THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.8933 OF 2007 DATED NOVEMBER, 2010 BETWEEN: Smt.Padamata Parvathi and another … Petitioner And The Principal Secretary, Department of Housing, Government of A.P., Secretariat, Hyderabad, and others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.8933 OF 2007 O R D E R The petitioners are the widow and daughter of late P.S.S.V.Prasad, an Assistant Engineer in the service of the Andhra Pradesh State Housing Corporation Limited. Having run from pillar to post without success, the petitioners filed the present case seeking payment of the terminal benefits due to the deceased. By interim order dated 11.09.2007 this Court, taking note of the fact that the enquiry report against the deceased was submitted on 25.05.2000; long after his expiry on 16.11.1999, held that the denial of his dues and the recovery sought to be effected was illegal and directed the respondents in the writ petition to return all the amounts which were adjusted towards recovery of sums due against the account of the deceased. It is stated that pursuant to the above order, the gratuity amount due and payable to the deceased was released in favour of the petitioners. A sum of Rs.14,560/- which was recovered from out of the leave salary amounts due to the deceased was remitted by the respondents but was refused by the widow on the ground that the same did not reflect the correct position as to the dues payable to her late husband. The deceased entered the service of the Andhra Pradesh State Housing Corporation Limited (for brevity, ‘the Corporation’) as an Assistant Engineer on 31.10.1983. While he was working as such in the Karimnagar Branch of the Corporation he was subjected to disciplinary proceedings under charge memo dated 16.07.1998 in connection with certain irregularities alleged to have been committed by him. He was placed under suspension from 29.05.1998 to 23.05.1999. Upon revocation of the suspension, he was reinstated in service on 24.05.1999 pending the departmental enquiry and was posted at Kurnool. He expired on 16.11.1999 while in service. Relevant to note, the enquiry did not attain completion during his life time. The petitioners were paid ex gratia of Rs.75,000/- in lieu of compassionate appointment in the year 2005. They were also paid a sums of Rs.1,478/- towards employees relief fund and Rs.36,950/- towards provident fund respectively under proceedings dated 16.04.2005. However, the other terminal benefits due to the deceased employee, including gratuity, increment and encashment of earned leave remained unpaid. Innumerable representations by the widow in this regard over a period of two years finally evoked a response from the Corporation under memo dated 13.03.2007. Therein, the Corporation referred to the fact that the deceased was placed under suspension and subjected to a disciplinary enquiry. According to the Corporation, the enquiry culminated in the report dated 25.05.2000. The Corporation further stated that after careful examination of the same the disciplinary proceedings initiated against the deceased were disposed of duly recovering the amount of Rs.14,560/-, being 80% of the unadjusted advance of Rs.18,200/- and treating the period of his suspension as on leave to the extent of his eligibility. The District Manager, Karimnagar District of the Corporation, was requested to take action accordingly. Disputing the same, the widow once again submitted representations. Aggrieved by the continued delay on the part of the Corporation in resolving the issue, the widow along with the daughter filed the present writ petition. The petitioners claimed that the increment due to the deceased for the year 1997 was not sanctioned. His gratuity amount for the period of service rendered by him from 31.10.1983 upto the date of his death was not finalized, the periods that he remained out of service were not regularized and his earned leave encashment was left unsettled. In the counter filed on behalf of the Government of Andhra Pradesh, it was admitted that the petitioners, being the legal heirs of the deceased employee, were entitled to claim his terminal benefits. It was further stated that the Corporation had regulated the gaps in the service of the deceased employee between the dates 25.11.1996 and 14.08.1998 under proceedings dated 08.06.2007 against the earned leave of 144 days and the half pay leave of 180 days. The Corporation was also said to have sanctioned the increment due on 01.01.1997 vide proceedings dated 08.06.2007. While admitting the legal position under Fundamental Rule 54-B (2) with regard to treatment of the period of suspension undergone by a deceased employee against whom disciplinary proceedings remained incomplete, the Government disputed the applicability of the said Rule to the present case as the deceased had already been reinstated