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2022 DIGILAW 1015 (AP)

Shaik Mastan Vali v. Government of Andhra Pradesh

2022-10-13

V.SUJATHA

body2022
JUDGMENT : V. SUJATHA, J. 1. The Writ Petition is filed under Article 226 of the Constitution of India seeking following relief: “to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned Rc. No. 140/2017-A3.1 dated 5-9-2017 releasing part provisional pension by withholding full gratuity and not releasing full pension and other pensioner benefits to petitioner is illegal, arbitrary, contrary to the Violation of the AP Revised Pensionerary Rules, 1980 and contrary to the G.O.Rt. No. 1097 Finance and Plannind (FW-PEN.I) Department dated 22.06.2000 and consequently set aside the same by directing the respondent authorities to release the full gratuity and other pensionary benefits which are pending to the petitioner forthwith and pass such other order or orders.....” 2. The brief facts of the case are that the petitioner initially joined as attendar in the 3rd respondent department and thereafter, he was promoted as Senior Assistant, while so, after attaining the age of super annuation, the petitioner got retired from the services on 31.05.2016. While the petitioner was working as Senior Assistant in Pandugala Commercial Taxes Border Checkpost, Dachepalli Mandal, Guntur District, all of a sudden on 15.03.2016, a surprise check was conducted by Anti Corruption Bureau and during the course of that surprise check, the Anti Corruption Bureau authorities found Rs. 350/- from the petitioner which got tallied with the amounts entered in the personal cash register. 3. Thereafter, the 3rd respondent herein, issued a show-cause notice to the petitioner vide Rc. No. 80 of 2016/D2, dated 29.04.2016, for which the petitioner submitted his explanation on 05.05.2016. While so, the petitioner got retired from his service on attaining the age of superannuation and as no further action been initiated against him, he was under the impression that the said proceedings have been stalled. But, however, to his surprise, the impugned order vide Rc. No. 140/2017-A3.1, dated 05.09.2017, the 3rd respondent sanctioned only 75% of the provisional pension, withholding the full gratuity of the petitioner and subsequently considering the request of the petitioner, the 3rd respondent had released the leave encashment and GPF to the petitioner, but however have withheld the gratuity till today, which is under challenge before this Court. 4. No. 140/2017-A3.1, dated 05.09.2017, the 3rd respondent sanctioned only 75% of the provisional pension, withholding the full gratuity of the petitioner and subsequently considering the request of the petitioner, the 3rd respondent had released the leave encashment and GPF to the petitioner, but however have withheld the gratuity till today, which is under challenge before this Court. 4. The 3rd respondent filed his counter stating that the State Government reserves the right of withholding a pension or gratuity or both either in full or in part or withdrawing in full or in part whether prematurely or for a specified period and for ordering recovery from the 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 petitioner is found guilty of grave misconduct or negligence during the period of service including service rendered to which employment after retirement. He further stated the petitioner is not entitled for any relief as claimed herein, as it is contrary to Rule 96(a) and (b). 5. When this Court directed the learned Government Pleader for Services-I to get instructions as to whether any departmental proceedings have been initiated against the petitioner or not, the petitioner produced a copy of the letter dated 12.10.2022 addressed by the Additional Secretary to Government, Revenue (CT-II) Department, wherein it is stated that after receipt of the final report from the ACB, the Government after examining the matter, placed the same before the Tribunal for initiating disciplinary proceedings vide memo dated 19.02.2018. He further submitted that the disciplinary proceedings could not be initiated against the petitioner as the file is not available and prayed to dismiss the writ petition on the ground that the relief sought by the petitioner is contrary to the Rule 9 sub-rule 6(a) and (b) of the Andhra Pradesh Service Pension Rules, 1980. 6. The learned counsel for the petitioner mainly contended that though the show cause notice was issued on 29.04.2016, for which the petitioner has submitted his explanation, till date, no charge sheet was filed either in the ACB case or in the departmental proceedings by the 3rd respondent herein. 7. 6. The learned counsel for the petitioner mainly contended that though the show cause notice was issued on 29.04.2016, for which the petitioner has submitted his explanation, till date, no charge sheet was filed either in the ACB case or in the departmental proceedings by the 3rd respondent herein. 7. A perusal of Rule 96(a) and (b) of the Andhra Pradesh Service Pension Rules, 1980 reads as follows: “(a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner of if the Government servant has been placed under suspension from an earlier date; on such date. (b) Judicial proceedings shall be deemed to be instituted: (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognisance, is made. (ii) in the case of Civil proceedings, on the date the plaint is presented in the Court.” 