On apples, silicone and lord byron

(T. G. John, Advocote, Trichur)

With one apple in hand, and exhibiting some voluptuous parts of her body, Eve (Garden of Eden fame) robbed mankind of immortality. With a thousand varieties of fruits now available in the market (including the Kulu apples which you can get by V. P. P.) and all these mini-skirts, mini-blouses and mini-whatnots, God alone knows what she is going to rob mankind in future!

When Carol Doda started her life as a stripper, her professional attract­ion to the audience was just that of any other modest girl because she had only a 36 in-worth of upper equipment. And then she went to a doctor and a course of silicone treatment-the latest drug to push out and inflate flat bosoms-made her an overnight sensation. With 44 inches of bustline, her inflated bosom struck newspaper headlines. She broke box office records in almost every top American stripclub and the first audience to goggle at her 44 inches superstructure consisted of hundreds of doctors. She became a medical curiosity. The whole of America became Silicone conscious. Women rushed to doctors’ clinics and many doctors were glad to provide it. The course of treatment lasted from a few weeks to six months and the cost of enlarging a bust line was very heavy.

Trouble started soon. At first most surgeons who undertook the treatment were reputable. But later qualified men withdrew from the field and unqualified people took the field. The Silicone injection became a controversial matter. The rush of flat chested shop-girls who wanted jobs as Cocktail waitresses still continued. Unqualified practitioners began to use industrial-grade Silicone. This kind of Silicone was not purified and foreign particles including metal were contained in it. The Administration stepped in and banned Silicone injection and they attempted to stop it by seizing supplies of Silicone. The whole matter has now come up in a legal wrangle. If Silicone is introduced into the body with a hypodermic syringe, the Administration consider it to be drug. But some doctors make an incision and implant the Silicone and that is considered to be legal.

Last year the Administration brought a legal action against Dow Corning, the only manufacturers of medical Silicone in America. The prose­cutors claim that unlike Miss Doda some girls have found the Silicone treatment harmful. One Casino girl, they say, was made temporarily blind. The result of the legal action is being awaited.

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England-January 1765. Byron, the great-uncle of the celebrated poet Lord Byron got into an argument with a friend, Mr. Chaworth, in the Star and Garter Tavern, in Pall Mall. The argument was about the amount of game on their estates. The argument was dropped and the rest of the company assumed it was forgotten. But as everyone was leaving later in the evening, the two men met on the stairs and continued the argument and Byron invited Chaworth into a small room lit by a candle. As Chaworth started to close the door, Byron drew his sword and ordered Chaworth to defend himself. Chaworth did so and a few moments later was run through, the sword coming out on the other side of him.

Byron was tried in the House of Lords. His account of the crime laid half the blame on Chaworth’s doorstep; but witnesses disagreed. The trial took place on 16th and 17th of April, 1765. Byron was convicted of manslaughter, but when the Lord High Steward asked if he had any reason to give why the sentence for manslaughter should not be passed, Byron claimed ‘benefit of clergy’ and so escaped scotfree! Byron, it seemed, was a clergy-man in the making.

It is worth commenting that the great poet Lord Byron later fell in love with the great niece of Mr. Chaworth, Mary Chaworth; but on account of the blood feud Mary preferred to marry another man.

Decision in 1969 KLT 15

(N.K. Sreedharan, Advocate, Ernakulam)

In the above decision (Pathrose v. Kuttan alias Sankaran Nair) His Lordship Justice P.T. Raman Nayar (as he then was) held that “subsequent binding authority” is a good ground for review. His Lordship has equated subsequent decision with subsequent legislation and has treated it as discovery e of a new and important matter and in any case, an error apparent on the face of the record. His Lordship has not overlooked the authorities to the contrary. The aforesaid decision has considerably enlarged the scope of Order 47. It is not my intention to state that the decision is not correct. My object is to point out the logical consequences this decision will lead us to. Of Course, a Judge should not bother about the consequences of his interpretation of any provision of law.

