THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.3085 of 2010 ORDER: In this writ petition, the petitioner, who is working as Additional Assistant Engineer in Andhra Pradesh Northern Power Distribution Company Limited (APNPDCL), has questioned the Memo bearing No.SE/O/KMM/PO/Adm/A6/D.No.995/08, dated 29.09.2008, which was issued by the Superintending Engineer (Operation), APNPDCL, Khammam - second respondent, after recording reasons for deduction of Rs.4,000/- per month from the salary of the petitioner, in pursuance of the directions issued by this Court in WPMP.No.23073 of 2008 in W.P.No.26232 of 2007. It is the case of the petitioner that in APNPDCL, he earlier worked as Field Officer (AE/AAE) and was entrusted with certain works. In the year 2007, respondents have started recovery of an amount of Rs.4,000/- per month from his salary. Aggrieved by the same, he filed Writ Petition No.26232 of 2007 stating that without recording any reasons, recovery of Rs.4,000/- from his salary was ordered by the respondents. In the said writ petition, this Court by order, dated 29.08.2008 in WPMP.No.23073 of 2008, issued a direction to the respondents to inform the petitioner about the reasons or basis for deduction, through a written communication. In compliance of the same, the respondents have issued the impugned memo by recording that as the petitioner has not rendered the accounts and closed the work orders of the works operated during his tenure, the material drawn by him was kept under his personal account; that the Divisional Engineer, C&O, Mulugu, vide letter, dated 13.03.2007 informed that an amount of Rs.20,34,000/- has to be recovered towards personal account due to non-closure of the work orders for the year 2002-03 and that pursuant to the directions issued by this Court on 10.12.2007, the salary for the period from September, 2005 till the date of such memo had been paid duly recovering Rs.1,500/- for four months from 15.09.2005 to 31.12.2005 and @ Rs.4,000/- from 01.01.2006 onwards observing limitation of 1/3rd from his gross salary. It is submitted that the impugned deduction of Rs.4,000/- from his salary is without any basis and that no enquiry is conducted as to the allegation that he is responsible for the shortage of material drawn for the work orders executed by him during his tenure. It is also submitted that when he was working at Sathupally, he has executed work orders and obtained clearance from the Officer concerned vide letter, dated 25.08.2004, which shows that all the accounts were settled and handed over the charge to his successor, by name, Ch.Sudhakar Rao, Sub-Engineer, and therefore, he is not responsible for the shortage of material drawn for the works undertook by him during his tenure. In the counter-affidavit filed by the second respondent, while denying the averments made by the petitioner in the writ petition, it is stated that in view of the grave lapses on the part of the petitioner, an enquiry was conducted by issuing a charge sheet; that a reference is also made to the enquiry report, according to which, the petitioner attempted to close certain work orders without submitting pole schedule and actual utilization of the material for the completed works and that in certain cases, he has operated provisional work order without provisional estimates even after completion of the work. It is further stated that the said allegations were proved in the enquiry. This shows that the petitioner has indulged in cheating the Company and breached the established norms and procedures. It is stated in paragraph 13 that for the work orders, which he has executed and closed by him during 2002-03, the personal accounts have been dropped from 124.22 lac and as actual utilization of the material was not traced out, an amount of Rs.20.34 lac has been kept under personal account and keeping in view the other recoveries, a lesser instalment amount of Rs.4,000/- per month was proposed to recover from his monthly salary. Heard Sri S.Ravindranath, learned counsel for the petitioner and Sri P.R.Balarami Reddy, learned Standing Counsel for the respondents. With regard to the disciplinary action against it’s employees, APNPDCL adopted the provisions of the erstwhile Andhra Pradesh State Electricity Board Employees’ Discipline and Appeal Regulations (for short ‘the Regulations’). The recovery of an amount from the pay of an employee of the whole or any part of the pecuniary loss caused to the Board by reason of the negligence, misconduct or disobedience to lawful orders, of an employee in the discharge of his duties, is a penalty within the meaning of Regulation 5(v)(a) of the Regulations. Regulation 10 of the Regulations prescribes a procedure for imposing penalties. It is apt to refer to Regulation 10(1) (a) and (b), which read as under: 1) No order imposing on a member of a service a penalty specified in items (i), (ii) and (iii) (v) or (ix) of Regulation 5 shall be passed except after. a) The member of the service is informed in writing by the authority competent to impose the penalty of the proposal to take action in regard to him and of the allegations on which the action is proposed to be taken, and is given an opportunity to make any representations he may wish to make to such authority; and b) Such representation, if any, is taken into consideration by the authority competent to impose the penalty. From a reading of the above said penalty clause under Regulation 5 and the procedure for imposing penalties prescribed under Regulation 10 of the Regulations, it is clear that to recover any amount from the pay of the employee, there should be an order imposing the penalty by the competent authority by following the procedure under Regulation 10. In this case, it is the case of the petitioner that no enquiry is conducted against him and no order is passed to recover the amount from his pay by following such procedure. Though the counter-affidavit refers to certain disciplinary proceedings initiated and the charges framed against the petitioner, there is no reference as to the framing of charge with regard to the allegation that he is responsible for the shortage of material drawn for the work orders executed by him during his tenure, in the earlier disciplinary proceedings initiated against him. A perusal of the charge memo, dated 18.07.2009, which is placed before this Court, at the hearing, reveals that there is no such charge resulting in imposition of penalty by way of recovery of an amount from the pay of the petitioner and when the same is pointed out, the learned Standing Counsel appearing for the respondents while submitting that for the recovery of amount, no specific order is passed, requested the Court to dispose of the matter leaving it open to the competent authority to conduct enquiry and pass appropriate orders by following the procedure as contemplated under the Regulations. From a reading of the impugned memo, it is clear that there is no specific order to recover any amount from the pay the petitioner by following the procedure contemplated under Regulation 10 of the Regulations. Therefore, the recovery from the pay of the petitioner is per se illegal. As much as certain amounts were already recovered and as there is no specific order to recover the amount from the pay of the petitioner, he is entitled to the refund of the amount, which was deducted from his salary towards recovery. For the aforesaid reasons, the writ petition is allowed and the impugned memo is quashed. Consequently, there shall be a direction to the respondents to refund the amount, which was deducted from his salary towards recovery, to the petitioner, within a period of six (6) weeks from today. At the same time, it is made clear that if the petitioner is responsible for any misconduct or negligence, which caused loss to the respondents, this order will not preclude the respondents to initiate proceedings against the petitioner and pass appropriate orders in accordance with the Regulations. No order as to costs. ______________________ R.SUBHASH REDDY, J 12th APRIL, 2010. kvni