IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 21465 of 2008 Between: 1 The Government of AP Rep by its Special Chief Secretary, Panchayat Raj & Rural Development Deptt., Secretarit Buildings, A.P. Hyderabad. 2 The Engineer-in Chief, Panchayat Raj, A.P. Hyderabad. ..... PETITIONER(S) AND 1 Smt. B. Nirmala, W/o. Late Atma Ram, D.No. 122, Shatavahana Nagar, KPHP Colony, Hyderabad. 2 The Accountant General (A&E) A.P., Hyderabad (R2 is formal party as no relief is sought against him) .....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 will be pleased to to issue a writ, order or direction more particularly one in the nature of "writ of Certiorari" calling for the records relating to the orders of the Hon'ble A.P. Administrative Tribunal passed in OA No. 1446/2008 dated 17- 6-2008, as being erroneous, illegal and unreasonable and quash the same Counsel for the Petitioner:GP FOR SERVICES II Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO :21465 of 2008 ORDER: (per GHULAM MOHAMMED, J) This writ petition is filed seeking to quash the order dated 17-06-2008 in O.A.No.1446 of 2008 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short ‘the Tribunal’), wherein and whereby the Tribunal allowed the O.A. holding that the impugned order therein was issued after abatement of the disciplinary proceedings and directed the petitioners to pay the pensionary benefits. 2. The brief facts of the case are as follows: The respondent’s husband while working as Superintending Engineer, Panchayat Raj, retired from service on 31.1.2005. As on the date of the retirement, three disciplinary proceedings initiated against him were pending. Subsequently, he died in an accident on 15-06-2005 while the said disciplinary proceedings were pending against him. The G.O.Rt.No.1075, Panchayat Raj and Rural Development (Vig.I(A) Department dated 31.7.2006 has been issued by the Government for recovery of loss caused to it from the terminal benefits of the deceased employee i.e. the respondent’s husband. In view of the death of the respondent’s husband in the accident, the Government have issued G.O.Rt.Nos.781, 782 and 783, Panchayat Raj & Rural Development (Vig.IA) Department dated 28.5.2008, abating the disciplinary proceedings initiated against the respondent’s husband and the Engineer-in-Chief, Panchayat Raj was requested to release all pensionary benefits to the wife of the respondent duly recovering the amount already ordered vide G.O.Rt.No.1075, Panchayat Raj and Rural Development (Vig.I(A) Department, dated 31.7.2006. The relevant paragraphs of G.O.Rt.No.1075, Panchayat Raj and Rural Development (Vig.I(A) Department, dated 31.7.2006, read as under: “3. In the reference 4th read above, the Engineer-in-Chief, Panchayat Raj has informed that Sri B,.Atmaram, Superintending Engineer (PR) (Retired) has expired on 15.6.2005 in car accident. In the reference 5 read above, the Enquiry Officer has submitted his report along with findings concluding that charge is held proved against Sri B.Atmaram, E.E.(PR) and that he caused loss to Government to a tune of Rs.1,76,710.50 ps. For his personal gain is also held proved. 4. Government after careful examination of the entire matter, have decided and accordingly hereby abate further action against Sri B.Atmaram, formerly Executive Engineer (PR) and Superintending Engineer (PR) (Retied) as he expired while the enquiry is under progress. Government also decided to recover the loss caused to the Government from the terminal benefits of the deceased employee with 2% over and above the bank interest as per G.O.Ms.No.33, Finance (TER.I) Department, Dated 9.2.2006 read with G.O.Ms.No.995, Finance (Pen.I) Department dated 21.12.2002. 5. The Engineer-in-chief, Panchayat Raj, is therefore, requested to recover an amount of Rs.1,76,710.50ps. being the loss caused to the Government as held proved in the enquiry by the Commissionerate of inquiries from the terminal benefits of the deceased employee with 2% over and above the bank interest as per the orders issued in G.O.Ms.No.33, Finance (TFR.I) Department, dated 9.2.2006 read with G.O.Ms.No.995, Finance (Pen.I) Department, Dated 21.12.2002 duly following guidelines under A.P. Revised Pension Rules, 1980 and send the action taken report to Government.” 