Suppose a Munsiff had taken in a case before him the view that the suit must be stayed under S. 8 of Act 12/66 on the representation of the defendant that he is a tenant and that record of rights has not been prepared and stayed the suit. The order is not challenged. But one Single Judge of the High Court holds in another case that upon a mere claim of tenancy without proof thereof, a suit for ejectment should not be stayed. Thereupon a review application is put in by the plaintiff and allowed and the stay is vacated and the suit taken up and proceeded with. Let us again suppose that a Division Bench in a case referred to it takes a different view from that taken by the Single Judge and holds that only a prima facie tenancy has to be established for the purpose of stay. That may give an occasion to the defendant in the Munsiff Court, whose case has been proceeded with, to apply for review. Then the Munsiff has to allow the review application and embark upon an enquiry into the question whether there is evidence of prima facie tenancy. While that enquiry is going on, if the Supreme Court has in another case taken there, decided that a bare claim of tenancy is sufficient to stay the suit in ejectment under S. 8 of the Kerala Act 12/66, the Munsiff will again have to stay the suit upon a further review appli­cation by the defendant. Afterwards suppose the Supreme Court itself in another case overrules the above decision, which is not uncommon or unknown and holds that S. 8 of the Kerala Prevention of Eviction Act 1966 will apply only in cases of admitted or proved tenancy. Then what will happen to the stayed suit, when a review application is filed by the plaintiff? That will have to be allowed and the suit again proceeded with. So this becomes an endless and interminable affair and will be a formidable threat to the principle of finality sought to be given by the rules of res-judicata and limitation.

I gave above for illustration the case of stay under S.8 of Act 12/66. But the complication will arise in the case of decrees in other actions also.

Suit in ejectment-defendant’s plea of possession as lessee rejected-

Whether plaintiff has to prove possession within 12 years of Suit

(M. Velayudhan Nair, Advocate, Alathur-Palghat)

It has been held in the case of Marimuthu Goundan v. Thampi (1960 KLJ.1304 and in the case of Jaldhari v. Rajendra Singh (AIR. 1958 Patna 386 FB.) that,  in a suit in ejectment on the ground of trespass and dis­possession or discontinuance of possession, in which plaintiff’s title is either admitted by the defendant or is established, but the defendant denies the alle­gation of trespass and sets up a tenancy under the plaintiff or his predecessor-in-interest, under which he claims to be in possession, if the tenancy set up by the defendant is not established, the plaintiff has not to prove possession with­in 12 years of suit to entitle him to a decree for possession; in other words, that Article 142 of the Limitation Act is not applicable to such cases.

2. In a recent case decided by a Division Bench of the Kerala High Court (Kalyani v. Kalyani) reported in 1969 KLT. 362(1969 KLR. 566), the learned Judges have, however, expressed the view that the principle of the decisions re­ported in Marimuthu Goundan v. Thampi (1960 KLJ. 1304) and Jaldhari v. Rajendra Singh (AIR. 1958 Patna 386 FB.) is applicable only to cases where the date of the lease set up by the defendant as the source of his psssession is within 12 years of suit and cannot be extended or applied to cases in which the date of the alleged lease under which the defendant claims to be in possession is anterior to 12 years before suit.

3. With the utmost respect to the learned Judges, I submit, there is no justification for refusing to apply the principle of the decisions in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB. to cases where the date of the lease alleged by the defendant is beyond 12 years of suit. If the defendant fails to prove the lease alleged by him, one wonders what is the importance of the date of the alleged lease. When once the alleged lease is disbelieved by the Court, how can the Court dissociate, the date of the alleged lease from the other details regarding the alleged lease and say that the defendant’s plea implied only an admission that plaintiff was in possession till the date of the alleged lease and that if the date of the alleged lease is beyond 12 years of suit, the admission may not avail the plaintiff to prove his possession within 12 years of suit and that plaintiff must prove possession within 12 years of suit. It is conceivable that the defendant tres­passed on the property or dispossessed the plaintiff a few days or a few months before the suit in ejectment was filed. But if the defendant sets up a lease in his favour by the plaintiff or his predecessor-in-interest on a date anterior to twelve years before suit, in the view expressed by their Lordships in the recent case, the suit will have to be dismissed, even though the alleged lease is found to be untrue by the Court if the plaintiff does not prove that he has been in poss­ession within 12 years of suit. A dishonest defendant who is a recent trespasser can easily thwart and defeat an honest plaintiff by cleverly dating the alleged lease in his favour beyond 12 years of suit and throwing the onus of proving possession within 12 years of suit on the plaintiff.