and was not under suspension at the time of his death. The Government however admitted that the enquiry against the deceased was not completed during his life time and that the report was submitted by the enquiry officer only under letter dated 25.05.2000. The Government further stated that as the employee had expired, the disciplinary proceedings were disposed of by directing recovery of the amount found to be due from him duly treating the period of his suspension as leave to the extent of his eligibility. In a separate counter, the Corporation echoed the stand taken by the Government in its counter. The non-drawal certificate dated 08.06.2007 filed by the Corporation along with its counter however demonstrated that the increment and the leave sanctioned were not claimed and therefore required to be processed and settled even as on that date. The letter dated 08.06.2007 addressed by the District Manager of the Karimnagar Branch of the Corporation to the Managing Director of the Corporation also bears out this aspect as sanction was requested thereunder in respect of the earned leave so as to regularize the employee’s services for release of his terminal benefits. Under separate proceedings of the same date, the District Manager of the Corporation, Karimnagar Branch, stated that a sum of Rs.21,000/- had to be recovered from the dues of the deceased employee towards adjustment against the pay advance claimed by the employee from January, 1997 to July, 1997. In her reply affidavits filed in response to the above counter affidavits, the widow disputed the stand of the respondents as to the inapplicability of Fundamental Rule 54-B (2) to the case of her late husband. She also explained as to why she deemed it fit to return the cheques issued by the Corporation for sums of Rs.14,560/- and Rs.18,609/-, towards the amounts allegedly due and payable to the deceased. She however admitted receipt of a sum of Rs.74,325/- towards her husband’s gratuity. Heard Sri K.Ramakoteswara Rao, learned counsel for the petitioners, and Sri K.Mohan Rami Reddy, learned Standing Counsel for the Corporation. The issue that falls for consideration is as to the validity of the approach adopted by the Corporation in dealing with the entitlement of the petitioners to various terminal benefits due and payable to the deceased employee. A copy of the enquiry report dated 25.05.2000 is placed before the Court and reflects that the Enquiry Officer was not even aware of the death of the charged officer when he rendered his findings. Needless to state, the enquiry could not have been continued against a dead officer. Therefore the report dated 25.05.2000 and the findings recorded therein stand vitiated. Reference in this regard may be made to the judgment of the Supreme Court in BASUDEO TIWARY V/s. SIDO KANHU UNIVERSITY[1]. The Supreme Court was dealing with a case of illegal termination of a Lecturer from service without notice. However, he died thereafter during the pendency of the proceedings. Holding that the termination of his services could not be sustained, the Supreme Court, taking note of his demise during the pendency of the proceedings held that no further direction as to further enquiry or reinstatement could be given. As the termination was rendered invalid, the Court opined that it would be deemed that he died in harness and would be entitled to payment of salary from the date of his termination upto the date of his death. In PRL. SECRETARY TO GOVERNMENT, AGRL. & CO-OP. DEPT, GOVERNMENT OF A.P. V/s. AHMED BEGUM[2], a Division Bench of this Court was dealing with a case where the employee died during the pendency of the departmental enquiry. In such a situation, the Bench was of the opinion that the departmental enquiry could not be continued by substituting the legal representatives of the deceased employee in his place. The Bench observed that if the same was permitted, it would be grossly violative of the principles of natural justice. The disciplinary proceedings in the present case therefore ought not to have continued after the death of the charged officer. It is contended on behalf of the Corporation that even if this be the legal position, in the event any financial loss is caused to the employer, the estate of the deceased employee would be bound to recompense the employer to that extent. Reliance in this regard is placed on Rule 9(7) of the Andhra Pradesh Revised Pension Rules, 1980. Rule 9(7) reads as under: “9. Right of Government to withhold or withdraw pension: … (7) 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 (or local authority dues) from the Retirement Gratuity. For this purposes, 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 a 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, a 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 servants due to negligence and the net amount of Retirement