DEEDWANIA, J. - (1.) THIS Division Bench Civil Special Appeal is preferred by the State of Rajasthan and another against the judgment of the learned Single Judge dated May 9, 1969 by which the writ petition filed by the respondent petitioner Sardara Ram was allowed and the appellants were directed not to proceed with the enquiry which was deem to have been instituted against the respondent under rule 170 of the Rajasthan Service Rules (hereinafter referred to as 'the Rules') with no order as to costs.
(2.) THE facts briefly stated are these-that respondent filed a writ petition under Art. 226 of the Constitution with the allegations that in September, 1958, the respondent Sardara Ram was posted as Circle Inspector of Police at Tijara in District Alwar. At that time Shri Raghunath Singh was Superintendent of Police District Alwar and Shri Hanuman Sharma was the Deputy Inspector General of Police of that Range. Some dues were outstanding against Shri Hanuman Sharma for which the respondent served him with a registered notice demanding payment thereof. Soon after Departmental-Enquiry was commenced against the respondent with the allegation that he had spoiled investigation of a criminal case. Shri Hanuman Sharma was annoyed because of the registered notice served on him by the respondent and therefore he suspended the latter vide his order dated December 3, 1958. THE Departmental Enquiry was conducted by Shri Raghunath Singh Superintendent of Police who submitted his report to the Inspector Genera! of Police. Shri Hanuman Sharma who forwarded the papers to the Inspector General of Police with the recommendation that action should be taken against the respondent. THE respondent took an objection before the Inspector General of Police that he was not given a hearing in the Departmental Proceedings. This plea of the respondent was accepted by the Inspector General of Police and the Departmental Enquiry was remanded to the Enquiry Officer with the direction that reasonable opportunity of hearing may be given to the respondent. THE respondent then made representations to the Chief Secretary, the Home Secretary, and the Inspector General of Police of Rajasthan that Shri Hanuman Sharma and Shri Raghunath Singh had a bias against the respondent and therefore they should not be allowed to conduct the enquiry. No. action was taken on these representations. THEre respondent therefore filed writ petition No. 231 of 1959 with the prayer that Shri Hanuman Sharma and Shri Raghunath Singh be restrained from making any enquiry against him. THE respondent also made a stay application in that writ petition which came up for hearing before the court on November 21, 1958. THE Government Advocate, during the hearing of the stay application, gave an undertaking that the enquiry would not be conducted by the aforesaid two officers. THE writ petition, therefore, was dismissed as withdrawn, THE Inspector General of Police inspite of that undertaking given by the Government Advocate, passed, orders for removal of the respondent from the service on the basis of the enquiry conducted by Shri Raghunath Singh whose findings were endorsed by Shri Hanuman Sharma. THE respondent preferred an appeal to the Government against the said order and the Government, after consulting the Public Service Commission, came to the conclusion vide its order dated September 11,1962, that the Inspector General of Police was not justified in directing removal of the respondent from service on the basis of enquiry made by Sari Raghunath Singh and therefore set aside the order of the Inspector General of Police dated 25th Feb. , 1961 removing the respondent from service and ordered a fresh enquiry with the direction that Inspector General of Police himself would make the enquiry. THE Government also directed the Inspector General of Police to reinstate the respondent with immediate effect. THE respondent then made several representations to the Inspector General of Police for expeditious completion of the enquiry with no result. He therefore filed Civil Writ Application No. 1609 of ]964 with a prayer that the Inspector Genera! of Police be directed to complete the Departmental Enquiry against him. This court by its Division Bench decision dated January 27, 1966 accepted the writ petition of the respondent and issued a mandate that Inspector General of Police would complete the enquiry against the respondent within 4 months from the date of the judgment. However, Shri Gordhan Sharma, the then Inspector General of Police did not commence the enquiry till his retirement on 26th March, 1966. His successor Shri Hanuman Sharma also did not start the enquiry even after the period of 4 months fixed by the court by its order dated January 27, 1966 for completing the enquiry. Meanwhile, the respondent was served with a notice on March 22, 1966 for compulsory retirement from service after the expiry of 3 months from the date of the service of the notice and the respondent was compulsorily retired. THE Government took some time to consider whether after the retirement of the respondent the Departmental Enquiry should be continued or not. THE Government was of the opinion that the enquiry must be continued under rule 170 of the Rules against the respondent by Additional Inspector General of Police Shri Sultan Singh. A letter dated October 25, 1966 to this effect was sent to the Government. THE respondent again filed writ petition No. 749 of 