There is no justification, as it seems to me, for excluding cases in which the date of the alleged lease is put beyond 12 years of suit from the application of the principle of the decisions in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB.

The circumstance relied upon by the learned Judges in the recent ease (Kalyani v. Kalyani) that in the cases decided in 1960 KLJ. 1304 and AIR. 1958 Patna 386 FB. the leases alleged by the defendant were within 12 years of suit has, in my humble view, no significance or relevance. That circumstance does not at all seem to have influenced the learned Judges who decided those cases. Indeed in the Supreme Court decision in AIR. 1965 SC. 875, it was held that the plaintiff was entitled to a decree for possession, as the lease set up by the defend­ant was found to be not true, although the date of the alleged lease was about 28 years before suit. The true principle deducible from the decided cases seems to be this: In cases where the plaintiff’s title is either admitted or proved and the defendant pleads that he derived possession from the plaintiff as a tenant, the case, as the Supreme Court points out in AIR. 1965 SC. 875, must proceed on the defendant’s plea; and if the tenancy set up by the defendant is not established, the plaintiff has not to prove possession within 12 years of suit to entitle him to a decree for possession; in such cases on proof of plaintiff’s title, he is, without anything more, entitled to a decree for possession. In other words Article 142 of the Limitation Act of 1908 is not applicable to such cases. Article 142 is applicable only to cases where the plaintiff has title and defendant is in possession and asserts title independent of the title alleged by the plaintiff. In such cases plaintiff must prove not merely his title, but must prove, in addition, that he has been in possession within 12 years of suit.

I may be permitted to illustrate my point by a reference to the decided cases. The suit in the case of 1960 KLJ. 1304 was in ejectment against an alleged trespasser. The defendant denied the trespass and contended that he was in possession under a lease granted to him by plaintiff’s mother and grandmother during his minority. The alleged lease was found to be not true. But the defendant contended that the suit being a suit in ejectment, the plaintiff was bound to prove title as well as possession within 12 years of suit. The learned Judges (M. S. Menon and Joseph JJ) observe as follows:-

“This is a case in which plaintiff’s title is admitted by the defendant. The latter, no doubt, denies the allegation of trespass and sets up an oral lease of the properties, but the possession pleaded by him is as lessee and so there is no point in the contention that the plaintiff must prove possession within 12 years. The possession of a lessee is possession of the owner for purposes of Article 142 of the Limitation Act. We may in this connection refer to the decision in Narsingh Narayan Singh v. Dharam Thakur (9.C.W. Notes 144), where it was held that where the owner of land seeks possession on the allegation that the party in possession had no right to continue on it and his title to possession is proved or admitted, he can claim a decree unless the defendant proves the existence of a tenancy which entitles him to retain possession.”

In such cases, where the plaintiff’s title is admitted or proved and the defendant sets up a tenancy under the plaintiff or his predecessors-in-interest under which he claims to be in possession, there is really no “dispossession” of the plaintiff. “On the defence itself, in the words of the learned Judges of the Full Bench in AIR. 1958 Patna 386, “plaintiff possessed the land through the defendant”. In other words an admission of plaintiff’s possession is implicit in the plea of tenancy set up by defendant.

In the Full Bench decision in AIR. 1958 Patna 386, the learned Judges, after an exhaustive review of the case-law on the subject, state the law as follows:-

“In a suit in ejectment, the initial burden lies on the plaintiff to prove that he has title to immediate possession by ejectment of the defendant. If the suit is “based on the ground of dispossession or discontinuance of possession and the defendant is in possession and asserts title independent of the title alleged by the plaintiff, then barring certain cases, where, on proof of plaintiff’s title, possession is presumed to be with him on the principle that possession follows title (for example waste lands, jungle lands, lands submer­ged in water), plaintiff must prove, in addition, that he was in possession within 12 years of suit. Where, however, it is admitted or found as a fact that plaintiff has title to the suit land and is entitled to khas possession, and the defendant asserts tenancy right, permanent  or temporary and claims to hold the land in suit under the plaintiff by grant, contract, custom, prescriptive possession or by other means, the burden is on the tenant to prove that he has the right of occupancy which he claims, and to such cases, the rule of law enun­ciated by the Full Bench in the case of Shiva Prasad Singh (1921 Patna 237) has no application”.

