G.Dwarakanath, vs The State Of Andhra Pradesh
2021 Latest Caselaw 427 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                     WRIT PETITION NO.870 OF 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:-

"....to issue a Writ Order or direction more particularly one in the nature of

Writ of Mandamus, declaring the action of the respondents in withholding the

retirement benefits of the petitioner in the absence of any valid disciplinary

proceedings as on date, and the Charge Memos in TEC No.116/13,

TEC No.136/2013 and TEC No.172/2013, dated 21.06.2017, 25.09.2017 and rd 27.11.2017 respectively issued by the 3 respondent, stand quashed by this

Court vide Orders passed in W.P.Nos.14565, 14566 and 14567 of 2019, dated

25.09.2019, as illegal, arbitrary and discriminatory and violative of provisions

of A.P. Revised Pension Rules, 1980 and consequently direct the respondents

to release all the pensionery benefits viz., full pension, retirement gratuity and

encashment of Earned Leave and other benefits together with 12% interest

from the date of retirement till the date of payment, and pass such other

order."

2. The case of the petitioner in brief is that the petitioner was

allowed to retire from service in the category of Assistant Prohibition

& Excise Superintendent, Vijayawada, pending the Charge Memos in

TEC 116/2013, 136/2013 and 172/2013 pertaining to the same

incident in different places of work related to the year 2012 (liquor

syndicate cases). As per G.O.Ms.No.679 the Government has fixed a

maximum time limit of six (06) months for conclusion of the

disciplinary proceedings pending against the employees. In terms of

the said Government Order, when there is no progress in the

disciplinary proceedings, the petitioner approached this Court and

filed W.P.Nos.14565/2019, 14566/2019 and 14567/2019 to fix up

time limit for conclusion and this Court was pleased to direct the

respondent authorities to conclude the disciplinary proceedings

against the petitioner within three months, failing which the Charge

Memos shall stand quashed. Despite issuing such direction, the

respondents did not conclude the disciplinary proceedings within the

time frame fixed by this Court, thereby the Charge Memos are

automatically deemed to have been quashed. Non-payment of

retirement benefits subsequent to the expiry of three months from

the date of the orders passed by this Court in W.P.Nos.14565/2019,

14566/2019 and 14567/2019, is illegal, arbitrary and requested to

issue a direction to the respondents to pay retirement benefits

including full pension, retirement gratuity and encashment of

Earned Leave and other benefits together with 12% interest from the

date they become due to the petitioner till the date of payment.

3. Sri Ramalingeswara Rao Kocherlakota, learned counsel for the

petitioner reiterated the contentions urged in the main petition,

whereas learned Government Pleader for Services-I filed a memo

informing that against the order in W.P.Nos.14565/2019, dated

25.09.2019, a writ appeal is preferred by the Deputy Superintendent

of Police, A.C.B, Guntur in E-filing No.AP/2/WA/33634/19-12-2020,

it is not yet registered, and the same is intimated by memo dated

27.01.2021. On the basis of the said memo dated 27.01.2021, the

learned Government Pleader requested this Court to dismiss the writ

petition, as the writ appeal is pending for consideration.

4. Undisputedly, the petitioner is retired from service as Assistant

Prohibition & Excise Superintendent, Vijayawada during pendency of

three Charge Memos in TEC 116/2013, 136/2013 and 172/2013

pertaining to the same incident in different places of work, related to

the year 2012 (liquor syndicate cases). The Charge Memos are

pending since a long time the petitioner filed W.P.Nos.14565/2019,

14566/2019 and 14567/2019 and these writ petitions are disposed

of by the learned Single Judge of this Court, with a direction to

conclude the disciplinary proceedings against the petitioners in all

the three cases, within three months, failing which the Charge

Memos are deemed to be quashed. Therefore, due to automatic

quash of proceedings, as on date, there are no charges pending

against the petitioner. When no charges are pending against the

petitioner, in view of the orders passed by this Court in the above

said writ petitions, the respondents are under legal obligation to

release the retirement benefits to the petitioner including full

pension, retirement gratuity and encashment of Earned Leave and

other benefits.

5. Hence, non-payment of retirement benefits including full

pension, retirement gratuity and encashment of Earned Leave

amounts to violation of Article 300A of the Constitution of India

i.e., right to property. According to Article 300A of the Constitution of

India no person shall be deprived of his property except by authority

of law.

6. Here in this case, no Charge Memos are pending against the

petitioner thereby the respondents cannot deprive the petitioner from

enjoying retirement benefits such as full pension, retirement gratuity

and encashment of Earned Leave, which amounts to violation of

Article 300A of the Constitution of India.

