Andhra Pradesh High Court - Amravati
Constitution Of India Is Filed For The ... vs State Of Maharashtra on 13 July, 2023
Author: D.Ramesh
Bench: D.Ramesh
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No.31547 of 2022
ORDER:
This Writ Petition under Article 226 of the Constitution of India is filed for the following relief:-
"......to issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the Respondents for not processing the proposals for payment of pensionary benefits and other terminal benefits of Late Gutta Radha Krishna, worked as Deputy Director of Fisheries, Eluru, to the petitioner and not forwarding the same to the Office of Accountant General, Vijayawada, for early sanction of family pension, gratuity, etc. as bad, arbitrary and contrary to Pension Rules as well as G.Os issued by the Government from time to time and also offends Arts. 14 & 21 of the Constitution of India and to pass such other or further orders......."
2. Heard the learned counsel for the petitioner and Sri G.V.S Kishore Kumar, learned Government Pleader for Services-I appearing for respondents.
3. The Writ Petition is filed to declare the action of the respondents for not processing the proposals for payment of pensionary benefits and other terminal benefits of late 2 Gutta Radha Krisha, worked as Deputy Director of Fisheries, Eluru, to the petitioner and not forwarding the same to the Office of Accountant General, Vijayawada, for early sanction of family pension, gratuity, etc., which is contrary to Pension Rules.
04. The husband of the petitioner herein late Sri Gutta Radha Krishna who died on 21.04.2021 due to COVID-19 while in service and worked as Deputy Director of Fisheries, Eluru. The deceased husband of the petitioner has joined in the service on 22.02.1983 and had put up about 38 years of service without any remarks and no disciplinary proceedings were initiated against him and worked as Deputy Director of Fisherires, Eluru, and he was kept as Joint Director (FAC) for a short period i.e., from 01.06.2020 to 23.09.2020 and thereupon he held his office as Deputy Director of Fisheries, Eluru.
05. After death of the husband of the petitioner i.e., late Sri Gutta Radha Krishna, Deputy Director of Fisheries, Eluru, petitioner made a representation for payment of retirement and pensionary benefits which are due to her husband. Repeated requests were made by the petitioner for payment of retirement and pensionary benefits. But the 3 respondents have stated that they have lodged the complaint dated 15.07.2021 to the Station House Officer, III-Town Police Station, Eluru against one S.Padmanabha Murthy, Assistant Director (Admn.) and Kodamanchi Jyotsna, Fisheries Development Officer and Devaguptapu Venkata Ananta Sai Koundinya, Assistant Inspector of fisheries on the ground of misappropriation of the funds from the bank accounts of Office of Joint Director Fisheries, Eluru and accordingly, the concerned Station House Officer has taken up the complaint and registered the case on 20.07.2021 in F.I.R.No.722 of 2021, under Sections 409, 420, 468, 471, 120-B I.P.C. As the deceased husband of the petitioner worked as Joint Director only for a period of three (03) months and there is no complaint against him, the criminal case which is lodged has nothing to do with the deceased husband. Subsequently, the petitioner has made several representation including representations on 02.02.2022 and 10.02.2022, but the respondents have not forwarded the pension proposals to the concerned authorities and not taken any step for release of retirement benefits. Questioning the inaction of the respondents, the present Writ Petition is filed. 4
06. After notice, the respondents have filed their counter. According to the counter, Sri G.Radha Krishna, Deputy Director of Fisheries, Eluru, who worked also as Joint Director of Fisheries (FAC), West Godavari in the erstwhile district from 01.06.2020 to 23.09.2020 and surrendered to the Commissioner of Fisheries, Vijayawada due to disobeying of Hon'ble High Court Orders in W.P.No.16321 of 2020 by the erstwhile District Collector, West Godavari and worked as a Deputy Director of Fisheries, Machilipatnam, erstwhile Krishna Distirct on deputation basis and passed away on 21.04.2021 due to COVID-19.
07. The Commissioner of Fisheries, Vijayawada appointed a team of Officers to verify the office records and fund transactions in the office of the Joint Director of Fisheries, Eluru i.e., erstwhile West Godavari District, to verify any occurrence of misappropriation of funds. Later Joint Director of Fisheries, Kakinada, submitted report vide letter dated 02.07.2021 that the misappropriation of the fund took place in the said office. Basing on that report, the Government, AH, DD & F Department has requested to refer the matter to Vigilance and Enforcement Department to find out the fact regarding misappropriation vide letter dated 06.07.2021. Accordingly, the Vigilance and 5 Enforcement Department has taken up the case and investigation is going on.
08. Further it is stated that an amount of Rs.2,47,73,500/- (Two Crores Forty Seven Lakhs and Seventy Three Thousand Five Hundred Rupees only) has been misappropriated. Based on the above report, the complaint has been lodged in III-Town Police Station, Eluru and the same is registered as F.I.R.No.722 of 2021.