According to the Full Bench, in a case where the plaintiff does not admit the defendant to be his raiyat and sues as proprietor to recover the land and the defendant sets up a tenancy right, the plaintiff has not to prove anything, because the admitted paramount title of plaintiff carries with it a presumption that the plaintiff is entitled to hold and possess the land and therefore the person seeking to defeat that right and claiming to hold under him must establish the right so asserted by him. It follows that if the defendant fails to prove the tenancy alleged by him, the fundamental right of the owner to hold and possess his land will at once come into operation and will entitle him to a decree for possession of the suit property. The following observation made by their Lordships of the Privy Council in Secretary of State for India v. Rama Ras AIR. 1916 P. C. 21, which put the point in perspective are quoted by the Full Bench in 1958 Patna 386. They are very apposite in this context:

“Nothing is better settled than that the onus of establishing title to pro­perty by reason of possession for a certain period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this pro­position. If it were not correct, it would be open to the possessor for a year or a day to say I am here. Be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions*. Such a singular doctrine can be well illustrated by the case of India in which the right of the Crown to vast tracts of territory including not only the islands arising from the sea, but great spaces of jungle lands, necessarily not under the close supervision of Government Officers, would disappear, because there would be no evidence to establish the state of possession for sixty years past. It would be contrary to all legal principles thus to permit the squatter to put the owner of the fundamental right to a negative proof upon the point of possession”.

The principle seems to be that in cases of this nature, where plaintiff sues in ejectment and his title is admitted or proved, and the defendant claims to be in possession under a lease, the onus is always on the defendant to establish the right asserted by him and if he fails to discharge that onus, the plaintiff must be given a decree for recovery of possession by virtue of his paramount title......The Full Bench observes, borrowing the expressions of their Lordships of the Privy Council in the case in AIR. 1916 PC. 21, that

“It is no part of the obligation of the plaintiffs to fortify their own fundamental rights by a further proof of what is termed ‘subsisting title in the limited sence of title to khas possession”.

The Full Bench decision in AIR. 1958 Patna 386, which is regarded as the locus classicus on the subject has been approved by the learned Judges of the Supreme Court in the case of Murthi v. Muhamed Mir Khan (AIR. 1965 SC.875). That was a suit for declaration of title to land coupled with a prayer to be restored to possession if plaintiff is deemed to have been dispossessed. The plaintiff asserted in the plaint that he had been in possession and occupation of the suit land; but in the relief clause, prayed in the alternative that if he be  deemed to have been dispossessed of the suit land by reason of earlier proceedings, under S.144 Cr.P.C, he should be put in possession thereof and granted mesne profits. The defendant did not deny the title of the plaintiff, but claimed that the plaintiff settled the land on him and that he had occupancy rights therein. Neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession. Nevertheless, it was held by the Supreme Court that as the defendant not only admitted the title of the plaintiff, but also admitted that he derived possession from the plaintiff as a tenant, the case must proceed on the defendant’s plea and for the purpose of deciding whether Article 142 or Article 144 applied, it must be assumed that the plaintiff has not been dispossessed or has not discontinued his possession within the meaning of Article 142 for neither the plaintiff nor the defendant alleged dispossession or discontinuance of possession and on the facts it was held that it is Article 144 and not Article 142 that applied. It is significant that the defendants put the date of the alleged lease to them more than 25 years before suit. This is evident from the following paragraph extracted from the Written Statement of the defendant:

“The plaintiff being the only member in his house used to reside outside in some service and consequently he gave the entire area of the Lands in Khata No.22 to these defendants to cultivate them on batai more than 25 years ago and since then the defenda­nts have been and are in peaceful cultivating possession over the same and have also acquired occupancy rights in them.”

