(Prayer: Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toto issue a writ order or a direction more particularly one in the nature of writ of certiorari calling for the records relating to OA.No.9780 of 2002 with CA.No.153/03 dated 15.9.2004 on the file of AP Administrative Tribunal, Hyderabad as being erroneous and illegal, and consequently quash the same and pass

IA NO: 1 OF 2006(WPMP 29252 OF 2006

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the orders of the Hon`ble AP Administrative Tribunal Hyderabad passed in OA.No.9780 of 2002 with C.A.153/03 dated 15.9.2004 pending disposal of the writ petition and pass)

Tuhin Kumar Gedela, J.

Heard,

The learned Government Pleader for Services-II, appearing for the State/petitioners.

1. The Writ Petition is filed against the orders passed in O.A.No.9780 of 2002 with C.A.No.153 of 2003, dated 15.09.2004 on the file of the A.P. Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”).

2. The parties are arrayed as mentioned in the Writ Petition.

3. The case of the State/petitioners is that Sri M.K.Viswanadham, who worked as Senior Accountant in the Treasuries and Account Department at Kurnool, the husband of the respondent herein while working as Senior Accountant at Srisailam, was put on as In-charge Sub-Treasury Officer at Srisailam. While working as Sub-Treasury Officer, he committed certain financial irregularities amounting to a loss of Rs.40,47,451/- and before issuance of the charge memo, the employee was placed under suspension in the year 1997 and thereafter, Articles of Charges were framed vide charge memo dated 28.03.1998. Further the respondent’s husband has not submitted his explanation to the charges and an Enquiry Officer was appointed to conduct the enquiry under A.P. Civil Services (CCA) Rules, 1991. The said Enquiry Officer issued notice to the charged officer, directing to appear for the enquiry and the charged officer in turn on 21.06.1999 submitted his explanation requesting to examine certain witnesses and thereafter not attended the enquiry.

4. The learned Government Pleader submitted that the enquiry was not only initiated against the charged officer (respondent’s husband), but also against several other officers who are involved in the said misappropriation of funds. Thereafter, the Enquiry Officer submitted a report holding that the charges are proved against the charged officers, including the respondent’s husband herein. Referring to the averments contained in the writ affidavit, he states that the respondent’s husband submitted a representation on 14.08.1997 wherein he has categorically stated that, to meet the medical expenditure towards the treatment of his daughter and also because of the encouragement of the Junior Accountant, he has withdrawn the amounts on the duplicate documents and requested to grant time for payment of amounts. The learned Government Pleader asserts that this itself establishes that the respondent’s husband has pleaded guilty of the alleged misappropriation of the Government Funds and as per the law laid down by the Hon’ble Supreme Court in (1999) 7 SCC 332, where a delinquent officer admits the guilt, no enquiry is necessary. As per the representation made by the charged officer on 14.08.1997, no regular enquiry was necessary to hold him guilty of misappropriation of Government Funds, but, however, to give him a fair opportunity, charges were framed and his defences were called for. The charged officer did not cooperate with the disciplinary authority and did not even submit his written defence. He further argued that there was no cooperation of the charged officer and the charged officer evaded his participation in the enquiry by taking one plea or the other. During the pendency of the disciplinary proceedings, the charged officer expired and enquiry proceedings were concluded ex parte. Thereafter, the Government issued orders abating the disciplinary proceedings as per rules keeping in view of the fact that death abates disciplinary action and necessary action was also taken to sanction pensionary benefits to the respondent. Further, the learned Government Pleader has contended that the Government is required to take action for recovery of the loss caused by the deceased officer and Article 300 of A.P. Financial Code, Volume-1, makes it clear that every endeavour shall be made by the Government to recover the loss. The department on verification of documentary evidence found that the deceased husband of the respondent was responsible for a loss of Rs.28,37,553/- and upon the confession made by the deceased himself that he misappropriated Rs.9,00,000/-, the department considered to recover the same from the Death-cum-Retirement Gratuity of the deceased as Rule 7 of A.P. Revised Pension Rules, 1980 gives such liberty to the department.

