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2023 DIGILAW 1448 (AP)

State of Andhra Pradesh v. Y Nagamani

2023-11-09

G.NARENDAR, NYAPATHY VIJAY

body2023
JUDGMENT NYAPATHY VIJAY, J. - The present Intra-Court Appeal is filed questioning the order in W.P.No.26796 of 2021 dtd. 3/5/2023 rejecting the Writ Petition. 2. The brief facts of the case leading to the present Writ Appeal are as under:- The husband of the Appellant late Y.S.A.V.S.R.K. Prasad retired from Government Service on 20/2/2019 and had expired on 27/1/2020. While the husband of the Appellant was in Government Service, a Charge Memorandum vide G.O.Rt.No.13 A and C (Vig.III) Department, dtd. 16/1/2017 was issued under Rule 20 of A.P. Civil Services (CCA) Rules, 1991 where under a solitary Charge was framed. 3. The Charge was that late Y.S.A.V.S.R.K. Prasad while working as Deputy Executive Engineer (AM), Vijayawada had failed to discharge his legitimate duties and failed to follow prescribed procedures and had committed irregularities in the execution of construction of 500 MT Godown Nos.1, 2 & 3 in Market Yard at Gollapudi of Agricultural Market Committee and in execution of 500 MT godown in Market Yard @ Tiruvuru of Agricultural Market Committee. It was alleged that late Y.S.A.V.S.R.K. Prasad failed to follow prescribed procedures laid down for calculation of price escalation with reference to Agreement conditions relevant Circulars and Government Orders. 4. Thereupon, enquiry was conducted and the enquiry report was submitted on 18/3/2020 to the Government. On 2/6/2020, a Memo enclosing the report of Enquiry Officer was sought to be served on late Sri Y.S.A.V.S.R.K. Prasad and then the Respondent No.2 informed the Government about the demise of late Y.S.A.V.S.R.K. Prasad on 27/1/2020. 5. Vide G.O.Rt.No.841 dtd. 11/12/2020, Government ordered for abatement of further action against late Y.S.A.V.S.R.K. Prasad under Rule 9(7)(a) of A.P. Revised Pension Rules, 1980 considering his demise on 27/1/2020. Further, under the same G.O.Rt.No.841, loss caused by deceased delinquent late Y.S.A.V.S.R.K. Prasad to Government amounting to Rs.12, 56, 931.00 was directed to be recovered from the legal heirs under Rule 9(7) of A.P. Revised Pension Rules, 1980. 6. The G.O.Rt.No.841 to the extent of order of recovery from the legal heirs was the subject of challenge in W.P.No.26796 of 2021. The Writ Petition was allowed holding that the disciplinary proceedings abate ab initio on the death of delinquent i.e., from inception and that the delinquent's wife is entitled for all the terminal benefits irrespective of Rule 9(7) of the A.P. Revised Pension Rules, 1980. 7. The Writ Petition was allowed holding that the disciplinary proceedings abate ab initio on the death of delinquent i.e., from inception and that the delinquent's wife is entitled for all the terminal benefits irrespective of Rule 9(7) of the A.P. Revised Pension Rules, 1980. 7. In the present Appeal, the Learned Government Pleader for Services-II mainly emphasized on Rule 9(7) and 9(8) of A.P. Revised Pension Rules, 1980 to substantiate the plea that Government is entitled to recoup the loss from the retirement gratuity of the deceased delinquent. The Counsel for Respondent/Writ Petitioner contended that on the death of the delinquent, the enquiry stood abated and the question of recovery from the legal heirs would not arise. 8. The point for consideration in this appeal is whether the Government is entitled to recoup the loss from the legal heirs on the death of the delinquent before conclusion of disciplinary proceedings. 9. The erstwhile Rule 9(7)(a) as amended vide G.O.Ms.No.85 dtd. 12/7/1999 provided for abatement of all disciplinary cases on the death of the delinquent, except those disciplinary cases where the Government suffered pecuniary loss or where Government amounts were misappropriated. The Rule also provided for concluding the disciplinary proceedings by bringing on record the legal representatives of deceased delinquent for the purpose of recovery of the pecuniary loss. 10. The Andhra Pradesh Vigilance Commission vide Letter dtd. 10/7/1999 to the Government had expressed serious doubt of the practicability of the procedure laid down and the legality of such action for recovery of dues to the government under the erstwhile Rule 9(7)(a) as amended vide G.O.Ms.No.85 dtd. 12/7/1999. 11. The Government taking into consideration the letter of the Andhra Pradesh Vigilance Commission, amended Rule 9(7) vide G.O.Ms.No.995, dtd. 21/12/2002. In the objects and reasons for the amendment, the reasons are that G.O.Ms.No.85 dated 12. 7.1999 was issued under incorrect understanding of legal position. The paragraph no.2 of G.O.Ms.No.995 dt.21/12/2002 reads as under; "2. In the reference 2nd read above, A.P. Vigilance Commission have expressed serious doubt of the practicability of the procedure laid down and the legality of such action for recovery of dues to Government occasioned on account of the delinquent officer after his death from his pension and gratuity. The paragraph no.2 of G.O.Ms.No.995 dt.21/12/2002 reads as under; "2. In the reference 2nd read above, A.P. Vigilance Commission have expressed serious doubt of the practicability of the procedure laid down and the legality of such action for recovery of dues to Government occasioned on account of the delinquent officer after his death from his pension and gratuity. The rule deals with a situation where a Government Servant dies before the conclusion of disciplinary proceedings where the loss caused or the amount misappropriated by the Government servant is established. There cannot be a question of loss or misappropriation