The Munsif held that the plaintiff settled these lands with the defendants some 28 years ago. On the question of possession he held that since the settle­ment, the defendants have been in possession and cultivating the lands and that the plaintiff since after the settlement has not been in possession. He concluded that the plaintiff having been out of possession was not entitled to possession and consequently he dismissed the suit. The Appellate Court took the view that the onus was on the defendants to prove that they were raiyats of the lands and that they had acquired occupancy rights in these lands and unless they succeded in proving these, they could not successfully resist the plaintiff’s suit. The appellate Court also found that defendants had not been able to prove their case about settlement and possession. Five defendants appealed to the High Court. It was argued in the High Court by the defendants that the Appel­late Court had wrongly put the onus on the defendants, but the High Court relying on the Full Bench decision in A. I. R. 1958 Patna, did not accede to this contention Tha High Court held that the title of the plaintiff had been admitted by the defendants and their case of settlement and possession for 12 years had been rejected by the Appellate Court. Before the Supreme Court, it was argued that the Full Bench case in A. I. R. 1958 Patna 386 was wrongly decided and that on the facts of this case, Article 142 and not Article 144 governed the case. But the Supreme Court held that the Full Bench case was correctly decid­ed. The learned Judges observe as follows:-

“The defendants did not deny the title of the plaintiff to the suit land but asserted that they had been settled and acquired occupancy rights. On these facts, it seems to us that it is Article 144 and not Article 142 that applied”. The appeal was accordingly dismissed by the Supreme Court.

It will be observed that in the case before the S upreme Court, the date of the alleged lease was more than 25 years before suit, but the Supreme Court did not regard that fact as relevant or as a matter of any consequence in cons­idering whether Art 142 of the Limitation Act applied to the case and whether plaintiff has to prove possession within 12 years of suit, tit is evident that the date of the lease alleged by the defendant in such cases has no importance or relevance and if the defendant fails to prove the lease alleged by him, on proof of plaintiff’s title, the plaintiff, without anything more, is entitled to a decree for possession.

It seems to me, if I may say so with respect, that the view expressed by the learned Judges in the recent case in 1969 K.L.T. 362 requires recon­sideration.

Irresistible Impulse v. Provocation in Homicide

(M. Marcus B.A., M.L., Advocate, Kottayam)

The Law relating to Homicide in India looks at it from the subjective point of view while the English Law views it objectively. It is well known that every Homicide is Murder as per English L aw unless circumstances mitigating it to Manslaughter are proved, while the Indian Law treats the killing of human being by the accused when such killing is effected with certain mental conditions as prima facie Culpable Homicide which is akin to Manslaughter under English Law. To find a verdict of murder in Indian Law the killing of the human being should have been done under such circumstances so as to bring the case outside the ambit of the exceptions to S. 300 IPC.

Exception I to S. 300 IPC. makes provision for the cases in which an accused who has killed his victim under grave and sudden provocation, which is viewed with some leniency and the accused is found guilty of the offence of Culpable Homicide, not amounting to Murder and saves him from the extreme penalty of Law, ie. death sentence. This is done on the ground that when man is under the grip of grave and sudden provocation and consequently he loses his power of self control and kills his victim, the law should not attribute to him more mens rea than he had. This is an instance of the working of the principle that ‘Justice should be tempered with mercy’.

There is a Latin proverb ‘Ira Furor Brevis Est’ which means Anger is short Madness

We find in certain text books on Criminal Law of India this question of provocation treated at if it is a case of Irrestible Impulse.

It is true that irresistable impulse as a defence in Homicide is not admitted in India or in England. But in America there are courts which do admit such a plea even though it is a point on which the courts in America maintain difference of opinion The reason why irresistible impulse is not admitted as a defence in India and England is that it is difficult to distinguish between an impulse that is  irresistible’ and one that is ‘not resisted’. Literature on irresistible impulse informs us that the accused when he does his act under such impluse is fully conscious of what he is about but he is compelled to accomplish the deed against his real will by the force of ‘Irresistiable Impulse’. It is here that we should appreciate the distinction between a case of sudden provocation and that of irre¬sistible impulse.

The focus of our enquiry should be actually directed to this point. It is worthwhile to note the following observation by Oppenhiemer in his ‘Criminal Responsibility of Lunatcis’at page 175: ‘Impulse in truth is the outcome of a ‘ hidden delusion’. On page 176 he says: ‘If an impulse can be resisted it makes no difference whether it owes it to disease or not since the object of law is to control the evil impulse’. This brings forth the quality of the impulse. We are at once brought to the question whether the ‘impulse’ known to law as irresistible does admit of any control. This is the spot at which currents of judicial observations diverge. The learned author further explains on page 183 of the said work: Irresistible Impulse may co-exist with the full possession of reason’. He says, ‘It is true that his (accused’s) intellect being clear, he appreciates the nature and quality of his acts but only after it has been done’. The words’ ‘but only after brings forth the real situation of the offender The law on Insanity as far as IPC is concerned requires that the accused should not have known the nature and quality of the act or that it was wrong or contrary to law, “at the time of the act”.