5. He also refers to the averments made in the writ petition that the Accountant General has authorized the Family Pension vide PPO.No.12-F- 003432, dated 13.02.2003 for Rs.3,825/- per month plus relief thereon and Gratuity of Rs.95,6256/- vide GPO.No.12-G-003432, dated 02.09.2003, that the Family Pension along with arrears from 18.07.1999 amounting Rs.1,92,422/- was paid on 17.03.2003 and the payment of Monthly pension is being paid regularly and the Gratuity amount was also sanctioned, that it was recovered towards the loss caused to the Government by the deceased husband of the respondent. It was further stated that the other benefits like FBF and GIS were also sanctioned to the respondent and that the Tribunal dismissed O.A.Nos.1280 of 2000 and 6869 of 2001 vide order dated 15.09.2004 and disposed of O.A.No.9780 of 2006, directing the respondents therein to take steps for release of the retirement benefits of the applicant’s husband to which the applicant is entitled to under the rules, if they are not released so far.

6. The learned Government Pleader made submissions that the Writ Petitioners/Government have a statutory right to recover the loss caused to the Government because of the action of the Government employee, while he was in service and the said loss can be recovered from the benefits payable to him or the same can be recovered from the terminal benefits payable to the legal heirs, in the case of the death of the Government employee and no consent of the legal heirs is necessary in terms of Sub-Rule (7) of Rule 9 of the A.P. Revised Pension Rules, 1980. He further contends that the Tribunal has failed to appreciate the averments mentioned in the counter-affidavit and on the basis of the averments mentioned in the O.A., disposed of O.A.No.9780 of 2002 vide order dated 15.09.2004.

7. The learned Government Pleader further contends that the Tribunal has only taken into consideration that the show cause notice dated 10.04.2001 was withdrawn by issuing G.O.Rt.No.2789, dated 06.11.2002 of Finance (Admn.I.Vig) Department, in view of the death of the Government employee and as per the advice of the Law Department, as the departmental proceedings stood abated due to the death of the employee during pendency of the proceedings. The learned Government Pleader has further stated that C.A.No.674 of 2005 was filed by the respondent herein alleging that other benefits such as GPF, Gratuity, Family Benefit Fund, Group Insurance, encashment of leave and regularization of suspension period from 13.08.1997 to 17.07.1999 and payment of full scale and incremental benefits for the said period, were not paid and therefore to punish the petitioners herein.

8. The learned Government Pleader has strenuously contended that mere cancelling the show cause notice dated 10.04.2001 against the deceased which was served on the legal heirs and further action in dropping against Sri M.K.Viswanadham (Late), Senior Accountant, Sub-Treasury Officer (I/C), Sub-Treasury, Srisailam, Kurnool district, does not eclipse the right of the Government to proceed further against the legal heirs. He further calls upon the Court to peruse G.O.Rt.No.2789, dated 06.11.2002, wherein the said show cause notice was cancelled upon coming to the conclusion that the disciplinary action is abated on the death of the delinquent officer. He urges the Court to allow the Writ Petition filed against the order of the Tribunal in O.A.No.9780 of 2002, dated 15.09.2004.

9. Per contra, though there is no representation on behalf of the respondent/applicant, it is deemed appropriate to verify the pleadings in the Original Applications filed before the Tribunal.

10. As could be seen from the order passed by the Tribunal dated 15.09.2004 in O.A.No.9780 of 2002 with C.A.No.153 of 2003, O.A.No.1280 of 2000 with V.M.A.No.575 of 2001 in O.A.No.6869 of 2001, to briefly state the purpose for which the Original Applications were filed are reproduced hereunder:-

                  “O.A.No.9780 of 2002 is filed under Section-19 of the Administrative Tribunals Act, 1985 to declare the action of the respondents 1 to 4 in not implementing the sanction order issued by the 5th respondent vide Procs.in Ref.No.P4/III/V-515/FP/59/2002-06/688, dt.22.7.2002 is illegal, arbitrary, and contrary to the provisions of Pension Code and Fundamental Rules, apart from violative of Articles- 14 and 16 of the Constitution of India and consequently direct the Respondents to forthwith implement the sanction order dated 22.7.2002 issued by the 5th Respondent and pay the pensionary benefits to the applicant.