09. It is also further submitted in the counter that the Joint Director of Fisheries Eluru has forwarded the pension proposals dated 31.08.2021 in respect of late G.Radha Krishna, Deputy Director of Fisheries, who expired on 21.04.2021 to the Commissioner of Fisheries Vijayawada, Andhra Pradesh for onward submission to the Accountant General, A.P.Vijayawada. Further, Commissioner of Fisheries addressed the Government to clarify whether to process the pensionary benefits of Sri G.Radha Krishna, Deputy Director of Fisheries, Eluru and other terminal benefits vide letter dated 05.11.2021, as huge amount has been misappropriated during the tenure of Sri G.Radha Krishna, Joint Director of Fisheries (FAC), Eluru, West Godavari District.
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10. Further, they have relied on G.O.Rt.No.1097, Finance and Planning Department dated 22.06.2000 that an action against a retired officer who commits irregularities can be taken on three counts, 1. Criminal prosecution, 2. Disciplinary action and 3. Recovery of the amount. In case of the death of the Retired officer, action of first two counts will be abated but as per order issued in the G.O.Ms.No.85, Finance and Planning Department dated 12.07.1999, the loss or mis-appropriated amount can be recovered from the terminal benefits of the retired officer.
11. In view of the above, the Vigilance & Enforcement Department is conducting investigation in the erstwhile Districts of West Godavari and as per the instructions, the deceased Government servant's Criminal prosecution and Disciplinary action only stands abated, but not on the aspect of Recovery of the amounts. The recovery in such cases shall be from the terminal benefit, i.e., retirement gratuity/commuted value of pension/encashment of leave. In view of the same, it is not possible for the authority to release any pension benefits since the rule permits the amount, which is termed to be misappropriated, the same can be recovered from the legal heirs of the deceased employee. Hence, prays for dismissal of the Writ Petition. 7
12. Based on the above pleadings, the learned counsel appearing on behalf of the petitioner has made reliance on the following Rules of A.P. Revised Pension Rules, 1980 (hereinafter called as Act).
13. The Rule 9 (1) of Act which reads as follows:-
(1) The Government reserves to themselves the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specific period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
Provided that the Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed. 1["However, consultation with Andhra Pradesh Public Service Commission is not necessary, when the pensioner is found guilty in any judicial proceedings".] Provided further that a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45] 2"Provided also that the penalty of withholding of entire pension or gratuity or both may be imposed against the retired Government servant upon being found guilty or upon conviction in a court of law for the offences of grave charges namely proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, 8 forgery, outraging the modesty of women and misconduct."
14. Rule 8 of the Act reads as follows:-
8. When a Government servant dies before conclusion of the disciplinary proceedings, the family pension beneficiary or legal heir is entitled to receive the balance of 25% or remaining part of the full pension, as the case may be, and the further proceedings shall abated.
15. Based on the above provisions learned counsel for the petitoner submitted that the Government can withhold the pension of Government servant only upon being found guilty or upon conviction in a court of law for the offences of grave charges namely proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of women and misconduct. In the instant case there is no disciplinary proceedings as well as criminal proceedings pending against the petitioner. Hence, the question of withholding the pensionary benefits of the petitioner would not attract the proviso of Rule 9 (1) of the Act. As per Rule 8 of the Act, the family pension beneficiary or legal heir is entitled to receive the balance of 25% or remaining part of the full pension, as the case may be, and the further proceedings shall abated. In the instant case no proceedings are initiated against the petitioner. If any 9 proceedings are initiated also, by virtue of Rule 8, they stand abated.
16. Basing on the above contentions, she also relied on the orders passed by High Court of Madhya Pradesh in W.P.No.17214 of 2017 which is identical to the present case. The Court has interpreted in that as follows:-
"In the aforesaid matter, the petitioner died on 14.03.2017 during the pendency of writ petition, therefore, the Court has held that even there had been any power in the rules vested to respondent No. 2 to conduct the inquiry after superannuation, now it would not have been possible for him to conduct inquiry and quashed the order impugned and directed to release the amount of gratuity of petitioner as paid by the petitioner in that petition.
Similar matter was also for consideration before the Bombay High Court in the case of Hirabhai Bhikanrao Deshmukh Vs. State of Maharashtra and another (1985) ILLJ 469 Bom decided on 10.10.1984, the Court has clearly held that provision with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Relevant Paragraph No. 6 of the judgment is being quoted below:-
"6. The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Such proceedings are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, 10 if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of the proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contract of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We think that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Services Rules."