1966 challenging his compulsory retirement and continuance of the Departmental Enquiry. THE respondent also filed an application for interim stay order on which after hearing both the parties, order dated December 6, 1966 was passed by the court and the Government was restrained from continuing Departmental Proceedings under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules but the Government was permitted to continue the enquiry under rule 170 of the Rules. THE Additional Inspector General of Police under this order continued the enquiry against the respondent under rule 170 of the Rules and submitted report to the Government on September 30, 1967. An objection was taken in said writ petition No 747 of 1966 by the appellants that the respondent could not challenge by one writ petition two order, one relating to his compulsory retirement and other about the continuation of disciplinary proceedings. THE respondent thereupon sought permission from the court on October 9, 1967 to withdraw the writ petition No. 749 of 1966 with liberty to file one or more writ petitions regarding the reliefs claimed by him in that writ petition. So the Writ Petition No. 479 of 1966 was dismissed with permission to the respondent to file fresh writ petition. THEreafter the respondent filed the present writ petition which was accepted by the learned Single Judge of this Hon'ble Court and against which is this present appeal. THE main grounds taken in the writ petition were that a mandate given by this court to finish enquiry within a period of 4 months by its order dated January 27, 1966 was peremptory in nature and after the expiry of the said period specified in the mandate, the Inspector General of Police could not carry the enquiry upto 27th May, 1966 and that the enquiry under rule 170 of the Rules was not maintainable. THE writ petition was opposed by the appellants. THEy submitted a reply to the writ petition that the Inspector General of Police had commenced the enquiry in pursuance of the order of this Hon'ble Court but could not complete it within a period of 4 months as the respondent himself was responsible for not getting the enquiry completed. If for reasons beyond the control of the appellants, the enquiry could not be completed within the time prescribed by the court, it was not vitiated as the same was conducted under Statutory rules. THE appellants did not cease to have jurisdiction to continue the enquiry after the stipulated period of 4 months. THE enquiry could not be finished as the respondent did not co-operate with the Enquiry Officer for completing the Departmental Enquiry. THE proviso to clause (a) of rules 170 of the Rules was enacted for the continuance of such enquiry even after the retirement of a Government Official and prohibition contained in proviso to clause (b) (ii) of rule 170 of the Rules did not apply to its continuance. The learned Single Judge of this Hon'ble Court was of the opinion that if the enquiry was continued even after the lapse of the period of 4 months within which the enquiry Was ordered to be completed by the court, it was not vitiated for want of jurisdiction, especially when in writ petition No. 749 of 1966 the learned Single Judge of this court vide its order dated December 6, 1966 permitted the enquiry to be continued against the respondent under rule 170 of the Rules. The learned Single Judge was however of the opinion that the enquiry could not be continued because of the prohibition contained in clause (b) (ii) of the proviso as it governed clause (a) of the proviso to rule 170 of the Rules. We have heard learned counsel for the parties and gone through the record of the case very carefully. The first point that arises for determination is - Whether clause (a) of the proviso is subject to clause (b) (ii) of the proviso to rule 170 of the Rules. The learned Single Judge while coming to the, finding that proviso to clause (b) (ii) governs proviso to clause (a) of the rule 170 of the Rajasthan Service Rules observed as follows: - "in order to determine this question, I shall have to see the fundamental principle that actuated the Government to introduce a time limit for punishing the retired servant. It is well known that after leading a hectic life for over 30 years or so, the Government servant earns his pension and gets his retirement from his active life. By making such a provision the Government does not want to disturb the peace of such a retired Government servant by digging his old actions and then to punish him under rule 170. Clause (b) (ii) of the proviso specifically provides that the departmental proceedings shall not be instituted for any event which took place more than four years before the enquiry is instituted. This shows that after the lapse of four years from the date of his retirement, if no enquiry has been instituted by the Government, then the retired servant acquires an immunity and he cannot be punished for any of his acts or omissions done four years prior to his retirement. It cannot be conceived that a person against whom an enquiry was instituted during his active service shall not get the benefit of proviso (b) (ii) of this rule. It is true that clause (a) of the proviso does not speak of such immunity in case the enquiry is instituted during the period of his active service, but this silence cannot be read as to mean that a retirement, if enquiry is opened before his retirement, can be punished for his