Bhupani Venkata Naidu vs State Of Andhra Pradesh
2021 Latest Caselaw 933 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION NO.3930 of 2021

ORDER:

This petition is filed under Article 226 of the Constitution of

India, seeking the following relief:-

"... to issue writ of Mandamus, declaring the action of the respondents in withholding gratuity and encashment of Earned Leave, as illegal, arbitrary and contrary to the A.P. Revised Pension Rules, 1980 consequently direct the respondents to pay gratuity and encashment of Earned Leave together with interest thereon to the petitioner, in the interest of justice and pass such other order."

2. The petitioner was appointed as an Attender and joined duty

on 01.04.1984 in the office of the Deputy Inspector General,

Kurnool, further promoted as Typist, later as Senior Assistant and

finally as Sub-Registrar Grade-II in the year 2003 and retired as

such in the office of the Sub-Registrar, Pattikonda on 30.06.2017.

GPF, APGLI and full pension etc., were released to the petitioner

except the gratuity and encashment of Earned Leave to his credit.

3. The petitioner was placed under suspension pending disposal

of Calendar Case No.87/2013 registered for the offences

punishable under Sections 7, 13(1)(d) read with 13(ii) and 12 of

P.C. Act, 1988 on the file of Special Judge for Trial of ACB Cases at

Kurnool which ended in acquittal vide judgment, dated 02.01.2015

and no departmental proceedings were initiated against the

petitioner. The petitioner filed the present writ petition for

regularization of his suspension period from 19.06.2010 to

31.01.2013 consequent upon his acquittal in the said criminal

case. He submitted pension papers to the 3rd respondent in the

year 2017. Instead of sanctioning pension and other benefits the

3rd respondent submitted the proposals for verification only on

11.08.2017 to the 4th respondent. According to Rule 30 of

A.P. Revised Pension Rules, 1980, the verification is occasioned

where a Government servant completes twenty five years of service

or is left with five years of service before the date of retirement.

But, the proposals for verification were submitted by the

3rd respondent to the 4th respondent after retirement of the

petitioner only to delay payment of his pensionary benefits. Hence,

the present writ petition is filed seeking the relief as stated above.

4. During hearing, Sri Amara Rama Rao, learned counsel for

the petitioner, while drawing the attention of this Court to

G.O.Rt.No.1097, dated 22.06.2000 which permits the petitioner to

get encashment of Earned Leave amount and also to get

80% retirement Gratuity. He has also drawn the attention of this

Court to the Order passed by the Division Bench of this Court in

W.P.No.30443 of 2016, dated 14.02.2017 and also to the Orders

passed by the Single Judge of this Court in W.P.No.2545 of 2020,

dated 24.02.2020, which is followed by the judgment of the

Division Bench, wherein it is directed to the respondents therein to

release encashment of Earned Leave and also to pay

80% retirement gratuity to the petitioner therein and requested to

issue appropriate direction to the respondents to release

encashment of Earned Leave amount along with payment of

80% retirement gratuity to the petitioner herein strictly adhering to

2nd Proviso of Rule 52(c) of Revised Pension Rules, 1980, judgments

and G.O referred above.

5. Whereas, learned Government Pleader for Services-I mainly

contended that while the criminal cases are pending against him,

the petitioner is not entitled to clam for release of retirement

gratuity, while placing reliance on the judgment of Apex Court in

R. Veerabhadram vs. Government of A.P1 and on the strength of

the principal laid down therein the learned Government Pleader for

Services-I requested to reject the request to release of gratuity of

80% while permitting the petitioner to encash Earned Leave in

terms of G.O.Rt.No.1097, dated 22.06.2000.

6. Admittedly, the petitioner retired from service while working

as Sub-Registrar Grade-II, but during his service a Trap Case was

registered against him, which is registered as C.C.No.87 of 2013,

ended in acquittal. On account of Calendar Case against the

petitioner for the alleged corruption, the respondents withheld the

gratuity payable to the petitioner, so also not permitted him to

encash the Earned Leave available to the credit of his leave

account. The facts are not in dispute, but the entitlement of the

petitioner is only in dispute to withdraw the gratuity and

encashment of Earned Leave is in controversy.

7. 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 issuance of final orders. Further 2nd proviso to

clause (c) of sub-rule (1) of Rule 52 was introduced by

G.O.Ms.No.227, Fin & Plg (FW. Pen-I) Dept., dt.10-10-1995 which

(1999) 9 Supreme Court Cases 43

says that notwithstanding anything contained in clauses (a), (b)

and (c) of sub-rule (1) above, where a conclusion has been reached

that a portion of pension only should be with held or withdrawn

and the retirement gratuity remains un-effected in the

contemplated final orders, the retirement gratuity can be released

upto 80%.

8. Despite the 2nd proviso added to rule 52(c) of the Pension

Rules, 1980 vide G.O.Ms.No.227, Finance & Planning, dated

10.10.1995 the Supreme Court in Veerabhadram's case (referred

above) held as follows:-

"The payment of gratuity was withheld, in the present case, since the criminal prosecution was pending against the appellant when he retired. Rule 52(c) of the A.P. Revised Pension Rules, 1980 expressly permits the State to withhold gratuity during the pendency of any judicial proceedings against the employee. In the present case, apart from Rule 52(c), there was also an express order of the Tribunal which was binding on the appellant and the respondent under which the Tribunal had directed that death- cum-retirement gratuity was not to be paid to the appellant till the judicial proceedings were concluded and final orders were passed thereon. In view of this order as well as in view of Rule 52(c), it cannot be said that there was any illegal withholding of gratuity by the respondent in the case of the appellant. We therefore, do not see any reason to order payment of any interest on the amount of gratuity so withheld."

9. 2nd Proviso was added to Rule 52(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 criminal case is ended in acquittal in the

year 2015 i.e., subsequent to amendment to Rule 52(c) of

A.P. 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. 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(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

judgment, 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 the amount on encashment of Earned Leave available to

his credit along with 80% retirement gratuity and the respondents

are directed to release the amount payable on encashment of

Earned Leave to the credit of the petitioner's leave account and

also pay 80% retirement gratuity, in accordance with law, within

four (04) weeks from the date of receipt of a copy of this order.

14. With the above direction, this Writ Petition is allowed. There

shall be no order as to costs.

As a sequel, interlocutory applications, if any, shall stand

closed.

_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 18.02.2021.

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.3930 of 2021

Date: 18.02.2021

IS