Similar dispute has also come before the Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors. 2001 (49) BLJR 2179 decided on 01.05.2001, the Court after following the decision of Bombay High Court had taken the same view and directed the respondents to pay all post retiral benefits to the widow. Relevant Paragraph Nos. 9 and 10 of the judgment are being quoted below:-
"9. In the instant case admittedly the delinquent- employee died on 24.3.1999 and the Enquiry Officer submitted his report on 30.8.1999. In the enquiry report (Annexure F) the Enquiry Officer took notice of the fact that the delinquent-employee died on 24.3.1999. The Enquiry Officer further took notice of the fact that the delinquent-employee had requested the respondents to keep the departmental proceeding in abeyance till the disposal of the case pending before him. However, the Enquiry Officer after the death of delinquent employee 11 called upon the respondents and on the basis of documents produced by them submitted enquiry report and on the basis of that report a formal order of dismissal was passed. In my opinion therefore the manner in which respondents proceeded with the departmental proceeding against the delinquent- employee, the enquiry report as well as the order of dismissal is vitiated in law and is null and void. I am, further of the view that the widow of the deceased employee cannot be deprived of her legitimate claim of death-cum-retirement benefits on the ground of dismissal of the employee on the basis of departmental proceeding initiated after 6 years of the order of suspension and that to on the basis of enquiry report submitted by the Enquiry Officer after proceeding ex parte against the deceased- employee who died much before the date when the Enquiry Officer proceeded with the matter and submitted his report.
10. For the reasons aforesaid, this writ application is allowed and the respondents are directed to release all the death-cum-retirement dues in favour of the petitioner, who is widow of the deceased employee as expeditiously as possible and preferably within a period of 30 days from the date of receipt/production of copy of this order."
17. Learned counsel for the petitioner submits that Hon'ble High Court of Madhya Pradesh has allowed the Writ Petition by directing the respondents to release all the death cum retirement benefits of the deceased husband of the petitioner therein. In the above matter the departmental proceedings were initiated against the deceased husband of the petitioner therein. But in the 12 instant case no criminal case or departmental proceedings pending against the deceased husband of the petitioner. Hence, at any stretch, when there are no proceedings pending against the deceased husband the respondents are not entitled to withhold the pension and retirement benefits which are due to the deceased husband.
18. Refuting the said contentions, the learned Government Pleader appearing on behalf of the respondents has contended that instructions issued vide G.O.Rt.No.1097 dated 22.06.2000 has categorically stated that the terminal benefits to be sanctioned to a retired Government employee is as follows:-
1. Family Benefit Fund
2. Andhra Pradesh Group Insurance Amount
3. General Provident Fund amount
4. Andhra Pradesh Government Life Insurance amount
5. Encashment of Earned Leave
6. Retirement Gratuity
7. Pension/Provisional Pension
8. Commuted Value of Pension 13 Only the following amounts shall be released to the retired employee since no recoveries can be made from these amounts.
1. Family Benefit Fund
2. Andhra Pradesh Group Insurance Scheme
3. General Provident Fund
4. Andhra Pradesh Government Life Insurance The other benefits such as Encashment of Earned Leave, Retirement Gratuity, Provisional Pension and Commuted Value of Pension cannot be released due to amendment in Act, by way of G.O.Ms.No.85 dated 12.07.1999. And also, in Rule 9 of the Act, they have categorically stated that on demise of the Government Servant the criminal and disciplinary proceedings only stands abated. But the disciplinary proceedings which are relating to the misappropriation of Government funds shall not be abated and they would continue by bringing the legal heirs on record for the purpose of recovery of amounts. Hence, as per the above averments the authorities would process the application of the petitioner for pensionary and retirement benefits after conclusion of the proceedings which are pending before the Vigilance and Enforcement Department.14
19. Based on the above arguments, this Court is inclined to see the provisions, especially amendments made vide G.O.Ms.No.85, dated 12.07.1999 which manifestly clarifies that if any disciplinary proceedings are initiated or pending against the deceased servant, would be automatically abated and with regard to misappropriation of amounts the authorities are entitled to proceed against them by bringing legal heirs on record. But in the instant case no such record is forthcoming so far. They have not initiated any criminal case or disciplinary proceedings against the deceased employee. When there is no disciplinary proceedings or criminal case which is pending against the deceased employee the question of bringing the legal heirs on record would not arise. Hence, the amendment which was relied by the respondents would not applicable in the instant case. When such is the situation, this Court has no hesitation to declare that the petitioner is entitled to get the retirement benefits which are enumerated in G.O.Rt.No.1097 dated 22.06.2000. Averments made in the counter also clarifies that the respondents are at the stage of fact finding situation. If at all the respondents have found that the deceased officer is also involved in misappropriation of the amounts of the state, then they 15 would proceed against the legal heirs of the deceased employee by initiating separate proceedings as per law. But in the instant case no such proceedings are pending. Hence, there shall be a direction to the respondents to release all pensionary benefits and retirement benefits which are enumerated in G.O.Rt.No.1097 dated 22.06.2000 and process the application of the petitioner to the concerned authority as expeditiously within a period of two months from the date of receipt of the order.
20. With the above said directions, the present Writ Petition is disposed of. There shall be no order as to costs of the Writ Petition.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
_____________________ JUSTICE D.RAMESH Date : 13.07.2023 DNV 16 THE HONOURABLE SRI JUSTICE D.RAMESH WRIT PETITION No. 31547 of 2022 Date: 13.07.2023 DNV