Poulose vs State of Kerala

Jagannadha Raju, J.—The first petitioner in O.P.No. 852 of 1985 is the appellant in W.A.No. 27 of 1990. The sole petitioner in O.P.No. 2791 of 1985 is the appellant in W.A. No. 934 of 1989. The two writ petitions were disposed of by a common judgment dated 31st May 1989 and both the writ petitions were dismissed. Aggrieved by the same, the present appeals are filed.

The facts necessary for decision of the controversy in these writ appeals are as follows. These appellants and some others were employees of the Forest Department and long before their retirement, disciplinary proceedings have been initiated against them. While the enquiry proceedings were pending before the Disciplinary Proceedings Tribunal under the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules, 1960, these persons retired. Subsequently they challenged the continuation of the disciplinary enquiries on the ground that they are not Government servants and that they are retired employees. They also claimed that the application filed for amendment of the charges is not permissible.

The main contention in these writ appeals is that the amendment of the charges is possible only in cases of disciplinary proceedings against Government servants who are in service and such amendment is not permissible with regard to Government servants who have retired and against whom disciplinary proceedings are continuing. Reliance is placed upon Rule 155(3) of the Kerala Civil Services (Classification, Control & Appeal) Rules and Rule 8(3) of the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules. At this juncture, it would be pertinent to extract the Rules''. Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules deals with procedure for imposing major penalties. We are mostly concerned with Sub-rule (3) which reads as follows:

"(3) The authority or officer conducting the enquiry (hereinafter referred to as the Inquiring Authority) may, during the course of enquiry if it deems necessary, amend, alter or modify the charges framed against the accused Government servant, in which case the accused shall be required to submit within a reasonable time to be specified in that behalf any further written statement of his defence."

Rule 15(3) was amended as early as 24th January 1961. It is significant to remember that the Kerala Civil Services (Classification, Control and Appeal) Rules are applicable to Government servants and the Rules form a Code in themselves. These Rules apply both to Government servants against whom disciplinary proceedings are taken while they are in service as well as to Government servants against whom disciplinary proceedings were initiated while they were in service and they are continued after their retirement. Rule 8(3) of the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules reads as follows:

"The Tribunal may, during the course of the enquiry if it deems necessary, add to amend, alter or modify the charges framed against the accused Government servant; in which case the accused shall be required to submit within a reasonable time to be specified in that behalf any further written statement of his defence."

This Sub-rule is similar to Rule 15(3) of the Kerala Civil Services (Classification, Control and Appeal) Rules.

It is true originally, that is prior to 1971, there was no provision in the Civil Service Rules for initiating disciplinary enquiries against persons who have retired from Government service, In some States there was provision for continuing the disciplinary proceedings which were initiated prior to retirement. Rule 3 of Section 1 of Chapter I of Part III of the Kerala Service Rules reads as follows:

"3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement.

Provided that

(a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee has continued in service;

(b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment,-

(i) shall not be instituted save with the sanction of the Government;

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the, procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service;

(c) . . .

(d) . . .

A reading of Rule 3 of Section 1 of Chap.I of Part III of the Kerala Service Rules ctearly indicates that the Government servants against whom departmental proceedings were instituted before their retirement will be deemed to be employees who continued in service.

In the present writ appeals emphasis is laid on the word "the accused Government servant" employed in Rule 15(3) of the Kerala Civil Services (Classification, Control & Appeal) Rules and Rule 8(3) of the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules. It should be remembered that both these Rules deal with matters of procedure. It should also be remembered that if the right to amend or modify the charges is confined to disciplinary enquiry against Government servants in service and if a different procedure is to be adopted regarding departmental proceedings pending against Government servants against whom proceedings were instituted while they were in service and continued after their retirement, then it will not amount to discrimination. It should be remembered that by reason of Rule 3 of Section 1 of Part III of the Kerala Service Rules, such a Government servant is deemed to continue in service. In this view of the matter the claim of the present appellants-petitioners that the disciplinary authority, namely, the Disciplinary Proceedings Tribunal, has no right to amend or modify the charges is untenable. The words "Government Servant" occurring in Rule 15(3) and Rule 8(3) aforesaid are only descriptive of the persons against whom proceedings are going on rather than description of persons'' status. The words taken in the context in which they occur and the purpose for which they are introduced in the Rules clearly point put that the words are capable of taking within their fold even ex-Government servant. We are fortified in this view by the approach of the Supreme Court in V.F & G Insurance Co v. Fraser & Ross (AIR) I960 S.C. 71 where the Supreme Court held that the word ''insurer'' occurring in the particular statute will include a person who has closed his business. Looking at the context in which they occur, we hold that the learned Judge is justified in holding that the words "Government Servant" will take in ex-Government servant also.

Considering the fact that the present petitioners are deemed to continue in service by reason of Rule 3 of Section 1 of Chap. I of Part III of the Kerala Service Rules, and considering the fact that Rules 15(3) of Kerala Civil Services (Classification, Control and Appeal) Rules and Rule 8(3) of the Kerala Civil Services (Disciplinary Proceedings Tribunal) Rules deal with only matters of procedure, it cannot be said that any right of the petitioners is infringed by the amendment or modification of the charges. The contentions advanced on behalf of the appellants are devoid of merits.

In the result, the two writ appeals are dismissed.