WP/27875/2008 of B.Ramachandrudu Vs The General Manager, (Rep. Union of India) on 24 December 2008

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

FRIDAY, THE FIFTH DAY OF JUNETWO THOUSAND AND NINE

PRESENT

THE HON'BLE MR JUSTICE V.ESWARAIAHand

THE HON'BLE MR JUSTICE P.SWAROOP REDDY

WRIT PETITION No.27857 of 2008

Between:

1 The Commandant, SAR CPL, Amberpet, Hyderabad.2 Government of A.P., Rep by its Secretary, Home Department,Secretariat, Hyderabad.

..... PETITIONER(S)

AND

1 Sri. Mahamoob Khan, Retd HC 68, S/o. Mohd Lal Khan, R/o. Single Lane Police Quarters, Amberpet, Hyderabad.

2 The Director of State Audit, Andhra Pradesh, Hyderabad.

.....RESPONDENT(S)

Petition under Article 226 of the constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court may bepleased to issue an appropriate writ or direction more particularly one thenature of "Writ of Certiorari" calling for the records relating to and connectedwith the order in O.A.No.3741/2008 dated 15-05-2008 on the file of theHon'ble A.P. Administrative Tribunal, Hyderabad and to quash or set-a- asidethe same by holding as erroneous and contrary to law.

Counsel for the Petitioner:GP FOR SERVICES I

Counsel for the Respondent No.: .

The Court made the following :

THE HON'BLE MR JUSTICE V.ESWARAIAHand THE HON'BLE MR JUSTICE P.SWAROOP REDDY

WRIT PETITION No.27857 of 2008

ORDER:(per the Hon’ble Sri Justice V. Eswaraiah)

The State filed this writ petition aggrieved by the order, dated 15-05-2008 passed by the A.P.Administrative Tribunal, Hyderabad, inO.A.No.3741 of 2008, whereby and whereunder the said O.A. was disposedof in terms of the order passed in O.A.No.1543 of 2003, dated 19-06-2007.

The 1[st] respondent herein retired as a Head Constable on 28-02-2007 on attaining the age of superannuation. After retirement, the 1[st]petitioner herein passed an order, dated 28-01-2008 vide proceedingsC.No.104/A4/SAR/2007-08 for recovery of Rs.1,31,692/-, which is said tohave been paid in excess, from his gratuity in lumpsum and credit the sameinto the respective head of accounts. Pursuant to the said proceedings, the2[nd] petitioner herein recovered a sum of Rs.1,31,692/- from the gratuity of the1[st] respondent vide proceedings dated 14-02-2008. Aggrieved by the same, the 1[st] respondent herein filedO.A.No.3741 of 2008 before the A.P.Administrative Tribunal, Hyderabad,seeking to declare the action of the respondents therein in issuingproceedings dated 28-01-2008 and 14-02-2008 respectively, as illegal andarbitrary and consequently to direct the respondents therein to refund the saidamount of Rs.1,31,692/- recovered from his pensionary benefits.

The Tribunal by order dated 15-05-2008 disposed of the said O.A., which reads as follows:- “It is represented by the learned counsel for the applicant and thelearned G.P. that the O.A. is covered by the orders passed in1543/2003 dated 19-06-2007. In view of this representation, this O.A.is also disposed of in terms of the orders passed in 1543/03 dated19-06-2007”

A perusal of the material available on record goes to show thatO.A.No.1543 of 2003 was filed by one Sri K.Krishna, retired AssistantDirector, Survey and Settlements, questioning recovery of an amount ofRs.16,117/- from out of his pension. The said O.A. was disposed of by order dated 19-06-2008, which reads as follows:-

“In view of the facts stated herein and from the impugned order itselfit is clear that the applicants pay was erroneously fixed by therespondent. In view of such circumstances, the applicant is notresponsible for such fixation. At this distance of time i.e., after theretirement of the applicant from service, and when the applicant is notresponsible for such erroneous fixation, the same cannot berecovered as law laid down by the courts. In view of suchcircumstances, the impugned order herein is set aside with adirection to the respondents to payback the amount of Rs.18,037/-which has been adjusted from the E.L. encashment balance of theapplicant, within a period of four weeks from the date of receipt of thisorder. The O.A. is accordingly allowed. No costs.”

Learned Government Pleader appearing for the petitioners submitsthat the O.A. in the instant case was disposed of at the stage of admissionwithout giving reasonable opportunity to the Department.

There is no sufficient foundation laid by the petitioners as to whetherthe learned Government Pleader appearing for the petitioners have concededor not. But, in view of difference of facts and ambiguity in both the O.As., weare of the opinion that it is just and proper to set aside the impugned orderand remit the matter to the Tribunal to re-hear and pass appropriate orders inaccordance with law, after giving reasonable opportunity to both the parties.

Accordingly, the writ petition is allowed by setting the order of theTribunal passed in O.A.No.3741 of 2008, dated 15-05-2008 and the matter isremitted to the A.P.Administrative Tribunal, Hyderabad, for the purpose of re-hearing and for passing appropriate orders in accordance with law, aftergiving reasonable opportunity to both the parties. There shall be no order asto costs.

________________

V.ESWARAIAH, J

_____________________

Date: 05-06-2009Prv

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Form-NIC-OGS/WP{LS}

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P.SWAROOP REDDY, J

..... REGISTRARSECTION OFFICER