Andhra Pradesh High Court - Amravati

B Rajeswara Rao vs The State Of Andhra Pradesh on 22 December, 2021

      HONOURABLE SRI JUSTICE NINALA JAYASURYA

              WRIT PETITION No. 26111 of 2021

ORDER:-

      The writ petition is filed seeking to declare the action of the

respondents in not releasing the pending retirement benefits of

the petitioner as illegal, arbitrary, contrary to law and for a

consequential direction to release the same after effecting notional

promotion to the post of Assistant Executive Officer w.e.f.

22.12.2003 and Executive Officer w.e.f., 29.05.2006 and

regulating the suspension period along with an interest of 12%

from the date of the retirement to actual payment.

2. Heard Mr. M.Kesava Rao, learned counsel for the petitioner,

learned Assistant Government Pleader for Services-II representing

the 1st respondent and Mr. Ch.C.Satyanarayana, learned Standing

Counsel for the 2nd respondent-Corporation.

3. The petitioner was appointed as Typist in the office of the

District Scheduled Castes Service Co-operative Society Limited,

Visakhapatnam on 23.08.1979. He was promoted as Senior

Assistant on 12.03.1986 and thereafter as Monitoring and

Evolution Officer on 26.06.1996. He was kept under suspension

vide proceedings dated 09.12.2003 w.e.f. 08.12.2003 on the

premise that a case was registered by the ACB under Sections 7,

13(2) r/w 13 (1) (d) and 15 of P.C.Act of 1988. The suspension

orders were revoked on 07.09.2004 and the petitioner was

reinstated into service.

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4. The petitioner was acquitted in the said crime registered as

C.C.No.24 of 2004 by an order of the learned Special Judge for

ACB cases, Visakhapatnam dated 07.05.2009. Against the said

acquittal, the ACB filed Criminal Appeal No.544 of 2010 before this

Court and the same is pending. The petitioner on attaining the

age of superannuation of 60 years was retired from service on

30.11.2017. On the repeated requests made by the petitioner,

70% of gratuity and leave salary amounts were released to the

petitioner. His grievance in the present writ petition is that

despite his request to issue notional promotion to the post of

Assistant Executive Engineer and further, Executive Officer, as his

juniors were promoted during the period he was placed under

suspension and payment of retirement benefits by regularizing the

suspension period, has not yielded any positive response. Hence,

the present writ petition.

5. The learned counsel for the petitioner inter alia submits that

the action on the part of the respondents in not releasing the full

retirement benefits of the petitioner is not just or tenable. He

submits that the respondents on the premise that the Criminal

Appeal is pending, are not making the payment of retirement

benefits. The learned counsel would urge that the pendency of

Criminal Appeal or Revision is not continuation of criminal

proceedings and therefore, the petitioner is entitled to receive all

NJS,J W.P.No.26111 of 2021

the retirement benefits and the respondents cannot withhold the

same on the ground of pendency of Appeal/Revision.

6. In support of his contentions, the learned counsel for the

petitioner places reliance on the orders passed by the Division

Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in

W.P.No.1025 of 2011 dated 28.11.2011 and submits that the writ

petition may be allowed in the light of the judgment of the

Division Bench.

7. The learned Standing Counsel, on the other hand, submits

that the 2nd and 3rd respondents are justified in not releasing the

full retirement benefits of the petitioner since the criminal

proceedings initiated against the petitioner have not attained

finality. While not disputing the legal position with reference to

the judgment relied on by the learned counsel for the petitioner,

the learned Standing Counsel, however, submits that the

respondent-authorities cannot be found fault with for withholding

the retirement benefits as the appeal against the order of acquittal

of the petitioner in C.C.No.24 of 2004 is pending. Accordingly, he

submits that there are no good grounds for entertaining the writ

petition, much less, for granting the reliefs sought for therein.

