THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI
WRIT PETITION No.29925 OF 2021
ORDER:
1. This Writ Petition is filed seeking a Writ of Mandamus to declare the action of the respondents in sanctioning only provisional pension instead of full pension benefits to the petitioner even though no disciplinary proceedings were initiated and no charges have been alleged against the petitioner as on the date of retirement i.e., 30.09.2017 or even till the date of filing of the present writ petition, as illegal and arbitrary and against Rule 9 of Revised Pension Rules 1980 and against the established law and against the orders of this Hon'ble Court in W.P.No.33477 of 2018, dated 06-09-2021 and consequently, to direct the respondents to release the full pension benefits to the petitioner forthwith and pass such other order or orders this Court deems fit and proper in the circumstances of the case.
Brief facts
2. The petitioner was working as a District Transport Officer, Nirmal and retired from the service on PMD, J W.P. No.29925 OF 2021 2 attaining the age of superannuation on 30.09.2017. It is submitted that in the Memo of respondent No.2 dated 29.09.2017 no condition was incorporated and there was no reference to pendency of any charges against the petitioner. It is submitted that the petitioner never faced any proceedings nor received any charge memo of any kind till the date of retirement or till the date of filing of the writ petition. It is submitted that the petitioner submitted the pension papers to the respondent No.2 for sanction of full pension in the month of October, 2017 but vide orders dated 15.04.2020 the respondent No.1 vide G.O.RT.No.179, dated 15.04.2020 has sanctioned only 75% of the normal eligible pension from 01.10.2017 withholding the D.C.R.G in full, pending finalization of ACB cases, which were booked but no charges were framed against the petitioner. The learned counsel for the petitioner submitted that full pension was not sanctioned to the petitioner on the ground that the petitioner's name was mentioned in ACB raids over the officers of the RTO, Khammam. It is submitted that the petitioner was issued a Notice vide Cr.No.16/RCO-ACB-WKH/2014, dated 23.12.2015 regarding the ACB surprise check and that the PMD, J W.P. No.29925 OF 2021 3 petitioner submitted his reply on 25.01.2016 and thereafter there was no further action. It is further submitted that the petitioner was issued with another notice dated 16.12.2016 regarding ACB surprise check and the petitioner has submitted a reply on 12.01.2017 and there was no further action thereafter. Since no disciplinary proceedings were initiated against the petitioner with regard to the above ACB surprise check nor any charges were framed against him in Cr.No.16 inspite of FIRs registered in ACB case, the petitioner submits that he is entitled to full pension. He submits that another employee, who was also implicated in similar case has approached this Court in W.P.No.33477 of 2018, dated 06.09.2021 and this Court has directed the respondents to accord full pension to the petitioner therein. He therefore, seeks similar relief.
3. The learned counsel for the petitioner reiterated the averments made in the writ affidavit as stated above and submits that the ACB raid was in respect of 9 persons including the petitioner herein, and in none of the cases, has any charge memo been issued nor Departmental Inquiry initiated till the date of retirement of PMD, J W.P. No.29925 OF 2021 4 the petitioner and others. He submits that under Rule 9 of Revised Telangana State Pension Rules, unless and until there are disciplinary or judiciary proceedings pending as contemplated against the pensioner, retirement benefits of such a person cannot be withheld. He therefore, relied upon the judgment of this Court in W.P.No.33477 of 2018, dated 06.09.2021, wherein the petitioner therein is also similar to the petitioner herein and the bench has considered the provision of Rule 9(6)2 of Revised Pension Rules to hold that the retirement benefits can be withheld only when the disciplinary or judicial proceedings are pending as on the date of the retirement of the employee. It was held that the departmental proceedings are considered to be pending only where statement of charges are issued to the Government Servants while in service and Judicial Proceedings are considered to be pending if the Magistrate takes cognizance of the criminal proceedings i.e., where a plaint is filed in civil proceeding or charge sheet is filed in criminal proceedings. Therefore, the learned counsel for the petitioner has sought for similar relief by this Court.
