P.Prabhakar Rao, vs The State Of Andhra Pradesh
2021 Latest Caselaw 5533 AP

         HON'BLE SRI JUSTICE NINALA JAYASURYA

               WRIT PETITION No.15897 of 2021

ORDER:-

      Heard      learned         counsel    for      the      petitioner

Mr.Ramalingeswara Rao Kocherlakota and the learned Assistant

Government      Pleader    for     Services-I     appearing   for   the

respondents.

The petitioner worked as Prohibition and Excise Head

Constable. He was allowed to retire from service on attaining the

age of superannuation on 30.06.2019. His retirement was

without prejudice to the pending disciplinary enquiry against him

in Tribunal Enquiry Case (TEC) No.600 of 2013 which relates to

the events of the year 2011. The petitioner filed a Writ Petition in

W.P.No.15416 of 2019 seeking to declare the action of the

respondents therein in not concluding the pending disciplinary

charges in the said case as illegal, arbitrary and for a

consequential direction to conclude the enquiry by fixing some

time limit.

The learned Single Judge disposed of

W.P.No.15416 of 2019 by an order dated 01.10.2019 with a

direction to the respondents to conclude the enquiry pending

against the petitioner, within a period of three months from the

date of receipt of a copy of the order, failing which the

TEC No.600/2013 shall stand quashed. As the retirement

benefits to which the petitioner is entitled to have not been

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released though TEC stood quashed by virtue of the above said

orders, the present Writ Petition has been filed.

Learned counsel for the petitioner submits that in view of

the orders dated 01.10.2019 passed in W.P.No.15416/2019, the

charges against the petitioner stood quashed and in the absence

of any charge memo/disciplinary proceedings, the petitioner is

entitled to get all the retirement benefits and the respondents

have no power or authority to withhold the petitioner's

retirement benefits, more particularly in the absence of any

proved guilt in terms of Rule 9 and Rule 52 of Andhra Pradesh

Revised Pension Rules, 1980. He submits that in view of the

unambiguous statutory position, the action of the respondents in

withholding the petitioner's retirement benefits is unjust and

arbitrary.

In this regard, the learned counsel for the petitioner refers

to Rule 9 and sub-rule 4 of Rule 9 of the Andhra Pradesh Revised

Pension Rules, 1980 as also Rule 52 of the said Rules and would

further submit that the disciplinary proceedings, as mentioned

above, were directed to be concluded within a stipulated time, by

imposing default clause and as the same were not concluded

within the time stipulated by the Hon'ble Court, the same stand

quashed due to the default committed by the respondents. While

submitting that the petitioner is no way responsible for the

delay, he submits that under the said circumstances, the

respondents cannot penalize the petitioner by withholding the

pensionary benefits. The learned counsel further submits that in

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similar circumstances one of the employees in respect of whom

disciplinary proceedings initiated stood quashed by virtue of

default clause imposed by the Hon'ble High Court filed a Writ

Petition bearing W.P.No.870 of 2021. The learned Single Judge

by a detailed order allowed the said Writ Petition on 29.01.2021.

He also submits that following the said orders in W.P.No.870 of

2021 three more Writ Petitions i.e., W.P.Nos.5455/2021,

5469/2021 and 5513/2021 were disposed of by the orders dated

08.03.2021 with a direction to the respondents therein to release

the Full Pension, Retirement Gratuity, Encashment of Earned

Leave and other benefits. He also submits that against the

orders passed in W.P.No.5513/2021, the matter was carried in

appeal vide W.A.No.655 of 2021 and the Hon'ble Division Bench

vide order dated 21.10.2021 dismissed the said appeal. The

learned counsel for the petitioner states that against the orders

passed in W.P.No.870 of 2021, no appeal seems to have been

preferred.

The learned counsel further submits that in so far as orders

passed by the learned Single Judge in disposing of the Writ

Petitions to conclude the disciplinary proceedings within a

stipulated time by adding a rider that in the event of failure to

conclude the said proceedings within the stipulated time, the

proceedings shall stand quashed are concerned, a Division Bench

confirmed the same in a batch of Writ Appeals i.e., W.A.No.456

of 2021 etc., dated 16.09.2021. Making the said submissions,

the learned counsel would submit that the petitioner is entitled

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to the benefit of orders passed in similar circumstances in

W.P.No.870 of 2021 more particularly as the orders passed in

W.P.No.5513 of 2021 which was disposed of by relying on the

orders passed in W.P.No.870 of 2021 has attained finality.