being established where the Government Servant dies before the conclusion of the disciplinary proceedings. The rule further provides for the competent authority to bring the legal heirs on record to conclude disciplinary proceedings: Clause (b) of sub-rule (7) deals with a situation where the disciplinary proceedings are concluded but the Government Servant dies before imposing penalty or receipt of the order of penalty Disciplinary proceedings can be considered to be complete, the moment, orders on findings and penalty thereon are passed and issued. If the Government Servant dies before this stage, it cannot be said that disciplinary proceedings is concluded. The amendment to rule seems to have been issued on the basis of "incorrect understanding of the legal position". Therefore, the Government after careful consideration have decided to amend the relevant rule in accordance with law, as personnel action dies with person." 12. The Rule 9(7) of the A.P. Revised Pension Rules, 1980 as amended vide G.O.Ms.No.995, dtd. 21/12/2002 omitted the enquiry against the legal representatives in disciplinary cases on the death of the delinquent and provided for abatement of disciplinary proceedings on the death of the delinquent. The Rule 9(7) of the A.P. Revised Pension Rules, 1980 as it stands today reads as under:- Rule 9(7): Even though a Government servant has retired from service and was not before his retirement chargesheeted 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 purpose, it shall not be neccessary 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 Gratutiy on account of Government dues or local authority dues or loss sustained by the Government servant due to negligence and the net amount of Retirement Gratuity payable to the retired Government servant.] 13. The above Rule 9(7) is an enabling provision to the Government to recover pecuniary loss caused to the Government and for the enabling Rule to apply; fundamentally there should be a conclusive determination of pecuniary loss. In the absence of any conclusive determination of pecuniary loss as mentioned in paragraph no.2 of the G.O.Ms No.995 as extracted supra, the Rule 9(7) has no application at all. 14. In the present case, the delinquent expired on 27/1/2020 even before the enquiry report dtd. 18/3/2020 was submitted to the Government for further action. On the death of the delinquent late Y.S.A.V.S.R.K. Prasad, the disciplinary proceedings abate i.e., from 27/1/2020 and no further action could have been taken thereon. 15. Coming to the argument with reference to Rule 9(8) of the A.P. Revised Pension Rules, 1980, the said Rule was introduced vide G.O.Ms No.76 dtd. 2/5/2011 and this Rule was introduced pursuant to the recommendation of the ninth pay revision commission of the state. The language of the Rule does not indicate its scope and applicability and to understand the scope and applicability of the Rule (8), reference was made to the recommendations of the ninth pay revision commission of the state. 16. The Chapter XVIII of the report of the ninth pay revision commission pertains to pensionary benefits. While considering provisional pension payable at para 17.49 and 17.50, it was noted that as per Rule 52 of A.P Revised Pension Rules, 1980 and Circular Memo No.979-B/5/A2/Pen-I/94 Department dtd.: 2/2/1994, the amount of Provisional Pension should not be less than 75% of admissible pension and requests were received from the associations for grant of balance 25% of pension for those individuals who died pending finalization of disciplinary proceedings. 17. 17. The ninth pay revision commission noted at para 17.50 as regards pension as under:- "As regards pension, however, in the case of death of the pensioner before conclusion of the proceedings it is not possible to establish whether the deceased pensioner was at fault or not, since the proceedings abate due to the death of the pensioner. However, since the pensioner died resulting in the abatement of the proceedings, benefit of doubt may be passed on to the pensioner in those cases. As such, the Commission recommends to pay the balance of 25% of the full pension to the family pension beneficiary or to the legal heir in cases where the pensioner died before the finalization of the enquiry and the further proceedings have abated." 18. The Government accepted the recommendation of ninth pay revision commission and introduced Rule 9(8) into the AP Revised Pension Rules, 1980 vide G.O.Ms No.76 dtd. 2/5/2011 giving the benefit of full family pension to the beneficiary or to the legal heir provisionally in cases where the pensioner died before the finalization of the enquiry. This Rule 9(8) introduced in the context of recommendations ninth pay revision commission with reference to provisional pension, the said Rule ought to have been introduced under Rule 52 which deals with provisional pension rather than under Rule 9. Be that as it may, The Rule 9(8) being to the benefit of the beneficiaries or heirs of the deceased pensioner, the reliance placed on Rule 9(8) to recover the pecuniary loss is misplaced. 19. This Court is therefore of the opinion that the relief granted by the Learned Single Judge does not warrant any interference. However, the reasoning of the Learned Single Judge that the disciplinary proceedings abate ab initio on the death of the delinquent cannot be subscribed by this Court. The abatement of disciplinary proceedings can only be from the date of death of the delinquent and to this extent, the order of the Learned Single Judge is set aside and the Writ Petition is partly allowed to this extent. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.