Gratuity payable to the retired Government servant.” It is relevant to note that this Rule came into existence only in the year 2002. Further, it deals with a situation where the employee was neither charge-sheeted nor called upon to explain why the loss caused by him should not be recovered prior to his retirement/death. It does not deal with the situation of an employee dying during the disciplinary proceedings, thereby rendering the same incomplete and futile. In any event, the said Rule can have no retrospective effect and cannot be applied to the facts of the present case, as the charged officer admittedly died in the year 1999. The findings recorded by the Enquiry Officer in his report dated 25.05.2000 and the subsequent action of the disciplinary authority in directing recovery of sums based on such disciplinary proceedings cannot therefore be countenanced, being devoid of legal sanction. In so far as the period of suspension undergone by the charged officer from 29.05.1998 to 23.05.1999 is concerned, Sri K.Ramakoteswara Rao, learned counsel, placed strong reliance on Fundamental Rule 54-B(2). It is his case that the same would be squarely applicable to the case on hand and the respondents were not justified in denying the benefit thereof to the petitioners on wholly untenable grounds. On the other hand, Sri K.Mohan Rami Reddy, learned Standing Counsel, relying on the fact that the charged officer was reinstated in service upon revocation of the suspension prior to his death, contended that the said Rule would have no application as per its clear language. Fundamental Rule 54-B(2) reads as under: “F.R. 54-B (1) … (2): Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. … ” The thrust of the Rule as is apparent from a plain reading thereof is that if a Government servant dies before conclusion of the disciplinary proceedings, his period of suspension shall be treated as on duty for all purposes and his family would be entitled to full pay and allowances for the said period. Merely because the Rule refers to ‘a Government servant under suspension’ dying before the disciplinary proceedings are concluded, it would not exclude those whose suspension stood revoked but who died prior to the conclusion of the disciplinary proceedings. A contrary view would mean a distinction/disparity being drawn between Government servants against whom disciplinary proceedings did not conclude prior to their death only on account of their suspension being continued or being revoked prior to their demise. Such a classification would be neither rational nor reasonable and would be violative of Article 14 of the Constitution. The period of suspension undergone by such an employee must therefore be treated as on duty, the emphasis of the rule being upon the incomplete disciplinary proceedings at the time of his death. The charged officer in the present case having died before the conclusion of the disciplinary proceedings would therefore fall within the protective umbrella afforded by the aforestated Rule. The action of the respondents in treating the period of his suspension pending such incomplete disciplinary proceedings as on leave therefore cannot be countenanced. Such period of suspension should necessarily be treated as on duty with concomitant full pay and allowances. The facts aforestated further demonstrate that the petitioners’ claim in respect of the sanctioned increment and the adjustment of the periods not on duty against the earned leave still require to be settled. After such adjustment, the petitioners would be entitled to the encashment of the balance leave available in the account of the deceased. These benefits therefore require to be finalized and paid. Sri K.Ramakoteswara Rao, learned counsel, contended that as per the policy of the Government, advances and loans availed by deceased employees are to be waived. However, the learned counsel was not in a position to substantiate that this policy of waiver covers a pay advance, such as was availed by the deceased employee during his life time. Therefore, the amount of Rs.21,000/-, being recoverable from the deceased employee on this count, would necessarily have to be deducted from the sums due and payable to the petitioners. Except for this amount, the respondents would not be entitled to withhold or recover any other amounts. The actual sums due and payable in respect of the other accounts detailed above therefore require to be finalized and settled giving due effect to this order apropos the disciplinary proceedings as well as the period of suspension. This exercise shall be completed by the A.P. State Housing Corporation Limited within two (2) months from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicated above. No order as to costs. --------------------------- SANJAY KUMAR,J ______NOVEMBER, 2010 PGS [1] (1998) 8 SCC 194 [2] 2001(2) ALD 85