IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH 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.27857 of 2008 Between: 1 The Commandant, SAR CPL, Amberpet, Hyderabad. 2 Government of A.P., Rep by its Secretary, Home Department, Secretariat, Hyderabad. ..... PETITIONER(S) AND 1 Sri. Mahamoob Khan, Retd HC 68, S/o. Mohd Lal Khan, R/o. Single Lane Police Quarters, Amberpet, Hyderabad. 2 The Director of State Audit, Andhra Pradesh, Hyderabad. .....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 an appropriate writ or direction more particularly one the nature of "Writ of Certiorari" calling for the records relating to and connected with the order in O.A.No.3741/2008 dated 15-05-2008 on the file of the Hon'ble A.P. Administrative Tribunal, Hyderabad and to quash or set-a- aside the same by holding as erroneous and contrary to law. Counsel for the Petitioner:GP FOR SERVICES I 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.27857 of 2008 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) The State filed this writ petition aggrieved by the order, dated 15- 05-2008 passed by the A.P.Administrative Tribunal, Hyderabad, in O.A.No.3741 of 2008, whereby and whereunder the said O.A. was disposed of in terms of the order passed in O.A.No.1543 of 2003, dated 19-06- 2007. The 1st respondent herein retired as a Head Constable on 28-02-2007 on attaining the age of superannuation. After retirement, the 1st petitioner herein passed an order, dated 28-01-2008 vide proceedings C.No.104/A4/SAR/2007-08 for recovery of Rs.1,31,692/-, which is said to have been paid in excess, from his gratuity in lumpsum and credit the same into the respective head of accounts. Pursuant to the said proceedings, the 2nd petitioner herein recovered a sum of Rs.1,31,692/- from the gratuity of the 1st respondent vide proceedings dated 14-02-2008. Aggrieved by the same, the 1st respondent herein filed O.A.No.3741 of 2008 before the A.P.Administrative Tribunal, Hyderabad, seeking to declare the action of the respondents therein in issuing proceedings dated 28-01-2008 and 14-02-2008 respectively, as illegal and arbitrary and consequently to direct the respondents therein to refund the said amount of Rs.1,31,692/- recovered from his pensionary benefits. The Tribunal by order dated 15-05-2008 disposed of the said O.A., which reads as follows:- “It is represented by the learned counsel for the applicant and the learned G.P. that the O.A. is covered by the orders passed in 1543/2003 dated 19-06-2007. In view of this representation, this O.A. is also disposed of in terms of the orders passed in 1543/03 dated 19-06-2007” A perusal of the material available on record goes to show that O.A.No.1543 of 2003 was filed by one Sri K.Krishna, retired Assistant Director, Survey and Settlements, questioning recovery of an amount of Rs.16,117/- from out of his pension. The said O.A. was disposed of by order dated 19-06-2008, which reads as follows:- “In view of the facts stated herein and from the impugned order itself it is clear that the applicants pay was erroneously fixed by the respondent. In view of such circumstances, the applicant is not responsible for such fixation. At this distance of time i.e., after the retirement of the applicant from service, and when the applicant is not responsible for such erroneous fixation, the same cannot be recovered as law laid down by the courts. In view of such circumstances, the impugned order herein is set aside with a direction to the respondents to payback the amount of Rs.18,037/- which has been adjusted from the E.L. encashment balance of the applicant, within a period of four weeks from the date of receipt of this order. The O.A. is accordingly allowed. No costs.” Learned Government Pleader appearing for the petitioners submits that the O.A. in the instant case was disposed of at the stage of admission without giving reasonable opportunity to the Department. There is no sufficient foundation laid by the petitioners as to whether the learned Government Pleader appearing for the petitioners have conceded or not. But, in view of difference of facts and ambiguity in both the O.As., we are of the opinion that it is just and proper to set aside the impugned order and remit the matter to the Tribunal to re-hear and pass appropriate orders in accordance with law, after giving reasonable opportunity to both the parties. Accordingly, the writ petition is allowed by setting the order of the Tribunal passed in O.A.No.3741 of 2008, dated 15-05-2008 and the matter is remitted to the A.P.Administrative Tribunal, Hyderabad, for the purpose of re- hearing and for passing appropriate orders in accordance with law, after giving reasonable opportunity to both the parties. There shall be no order as to costs. ________________ V.ESWARAIAH, J _____________________ P.SWAROOP REDDY, J Date: 05-06-2009 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{LS}