7. In D.S Nakara and others v. Union of India1, Justice

D.A. Desai, who spoke for the Constitutional Bench, in his inimitable

style, considered the right of pension framing various issues,

particularly defining pension and whether it is a property or not etc,

1 1983 AIR 130

concluded that pension cannot be withheld except by authority

under law. The same principle is reiterated in Dr. Hira Lal v. State

of Bihar and others2.

8. In State of Jharkhand v. Jitendra Kumar Srivastava3, while

dealing with Rule 43(b) of Bihar Pension Rules with regard to claim

of the petitioner for payment of provisional pension, gratuity etc. in

terms of Resolution No. 3014 dated 31.7.1980, the Division Bench of

the Apex Court held that the State had no authority or power to

withhold pension or gratuity of a government servant during

pendency of the departmental proceedings.

9. In State of West Bengal v. Haresh C. Banerjee and Ors4, the

Apex Court recognized that even when, after the repeal of Article

19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-

Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to

property was no longer remained as a fundamental right, it was still

a Constitutional right, as provided in Article 300A of the

Constitution, the same is reiterated by Division Bench of Apex Court

in Hari Krishna Mandir Trust v. State of Maharashtra5. Right to

receive pension was treated as right to property. The High Court of

Judicature of Bombay in Purushottam Kashinath Kulkarni and

others v. The State of Maharashtra and others6 and The High

court of Chattisgarh in Ramlal Sharma v. State of Chattisgarh7

relying on D.S Nakara and others v. Union of India (referred

supra), concluded that payment of pension cannot be deferred. It is

thus a hard earned benefit of an employee in the nature of property.

2 Civil Appeal No.1677-1678 of 2020 dated 18.02.2020 3 (2013) 12 SCC 210 4 (2006) 7 SCC 651

Civil Appeal No.6156 of 2013 dated 07.08.2020

10. The word 'property' is inclusive of both movable and

immovable property, both pension and salary payable to an employee

can be said to be part of the property, as held by the Apex Court in

Madhav Rao Scindia v. Union of India8, where the Apex Court

opined that that Prievy Purse payable to ex-rulers is property. In K.

Nagraj v. State of A.P9, Apex Court opined that right of person to

his livelihood is property which is subject to rules of retirement. In

State of Kerala v. Padmanabhan10 the Apex Court opined that

right of pension is property under the Government service Rules, In

Madhav Rao Scindia Vs. State of M.P11, and State of M.P. Vs.

Ranojirao12, the Apex Court opined that property in the context

of Article 300-A includes 'money', salary accrued pension, and cash

grants annually payable by the Government ; pension due under

Government Service Rules; a right to bonus and other sums due to

employees under statute.

11. Thus, in view of the law laid down by Apex Court referred

above, amount payable towards leave encashment is an amount

payable by an employer to an employee for the service rendered by

him under a tacit contract of employment. In the present case, there

is a contract for payment of salary for the leave period encashed,

between the State and its employees on their retirement on

superannuation. When, there is a contact between the employee and

employer for payment of salary towards leave encashment.

8 AIR 1971 SC 530 9 AIR 1985 SC 553 10 AIR 1985 SC 356 11 AIR 1961 SC 298 12 AIR 1968 SC 1053

12. Payment of salary towards leave encashed or pension to the

employees is only to eke out their livelihood after retirement by way

of pension. If, whole or part of the salary or pension is deferred, it

amounts to denial of right to life guaranteed under Article 21 of the

Constitution of India. Initially, right to livelihood was not recognized

as fundamental right under Article 21 of the Constitution of India.

But, later it was recognized as Fundamental Right by judicial

interpretation to Article 21 of the Constitution of India.

13. Article 21 of the Constitution of India guarantees right to life.

The right to life includes the right to livelihood. Time and again the

Courts in India held that Article 21 is one of the great silences of the

Constitution. The right to livelihood cannot be subjected to

individual fancies of the persons in authority. The sweep of the right

to life conferred by Article 21 is wide and far reaching. An important

facet of that right is the right to livelihood because no person can live

without the means of living, that is, the means of livelihood. If the

right to livelihood is not treated as a part of the constitutional right

to life, the easiest way of depriving a person of his right to life would

be to deprive him of his means of livelihood to the point of

abrogation.

14. In Re: Sant Ram13 a case which arose before "Maneka

Gandhi Vs. Union of India14", the Supreme Court ruled that the

right to livelihood would not fall within the expression "life" in

Article 21. The Court observed as follows:-

13 AIR 1960 SC 932 14 AIR 1978 SC 597

"The argument that the word "life" in Article 21 of the

Constitution includes "livelihood" has only to be rejected. The

question of livelihood has not in terms been dealt with by

Article 21."

