HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.27675 of 2009 Date: June 11, 2010 Between: B. Chandraiah (died per L.Rs.) Retd. T.I.-III, E.No.046963 1. Smt. B. Vijayaxmi, W/o. late B. Chandraiah, aged about 52 years, Occ: housewife, R/o.4-1-7, Kalyani Base, Yellareddy, Nizamabad District … Petitioner And APSRTC, represented by its Managing Director, Bus Bhavan, RTC X Road, Hyderabad, and three others … Respondents Order: The petitioner, wife of one Sri B. Chandraiah who worked in the respondents-Corporation, during his lifetime, has filed this writ petition seeking Mandamus declaring the action of the respondents in not paying to her the retirement benefits of her late husband and also his last month’s salary as illegal and arbitrary. She also seeks directions to the fourth respondent to fix pension payable to her and arrears thereof. 2. The husband of the petitioner, late Sri B. Chandraiah, was in the service of the Andhra Pradesh State Road Transport Corporation, having joined in the year 1974. He retired from service on 31-08-2009, as Ticket Inspector Grade-III on attaining the age of superannuation. After his retirement, a notice dated 30-08-2009 (stated to be served on 05-09-2009) was issued by the Depot Manager, Banswada. In the said notice, it is stated that on verification of the records, it was observed that the annual increments of the late husband of the petitioner were deferred for a period of four years vide office order dated 03-04-1981 and such order was not implemented; as such, he was paid salary in excess of his eligibility. It is further stated that, in view of the same, it is proposed to recover an amount of Rs.2,28,518/- from his retiral benefits. On 16-09-2009, the late husband of the petitioner filed detailed representation to the notice dated 30-08-2009, which is stated to be received by him on 05-09-2009, disputing such recovery. In the said representation, it is stated that fixation of his pay was verified from time to time and the Accounts Officer attached to the office of the Regional Manager cross-verified the same and only thereafter salary was paid to him; and hence, in absence of any misrepresentation or fraud on his part, no recovery can be effected. Unfortunately, within a month thereafter, he died on 07-10-2009. After his death, when the petitioner, who is his wife, claimed retiral and other attendant benefits, namely, gratuity, last month’s salary, leave encashment etc., respondents were not taking steps to pay the same on the ground that an amount of Rs.2,23,518/- was to be recovered from the terminal benefits of her late husband. It is the case of the petitioner that though she is entitled to family pension, pension papers were not processed and arrears were not paid to her; hence the writ petition. 3. In response to the notice before admission issued by this court, a detailed counter affidavit is filed by the Law Officer of the APSRTC. In the counter affidavit, while admitting that the late husband of the petitioner retired from service on 31-08-2009, it is stated that, in order to settle his retiral benefits, when his personal record was verified, it was found that he was imposed punishment of deferment of four annual increments for four years with cumulative effect by the Depot Manager, Medak vide order dated 03-04-1981, but the said order was not implemented. It is stated that on implementation of the order of punishment, the total pay and allowances excess drawn by the deceased employee works out to Rs.2,28,518/-. It is further stated that an amount of Rs.54,309/- was also to be recovered towards arrears of family planning increments which was allowed on a false declaration made by the deceased employee. It is stated that when a show- cause notice was issued to recover the said amount, the late husband of the petitioner, during his lifetime, filed W.P.No.12167 of 2004 before this court and obtained interim order and the said writ petition is pending before this court. Precisely, it is the stand of the respondents that as much as the order dated 03-04-1981, whereby punishment was imposed on the late husband of the petitioner, was not implemented; the petitioner is not entitled for gratuity, last month’s salary and leave encashment. So far as family pension is concerned, it is stated that papers relating thereto were already sent to the concerned and appropriate steps will be taken to pay the same after the papers are processed. 4. In view of the averments in the counter affidavit, the only question that arises for consideration is whether respondents 1 to 3 be allowed to adjust an amount of Rs.2,28,518/- from the retiral benefits of the late husband of the petitioner. It is to be noticed that the order withholding annual increments of the late husband of the petitioner was passed as early as on 03-04-1981. After passing of the said order, the deceased employee was in service for about 28 long years, but at no point of time any effort was made to implement the said order. Though the notice which was issued to the late husband of the petitioner is dated 30-08-2010, i.e. prior to his retirement, but is served on him only on 05-09-2009 and explanation was filed by him on 16-09-2009. 5. In support of the plea of the petitioner, learned counsel for the petitioner relied on a judgment of the Hon’ble Supreme Court in the case of Syed Abdul Qadir and others v. State of Bihar and others[1], wherein the Supreme Court, while dealing with an issue, wherein the Bihar Government had inadvertently extended the benefit of additional increments and thereafter had taken steps for recovery of the same, held that if any excess amount is already paid on account of increments; in absence of misrepresentation or fraud, such amount cannot be recovered. Further, in the said judgment, it was observed that recovery is not allowed not because of the right of the employee, but in equity exercising judicial discretion, to relieve the employees from the hardship that will be caused if recovery is ordered. In this case, it is to be noticed that though the order withholding annual increments of the late husband of the petitioner, as a measure of punishment, was passed way back in the year 1981, the same was not implemented, during the span of his service, for about 28 years. Hence, if such recovery is effected from his retiral benefits, at this belated stage, it will create any amount of hardship on his legal heirs. The ratio laid down by the Supreme Court referred above supports the case of the petitioner as much as there is no misrepresentation or fraud played by her late husband. If there is any negligence on the part of the respondents in enforcing the order of punishment, which was passed as early as in the year 1981, the said order cannot now be allowed to be implemented and enforced after the retirement and death of the husband of the petitioner, more so when papers are the stage of scrutiny for payment of retiral benefits. For the above reasons, there is no justification on the part of the respondents in withholding the retiral benefits payable to the petitioner. So far as the amount of Rs.54,309/-, which is stated to have been paid to the late husband of the petitioner on account of family planning increments is concerned, as the same is the subject matter of W.P.No.12167 of 2004, the said amount can be withheld subject to the outcome of the writ petition which is pending consideration. As regards pension, it is stated that orders were already passed granting pension in the name of the deceased employee and the counter affidavit states that pension papers have been forwarded by respondents 1 to 3 to the fourth respondent for scrutiny and pension will be granted once papers are scrutinized. 6. For the foregoing reasons, the writ petition is allowed and the respondents are directed to pay all retiral benefits due to the petitioner, namely, gratuity, leave encashment and last month’s salary of the late husband of the petitioner, by withholding an amount of Rs.54,309/- which is the subject matter of W.P.No.12167 of 2004 pending before this court. The amount of Rs.54,309/- shall be kept in interest-bearing deposit by respondents 1 to 3, which shall be subject to the result of W.P.No.12167 of 2004. There shall also be a direction to the fourth respondent to process the family pension papers of the petitioner and pass appropriate orders as expeditiously possible, preferably within four weeks from the date of receipt of this order. 7. The writ petition is allowed to the extent indicated above. No order as to costs. _____________________ R. SUBHASH REDDY, J June 11, 2010 MRR [1] (2009) 3 SCC 475