acts committed at any time during his active service. The proviso shall have to be read as a whole while constructing this immunity against the retired servant. Simply because the enquiry has been instituted before the date of retirement, the retired servant does not acquire any special status so far as to be treated differently in the matter of the time limit prescribed in proviso (b) (ii) of the rule. In my opinion, the rule making authority did not introduce any time limit in clause (a) of the proviso because normally a person serving is likely to be punished within the shortest possible period after bis act of commission or omission is detected by the Government. In my opinion, clause (a) of the proviso is subject to clause (b) except sub-para (1) of clause (b) because of the clear language of clause (a ). Clause (b) (ii) of the proviso shall, however, govern clause (a) also. " It was contended by the learned counsel for the Appellants that the reasoning adopted by the learned Single Judge was not correct. There were no reasons to believe that the rule-makers intended that an enquiry under rule 170 proviso (a) should be subject to the limitation contained in proviso (b) (ii) of the rule 170 of the Rules. Proviso (a) of rule 170 of the Rules is a deeming clause and, therefore, by legal fiction the Departmental Proceedings if instituted while the officer was in service will be deemed to be a proceeding under rule 170 of the Rules, even though, it was in respect of any event which took place more than 4 years before such institution. The learned counsel for the respondent urged that looking to the policy of the Government that retired Government Servant should not be harassed for old matters and mis-conduct if any, the limitation contained in proviso (b) (ii) of rule 170 of the Rules will also apply to Departmental proceedings under proviso (a) of rule 170 of the Rules.
(3.) WE have considered the rival contentions carefully and in our opinion the contention advanced by the learned counsel for the appellant must prevail. Rule 170 of the rules reads as follows - "the Governor further reserves to himself the right of withholding or withdrawing a pension of any part of it, whether permanently or for a specified period of 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 Persian is found guilty of grave mis-conduct or negligence during the period of his service including service rendered upon re-employment after retirement: - (a) Provided that such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his reemployment, shall after the final retirement of the officer, 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 officer had continued in service; (b) Such Departmental proceeding if not instituted while the officer was in service, whether before his retirement or during his re-employment, (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect or any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor 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 officer during his service; (c) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed. " When a legal fication is created, no doubt full effect must be given to it and it should be carried to its logical conclusion. The legal fiction created in proviso to clause (a) of Rule 170 of the Rules is that such Departmental Proceeding, if instituted while an officer was in service, whether before his retirement or during his re-employment shall after the final retirement of the officer v be deemed to be a proceeding under this rule. This will therefore, mean that by legal fiction the proceedings have been duly instituted under this rule and therefore there no occasion for proviso (b) (ii) of rule 170 of the Rules to come into play. Proviso (a) of the Rule 170 is distinct and provides for the continuance of the departmental proceedings which were instituted while the officer was in service, treating such proceedings as one under Rule 170. Proviso to Clause (b) of Rule 170 on the other hand related to those proceedings which were to be instituted after the retirement of an officer. Any limitation or restriction on the institution of departmental proceedings under proviso clause (b) of rule 170. as envisaged under proviso clause b (ii) or b (ii) of the said Rule, cannot be read with respect to the proceedings under proviso (a) of rule 170. If the rule makers intended otherwise and wanted that in no case a departmental proceeding under rule 170 shall be instituted or continued in respect of any event which took place more than 4 years before such institution, they could have made a suitable provisions for the same. The object of the court always is to ascertain the intention of the legislature from the language it has used. If the words of the Statute are precise and unambiguous, then no more is necessary than to expound those words in their natural and ordinary sence. This clause b (ii) of proviso of 170 of the Rule imposes a ban against the institution of any departmental proceedings in respect of any event which took place more than 4 years before such institution, if the proceeding is to be instituted against a Government servant who has finally retired. Once a departmental enquiry under the Classification of Control and Appeal Rules was instituted against a Government servant, while in service it is deemed to be a proceeding under rule 170 by the application of its proviso clause (a) it has to be further presumed that it