                  C.A.No.153 of 2003 is filed under Section-17 of the Administrative Tribunals Act, 1985 to summon the respondents and punish them for willful violation and disobedience of the orders of the Tribunal dt.29.10.2002 in O.A.No.9780 of 2002.

                  O.A.No.1280 of 2000 is filed under Section-19 of the Administrative Tribunals Act, 1985 to declare that the action of the Respondents in not paying the pensionary benefits to the applicant and not considering her case for appointment on compassionate grounds is illegal and violative of Articles-14 and 16 of the Constitution of India apart from fundamental rules and consequently direct the Respondents to pay the pensionary benefits and also consider her case on compassionate grounds as Attender.

                  V.M.A.No.575 of 2001 is filed to vacate the interim orders dt.14.8.2000 in O.A.No.1280 of 2000.

                  O.A.No.6869 of 2001 is filed under Section-19 of the Administrative Tribunals Act, 1985 to declare the amended Rule-7(a) and (b) of A.P. Revised Pension Rules, 1980 issued in G.O.Ms.No.85, Finance and Planning Department, dt.12.7.1999 as null and void and set-aside the consequential proceedings issued by the 1st Respondent vide Memo No.20095/58/A2/Admn.1/98-2, dated 10.4.2001 in respect of applicant as unconstitutional apart from violative of Articles-14 and 16 of the Constitution of India and also violative of principles of natural justice and declare that the applicant is entitled for all pensionary benefits and also appointment on compassionate grounds.”

11. The order passed by the Tribunal throws light at paragraph Nos.11 and 12, which reads as follows:

                  “11. When the matter is taken up for hearing, it is represented by the learned Counsel for the applicants that the Government had issued orders in G.O.Rt.No.2789, Finance (ADMN-I-VIGILANCE) Department, dated 06.11.2002 cancelling the show cause notice dated 10.4.2001 against the applicant’s husband, and therefore, no further orders are necessary in respect of first two OAs., i.e., OA.NO.1280/2000 and OA.NO.6869/2001. It is also represented that though the Accountant General, Hyderabad has given necessary authorisation for paying family pension and also DCRG and other pensionary benefits, the applicant is in receipt of only family pension and therefore the respondents may be directed to release other retiral benefits if they have not been released so far.

                  12. In view of the representation made by the learned Counsel for the applicant, the two OAs., ie., OA.No.1280/2000 and OA.No.6869/2001 are disposed of as no further orders are necessary. As far as OA.No.9780/2002 is concerned, the Respondents are directed to take steps for releasing retiral benefits of the applicant’s husband to which the applicant is entitled under rules if they have not been released sofar, as the Government have issued orders in G.O.Rt.No.2789, Finance Department, dated 06.11.2002 cancelling the show cause notice dated 10.4.2001 against the husband of the applicant and dropping further disciplinary action initiated against the husband of the applicant. This exercise should be done within a period of eight weeks from the date of receipt of a copy of this Order. OA.No.9780/2002 is disposed of accordingly. In view of the above orders, no orders are necessary in CA and VMA, they are accordingly closed.”

12. The order passed by the Tribunal is a common order dated 15.09.2004, but the State has preferred the present writ petition only against the order passed in O.A.No.9780 of 2002, dated 15.09.2004 which can be presumed that the State is aggrieved only against the said order.

CONSIDERATION OF THE COURT:

13. The point to be considered in the present case is whether the Government can proceed against the legal representatives of the deceased when the disciplinary action gets abated and dropped in view of G.O.Rt.No.2789, Finance (Admn.I.Vig) Department, dated 06.11.2002.

14. A holistic reading of G.O.Rt.No.2789, dated 06.11.2002 entails that the Government has cancelled the show cause notice against the deceased which was served on the legal heirs and the further action is dropped against Sri M.K.Viswanatham (late husband of the respondent herein) on the ground that the disciplinary action gets abated as and when the delinquent officer dies while the departmental enquiry is pending.

