ORDER
1. This writ petition is filed by the petitioner assailing the orders of the Andhra Pradesh State Electricity Board in letter No.SE-OOGLP and FJAOD873 of 1999 dated 30-1-1999 in which the respondent Board has asked the petitioner to send his consent letters in triplicate, towards recoverable amount of Rs.2,11,5470.75 Ps. which had been furnished in LPC/NDC,
while submitting his pension proposals to the Board. By the impugned letter it was informed to the petitioner that the said amount of recovery will be effected from his terminal benefits i.e., arrears of pension/ Gratuity/Commuted value of pension in terms of the judgment dated 18-8-1998 of the High Court in WP No.17665 of 1988.
2. The petitioner has worked as an Additional Assistant Engineer and retired from service on attaining superannuation with effect from 30-6-1996. While he was in service, the Divisional Engineer, Electrical Operations. Markapur through a Memo No.DEE/O/MRKyADM/Ul/DNo.2495 of 1986, dated 10-6-1986 informed the petitioner that an amount of Rs.500/- per month is ordered for recovery towards value of stores, shortages by the Accounts Officer, TLC Circle, Cuddapah and so an amount of Rs.500/- will be recovered from his salary commencing from 6 of 1986. Again by letter No.AV/SEC.V/F.7-5002/87-88/537 of 1988 dated 1-6-1988, the Principal Advisor and Chief Controller of Accounts Vidyut Soudha, Hyderabad directed the Superintending Engineer, TLC, Cuddapah to enhance the amount of recovery limit to 1/3rd of his gross pay and to take necessary steps that the entire amount due from the physical custodian is recovered before the date of his retirement. Questioning the same, the petitioner filed WP No.17665 of 1988. Thereafter, the petitioner had retired from service and subsequently the impugned Memo was issued by the Board.
3. On the other hand the respondent Board filed its counter stating that the respondents 2 and 4 are not connected with any charges pending against the petitioner and the letter dated 30-1-1999 was written to him by respondent No.3, as per the instructions of the Board. It is further stated that the petitioner was working as an Additional Assistant Engineer/132 K.V.SS/ Chirala, under the control of the Divisional
Engineer/EHT/L and SS/Ongole and the petitioner retired from service on 30-6-1996 on attaining the age of superannuation. In view of the same, it is respondent No.4, who can arrange payment to any pensioner from his Drawing Unit based on the PPO/ GPO/Authorisations, issued by Board only in respect of Additional Assistant Engineer Cadre, and that as per the petitioner worked under the control of Divisional Engineer/ EHT/L and SS/Ongole, which falls under the jurisdiction of Superintending Engineer, Nellore. Therefore, the question of sanction of anticipatory pension by respondent No.4 does not arise. Hence, prayed to dismiss the writ petition.
4. The contention of the learned Counsel for the petitioner is that the shortage alleged to have been found while the petitioner was working at TLC Stores, Ongole during 1982 to 1985 and against the Memos issued, directing the recovery of amounts from his salary which are enhanced from time to lime, he protested in writing. It is his further contention that while the writ petition was pending in the High Court two Memos, dated 25-9-1997 and 1-7-1998 were served on the petitioner stating that the original pension was fixed at 75% of the admissible pension and that disciplinary charges are pending against the petitioner.
5. The learned Counsel for the petitioner contends that the disciplinary enquiry cannot be conducted under Rules 16-B of the APSEB Service Regulations which reads as under:
An employee under suspension on a charge of mis-conduct should not be required or permitted to retire on his reaching the date of compulsory retirement, but should be retained in service until the enquiry into the charge is concluded and final order is passed thereon by the Competent Authority.
6. Therefore, he contended that once the petitioner was allowed to retire from service, the respondent Board cannot proceed with the disciplinary enquiry against the petitioner. Hence the impugned letter issued by the respondent Board asking the petitioner to send consent letters in triplicate, towards his recoverable amount of Rs.2,11,547-75 Ps., is arbitrary and illegal which amounts to fixing the liability without an enquiry and the same is liable to be set aside.
7. It is not in dispute that the petitioner was retired from service or, attaining the age of superannuation on 30-6-1996. Once an employee is allowed to retire from service, the continuation of enquiry is not permissible, unless there is a specific provision authorised to that effect.
