IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.11100 of 2009 Between: Municipal Corporation of Guntur Rep. by its Commissioner Guntur. ..... PETITIONER AND 1 S. Mallikarjuna Rao Municipal Corporation of Guntur. R/o. 11-4-115, Raja's Garden, II Line, Guntur. 2 The Deputy Commissioner Municipal Corporation of Guntur. Guntur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ in the nature of certiorari calling for the records relating to the order dated 12-11-2008 in O.A.No.224 of 2007 passed by the A.P. Administrative Tribunal, Hyderabad, as unjust and improper and deemed it as erroneous and quash the same. Counsel for the Petitioner:MR.B.VENKATARATNAM Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.11100 of 2009 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) This writ petition is filed questioning the order of the A.P.Administrative Tribunal, Hyderabad, in O.A.No.224 of 2007, dated 12- 11-2008, whereby and whereunder the Tribunal allowed the said O.A. filed by the 1st respondent directing the writ petitioner to pay all benefits, including pension and pensionary benefits, for which the 1st respondent is duly entitled to. However, it was observed that the said order does not prevent the writ petitioner from taking action against the 1st respondent under pension rules after the conclusion of enquiry if any of the alleged misappropriation of Rs.18,97,831/- is proved. It is the case of the writ petitioner that initially in the year 1964 the 1st respondent was appointed as Record Assistant in Guntur Municipality and thereafter, he was promoted as Bill Collector in the year 1976. Further, in the year 1997, he was promoted as Junior Assisant and posted at S.K.B.N.M. High School, A.T.Agraharam. While so, the Revenue Inspector of 27th Ward gave a complaint against the 1st respondent stating that he has misappropriated the amount collected from the public towards the tax for the years 1997 and 1998 to a tune of Rs.1,51,836/-. Basing on the said complaint, the writ petitioner directed the 1st respondent to produce remittance particulars of the aforesaid amount vide proceedings dated 09-04-1999. The 1st respondent made representation to the writ petitioner on 14-05-1999 stating that the amounts collected through cheques are not adjusted to the accounts and sought for time to furnish particulars. The writ petitioner vide proceedings dated 20-05-1999 directed his subordinates to stop payment of salary of the 1st respondent till production of remittance particulars. Thereafter, the 1st respondent produced the remittance particulars. However, the 1st respondent was placed under suspension pending enquiry vide proceedings dated 06-07-1999. Aggrieved by the said suspension order, the 1st respondent filed O.A.No.4554 of 2000 before the A.P.Administrative Tribunal, Hyderabad, and the Tribunal vide order dated 13-07-2001 directed the 2nd respondent to pay subsistence allowance due to the 1st respondent in accordance with F.R.53. As the suspension orders were not reviewed, the 1st respondent filed M.A.No.1427 of 2001 in O.A.No.4554 of 2000 seeking a direction to the writ petitioner to pay subsistence allowance and the Tribunal by order dated 04-06-2001 disposed of the said O.A. directing the writ petitioner to examine the request of the 1st respondent for payment of 75% of his pay as subsistence allowance in terms of F.R.53 and pass appropriate orders. Pursuant to the said order, the writ petitioner paid only 50% of the subsistence allowance. With regard to the misappropriated amount of Rs.1,51,836/-, it is stated that the 1st respondent remitted an amount of Rs.1,21,446/- as per the documentary evidence and remitted Rs.33,163/- in cash and thus paid an amount of Rs.1,153/- excess. As the 1st respondent was not reinstated into service, he again approached the A.P.Administrative Tribunal, Hyderabad, and filed O.A.No.3631 of 2004 and the Tribunal vide order dated 01-07- 2004, while admitting the O.A. suspended the suspension order, dated 06-07-1999. Accordingly, the 1st respondent was reinstated into service by proceedings dated 24-07-2004. Thereafter, the writ petitioner issued proceedings dated 19-09-2005 informing that the 1st respondent has to retire from service on 30-09-2005 on attaining the age of superannuation, pending finalisation of the charges against him, and that he is not entitled to draw the pensionary benefits, D.C.R.G. commutation and other benefits till finalisation of the charges against him, but however, eligible for provisional pension. Pursuant to the said order, the 1st respondent retired from service on 30-09-2005. Though he retired from service on 30-09-2005, no disciplinary proceedings have been initiated against the 1st respondent and, therefore, after two years of his retirement, the 1st respondent approached the A.P.Administrative Tribunal, Hyderabad, and filed O.A.No.224 of 2007 seeking to declare the action of the writ petitioner in not paying all benefits including pension and pensionary benefits as illegal and arbitrary. A counter has been filed by the writ petitioner before the Tribunal stating that several show-cause notices have been issued to the 1st respondent herein with regard to remittance of misappropriated amount of Rs.18,97,831/- and the 1st respondent has not accounted the said amount and, therefore, the 1st respondent is not entitled for any pensionary benefits. Admittedly, the writ petitioner filed a suit O.S.No.289 of 1999 before the II Additional Senior Civil Judge, Fast Track Court, Guntur, for recovery of a sum of Rs.1,51,836/- and nothing has been stated in the said suit about the unaccounted amount of Rs.18,97,831/-. It is stated that several show cause notices are said to have been issued to the 1st respondent with regard to the alleged misappropriation. It is also stated that the said misappropriated amount of Rs.18,97,831/- is pertaining to the years 1997 and 1998. When the suit has been filed in the year 1999, nothing has been stated about the aforesaid misappropriated amount. Admittedly, as on date, no charge memo or disciplinary proceedings has been issued against the 1st respondent. Insofar as the misappropriated amount of Rs.1,51,836/- is concerned, the said amount was already paid by the 1st respondent and the suit O.S.No.289 of 1999 was dismissed holding that the 1st respondent is not liable to pay any amount. The Tribunal by impugned order held that even after retirement of the 1st respondent in the year 2005, after attaining the age of superanuation, no disciplinary proceedings or charge-memo has been issued and the so called notices were not at all served on the 1st respondent. Therefore, the Tribunal held that the writ petitioner cannot stop retirement benefits of the 1st respondent and accordingly directed the writ petitioner to pay all the benefits including pension and pensionary benefits, for which, the 1st respondent is duly entitled to. However, the Tribunal observed that the said order does not prevent the writ petitioner from taking action against the 1st respondent under pension rules after conclusion of enquiry if any of the alleged misappropriation of Rs.18,97,831/- is proved. Admittedly, the learned counsel for the writ petitioner failed to place any material either with regard to issuance of charge memo or initiation of disciplinary proceedings or service of notice in respect of the alleged misappropriated amount of Rs.18,97,831/- and no material particulars are furnished with regard to the alleged misappropriated amount. On instructions, learned counsel for the writ petitioner submits that till date, no charge memo or disciplinary proceedings have been issued against the 1st respondent. In view of the aforesaid facts and circumstances of the case, we do not see any infirmity either legal or otherwise in the impugned order so as to call for interference by this Court under Article 226 of the Constitution of India. Therefore, the writ petition is devoid of merit and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J _____________________ P.SWAROOP REDDY, J Date: 10-06-2009 Prv