was a valid proceeding notwithstanding the restrictions contained in proviso clause b (i) and (ii) of the rule 170 of the Rules. The legal fiction must be carried to its logical conclusion that the proceedings were duly instituted. It must be remember that legal fictions are created for a particular and definite purpose, and they are to be limited to the very purpose for which they are created. They should not be extended beyond that legitimate field. The fiction should of course be carried to its logical conclusion, but must be within the framework of the purpose for which it is created. Reference in this connection may be made to Mr. Boucher Pierre Andre vs. Superintendent, Central Jail Tihar, New Delhi (1) : - "we reach the same conclusion also by a different process of reasoning. Sub-sec. (1) of sec. 484 repeals the Old Code of Criminal Procedure. But sub-sec. (2), clause (b), provides that notwithstanding such repeal, all sentences passed under the Old Code of Criminal Procedure and which are in force immediately before the commencement of the New Code of Criminal Procedure shall be deemed to have been passed under the corresponding provisions of the New Code. The sentence of imprisonment and fine passed against the petitioner under the provisions of the Old Code of Criminal Procedure must, therefore, be deemed to have been passed under the corresponding provisions of the New Code of Criminal Procedure. It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council. (1952 AC 109 to P. 132) : "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative states of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit you imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " 9. We are, therefore, definitely of the opinion that the proceeding under Rule 170 of proviso clause (a) of the Rules is not subject to restrictions contained in proviso clause (b) (i) and (ii) of these Rules. The next point for determination is whether in the facts and circumstances of this case, departmental proceedings under rule 170 of the Rules against the respondent should be quashed. It was argued by the learned counsel for the respondent that it was not relevant and pertinent to the issue whether the Government has jurisdiction to conduct such an enquiry under rule 170 of Rules. The pertinent question is whether in view of the conduct of the appeal-lants, and harassment caused to the respondent. Thereby it is a fit case where the powers of the court may be exercised to quash these proceedings under rule 170 of the Rules. On the other hand learned counsel for the appellants argued that the Department had jurisdiction to conduct such a proceeding and question of harassment of the respondent was irrelevant to the matter in issue. We have considered the arguments submitted on behalf of the respondent and appellants very carefully. At the outset we may notice the following observations of the learned Single Judge in this respect: - From the narration of these facts, it is clear that the petitioner was charge-sheeted in the departmental enquiry in the year 1958 and he was suspended on the 3rd December, 1958. It was his endeavour that the enquiry may not be conducted by the officers who had a bias against him and for that purpose he made an approach to this court by filing a writ application No. 23! of 1959. The learned Deputy Government Advocate, who represented the State in that Writ Petition, made the petitioner to believe that the enquiry was being conducted by the Inspector General of Police and it was on that undertaking given by Mr. Chatterji that the petitioner got his petition dismissed by making a prayer to withdraw the same. But to his sur-pirse he found that the Inspector General of Police passed the order of his removal from the service on the basis of the same enquiry which was conducted by the officers against whom a plea of bias was alleged by the petitioner in his first writ petition filed in this Court. The Government took a very fair view of the matter and while allowing the petitioner's appeal it passed an order on 11th September, 1962 to set aside the order of removal of the petitioner and reinstated the petitioner and directed that the Inspector General of Police should himself make the enquiry. After this order of the Government I find that for two complete years the Inspector General of Police did not take any proceedings in the matter and mean while the juniors of the petitioner were allowed to be promoted to the higher rank while the petitioner remained under suspension. The attitude of the Inspector General of Police naturally exhausted the patience of the petitioner and he therefore filed another writ application No. 1609 of 1954 praying for the issuance of mandate to the Inspector General of Police to complete the enquiry without any further delay. While deciding that writ application, the Bench of this Court, which heard the petition, observed as follows: - As noticed by us above, the Government passed the adders for a fresh enquiry by the Inspector General of Police himself as back as on 11-9-62, and inspite of lapse of so much time the matter has not made any process. The learned Government Advocate has not been able to advance any satisfaction explanation of so much delay resulting in the case. The enquiry against the petitioner was taken up in 1958, and 8 years is a sufficiently long period for completion of departmental enquiries of the kind before us. . . . . . . . . In