In the case of criminal activity under provocation the accused though is said to have lost his power of self control, does his act more or less on the lines which he had in his mind prior” to the provocation; that is why the law rightly observes that ‘ungovernable fury’ is not irresistible impulse. The core concept of provocation law is that the resentment by the accused ‘should bear a reasonable proportion to the provocation received’. This aspect of the law is historically traceable to the right of private defence. “History of Criminal Law of England by Stephen”. This statement means that the accused under provocation is att¬ributed the capacity to modulate his act, which presupposes reasonable mental faculty. This aspect is specifically hinted in Exception 1 to S. 300 IPC. when it speaks of the accused’s losing ‘power of self control’. Power of self control is not synonymous to reason. A man who loses self control may still be in possession of his reason and in a case where a man has lost his reason the question of ‘self control’ does not arise. The point is that in the case of provocation the intention of the accused does not travel to the entire area of consequences of his criminal act. It is in the area of these exceeded consequences that the law makes its condescension to punish the deed with less severity having regard to the frailty of human nature.

The case of irresistible impulse is really a different thing. Irresistible impulse in strict sense should be the product of an unsound mind whether the unsound¬ness of mind be patent or past and lying dormant. This is what Prof: Weihoffen has observed in his study of Mental Disease and Criminal Responsibility. Once we find that irresistible impulse can take its offshoot only from an unsound mind, it will be missing the mark if we treat H at par with act under grave and” sudden provocation. It may be further pointed out that in the case of irresistible impulse the question of ‘cooling of the mind’ is outside the consideration while the law relating to provocation reserves a place for it as a barometre to measure the mens rea of the accused. The aspect of ‘smarting under provocation’ is also in-applicable to the case of irresistible impulse in the strict sense In the case of R v. Alexander cited in Russel on Crimes Vol. 1, 1954 edition the learned judge observes ‘when a man is not insane but intellectually deficient the jury should consider what amount of provocation would justify i$i returning a verdict of Manslaughter...... There is no authority for such preposition and this court cannot make Laws. It is the function of the Parliament’. This statement by the learned judge is sufficiently indicative of the complexity which besets the law on provocation which difficulty is augmented by the lack of study and research in the medical field touching the aspect.

The present trend in Criminal Jurisprudence is towards ‘Individualisation of punishment’ and I think that Homicide under provocation offers a suitable ground to reach the goal, especially so when provocation and irresistible impulse may be intertwined in a case which is not improbable.

Individualisation of punishment does not mean the weakening of law but the shaping of punishment in such a way that the Criminal Law may not fall into disrepute. This is the opinion of Prof. Sallielas, a champion of the cause of ‘Individualisation of punishment,’ The same note is struck by Tarde in his ‘Penal Philosophy’ when he says ‘in former days Law bade men study justice but nowadays it is justice study man.’ The task of fitting the punishment to the crime has been an onerous one and criminologists are at work on this problem. Barnes and Teeters in their ‘New Horizons of Criminolgy’ observe that excessive and unwanted punishment of a convict arouses sympathy towards him from the public which cuts at the root of the concept of punishment. In People v. Caruso: 246 NY. 473 of New York we find a case in which provocation received which was subjected to sorrowful brooding resulting in the killing of the deceased by the accused where the learned judge in appeal reversed conviction and ordered retrial thinking that only second degree murder might have been committed: ‘In¬troduction to Criminal Justice by Orvill c. Synder’ P. 631. ‘Medical Jurisprudence for India’ by Dr. Waddell and Lyon informs us that an impulse is the terminal portion of a mental disturbance.

We are now on the threshold of a period when revision of IPC. is con¬templated and I feel that scholars in Law and medicine should work hand ia hand to effect a fractional crystallisation of Irresistible Impulse and provocation from the apparently inseperable mass of legal literature so that punishment shall have a real purpose, and law made certain lest it should over-tax the judicial brains resulting in hasty and disproportionate sentence which runs against individulisation of punishment.

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.