15. This Court is not venturing into the other facts of the case since they are not denied and the only thrust in the arguments submitted by the learned Government Pleader is that the further action cannot be scuttled on the ground that the disciplinary proceedings were dropped in view of the cancellation of the show cause notice, but the same cannot be accepted since the order under challenge does not speak about initiating any proceedings after affording opportunity to the legal heirs and there is no cavil of doubt that the Government must defend its action on the basis of the order that it has passed and cannot improve its stand by subsequent affidavits. This proposition of law was laid down in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi(1978 (1) SCC 405), which was followed in Dipak Babaria and Another v. State of Gujarat and Others((2014) 3 SCC 502), wherein the Hon’ble Apex Court at paragraph Nos.64 and 65 observed as follows:

                  “64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay v. Gordhandas Bhanji reported in [AIR 1952 Supreme Court 16] in the following words:-

                  "9. …Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

                  This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill v. Chief Election Commissioner reported in [1978 (1) SCC 405 wherein Krishna Iyer, J. has stated as follows:-

                  "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."

                  65. In this context it must be noted that the Revenue Ministers direction merely states that it is a private land, and the Governments letter dated 18.12.2009 speaks of the financial incapability of Indigold. Neither the letter dated 18.12.2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15.1.2010 mention anything about:

                  1. The mineral policy of the Government of Gujarat.

                  2. The time taking nature of the process of acquiring the land and re-allotting it.

                  3. That the second sale was under the authority of the Collector available to him under the first proviso to Section 89(1) read with Condition (4) of the permission dated 1.5.2003 granted to Indigold to purchase the concerned lands.

                  In the absence of any of these factors being mentioned in the previous orders, it is clear that they are being pressed into service as an after- thought. The Government can not be allowed to improve its stand in such a manner with the aid of affidavits.

                  (emphasis supplied)

16. Even otherwise, in pursuance of the order of the Tribunal in O.A.No.9780 of 2002, the Government without any demur has paid the Death- cum-Retirement Gratuity (DCRG) amount on 29.12.2006 under Voucher No.2514 through the Sub-Treasury Officer, Kurnool to the respondent, who is the wife of the deceased employee. Earlier, it appears that the DCRG amount of Rs.95,625/- was sanctioned and the same was adjusted to the Government vide Head of Account 0071-01-101-00-04-040-042 vide Voucher No.2078, dated 12.12.2003. This being so, the Deputy Director, District Treasury, Kurnool, has issued instructions to the Sub-Treasury Officer, Kurnool, for repayment of DCRG amount so mentioned to be disbursed on 07.12.2006 and upon such direction, the amount was released to the respondent/applicant herein on 29.12.2006 (ibid).

17. The instructions of the District Treasury and Accounts Officer, placed before this Court by the learned Government Pleader throws light on the aspect that the suspension period from 14.08.1997 to 17.07.1999 has been regularized and treated as duty as per FR 54-B vide Proceedings No.A1/3912/99, dated 03.05.2002 of the Deputy Director, District Treasury, Kurnool. The instructions further reveal that the pension proposals have been sent duly taking the last pay drawn as Rs.7,650/-. As per the instructions dated 29.08.2025 submitted during the course of arguments, the family pension is being paid regularly and also family pension arrears w.e.f.18.07.1999 to February, 2003 to a tune of Rs.1,92,422/- were paid to the individual on 17.03.2003. The Family Benefit Fund of Rs.6,296/- was sanctioned and paid and Group Insurance Scheme (GIS) amount of Rs.35,998/- was also sanctioned and paid.

18. It is trite to observe that the Tribunal consciously taken into consideration the legal position and disposed of O.A.No.9780 of 2022 with a direction to release the retirement benefits of the applicant’s husband to which the applicant is entitled to under the rules, if they have not been released so far, as the Government has issued orders in G.O.Rt.No.2789, Finance (Admn.I.Vig) Department, dated 06.11.2002, cancelling the show cause notice dated 10.04.2001 against the applicant’s husband and dropping further action initiated against the applicant’s husband and the same is well within the legal frame work and needs no interference.

19. Keeping in view the above facts and circumstances and the law which is no more res integra that the order under challenge has to be judged in the light of the contents therein and cannot be improved subsequently by way of subsequent affidavits, this Court finds it appropriate to dismiss the Writ Petition and the same is accordingly dismissed. There shall be no order as to costs.

20. As a sequel, miscellaneous applications pending, if any, shall stand closed.