3. The said proceedings are challenged on the ground that once the disciplinary proceedings against the respondent’s husband, which were at the enquiry stage, abated, no further proceedings can be issued as the loss caused to the Government has not been concluded in the disciplinary proceedings and no decision has been taken when the respondent’s husband is alive with respect to the recovery. Therefore, such impugned orders could not have been issued and the same have to be set-aside as illegal and arbitrary. 4. The petitioners herein filed counter in the O.A., wherein it is accepted that when the disciplinary proceedings were pending at the enquiry stage, the respondent’s husband died and in view of the amendment to Sub-Rule 7 of Rule 9 of A.P. Revised Pension Rules in G.O.Ms.No.995, Finance (Pension- I) Department, dated 21.12.2002, the petitioners have issued the impugned G.O., for the recovery. The said amendment reads as follows: “AMENDMENT 5. In the said rules in Rule 9, for sub-rule (7), the following shall be substituted namely:- Even though a Government servant has retired from service and was not before his retirement charge sheeted or called upon to explain why a pecuniary loss caused to the Government (or a local authority) due to his negligence, while he was in service, should not be recovered from him. The government if they are satisfied that the loss is due to him, shall recoup the pecuniary loss besides all Government dues ( on local authority dues) from the Retirement Gratuity. For this purpose, it shall not be necessary to get the consent of the Government servant or the consent of the members of his family in the case of deceased Government servant, as the case may be. In such cases, it shall be indicated in the sanction clearly the amount of Retirement Gratuity admissible as stated amount which shall be deducted from the Retirement Gratuity on account of Government dues or local authority dues or loss sustained by the Government servant due to negligence and the net amount of Retirement Gratuity payable to the retired Government servant.” 5. The Tribunal held that in view of the above amendment, the Government should get satisfied that the loss is due to the Government Servant in the enquiry while passing an order. In the instant case, no such orders after enquiry were passed against the respondent’s husband and no such decision was taken after the enquiry against the respondent’s husband and in view of this, the aforesaid amendment cannot be applied to the respondent’s husband as the disciplinary proceedings were abated at the initial stage itself and the impugned orders could not have been passed basing on G.O.Ms.No.995, Finance (Pension-I) Department, dated 21.12.2002 for recovery of the said amount. The impugned orders have been issued after abatement of the disciplinary proceedings. Any report or any proceedings submitted after abatement of disciplinary proceedings are illegal and arbitrary and basing on such proceedings, the impugned orders could not have been issued and ultimately, allowed the O.A. setting-side the impugned proceedings. 6. Admittedly, the respondent’s husband retired from service on 31.1.2005 and he died on 15.6.2005 in a road accident and the disciplinary proceedings initiated against him were abated due to his death and that in the said enquiry neither the respondent’s husband filed any explanation nor had he participated in the proceedings. In view of the abatement of the disciplinary proceedings, the orders in G.O.Rt.No.1075, Panchayat Raj and Rural Development (Vig.I(A)) Department dated 31.7.2006 ought not to have passed basing on G.O.Ms.No.995 Finance (Pension-I) Department, dated 21.12.2002 for recovery of the alleged loss caused to the Government. Once the disciplinary proceedings were abated due to the death of the respondent’s husband, passing orders dated 31.7.2006 for recovery of amount against the respondent’s husband would not arise and the Tribunal has rightly allowed the O.A. setting aside the impugned order therein. Therefore, we do not find any infirmity in the impugned order dated 17-06- 2008, so as to call for interference by this court in exercise of its jurisdiction under Article 226 of the Constitution and the writ petition is liable to be dismissed. 7. Accordingly, the writ petition is dismissed. No order as to costs. ______________________ GHULAM MOHAMMED,J ___________________ G.BHAVANI PRASAD,J 29-09-2008 Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RLD