Andhra Pradesh High Court - Amravati

Karri Himabindu, vs The State Of A.P. on 6 September, 2024

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 APHC010518422021
                      IN THE HIGH COURT OF ANDHRA PRADESH
                                    AT AMARAVATI                                    [3310]
                             (Special Original Jurisdiction)

                    FRIDAY ,THE SIXTH DAY OF SEPTEMBER
                      TWO THOUSAND AND TWENTY FOUR

                                      PRESENT

           THE HONOURABLE DR JUSTICE K MANMADHA RAO

                        WRIT PETITION NO: 30952/2021

Between:

Karri Himabindu,                                                          ...PETITIONER

                                          AND

The State Of A P and Others                                        ...RESPONDENT(S)

Counsel for the Petitioner:

   1. T S N SUDHAKAR

Counsel for the Respondent(S):

   1. GP FOR SERVICES III

   2. K SWARNA SESHU

The Court made the following:

ORDER:

The Writ Petition is filed under Article 226 of the Constitution of India,

seeking the following relief:

".....declaring the action of the respondents in issuing the impugned recovery orders vide proceedings Lr.No.RC/ENC/F2/5872/2010, dated 07.10.2021 issued by the 2nd respondent recovering the amount of Rs.8,35,542/- from the petitioner monthly family pension without any notice is highly illegal, arbitrary, unjust, improper, contrary to orders of Hon'ble Apex

Court and violation of Article 14, 16 and 21 of the Constitution of India apart from violation Principles of Natural Justice and set aside the same and consequently direct the respondents to release the total pension (remaining 25%) of the petitioner Husband and any other pensionary benefits to the petitioner and pass such other order or orders......"

2. The case of the petitioner is that the husband of the petitioner by name

K.Muralidhar, while working as In-Charge Superintending Engineer, retired

from service on attaining the age of superannuation on 31.10.2010 and during

pendency of pension proposals before the authorities, the petitioner's husband

died on 14.06.2011. While so, without giving any notice or any opportunity to

the petitioner, the 2nd respondent straight away issued the impugned order

vide proceedings Lr.No.RC/ENC/F2/5872/2010, dated 07.10.2021 recovering

an amount of Rs.8,35,542/- from the petitioner's monthly family pension,

which is illegal and arbitrary. Hence the present writ petition is filed.

3. This Court vide order dated 31.12.2021, passed the interim order which

reads as under:

"Considering the submissions made by learned counsel for the petitioner and perusing the judgment of the Hon'ble Division Bench in Writ Petition No.21465 of 2008, dated 29.09.2008, there shall be interim stay as prayed for."

4. The 1st respondent filed counter. While denying the contents of the writ

petition, stated that, the husband of the petitioner has committed irregularities

in execution of repairs/replacement of electrical panel boards leading into

endangering the operational efficiency of gates in SAC Barrage, due to which

articles of charges were issued to him vide G.O.Rt.No.1003, Irrigation and

CAD (IW.Ser.X.2) Department, dated 01.08.2008 and an inquiry officer was

appointed to enquire into the matter. While so, the husband of the petitioner

expired on 14.06.2011, due to which, the Government issued abatement

orders withdrawing further action on the charges framed against the deceased

vide G.O.Rt.No.199 Irrigation and CAD (Ser.X.2) Department, dated

21.02.2012, subject to the condition that if any loss caused to the

Government, that would be recovered from the legal heirs of the deceased

employee. Further stated that at the request made by the petitioner, who is

the wife of the deceased employee Mr.K.Muralidhar, the Government have

issued orders to sanction the balance 25% of the full pension to the petitioner,

with a condition that if any loss caused to the Government, it would be

recovered from the legal heirs of the deceased, accordingly full pension was

released to the petitioner.

5. The 1st respondent further stated that after conclusion of the disciplinary

proceedings, the Government issued orders to recover an amount of

Rs.8,35,542/- i.e. 33.33% from the legal representatives of the deceased

K.Muralidhar, equally along with other two retired employees Mr.Y.Raja Babu

and Mr.J.V.V.Bhanu Murthy, who were also committed irregularities in the said

Barrage works. A notice regarding the said recovery was issued to the

petitioner, hence the contention of the petitioner that without giving any notice,

the respondent authorities issued the impugned order, is not correct. Further

stated that there is no delay in issuing the impugned notice by the respondent

authorities. Hence sought for dismissal of the writ petition.

6. Heard Mr.T.S.N.Sudhakar, learned counsel appearing for the petitioner,

learned Assistant Government Pleader for Services-III, appearing for the

respondents 1 and 2 and Mr.K.Swarna Seshu, learned Standing Counsel,

appearing for the 3rd respondent.

7. Perused the material available on record.

8. On hearing, learned counsel for the petitioner relied on the judgment

passed by the Division Bench of erstwhile High Court in W.P.No.21465 of

2008, dated 29.09.2008, wherein this Court observed as follows:

"Admittedly, the respondent's husband retired from service on 31.1.2005 and he died on 15.6.2005 in a road accident and the disciplinary proceedings initiated against him were abated due to his death and that in the said enquiry neither the respondent's husband filed any explanation nor had he participated in the proceedings. In view of the abatement of the disciplinary proceedings, the orders in G.O.Rt.No.1075, Panchayat Raj and Rural Development (Vig.I(A)) Department dated 31.7.2006 ought not to have passed basing on G.O.Ms.No.995 Finance (Pension- I) Department, dated 21.12.2002 for recovery of the alleged loss caused to the Government. Once the disciplinary proceedings were abated due to the death of the respondent's husband, passing orders dated 31.7.2006 for recovery of amount against the respondent's husband would not arise and the Tribunal has rightly allowed the O.A. setting aside the impugned order therein.

Therefore, we do not find any infirmity in the impugned order dated 17-06-2008, so as to call for interference by this court in exercise of its jurisdiction under Article 226 of the Constitution and the writ petition is liable to be dismissed."

9. Learned counsel for the petitioner also relied on the judgment of the

Hon'ble Supreme Court in the case of State of Punjab and others v. Rafiq

Masih (White Washer) and others 1 , wherein the Hon'ble Supreme Court

held at para 18, which reads as follows:

"It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-

IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) ......"

10. On perusal of the above judgments, this Court is of the opinion that

since the deceased employee, who is the husband of the petitioner died

during disciplinary proceedings pending against him, due to which, the

disciplinary proceedings initiated against him were abated, and in the inquiry

proceedings neither the petitioner's husband filed any explanation nor had he

participated in the proceedings, mere issuance of the impugned notice by the

respondent authorities, is not proper and correct and hence it is liable to be

set aside.

(2015) 4 Supreme Court Cases 334

11. Accordingly, the Writ Petition is allowed and the impugned recovery

order vide proceedings Lr.No.RC/ENC/F2/5872/2010, dated 07.10.2021

issued by the 2nd respondent, is hereby set aside. Further, the respondent

authorities are directed to release the total pension (remaining 25%) of the

petitioner's husband along with other pensionary benefits, if any, to the

petitioner herein within a period of four (04) months from the date of receipt of

a copy of this order. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand

closed.

________________________ DR. K. MANMADHA RAO, J.

ARR