not the manager is bound to give effect to this direc­tion? The sub-rule provides that the manager has an opportunity to show “satisfactory cause” against the direction to reinstate the teacher. At this stage the authority concerned has to advert to the materials furnished by the manager and decide whether the cause shown by the manager is satisfactory or not. If the attempt of the manager to show satisfactory cause fails, the rule provides for “deemed reinstatement” of the teacher with the necessary and inevitable con­sequence that the Department may disburse the pay and allowances of the teacher subject to recovery of the same from the manager.

8. If, on such a preliminary investigation it is found that there are valid grounds for suspension, is it open to the authority concerned to decline permission to continue the order of suspension beyond the period of fifteen days? The wording in Rule 67 (7.) is as follows:-

“...If on such investigation it is found that there are valid grounds for such suspension-permission may be given to the Manager to place the teacher under suspension beyond fifteen days, if necessary”.

The words in italics would indicate that there is option reserved to the authority concerned to decline sanction even in such cases. Would that be the intention of the rule? I doubt very much. The manager is then a helpless person whose power to suspend a teacher even for valid and sufficient reasons-be it in the best interests of the institution-will rest solely on the good-sense of investigating authority, whose attitudes to the manager will largely govern the exercise of his discretion. It cannot be that such an arbitrary position is con­templated by the rule. The authority concerned, In my submission, is bound to accord sanction for the continuance of the suspension if, in consequence of the preliminary investigation, the authority finds that valid grounds exist for the suspension ordered by the manager. The word ‘may’ used in the sub-rule will have to be interpreted as “shall” in such circumstances, and the words “if nece­ssary’’ treated as surplusage. Otherwise, very anomalous situations may arise giving rise to legal battles at the expense of the litigants. One hopes the exe­cutive and the legislature will take note of the anomaly.

9. One other point deserves consideration. I have mentioned earlier in this note that in the event of the authority concerned passing an order directing the manager to reinstate the teacher, it is open to the manager to show satis­factory cause against the order of reinstatement Once that is done, the educa­tional authority on a consideration of the materials furnished by the manager has to decide whether the cause shown is satisfactory, or not. Should it appear to the authority that the cause shown is not satisfactory, is it possible for the authority to insist on the manager to give effect to its direction and proceed to take action against the manager for non-compliance with the direction? Since the remedy of the department has also been indicated in the rule itself namely that the department may disburse the pay and allowances’ of the teacher subject to the recovery of the same from the* manager it would appear that there is no power on the educational authority to compel the manager to give effect to its-direction to reinstate the teacher. The best interests of the institution are per­haps better known to the manager than the educational authority. The danger inherent perhaps in giving effect to the direction of the departmental authority-will be better known to the manager than anyone else. Apart from a few and’ rare cases in which personal element might play a part, it is not difficult to imagine cases where it would be necessary in the best interests of the institution to keep a teacher away from school pending a full enquiry into his conduct. At the same time, the aggreived teacher in whose favour findings have been entered into during the preliminary investigation should also not be made to suffer. The recalcitrant manager should also not be able to take advantage of the situation. That is why the pay and allowances disbursed to the teacher are liable to be recovered from the manager. The combined effect of all these is that the manager has a power to keep a person away from school even if it be that he violates the directions of the educational authority in this regard, provided he is prepared to face the penal consequence of reimbursing the salary and allowances to the department. That is right which has to be read into the scheme of the Kerala Education Act and the Rules, however unhappy though it is.

A different view, however, has been expressed by the High Court of Kerala in O.P. 3631/1968 and O.P. 3709/1968. It was contended therein that no writ will lie against the manager compelling him to reinstate a teacher in whose favour an order has been passed by the educational authority after a preliminary investigation under Rule 67(7). The Court held that the intention of Rule 67(7) is not merely to recover from the manager the amount disbursed to the teacher as pay and allowances consequent on the deemed reinstatement, but there is a right conferred on the teacher to work in the institution consequent on an order passed by the authority in his favour. It was further held therein that the provision for recovery of pay and allowances from the manager is only meant to act as a deterrent on the manager from keeping a teacher away from the school. No appeal was carried from this decision and the law, therefore, is as in the above decision. It is respectfully submitted that the law requires reconsideration-If it were the intention of Rule 67(7), the wording of the relevant portion of the Rule could have been very different. An opportunity to show satisfactory cause need not have been given nor should there have been the provision for deemed reinstatement and recovery of the pay and allowances from the manager.

10. It is not unusual that government servants are suspended from service for an indefinite period pending enquiry into the disciplinary proceedings initiated against him. Suspension is not a punishment under the KER. The power of suspension conferred on the manager is subject to control under Rule 67(7). But Rule 67(7) cannot abrogate the power of the manager. The remedy of the teacher lies in establishing his innocence during the “enquiry under Rule 75. An interpretation such as has been outlined above will only be consistent with the tone and% tenor of the Kerala Education Act and the Rules. In any case, an authoritative interpretation of Rule 67(7) will be desirable to resolve the ambiguity and vagueness that now surround it.