8. Learned counsel for the petitioner relied upon G.O.Rt. No. 1097 Finance and Planning FW.Pen.1) Department, dated 22.06.2000, which deals with regulation of payment of pensionary benefits to Government servants retired from service pending disciplinary action, which reads as follows: “3. In case of Government Employee against whom the departmental proceedings or criminal proceedings are pending at the time of retirement, all the above terminal benefits need not be released. Proceedings pending means, there must be proceedings already initiated and pending within the meaning of rule 9 of the Andhra Pradesh Revised Pension Rules, 1980. A Government Servant who attains the age of superannuation while under suspension should be allowed to retire the due date of superannuation. But pensionary benefits cannot be settled until the conclusion of enquiry or disposal of charges. In such cases, the payment of terminal benefits shall be regulated as follows: (A).................. (B) .................. (C) Retirement Gratuity According to clause (c) of sub-rule (1) of rule 52 of the Andhra Pradesh Revised Pension Rules, 1980, no Gratuity shall be paid until the conclusion of the departmental or judicial proceedings and issue no final orders. In such cases, the payment of terminal benefits shall be regulated as follows: (A).................. (B) .................. (C) Retirement Gratuity According to clause (c) of sub-rule (1) of rule 52 of the Andhra Pradesh Revised Pension Rules, 1980, no Gratuity shall be paid until the conclusion of the departmental or judicial proceedings and issue no final orders. According to the proviso to the above said rule, where departmental proceedings have been instituted under rule 9 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, for imposing any of the penalties specified in clauses (i), (ii) and (iv) of rule 9 of the said rules, except the cases falling under sub-rule (2) of rule 22 of the said rules, the payment of gratuity shall be authorized to be paid to the Government Servant. It is also further provided in the said rule that where a conclusion has been reached that a portion of pension only should be withheld or withdrawn and the retirement gratuity remains unaffected in the contemplated final orders, the retirement gratuity can be released upon 80% of the eligible retirement gratuity.” 9. Learned counsel for the petitioner also relied upon a judgment in W.P. No. 6050 of 2021, wherein the Court having considered the scope of G.O.Rt. No. 1097, dated 22.06.2000, held as follows: 9. 2nd Proviso was added to Rule 52(1)(c) of the Revised Pension Rules, 1980 in the year 1995 vide G.O.Ms. No. 227, dated 10.10.1995. Therefore, the Supreme Court did not apply the 2nd proviso and concluded that the Government is competent to withhold the Gratuity during pendency of criminal proceedings against the Government Servant though retired from service. But in the present case, the ACB case is pending from the year 2017 i.e., subsequent to amendment to Rule 52(c) of AP. Revised Pension Rules, 1980. Therefore, by virtue of this amendment, the State is under obligation to release 80% retirement gratuity payable to the retired Government Servant. As the judgment of the Apex Court relates to the issue of the year 1988, by then, there was no amendment to Rule 52(c) of A.P. Revised Pension Rules, 1980. Hence, the principle laid down in the above judgment is based on the Rule existing as on the date of cause of action. 10. As the judgment of the Apex Court relates to the issue of the year 1988, by then, there was no amendment to Rule 52(c) of A.P. Revised Pension Rules, 1980. Hence, the principle laid down in the above judgment is based on the Rule existing as on the date of cause of action. 10. In view of the subsequent amendment to Rule 52(c) of the Revised Pension Rules, 1980, the petitioner is entitled to claim release of 80% retirement gratuity though prosecution is pending, in view of amendment and G.O.Ms. No. 227, dated 10.10.1995. Thus, the action of the respondents is contrary to 2nd proviso to Rule 52(1)(c) of the A.P. Revised Pension Rules, 1980. 11. Following the said G.O. the learned Single Judge of this Court, in W.P. No. 2545 of 2020, dated 24.02.2020, following the earlier judgment of the Division Bench in W.P. No. 30443 of 2016, dated 14.02.2017, ordered for payment of Earned Leave on encashment and 80% retirement gratuity, as the employee had retired from service. 12. In Division Bench judgment, this Court considered the scope of G.O.Rt. No. 1097, dated 22.06.2000, and permitted the retired Government Servant to withdraw the amount on encashment of Earned Leave available to the credit of his leave account along with 80% retirement gratuity. 13. Therefore, following the principle laid down in the above judgments, adhering to Clause 3(B) of G.O.Rt. No. 1097, dated 22.06.2000, as well as to the 2nd proviso of Rule 52(c) of A.P. Revised Pension Rules, 1980, the petitioner is permitted to withdraw 80% retirement gratuity and the respondents are directed to pay 80% retirement gratuity, in accordance with law, within four (04) weeks from the date of receipt of a copy of this order. 10. Learned counsel also relied upon W.P. No. 21818 of 2021, wherein the facts of present case are similar to it. In W.P. No. 21218 of 2021, relied upon by the petitioner, the matter was referred to the Tribunal for disciplinary proceedings. But, however, no charge memo was served on the petitioner in that case. 10. Learned counsel also relied upon W.P. No. 21818 of 2021, wherein the facts of present case are similar to it. In W.P. No. 21218 of 2021, relied upon by the petitioner, the matter was referred to the Tribunal for disciplinary proceedings. But, however, no charge memo was served on the petitioner in that case. But, in the present case, the matter was not even referred to the Tribunal for initiating the disciplinary proceedings, and on the other hand neither the charge sheet was filed by the ACB nor any disciplinary proceedings initiated by the 3rd respondent herein, as contemplated under Rule 9 sub-rule 6(a) and (b) of the Andhra Pradesh Revised Pension Rules, 1980. 11. Admittedly, as per the letter produced by the learned Government Pleader dated 12.10.2022, it does not disclose that any disciplinary proceedings have been initiated against the petitioner as required under Rule 96(a) and (b) of the Andhra Pradesh Revised Pension Rules, 1980. 12. In the light of the above referred legal position, this Court is inclined to allow the writ petition by setting aside the impugned proceedings vide Rc. No. 140/2017-A3.1, dated 05.09.2017 and the respondent No. 3 is further directed to pay 80% of the retirement gratuity to the petitioner in accordance with G.O. Rt. No. 1097, dated 22.06.2000, within a period of six (6) weeks from the date of the receipt of the copy of this order. There shall be no order as to costs. 13. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.