Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 1142 (AP)

D. Sudheer Babu v. State of Andhra Pradesh

2022-10-28

TARLADA RAJASEKHAR RAO

body2022
ORDER : 1. This Writ Petition is filed under Article 226 of the Constitution of India for the following relief: “To issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the Respondents in not granting Pension, Gratuity and other Retirement Benefits to the Petitioner, even though no disciplinary/ criminal proceedings are pending against him as illegal, arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India and consequently, direct the Respondents to release Pension, Gratuity and other Retirement Benefits to the Petitioner forthwith, in accordance with Rules and Law and to pass such other orders.” 2. The present Writ Petition is filed for non-payment of pensionary benefits to the petitioner on attaining the age of superannuation on the ground that disciplinary cases pending against him, relying on Article 351A of the Pension Code and Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980, after retirement of the petitioner. 3. The case of the petitioner is that he was appointed as Assistant Executive Engineer on 13.05.1985 in the Panchayat Raj Department, and thereafter, he was promoted to the post of Deputy Executive Engineer on 01.10.1994 and Executive Engineer (In-charge) on 13.04.2010 and regularly promoted in the year 2018 and he was promoted to the post of Superintending Engineer on 22.02.2019 and placed as In-charge Chief Engineer/Joint Secretary on 01.07.2019 and he was finally promoted as CE/JS regularly on 31.08.2019 and worked as such till his retirement on attaining the age of superannuation on 31.08.2020. The Government has issued G.O.Rt. No. 762, Panchayat Raj and Rural Development (E.I) Department dated 30.12.2019, whereunder the orders were issued regarding retirement of certain Engineers, on attaining the age of superannuation during the year 2020 and the petitioner and others were permitted to retire from service without prejudice to the disciplinary cases pending against them and also subject to the condition that the disciplinary proceedings shall continue against them under Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980, after their retirement. Thereafter, the petitioner herein has made a representation dated 30.01.2020 to delete the condition in paragraph No. 2 of the said G.O. dated 30.12.2019. Thereafter, the petitioner herein has made a representation dated 30.01.2020 to delete the condition in paragraph No. 2 of the said G.O. dated 30.12.2019. As no orders are passed against the said representation, the present Writ Petition came to be filed seeking a direction to the respondents for release of the pensionary benefits on the ground that no disciplinary proceedings are pending against him on the date of retirement under Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980, and he has not committed any irregularity as alleged in the disciplinary proceedings. 4. Learned counsel for the respondents filed counter and he would submit that G.O.Rt. No. 762, Panchcayat Raj and Rural Development (Estt.I) Department dated 30.12.2019, was issued permitting the petitioner and another individual to retire from service on 31.08.2020 without prejudice to the disciplinary proceedings against him. The contention of the learned counsel for the respondents is that the petitioner has allowed one Sri D.Ramesh Kumar, AEE, PR, Dattaluru Mandal, SPSR Nellore District, beyond his date of superannuation, i.e. the actual date of superannuation on 31.07.2013 and he has been continued in service till the date of ACB trap on 28.11.2016, wherein he was shown as Accused Officer No. 1. The Government, vide G.O.Rt. No. 384, Panchayat Raj and Rural Development (Vig.II) Department dated 15.07.2021, accorded sanction for initiation of disciplinary proceedings against the petitioner and others under Rule 24 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, and vide G.O.Ms. No. 51, Panchayat Raj and Rural Development (Vig.II) Department dated 15.07.2021 and G.O.Rt. No. 394, Panchayat Raj and Rural Development (Vig.II) Department dated 15.07.2021, issued Article of charge against the petitioner under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991. The charge against the petitioner is hereby extracted as follows: “Charge: The Government Servant while he was working as E.E. PR Division, Kavali from 1.9.2015 to 28.11.2016 failed to obtain the service register of Sri Durgam Ravi Kumar, A.E.E. from his previous station. Thus, Sri Darsi Sudheer Babu S/o George the then E.E. PR Division, Kavali, SPSR Nellore District by his above mentioned acts has exhibited lack of integrity, devotion to duty and conduct unbecoming of a Government servant and violated Rules 3(1)(2) of APCS (Conduct) Rules, 1964 read with Rule 9 of A.P. Revised Pension Rules, 1980.” 5. Thus, Sri Darsi Sudheer Babu S/o George the then E.E. PR Division, Kavali, SPSR Nellore District by his above mentioned acts has exhibited lack of integrity, devotion to duty and conduct unbecoming of a Government servant and violated Rules 3(1)(2) of APCS (Conduct) Rules, 1964 read with Rule 9 of A.P. Revised Pension Rules, 1980.” 5. It was asserted in the counter that the pension papers of the petitioner were processed by the 2nd respondent, vide Letter No. G.Section/4768/2010 dated 25.08.2020 by sending the pension proposal to the 1st respondent. The 1st respondent after examination of the matter, vide Letter No. PRR-01-OPCL/22/2020-OP-II, dated 09.12.2020, has submitted pension proposal to the Accountant General (A&E) A.P. Hyderabad, duly informing the status of the ACB case pending against the petitioner and the 3rd respondent has returned the pension proposal duly stating that the service pension case in the case of the individual could not be finalized for the reasons, which are not relevant for the present purpose of the case. It is pertinent to mention herein that the pension benefits were not released only on the ground that the petitioner herein has continued Sri D. Ravi Kumar, A.E.E. Dattaluru Mandal, SPSR Nellore District, beyond his actual date of superannuation, i.e. 31.07.2012, till the date of ACB trap on 28.11.2016. 