The learned Assistant Government Pleader Services-I resisted

the arguments of the learned counsel for the petitioner on the basis

of written instructions received by him. While stating that an appeal

has been filed against the order in W.P.No.870/2021 he seeks time

for filing counter affidavit, but this Court in view of the undisputed

factual and legal position, is inclined to dispose of the Writ Petition.

This Court has considered the submissions and examined the

material on record. As is submitted by the learned counsel for the

petitioner, the learned Single Judge issued directions in

W.P.No.15416 of 2019 to conclude the enquiry within a period of

three months, with a default clause, that on failure, the proceedings

stands quashed. In W.A.No.456 of 2021 and batch dated

16.09.2021, the Division Bench upheld the orders wherein similar

default clause was incorporated like in W.P.No.15416 of 2019 filed

by the petitioner that the proceedings would stand quashed.

Against the said Writ Petition, no appeal has been preferred. Be

that as it may. In W.P.No.870 of 2021 on which the reliance is

placed by the learned counsel for petitioner, after detailed

examination of the issues, the learned Single Judge at Para 33 of

the judgment held as follows:-

Para 33: In the instant case on hand, except reduction of pensionery benefits under Rule 9 of the Andhra Pradesh Revised Pension Rules and reduction of salary in terms of

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C.C.A Rules, if the government servant is found guilty of misconduct after conducting necessary enquiry, no other procedure is available in any statute to defer payment of leave salary, pension or leave salary or pension in part of in full. But the charges against the petitioner are quashed vide Orders passed in W.P.Nos.14565, 14566 and 14567 of 2019, dated 25.09.2019. Therefore, non-payment of leave salary and pension retired employees is deprivation of a citizen in right to property. Such deprivation is violative of fundamental rights guaranteed under Article 21 and Constitutional Right to property under Article 300-A of the Constitution of India and Human Rights of livelihood as per Article 25(1) of Universal Declaration of Human Rights, since the government servants after retirement being pensioners would be deprived of their livelihood, though they are under obligation to meet different expenses, including maintaining their health condition for the rest of their life."

In the ultimate analysis of the matter, the learned Single

Judge allowed the Writ Petition with a direction to the

1st respondent therein to fix the pension payable to the petitioner

and pay the retirement benefits such as Full Pension, Retirement

Gratuity, Encashment of Earned Leave and other benefits

together with interest at 12% p.a., from the date the said

benefits became due, till the date of payment. As pointed out by

the learned counsel for the petitioner, following the said orders

passed in W.P.No.870 of 2021, another Single Judge allowed

W.P.No.5513/2021 by an order dated 08.03.2021. The said

matter carried in appeal vide W.A.No.655 of 2021 as noticed

above, was dismissed by an order dated 21.10.2021. Thus, by

virtue of the order passed by the Hon'ble Division Bench, the

order of the learned Single Judge in W.P.No.870 of 2021, on the

basis of which orders in W.P.No.5513 of 2021 were passed, was

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virtually affirmed. Except the statement that an appeal has been

filed against the orders in W.P.No.870 of 2021, no material

evidencing grant of interim stay/suspension was placed. Mere

filing of appeal would not result in automatic stay/suspension of

the order under appeal.

In the aforesaid view of the matter, the relief sought for by

the petitioner in tune with the orders passed in W.P.No.870 of

2021, merits acceptance. The contentions of the learned

Assistant Government Pleader, are therefore, rejected.

Accordingly, the Writ Petition is allowed, for the reasons

alike in W.P.No.870 of 2021 dated 29.01.2021. The respondents

are directed to release all the pensionary benefits i.e., Full

Pension, Retirement Gratuity, Encashment of Earned Leave and

other benefits payable to the petitioner together with interest

@ 12% from the date they became due by operation of the

orders in W.P.No.15416 of 2019, till the date of payment.

As a sequel, miscellaneous applications, if any, pending

shall stand disposed of.

__________________ NINALA JAYASURYA, J Date: 28.12.2021

IS

NJS, J W.P.No.15897 of 2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

Writ Petition No.15897 of 2021 Date: 28.12.2021

IS