15. In "Olga Tellis Vs. Bombay Municipal Corporation15" the

Apex Court held as follows:

"If there is an obligation upon the State to secure to the

citizens an adequate means of livelihood and the right to

work, it would be sheer pedantry to exclude the right to

livelihood from the content of the right to life. The State may

not, by affirmative action, be compellable to provide adequate

means of livelihood or work to the citizens. But, any person,

who is deprived of his right to livelihood except according to

just and fair procedure established by law, can challenge the

deprivation as offending the right to life conferred by Article

21."

(Emphasis is supplied).

16. The right to live with human dignity, free from exploitation is

enshrined in Article 21 and derives its life breadth from the Directive

Principles of State Policy and particularly Clauses (e) and (f) of Article

39 and Articles 41 and 42 and at least, therefore, it must include the

right to live with human dignity, the right to take any action which

will deprive a person of enjoyment of basic right to live with dignity

as an integral part of the constitutional right guaranteed under

Article 21 of the Constitution of India.

15 AIR1986SC180

17. In "Delhi Transport Corporation v. D.T.C. Mazdoor

Congress16", the Supreme Court while reiterating the principle

observed that the right to life includes right to livelihood. The right to

livelihood therefore cannot hang on to the fancies of individuals in

authority. Income is the foundation of many fundamental rights.

Fundamental rights can ill-afford to be consigned to the limbo of

undefined premises and uncertain applications. That will be a

mockery of them.

18. The Apex Court in various judgments interpreted the right to

livelihood is a part of right to life under Article 21 of the Constitution

of India and it is relevant to refer the principle in "M. Paul Anthony

Vs. Bharat Gold Mines Limited17, the Apex Court held that when a

government servant or one in a public undertaking is suspended

pending a departmental disciplinary inquiry against him,

subsistence allowance must be paid to him. The Court has

emphasized that a government servant does not loose his right to

life. However, if a person is deprived of such a right according to the

procedure established by law which must be fair, just and

reasonable and which is in the larger interest of people, the plea of

deprivation of the right to livelihood under Article 21 is

unsustainable.

19. Thus, in view of the law laid down by the Apex Court in

various judgments (referred supra), widening the meaning of word

'right to life' includes 'right to livelihood', right to livelihood is a

fundamental right, and it is an integral part of right to life

guaranteed under Article 21 of the Constitution of India.

16 (1991)ILLJ395SC 17 AIR 1999 SC 1416

20. The major contention of the petitioner from the beginning is

that, deferment of payment of amount for the leave period encashed

and non-payment of pension as stated above, is contravention of

Article 300A of the Constitution of India. No doubt, as per Article

300-A of the Constitution of India, no citizen of India be deprived of

his/her right to property, except by authority of law. As leave salary

and pension form part of property of an individual to attract Article

300-A of the Constitution of India, such right cannot be taken away

except by authority of law.

21. On a bare look at Article 300-A of the Constitution of India,

any citizen of India cannot be deprived of their right to property,

except by authority under law. That means a property of any citizen

of India cannot be taken unless the State is authorized to do so. In

Shapoor M. Mehra v Allahabad Bank18, wherein Bombay High

Court opined that retiral benefits including pension and gratuity

constitute a valuable right in property.

22. In Deoki Nandan Prasad v. State of Bihar (referred supra),

the Apex Court held as follows:-

"(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable."

11. In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision

18 (2012) 3 Mah.L.J 126

made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues..."

23. Thus, both leave salary and pension payable to the employees

in service or retired from service falls within the definition of property

under in Article 300-A of the Constitution of India.

24. Though the Constitution of India permits the State to deprive

any person's right in property by authority of law, the respondents

were unable to show any provision which authorized the State to

defer payment of leave salary/pension to the employees retired from

service. In the absence of any statute governing deferment of leave

salary or pension, deprivation of right to property by retired

employees would amount to violation of constitutional right

guaranteed under Article 300-A of the Constitution of India. In this

regard, it is profitable to mention few judgments of the Apex Court

and other Courts with regard to right of the state to defer payment of

pension etc.,

25. At this stage, it is relevant to refer the meaning of 'authority of

law'. The Apex Court while considering the word used 'law' under

Article 13 and 300-A of the Constitution of India, construed the

meaning of word "Law" not only with reference to Article 13 of the

Constitution of India, but also with reference to Article 300-A and

31C of the Constitution of India. The Apex Court in "Bidi Supply Co.

Vs. Union of India19" and "Edward Mills Co.Ltd. Vs. State of

Ajmer20" held that the law, in this Article, means the law made by

the legislature and includes intra vires statutory orders. The orders

19 AIR 1956 SC 479 20 AIR 1955 SC 25

made in exercise of power conferred by statutory rules also deemed

to be law. (Vide: State of M.P. Vs. Madawar G.C.21") The Law does

not, however, mean that an administrative order which offends

against a fundamental right will, nevertheless, be valid because it is

not a "law" within the meaning of Article 13 (3) of the Constitution of

India (Vide: Basheshar Nath Vs. C.I.T.22 and "Mervyn Coutindo Vs.