8. This Court has considered the contentions of both the

parties and perused the material on record including the orders of

the Division Bench in W.P.No.1025 of 2011 as also the earlier

judgment of another Division Bench in W.P.No.27607 of 2009 and

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batch. W.P.No.1025 of 2011 relates to an employee who was

placed under suspension pursuant to a trap by ACB authorities. A

case was registered against him in C.C.No.9 of 1999 on the file of

II Additional District and Sessions Judge for ACB cases,

Visakhapatnam, which was ultimately ended in acquittal by

judgment dated 14.03.2006. The State filed an appeal and during

the pendency of the same, the petitioner retired from service on

attaining the age of superannuation on 31.03.2005. Thereafter, he

filed O.A.No.6190 of 2007 before the Andhra Pradesh

Administrative Tribunal at Hyderabad (for short 'the APAT),

seeking a direction to the respondents therein to regularize the

period of suspension from 06.03.1998 to 26.12.2000, to fix his

pension in the revised pay scales and to pay other attendant

benefits along with interest at 9% per annum. The Hon'ble APAT,

taking into consideration the judgment dated 28.01.2010,

rendered by a Division Bench of the erstwhile High Court of

Andhra Pradesh at Hyderabad in W.P.No.27607 of 2009 and

batch, allowed the above said O.A., with a direction to the

respondents to pass appropriate orders by treating the period of

suspension of the petitioner in accordance with FR 54-B, fix the

pay of the petitioner in the Revised Pay Scales of 1999 and 2005,

and fix the pension of the petitioner and retirement benefits,

which is not paid to him, with interest at 8% per annum from the

date of retirement till the date of payment.

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9. Against the said orders of the Hon'ble APAT, the State filed

a Writ Petition No.1025 of 2011 and the Hon'ble Division Bench

after considering the matter, dismissed the writ petition and the

relevant portion of the order reads as follows:

"It is brought to the notice of this Court that the subject matter of this Writ Petition is squarely covered by the judgment rendered by a Division Bench of this Court in Writ Petition No.27607 of 2009 and batch (The Chief Commissioner of Land Administration v. R.S.Ramakrishna Rao and Another), wherein it has been held that the pendency of the criminal appeal or revision is not a continuation of the criminal proceedings so as to deprive the full pension and other benefits and directed the respondents therein to treat the period of suspension in accordance with FR 54-B. It further directed that after the orders of acquittal are passed by the criminal Court, there is no power for the Government to withhold pension or retirement benefits and directed the Government to pay the retirement benefits with interest at 8% per annum."

10. In Chief Commissioner of Land Administration v.

R.S.Ramakrishna Rao and Another which was referred to in

W.P.No.1025 of 2011, the Hon'ble Division Bench dealt with a

batch of Writ Petitions against the orders of the Tribunal in

O.A.No.7027 of 2006 etc. After referring to the facts, the Hon'ble

Division Bench formulated the point for consideration as to

"whether the applicants/respondents are entitled for retirement

benefits immediately after the order of acquittal". The Hon'ble

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Division Bench dealt with Rule 52 of the A.P.Revised Pension

Rules, and in the ultimate analysis of the matter, held as follows:

20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquires the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE of WEST BENGAL's case (1 supra), referred to above. Para 9 of the said judgment reads as follows:-

" The submission of Mr.Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondentNo.1 is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rules 3 operative in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule(3) of Rule 3 must be given a restrictive interpretation."

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21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order.

22. If the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honorably, shall not get retirement benefits till conclusion of all appeals, revisions, special leave petitions etc. Appeal against acquittal, not being continuation of original criminal proceedings, Rule 52 as above, will not be available to Government for withholding retirement benefits.

11. Further, the Hon'ble Division Bench while rejecting the

contentions advanced on behalf of the Writ Petitioners/State

upheld the order passed by the Hon'ble APAT awarding interest @

8% p.a., on the retirement benefits from the date of acquittal.

The Hon'ble Division Bench while distinguishing the judgment of

R.Veerabhadram v. Government of Andhra Pradesh1,

opined that the applicants/employees are entitled for interest from

the date of acquittal.

1 (1999) 9 SCC 43

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12. In the light of above stated legal position, this Court is

inclined to accept the submissions made by the learned counsel