HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos.12925 and 15833 of 2009 Dt.17.11.2009 W.P.No.12925 of 2009 Between: The State of A.P. rep. By its Principal Secretary, Home Department, Secretariat, Hyderabad And others .. Petitioners And B.Balanarasimha Reddy .. Respondent W.P.No.15833 of 2009 Between: The State of A.P. rep. By its Principal Secretary, Home Department, Secretariat, Hyderabad And others .. Petitioners And B.Balanarasimha Reddy and another .. Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos.12925 and 15833 of 2009 ORDER: (Per Sri Justice Vilas V. Afzulpurkar) These two writ petitions are filed at the instance of the State questioning the common order of the Andhra Pradesh Administrative Tribunal in O.A.Nos.3522 of 2007 and 8626 of 2005, dated 13.2.2009. Both the said O.As were filed by the respondent herein. While the relief sought in O.A.No.3522 of 2007 was questioning the impugned order of the State in Memo.No.29680/Ser.I/A2/2007-8, dated 2.2.2007, imposing a penalty of 5% cut in the pension for a period of three years and consequently direct the petitioners herein to release the pensionary benefits due to the respondent with 10% interest, the other O.A.No.8626 of 2005 was filed by the respondent for direction to the petitioners herein to sanction and pay the pension due to him with effect from 31.12.2004 i.e., the date of his retirement along with retiremental benefits including arrears. Both the said O.A., were allowed by the Tribunal under the common order which is questioned in these writ petitions. W.P.No.12925 of 2009 was admitted by this Court on 1.7.2009 and the impugned order was suspended. Later, on 10.8.2009 the other W.P.No.15833 of 2009 was also admitted. Learned counsel for the respondent has filed an application seeking to vacate the interim order passed by this Court and we have heard both the learned counsel appearing for the respective parties and with their consent, we propose to dispose of both the writ petitions. The charge appearing against the respondent herein is as follows: “Statement of Article of Charge framed against Sri B.Balanarasimha Reddy, formerly DSRP, Guntakal, now working as SDPO, Sattenapalli, Guntur District. … Availing the real estate mortgage loan of Rs.3,60,000/- on 5.2.2000 from Anantapur District Co-operative Central Bank Ltd., Anantapur, and defaulted in repayment of same. The same has become an NPA to the bank for Rs.4,62,500/- in the month of March 2003 thus he has violated Rule 3(1) of APCS (Conduct) Rules, 1964. Hence charge.” The respondent herein has said to have given explanation on 27.8.2005 stating that the outstanding loan amount can be deducted and the balance amount to be released to him and he may allowed to draw monthly pension. The said explanation is being treated by the petitioners as an admission of the respondent of the charge and based thereon the petitioners concluded that it is not necessary to conduct any enquiry and thereupon the show cause notice under the impugned memo dated 2.2.2007 was issued calling upon the respondent to show cause as to why the penalty of 5% cut in pension for a period of three years should not be imposed on him. In the said notice it was mentioned by the petitioners that the explanation of the respondent shows that he admits his omission of failure of repayment of loan to the bank. The said show cause notice, however, is assumed to be a decision imposing 5% cut in pension and based on the said assumption the relief against the said memo is sought for in O.A.No.3522 of 2007 by the respondent. Another O.A.8626 of 2005 filed by the respondent seeking direction against the petitioners for sanction and payment of his pension and other benefits was also heard along with the present O.A. The Tribunal came to the conclusion that the only charge being with respect of the loan amount taken by the respondent from the Co-operative Central Bank and the default in repayment of the same has no reflection on the efficiency or negligence in performing of the duty or any lapse in performance of duty as a Government servant. The Tribunal also came to the conclusion that the omission or inaction on the part of the respondent herein cannot be construed as a misconduct within the meaning of the Conduct Rules and A.P.C.S (CCA) Rules and consequently held that both the O.As deserve to be allowed and the impugned memo dated 2.2.2007 is liable to be quashed. The said order is questioned in these writ petitions. Learned Government Pleader for Services-I appearing for the petitioners submits that the Government had only given a show cause notice proposing 5% cut in the pension and instead of submitting explanation the respondent has straightaway approached the Tribunal and the Tribunal also misconstrued the said memo as if it is the decision of the Government to impose 5% cut and consequently allowed the O.As on merits. Learned counsel for the respondent, however, submits that the very charge against the respondent is such a nature that it has nothing to discharge of his official duty regarding loan availed by respondent from the Co- operative Bank and because of that the pensionary benefits due to the respondent were not released by the petitioners within the time after his retirement in 2004, whereby he could not repay the loan and the non-payment of the loan secured by the respondent cannot therefore be construed as misconduct warranting any cut in his pension or pensionary benefits. The learned counsel also submits that as the terminal benefits were not released to him, he approached the Tribunal by filing O.A.No.8626 of 2005 and keeping the overall circumstances therefore there is no misconduct whatsoever and as such the Tribunal has rightly allowed the O.As. We have considered the aforesaid submissions. The charge as extracted above would show that mere non-payment of the loan amount to a bank is sought to be held against the respondent. Prima facie, the justification of the respondent appears to be reasonable. Though he retired in 2004, his pensionary benefits have not been released and he had ultimately moved the Tribunal by seeking a direction in O.A.No.8626 of 2005. Therefore, we see prima facie justification in the claim of the respondent that he could not repay the said loan in the above circumstances. In fact, the explanation of the respondent to the charge was that the Government itself may remit the said due amount to the bank and release the balance of terminal benefits to him. Therefore, we are of the prima facie opinion that when the said explanation was given by the respondent to the charge memo, nothing further was necessary to be pursued except remitting the dues to the bank and release the balance amount to the respondent. However, the petitioners gave the impugned show cause notice dated 2.2.2007 proposing 5% cut in the pension for his default in repayment of loan taken from the Co-operative Central Bank. The Tribunal has rightly held that the omission or inaction on the part of the respondent cannot be construed as misconduct within the meaning of the A.P.C.S (CCA) Rules. The charge framed does not appear to be a misconduct relating to the working or discharge of duties by the respondent while serving as Government servant. It is only the irregularity relating to his conduct and the contribution therefore has also been from the petitioners inasmuch as they have not released pensionary benefits to the respondent in spite of long lapse of time. Therefore, we are of the prima facie opinion that the entire proceedings commencing from the show cause notice resulting in filing of two O.As before the Tribunal and filing of these two writ petitions were completely avoidable. Therefore, we permit the respondent to submit his explanation to the show cause notice dated 2.2.2007 within two weeks from today and the petitioners shall consider the same in the light of all attending circumstances and keeping in view of the explanation of the respondent already furnished earlier and the one permitted hereunder and pass appropriate final orders within four weeks thereafter. It is needless to mention that the respondent is entitled to release of pensionary benefits even if the petitioners come to the conclusion that the outstanding loan amount due to the bank can be deducted from the said retirement benefits and remit the same to the bank and the balance amounts due and payable to the respondent may be released; in any case within a period of two months from today. With the above directions, both the writ petitions stand disposed of. ________________ V.ESWARAIAH, J. _________________________ VILAS V. AFZULPURKAR, J. 17.11.2009 kpr