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 proceedings even after the retirement of the respondent, the only punishment that the appellants can inflict on the respondent is to invoke the right conferred on the Government under Rule 9 of the Pension Rules, that is, to recover the pecuniary loss arising out of the respondent's misconduct or negligence. Thus the controversy between the parties relates to the scope and ambit of Rule 9 of the Pension Rules which is as follows:
9. Right of Government to withhold or withdraw pension: (1) The Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, to local bodies and to Co-operative Societies comprising of Government servants and registered under the Tamil Nadu Co-operative Societies Act, 1961, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement.
- - - - - - - - -2(a). The departmental proceedings referred to in Sub-rule (t) if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service:
- - - - - - - - -(b) the departmental proceedings, if not instituted while the Government servant 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 Government servant during his service.
(3) No judicial proceedings, if not instituted while the Government servant 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 in respect of an event which took place, more than four years before such institution.
(4) In case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental proceedings or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension as provided in Rules 65 or Rule 74, as the case may be, shall be sanctioned.
(5) Where the Government decide not to withhold or withdraw pension but order recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule:
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant who has been placed under suspension from an earlier date, on such date and ...
6. It is now well-settled that if disciplinary action is to be taken against an employee it must be taken before he retires from service, and if the disciplinary enquiry cannot be completed of one initiated already, the only course open to the Government is to pass an order of suspension and refuse to permit the concerned government servant to retire and permit him to continue in service till final orders are passed thereon. It is pertinent to note the following observations of the Supreme Court in State of Punjab v. Khemi Ram : 2SCR657
There can be no doubt that if disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by the said rule. If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed thereon.
The principle of the above decision has been followed by a Full Bench of the Kerala High Court in R.P.Nair v. K.S.E. Board : AIR1979Ker135 .
7. In this case from the dates set out above it will be clear that the charges were framed only after the respondent was retired and not before. The fact that on 30.1.1978 an explanation was called for cannot be taken to be initiation of the disciplinary proceedings. It is only after retirement, disciplinary proceedings have been initiated against the respondent by framing charges. The question is what could be the scope of the disciplinary enquiry which has been initiated against the respondent admittedly after his retirement. Rule 9 of the Tamil Nadu Pension Rules deals with the scope of such an enquiry. Under that rule the Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently of for a specified period and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. That rule refers to a stage after the grant of pension to a Government servant. Withholding or withdrawing of recovery from pension will arise at a stage only when the pension has been sanctioned to a Government servant. Though Rule 6 says that full pension is payable only when the service rendered by the Government servant has been duly approved by the pension-sanctioning authority as satisfactory. Once the pension has been sanctioned it cannot be reduced although proof of service not having been satisfactory may come to the notice of the pension-sanctioning authorities subsequent to the sanction of the pension as per Rule 6(5). Therefore, the departmental enquiry initiated after the Government servant retires cannot be for the purpose of determining the satisfactory nature of his service. A Government servant who has retired cannot be penalised if he is found guilty of grave misconduct or negligence during the period of service except to the extent covered by Rule 9. Rule 8 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules dealing with the various items of penalties will not apply after the government servant has retired from service. Therefore any disciplinary enquiry conducted after a Government servant retires can only be for the purpose of working out the right of the Government to withhold or withdraw or to effect recovery from the pension. That would indicate that any disciplinary enquiry initiated after the retirement of a government servant can only be for the purpose of withholding, withdrawing or effecting recovery from pension towards any pecuniary loss caused to the Government by his grave misconduct or negligence. Therefore the contention of the learned Counsel for the respondent that any disciplinary enquiry that may be initiated after the retirement of a Government servant can only be for the purpose of recovery of the pecuniary loss caused to the Government and it cannot be for any other purpose and that the charges in a disciplinary enquiry initiated after the retirement of the Government servant can only relate to the pecuniary loss caused to the Government has to be accepted.
8. As a matter of fact a similar provision under Article 351-A of the Civil Service Regulations came up for consideration before Srinivasan, J. and the learned Judge observed:
The Explanation to this rule states that departmental proceedings shall be deemed to have been instituted when the charges framed against the petitioner are issued to him. Reading Rule 10 of the Liberalised Pension Rules with Article 351-A of the Civil Service Regulations, it follows that the right to withhold or recover any portion of the gratuity can stem only from departmental proceedings in which the pensioner is found to have been guilty of negligence and to have caused pecuniary loss to Government by such negligence, and such departmental proceedings shall not be undertaken in respect of an incident which took place four years prior to the institution of those proceedings.
The learned Judge has proceeded on the basis that the enquiry that is contemplated under Article 351 must be with regard to such negligence or misconduct on the part of the Government servant which has resulted in a pecuniary loss to the Government. Rule 9 of the Tamil Nadu Pension Rules is in identical terms and therefore, Rule 9 must also be restricted to such misconduct or negligence which has resulted in a pecuniary loss to the Government. The said principle has also been accepted by the Full Bench of the Kerala High court in R.P. Nair v. K.S.E. Board : AIR1979Ker135 where the learned Judges interpreting Rule 3, Part III, and Chapter I of the Kerala Service Rules which is more or less identical with Rule 9 of the Tamil Nadu Pension Rules had observed:
The rule does not authorise the continuance of disciplinary proceedings as such, against a Government servant after his retirement. Both on principle and on authority, such a position cannot be easily countenanced. It allows only a limited type of enquiry to be proceeded with namely an enquiry in-regard to withholding or withdrawing pension, or of ordering recovery from pension by reason of any misconduct or negligence during the period in service of the employee. Under Clause (a) of the proviso to the rule, the departmental proceeding, if instituted during the service of the employee is to be deemed to be a proceeding under the Rule and may be continued and completed even after his retirement. To this limited extent alone is provision made under the rule for continuance of a disciplinary enquiry beyond retirement. That too is by transmitting it by fiction to be an enquiry under the Rule. Beyond this, we cannot understand the rule in any way permitting the authorities either to launch or to continue disciplinary proceedings after the retirement of the employee. That would be destruction of the concept of relationship of employer and employee which has come to an end by reason of the retirement of the employee, beyond which, disciplinary control cannot extend.
In this case, the charges framed relate to the failure of the respondent to do his legitimate duty, and even if they are proved, they will not result in the recovery of any pecuniary loss caused to the Government. Even if the charges levelled against the respondent are established that will not lead to any recovery of pecuniary loss caused to the Government, from the pension granted to the respondent. We are, therefore, in entire agreement with the view expressed by Padmanabhan, J.
The writ appeal therefore fails and is dismissed. There will, however, be no order as to costs.