8. The relevant Rule is already extracted above. It is in this context Rule 16-B of the APSER Service Regulations that the question of the nature of proceedings held against the petitioner assumes importance. If the enquiry was on a charge of mis-conduct, the petitioner could be retained in service until the enquiry into the charges against him was concluded and a final order is made. But before Rule 16-B of the Regulations would be attracted, it must be shown that the member of the service was under suspension on a charge of misconduct and an enquiry is being pending against him. Then only the member can be retained in service until the enquiry into the charges is concluded and a final order is passed therein by the Competent Authority.
9. But in the case on hand, it is not the case of the respondents that the petitioner was placed under suspension pending enquiry into any charges. This Court in WP No.17665 of 1988 filed earlier has clearly held that for imposing penalty, the procedure prescribed under the Regulation 5(V) has to be followed by the
Competent Authority. The Competent Authority prescribed in the schedule to the Regulations in respect of imposing penalty for recovery from the pay of Additional Assistant Engineer is the Superintending Engineer, Therefore, it is the Superintending Engineer, who can hold an enquiry as per Regulations against a person of the status of the petitioner and it is only the Superintending Engineer, who can pass orders concerning recovery from the pay of an employee of the status of the petitioner for any losses caused to the respondent Board due to negligence, misconduct or disobedience of lawful orders by such employee. Though an enquiry as contemplated under the Rules was to be conducted, no such enquiry appears to have been conducted by the Competent Authority in this case. In the above writ petition, the petitioner herein challenged the action of the authorities of the Board on the ground of enhancing the recovery from Rs.500/- to one-third of the gross pay, which was equivalent to about Rs.1000/-per month and this Court quashed the said proceedings.
10. Therefore, when once an employee retires from service, unless there is a valid order as contemplated under Regulations 5(V), no recovery can be made from the pension payable to the said employee. If the authorities want to recover, any amount from the pension of an employee, after retirement, the prescribed procedure under Rule 9 of the Revised Pension Rules, 1980 has to be followed, which is made applicable to the employees of the APSEB also.
11. As per Rule 9 of the Revised Pension Rules, 1980 right of Government to withhold or withdraw pension or part thereof, whether permanently or for a specified period and of ordering recovery of pension for any pecuniary loss caused to the Government or to the local authority
can be done only if the employee is found guilty either in any departmental or judicial proceedings. Under Rule 9(2)(a) of the Revised Pension Rules, that if any departmental proceedings referred to in sub-rule (1) of Rule 9 instituted while the Government servant was in service before his retirement, shall be deemed to be the proceedings under this Rule and can be continued and concluded by the authority.
12. Admittedly in the present case, there is no evidence to show that any such enquiry was pending against the petitioner as on the date of his retirement and the respondent Board has also not produced any material to show that such an enquiry was pending against the petitioner as on the date of his retirement from service. Moreover, before conducting any enquiry, a Charge Memo will be issued to the delinquent employee and his explanation will be called for and no such Charge Memo appears to have been issued prior to retirement of the petitioner. Therefore, it cannot be said that, any departmental proceedings were initialed against the petitioner were pending, as on the date of retirement of the petitioner from service. In view of the same, the proposed recovery by the respondent from the pension of the petitioner is illegal and without due procedure of law.
13. It appears the only remedy now if any, available to the respondent-Board is to proceed against the petitioner under Rule 9(2)(b) of the Revised Pension Rules for recovery of the loss, if any, due to the negligence of the petitioner during the period of his service and Rule 9(2)(b)(i) says that the proceedings cannot be instituted without the sanction of the Government; and Rule 9(2)(b)(ii) says proceedings shall not be instituted in respect of any event which took place more than four years before such institution. The alleged loss was sustained during the period from
March, 1978 to August, 1984 when he was working in the transmission lines (stores). In view of the same, even as per Rule 9(2)(b) the authorities cannot proceed against the petitioner for the loss sustained during the period. If any disciplinary enquiry is pending on the date when he is retired, then only it is open for the authorities to proceed with the recovery of the loss sustained as per Rule 9 of the Revised Pension Rules. Therefore, the impugned order issued by the respondent-Board to give consent of the petitioner to recover the amount from the terminal benefits is illegal and void and the same is accordingly set aside.
14. With the above observation, this writ petition is allowed and the impugned order is set aside. There shall be no order as to costs.