the present case the petitioner cannot to be unjustified in carrying an impression that he is denied his chances of confirmation or promotion on account of this enquiry. " In view of these observations, their lordships thought it proper to issue the mandate to the Inspector General of Police, who was entrusted with that enquiry by the Government, to complete the enquiry within four months from the date of the order. It may by mentioned that Mr. M. M. Vyas who was representing the respondents in that writ application was present in the Court when the said order was announced by the Bench. The order was couched in a very un-ambigous language that four months were to be reckoned from the date of the order and not from the date when this order was served on the Inspector General of Police. In the eye of law, the mandate of the Court shall be deemed to have been served on the Inspector General of Police on the date when it was pronounced openly in the Court in the presence of the respondents' Advocate Mr. Vyas, it is really surprising to note that an argument is advanced that the Inspector General of Police was served with this mandate after 28th of February, 1966. when the judgment of this court was sent to the Inspector General of Police along with the letter of the Registrar dated 28th of February, 1966. I find that the Inspector General of Police sent a registered letter to the petitioner on 11th March, 1966 asking him to file his reply to the charge-sheet which was already served on him and Therefore, on the 25th of March, 1966 the Inspector General of Police informed the Deputy Registrar that due to his retirement on 26th March, 1966 he will not in a position to carry out the mandate issued by this court. From these facts, it is evident that the sanctity that ought to have been attached to the mandate issued by this court while exercising its extraordinary jurisdiction under Article 226 of the Constitution was not properly under stood by the Inspector General of Police and therefore he moved in the matter very leisurely. If these were any circumstances which hampered the progress of the enquiry and made it difficult for the Inspector General of Police to complete the enquiry within four months from the date of the issue of the mandate, then the proper course open for the Inspector General of Police was to approach the Court through his counsel for the extension of time if at all it was necessary. No circumstance has been shown by Mr. Vyas which might have obstructed the way of the Inspector General of Police to proceed with the enquiry except a bald statement made by him that the petitioner did not co-operate with the authorities to complete the enquiry. No details have been given to substantiate this allegation of non-co-operation of the petitioner. In my opinion, the Inspector General of Police did not attach due importance to the order of the court which it deserved and at the time of his retirement he simply addressed a letter to the Deputy Registrar of the Court of express his inability to comply with the mandate of the Court. This attitude of the Inspector General of Police in carrying out the mandate of this Court does not bring any credit to a functionary of the Government of his status. If a subordinate Tribunal or authority refuses to carry out the mandate given by this court issued in the exercise of the extraordinary jurisdiction conferred by the Constitution, the result whill be chaos in the administration of justice and it would a denial of justice to a person in whose favour the mandate was issued by the highest court of the State. " 11. It would thus appear that the Government or the Inspector General of Police were not careful to carry out the mandate of this court that departmental proceedings against the respondent be concluded within a period of 4 months from the date of the judgment in Civil Writ Petition No. 1609 of 1964. The Departmental proceedings against the respondent were instituted as early as December 19,1958. The event must certainly be of a date anterior to this. The appellants were quite indifferent to the inconveience. mental strain and harassment caused to the respondent by keeping this departmental proceeding hanging on him right from the year 1958. In the first instance the departmental enquiry was conducted against the principles of natural justice and the Government had to intervene and direct that the proceedings be conducted afresh after giving a chance of hearing to the respondent. During the pendency of the first writ petition filed by the respondent, though an under taking was given on behalf of the appellants that the Departmental Proceedings would be concluded by the Inspector General of Police and would not be conducted by Shri Hanuman Sharma and Shir Raghunath Singh yet orders were passed for the removal of the respondent from service on the basis of the enquiry conducted by Shri Raghunath Singh whose findings were endorsed by Shri Hanuman Sharma. The Government had again to intervene and this order of removal of the respondent was set aside with directions of a fresh enquiry by the Inspector General of Police. In pursuance of this order fresh enquiry was continued but not completed for a long period and the respondent had to approach this court by way of a writ petition which was accepted on January 27, 1966 and a mandate was issued to complete the enquiry within a period of four months from the date of the judgment. ;