6. The case of the petitioner is that he worked as Executive Engineer, PR Division, Kavali, in the above station from 01.09.2015 to 28.11.2016, i.e. for a period of 14 months. During the period he worked at Kavali station, he has not committed any mistake in continuing one D. Ramesh Kumar as A.E.E. Dattaluru Mandal, SPSR Nellore District, beyond his actual date of superannuation for the reason that he was working in the above station since 02.06.2010 and he has joined in PR Division, Kavali, on 01.09.2015 and there was no occasion for him to verify the service register of the individual as it was not made available in the office and the administrative staff were responsible for not bringing to his notice about the retirement age of the above individual. As soon as ACB registered a case against Sri Durgam Ravi Kumar (Accused Officer No. 1) on 28.11.2016 and pursuant to the letter addressed by the ACB dated 07.12.2016, the petitioner verified for the service register of the individual and when it is not available in his office upon verification, he requested the 2nd respondent to furnish the service register of the individual and the 2nd respondent furnished the service register on 22.12.2016 and thereafter, he sent the same to the ACB officials and other respondents on receiving the notice from the respondents. Therefore, he cannot be found fault for the mistake of the office. 7. The petitioner further submitted that as per Rule 9 of the A.P. Revised Pension Rules, 1980, when there is no charge pending against an individual, the respondents are precluded from withholding the pension or pension related benefits and, in the present case, on the date of retirement of the petitioner on 31.08.2020, there was no charge pending against him, as such, the respondents are precluded from withholding the pensionary benefits and sought a direction to the respondents for release of the pension and pension related benefits. In the present case, the petitioner received all other benefits except the pension. The petitioner has relied on the judgments of the Hon’ble Apex Court in Union of India and Others vs. Anil Kumar, (2013) 4 SCC 161 and Union of India vs. K.V. Janakiraman, (1991) 4 SCC 109 whereunder, it was held that the disciplinary proceedings commence only when charge memo is issued and charge sheet filed in criminal case. Admittedly, there are no proceedings initiated against the petitioner as on the date of the retirement. Therefore, the respondents cannot withhold the retirement or pensionary benefits by relying on Rule 9(6) of the Andhra Pradesh Revised Pension Rules, 1980, wherein it is clarified that the disciplinary proceedings are said to be initiated from the date when the charge memo is issued and filed charge sheet in criminal case. 8. Therefore, the respondents cannot withhold the retirement or pensionary benefits by relying on Rule 9(6) of the Andhra Pradesh Revised Pension Rules, 1980, wherein it is clarified that the disciplinary proceedings are said to be initiated from the date when the charge memo is issued and filed charge sheet in criminal case. 8. Per contra, learned counsel for the respondents would submit that the Hon’ble Apex Court in its judgment in K.V. Janakiraman’s case (supra), Union of India vs. R.S. Sharma, (2000) 4 SCC 394 and Harsh Kumar Sharma vs. State of Punjab, (2017) 4 SCC 366 , it was held that a Government servant shall not be promoted until he completely exonerated of all charges against him and the promotion is not to be granted an the delinquent officer has to await the outcome of the disciplinary proceedings or prosecution, as the case may be, respectively and it is submitted that there is a dichotomy in the views of the Hon’ble Apex Court in R.S. Sharma’s case (supra) and Harsh Kumar Sharma’s case (supra) on one hand and the views expressed in Anil Kumar’s case (supra) relied on by the learned counsel for the petitioner is not applicable and the law governing the field is the ratio laid down in R.S. Sharma’s case (supra), no law has been laid down by the Hon’ble Apex Court. 9. Admittedly, as on the date of retirement, there are no articles of charges or charge memo or charge sheet filed against the petitioner under Rules 9(2)(a) and 9(6) of the Andhra Pradesh Revised Pension Rules, 1980, and on cursory reference of the material paper filed along with counter affidavit, it was asserted in the final report of the Director General, ACB, in Letter R.C. No. 144/RCT-NNL/2016 dated 22.05.2019, the date of birth of the Accused Officer No. 1 was entered in the service register as 16.07.1955 and his date of birth was shown as per online as 16.07.1958. The error was crept due to the mistake of the office, which cannot be attributed to the petitioner herein. The error was crept due to the mistake of the office, which cannot be attributed to the petitioner herein. For the above reasons and in view of the judgment of the Hon’ble Apex Court relied by the learned counsel for the petitioner in K.V. Janakiraman’s case (supra), there are no charges or charge memo or charge sheet is pending against the petitioner as on the date of retirement, i.e. on 31.08.2020 and in view of the judgment of the Hon’ble Apex Court in K.V. Janakiraman’s case (supra) and in view of the provisions of Rules 9(2)(a) and 9(6) of the Andhra Pradesh Revised Pension Rules, 1980, as no charges are pending against the petitioner, the action of the respondent in withholding the pensionary benefits of the petitioner is arbitrary and violative of Article 21 of the Constitution of India. 10. Accordingly, this Writ Petition is allowed, directing the authorities to process the pension of the petitioner in accordance with law within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs of the Writ Petition. 11. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.