JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner, a retired Head Master, is challenging ext. P1 order by which an amount of Rs. 251- per month has been ordered to be withheld from his pension and Ext. P5 order where by the Government has confirmed it in a review petition filed by him. THE main prayer in the O. P. is to quash Exts. P1 and P5 orders.

(2.) THE relevant facts are not in dispute and are thus: while in service petitioner was suspended from service with effect from 23-1-1986 pending disciplinary proceedings. However, he was reinstated in service on 24-3-1986 and was allowed to retire on superannuation from service on 31-3-1986. THEreafter as per order dated 18-4-1986 the disciplinary proceedings initiated against the petitioner was referred to the Tribunal for disciplinary proceedings constituted under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960 (for short "the Tribunal rules" ). THE Tribunal concluded enquiry in August, 1987 and submitted Ext. P6 report dated 25-8-1987. Based upon Ext. P6 report, Ext. P1 order was passed by the first respondent-State dated 2-11-1988. Paragraphs of Ext. P1 order would show that the Vigilance Tribunal found the petitioner guilty of allegation Nos. 1,3 and 4 and has recommended a punishment of with holding of a sum of Rs. 25/- from the monthly pension of the petitioner permanently. Charges 2 and 5 were found to be not established. Paragraph 4 of Ext. P1 would further show that the Government after a careful consideration of the report of the tribunal with reference to the connected records of the case has come to a conclusion that the service of the petitioner has not been thoroughly satisfactory. On the basis of the conclusion so reached a provisional decision was taken to withhold a sum of Rs. 25/- per month from the pension of the petitioner permanently under Rule 59 Part III of the Kerala Service Rules (for short "the KSR") and a show cause notice was accordingly served on the petitioner. After considering the explanation submitted by the petitioner, the Government has confirmed the provisional decision while issuing Ext. P1 order. Against Et. P1 order the petitioner filed Ext. P2 review petition as provided in note (1) added to Rule 59 Part 111 KSR under which Rule Ext. P1 order is purported to have been issued. As per Ext. P5 order first respondent has rejected Ext. P2 review petition as without any merit. Regarding the period during which the petitioner was suspended no order regularising the said period was passed at the time of filing the O. P. inspite of the fact that this Court has directed the Government to pass final orders regularising the period of suspension of the petitioner within a period not exceeding three months from the date of Ext. P4 judgment dated 30-5-1989. THE O. P. was filed on 22-12-1989 and Ext. P3 representation submitted by the petitioner for passing orders regularising his suspension period was pending even at the time of filing of the O. P. Petitioner has in the circumstances prayed for quashing of Exts. PI and P5 orders and for a further direction to he issued to the first respondent to regularise the period of suspension during which the petitioner was suspended pending disciplinary proceedings.

(3.) IF the above Rule alone is the Rule to be applied and none else, there would have been sufficient justification for advancing and accepting the above contention. But it has to be remembered thai inspite of retirement of officers or employees in certain cases Government is legally empowered to continue certain proceedings against such retired employees or officers as in the case of proceedings under Rule 3 Part 111 KSR. Under Rule 3 part III KSR, the Government is entitled to continue the disciplinary proceedings against a retired employee for the limited purpose of that Rule as if the employee had continued in service. There is a satisfactory fiction created by the deeming provisions in clause (a) to the proviso to that Rule enabling the Government to treat a retired employee as continuing in service for the purpose of continuing the departmental proceedings initialed against the employee before his retirement for the limited purpose of the said Rule. In such circumstances where the Government is empowered to deem the retired employee' as continuing in service for certain purposes, the retired employee must be decreed to be actually in service for such purposes even though he has actually retired from service. When a legal fiction is created for achieving a certain object it is obligatory that full effect is given to that satisfactory fiction and it should be carried to its logical conclusion. One has to assume all the facts and consequences which are incidental and inevitable corollaries to give effect to the fiction. When the deeming provision requires certain state of affairs to be imagined one cannot permit one's imagination to boggle when it comes to the inevitable corollaries of the state of affairs (See 5. Appukkuitan v. T Janaky Amma (AIR 1988 SC 587 at page 592 ). applying the above principle it has to be held that the Tribunal Rules may have application even to a retired employee if the retired employee can legally be deemed to be in service. The Tribunal Rules may thus apply not only to officers who are factually under the rule making control of the State Government but also to retired employees who can legally be deemed to be continuing in service and as such deemed to be under the rule making control of the State Government. As such the contention of the learned counsel for the petitioner advanced in an unqualified manner that the Tribunal Rules may not have any application to a retired employee from the date of his retirement cannot be accepted as sustainable.