4. The learned Government Pleader for Services - III relied upon the averments in the counter affidavit she PMD, J W.P. No.29925 OF 2021 5 submitted that there was an ACB trap in case of the petitioner and others and two ACB cases were pending as on the date of his retirement and that the FIRs were registered in Cr.No.16/RCO-WRL/2014, dated 05.08.2014 and in Cr.No.5/RCO-WKH/2016, dated 02.05.2016 and therefore, judicial proceedings are pending against the petitioner herein. Therefore, she supports the action taken by the respondents in sanctioning provisional pension to the petitioner.
5. Having regard to the rival contention and the material on record, it is noticed that the respondents have not initiated any Departmental Enquiry against the petitioner till the date of his retirement or till the date of filing of the writ petition. In the similar case, in W.P.No.33477 of 2018, this Court has considered the issue and has held as under :
"6. The facts noted above are not disputed. Admittedly, as on the date of retirement of petitioner, there was no charge memo drawn and communicated to petitioner nor a charge sheet was filed in criminal proceedings.
7. The only plea raised by learned Government Pleader for Services-III is that since Anti Corruption Bureau registered a crime against petitioner on serious allegation of corruption, petitioner is not entitled to payment of retirement benefits. However, learned Government Pleader does not dispute the fact that as on the date of retirement, no charge sheet was filed.
PMD, J W.P. No.29925 OF 2021 6
8. After retirement from service, an employee is entitled to receive retirement benefits and monthly pension from the date of retirement. Rule 91 of Revised Pension Rules, 1980 (for short 'the Rules'), carves out exception to this right. It vests power in the Government to withhold or withdraw pension. Since the Government has an obligation to pay pension, the Government also controls the conduct of an employee while in service and after retirement. Withholding of retirement benefits is traceable to the power of the Government as employer to take disciplinary action on the alleged misconduct committed by the employee while he was in service. If the action initiated on alleged misconduct did not result in final decision in imposing appropriate punishment while in service, though process was already set in motion, it is still permissible for the employer to withhold retirement benefits till the disciplinary action culminates into a final decision. However, Rule 9 of the Rules requires that such course can be adopted only if disciplinary proceedings or judicial proceedings were pending as on the date of retirement or employee was kept under suspension as a step in aid to take disciplinary action. Rule 9(6)2 of the Rules explains what is meant by pending departmental proceedings or judicial proceedings. The departmental proceedings are stated to be pending only when statement of charges was issued to the Government servant or he was placed under suspension while in service. Judicial proceedings are deemed to be pending if the Magistrate takes cognizance in criminal proceedings/if a plaint is filed in civil proceedings.
9. In the instant case, admittedly, as on the date of retirement, no charge sheet was filed against petitioner. Therefore, respondents cannot resort to withholding of retirement benefits.
10. Accordingly, this Writ Petition is allowed. Respondents are directed to forthwith release all the retirement benefits due and payable to petitioner. It is made clear that since investigation into crime is pending, payment of monthly pension shall be subject to the final decision taken thereon. Pending miscellaneous petitions, if any, shall stand disposed of."
6. In view of the same, since the charge sheet has not been filed in the criminal cases against the petitioner till the date of retirement of even till date (as no evidence is submitted in this regard), it cannot be said that the judicial PMD, J W.P. No.29925 OF 2021 7 proceedings were pending against the petitioner as on the date of his retirement. As the order in W.P.No.33477 of 2018, dated 06.09.2021 ispo facto applies to this case, this Court deems it fit and proper to direct the respondents to release all the retirement benefits due to the petitioner including gratuity and full pension within a period of six weeks from the date of receipt of a copy of this order along with interest @ 6% from the date of filing of the writ petition till the date of realization. The Writ Petition is accordingly allowed without costs.
7. Miscellaneous applications, pending if any, shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date:21.10.2022.
Krl.
PMD, J W.P. No.29925 OF 2021 8 THE HONOURABLE SMT JUSTICE P. MADHAVI DEVI WRIT PETITION No.29925 OF 2021 Dt.21.10.2022 Krl