Collector, Customs Bombay23")

26. Therefore, whatever legislation made by the Legislature or

Parliament alone can be said to be law within the meaning Article 13

(3) of the Constitution of India. At the same time, the Apex Court in

"Bishambhar Dayal Chandra Mohan Vs. State of Uttar

Pradesh24" while deciding the issue with reference to Article 300-A

of the Constitution of India defined the word "authority of law", held

that Article 300-A provides that no person shall be deprived of his

property save by authority of law. The State Government cannot

while taking recourse to the executive power of the State under

Article 162, deprive a person of his property. Such power can be

exercised only by authority of law and not by a mere executive fiat or

order. Article 162, as is clear from the opening words, is subject to

other provisions of the Constitution. It is, therefore, necessarily

subject to Article 300A. The word 'law' in the context of Article 300A

must mean an Act of Parliament or of a State Legislature, a rule, or a

statutory order; having the force of law, that is positive or State made

law.

21 1955 (1) SCR 599 22 AIR 1959 SC 149 23 AIR 1967 SC 52 24 AIR 1982 SC 33

27. In "Hindustan Times Vs. State of U.P.25" the Apex Court

while referring to "Bishambhar Dayal Chandra Mohan Vs. State

of Uttar Pradesh" (referred supra) held as follows:-

"By reason of the impugned directives of the State the petitioners

have been deprived of their right to property. The expression 'law',

within the meaning Article 300A, would mean a Parliamentary Act or

an Act of the State Legislature or a statutory order having the force of

law."

28. Thus in view of the law laid down by the Apex Court in the

judgments (referred supra), law means the legislation passed by the

parliament or State Legislation or Statutory rules or orders.

29. No doubt, as discussed above, right to livelihood of a person

can be deprived by authority of law. Article 300-A of the Constitution

of India, protects right of an individual, but such right in the

property can be deprived of save by authority of law.

30. The right to property is now considered to be not only a

constitutional or a statutory right, but also a human right. Though,

it is not a basic feature of the constitution or a fundamental right,

human rights are considered to be in realm of individual rights, such

as the right to health, the right to livelihood, the right to shelter and

employment etc. Now, human rights are gaining an even greater

multi faceted dimension. The right to property is considered, very

much to be a part of such new dimension (Vide: Tukaram Kanna

Joshi Vs. M.I.D.C.26)

25 AIR 2003 SC 250 26 AIR 2013 SC 565

31. Right to property of a private individual, though, permitted to

be deprived of, it must be by authority of law. Still, Article 25 (1) of

the Universal Declaration of Human Rights recognized such right in

property as human right, which reads as follows:-

"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

32. India is a State Party to the declaration, but the right to

property is not being considered as human right till date by many

Courts. Right to property in India at present protected not only

under Article 300-A of the Constitution of India, but also recognized

as human right under Article 25 (1) of the Universal Declaration of

Human Rights. A liberal reading of these two provisions, the

intention to protect the owners of either movable or immovable only

from Executive fiat, imposing minimal restrictions on the power of

the State. This is in sharp contrast to the language adopted in the

Indian Constitution.

33. In the instant case on hand, except reduction of pensionary

benefits under Rule 9 of the Andhra Pradesh Revised Pension Rules

and reduction of salary in terms of 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 or

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 to

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.

34. Though the learned Government Pleader for Services-I filed a

memo stating that an appeal is preferred by the Deputy

Superintendent of Police, A.C.B, Guntur against the order dated

25.09.2019 passed by this Court in W.P.No.14565/2019, as on date,

there is absolutely no stay of operation of the order passed by this

Court. Mere filing of appeal by the Deputy Superintendent of Police,

A.C.B, Guntur would not operate as stay automatically.

35. The locus standi of the Deputy Superintendent of Police, A.C.B,

Guntur, is now questioned, as the W.A.No.36/2021 was already

dismissed by this Division Bench of this Court on 27.01.2021. But,

this Court cannot decide the locus standi of the Deputy

Superintendent of Police, A.C.B, Guntur in filing writ appeal before

the Division Bench of this Court, without hearing the Deputy

Superintendent of Police in appropriate proceedings. Therefore,

leaving it open to the petitioner to raise all these issues in the writ

appeal filed before the Division Bench of this Court, if it is registered

and the contention of the petitioner is rejected for the present.

36. In the result, the writ petition is allowed granting writ of

Mandamus, declaring the action of the respondents is illegal,

arbitrary and violative of Articles 21 and 300A of the Constitution of

India and the 1st respondent is directed 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

to the petitioner together with interest at 12% from the date they

become due till the date of payment. There shall be no order as to

costs.

As a sequel, miscellaneous applications pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 29.01.2021

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.870 OF 2021

Date: 29.01.2021

IS