C KALYANAM Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner has filed this writ petition for the issued of a writ of certiorarified mandamus to quash the proceedings of the Director of Medical Services and Family Welfare, Madras in Ref. No. 77213/esi/sc/2/77, dated 26th February, 1979, and to restrain the respondents from proceeding further against the petitioner pursuant to the impugned proceedings.

(2.) THE facts leading to the filling of this writ petition may be briefly set out as follows. In 1977 the petitioner was employed as a Superintendent of the Employees' State Insurance Hospital. Madras. On 11th December, 1977, a patient by name Vasudevan was found lying unconscious in the gardens of the E. S. I. Hospital at about 5 A. M. He was immediately taken to the Government General Hospital. On the way to the hospital the patient died. Thereafter the petitioner retired from service on 31st March, 1978. On 26th February, 1979, the charge memo which is impugned in this proceedings was served on the petitioner. The charge memo contains the following two charges.

(3.) MR. D. Raju, learned counsel for the petitioner, apart form drawing my attention to the admission in the counter-affidavit that the petitioner did hold an enquiry on 12th December, 1977 and submitted a report, raises two legal contentions. They are : (1) The petitioner retired from service on 31st March, 1978, which retirement of service resulted in the relationship of master and servant between the respondents and the petitioner getting snapped. Consequently, after the petitioner's superannuation, the respondents have no jurisdiction to commence any proceedings against the petitioner. (2) Without prejudice to the first contention urged by Mr. Raju, the learned counsel urges that even assuming for a moment that the respondents have jurisdiction to commence any proceedings after retirement of the petitioner, the only punishment that the respondents can inflict on the petitioner can be to invoke the right conferred on the Government under Rule 9 of the pension Rules. According to the learned counsel, Rule 9 of the pension rules contemplates a situation where an enquiry is necessitated into the misconduct of a Government servant which has resulted in a pecuniary loss to the Government and it has become necessary for the Government to recover the said loss. The enquiry if at all contemplated argues Mr. Raju, which will fall under Rule 9 of the pension Rules can only be for the limited purpose of enquiring into the charge which relate to the cause of a pecuniary loss so far as the Government is concerned and for the recovery of the same from the Government servant. In the submission of Mr. Raju, it is not the case of the respondents that the petitioner has by his conduct caused any pecuniary loss to the Government. The charge is one of negligence only and is not a charge which falls within Rule 9 of the Pension Rules. In this Context, the learned counsel refers to me the decision in Utho v. Director of Postal Services madras-2, (1964) 77 L. W. 598 and the decision of the Kerala High Court in R. P. Nair v. K. S. E. Board, AIR 19. 9 KER 135.