Scope and ambit of Rule 9 of Pension Rules.

G. Ramanujam, J.

1. The scope and ambit of Rule 9 of the Tamil Nadu Pension Rules has come up for consideration in this appeal.

2. The respondent herein retired as a Superintendent from the Tamil Nadu Medical Services on the afternoon of 31.3.1978. At the time of retirement he was working as Superintendent in the Employees State Insurance Hospital, Madras. Later, on 26.2.1979 he was served by the Director of Medical Services and Family Welfare with a memo containing the following two charges:

(1) That as a Superintendent being the head of the Institution he ought to have conducted 'on the spot enquiry' and submitted a report to the Director of Medical Services and Family Welfare about the circumstances leading to the death of patient Thiru Vasudevan who died in unusual circumstances. Thus he failed to do his legitimate duty.

(2) That he had not cared to conduct an enquiry nor did he depute some one else holding administrative responsibility to conduct an enquiry immediately and send a report about the tragic death of a patient and thus he failed to discharge his duties entrusted to him as the head of the Institution.

By that memo he was asked to file a written statement of defence and to fill up the question which are required him to state as to whether he wants an oral enquiry or not. The respondent submitted his written representation on June 7, 1979 seeking an oral enquiry. Thereafter he was served with a notice dated 25.9.1979 informing him of the conduct of the enquiry on 17.10.1979 by the Director of Medical Services and Family Welfare. At that stage the petitioner filed Writ Petition No. 4530 of 1979 questioning the jurisdiction of the Director of Medical Services and Family Welfare to initiate disciplinary proceedings, on the following grounds: (1) After his retirement on superannuation, the relationship of master and servant ceased, and (2) in any event the disciplinary proceedings initiated after retirement can only be for the purpose of making any recovery from him and not for any other purpose as will be seen from Rule 9 of the Tamil Nadu Pension Rules.

3. In the counter affidavit filed by the appellants, the State Government and the Director of Medical Services and Family Welfare it was contended that so long as the respondent receives pension and other perquisites after his retirement from Government, the relationship of master and servant subsists, that in any event the proceedings having been initiated by the issue of a memo dated 30.1.1978 while the respondent was in service, the same could be continued even after his retirement and the appellants have jurisdiction to initiate proceedings even after the retirement for the lapses committed during his service. Thus the main question that came up for consideration in the writ petition was as to whether disciplinary proceedings can be initiated or continued after retirement of a Government servant in view of Rule 9 of the Pension Rules.

4. Padmanabhan, J. who heard the writ petition has taken the view that the enquiry contemplated under Rule 9 of the Pension rules is only a limited type of enquiry in which if a retired Government servant is found guilty of grave misconduct or negligence during his period of service, the Government has the right of withholding or withdrawing a pension or part thereof ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government and as in this case as a result of the misconduct or negligence on the part of the respondent no recovery is sought on the ground of pecuniary loss to Government, Rule 9 cannot be invoked. The correctness of the said view of Padmanabhan, J. has been questioned in this appeal.

5. According to the learned Government Pleader the appellants are entitled to initiate proceedings even after the retirement of the respondent in view of Rule 9 of the Pension Rules. Mr. D. Raju, learned Counsel for the respondent, however, contends that even if the appellants are entitled to initiate