K. Siva Sankara Rao, vs A.P. Eastren Power Distribution ...
2021 Latest Caselaw 1301 AP

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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.25862 OF 2020

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, declare the action of the 1st respondent in not releasing 80% Retirement Gratuity along with the Annual Grade Increments right from 11.05.2007 to till the date of Retirement i.e.31.05.2014 on mere pendency of C.C.No.110 of 2018 in Cr.No.7/RCA/RJY/05, contrary to the Regulation 32 and Rule 24 of Fundamental Rules and G.O.Ms.No.1097, Finance Department, dated 22.06.2000'.

The petitioner while working as Assistant Divisional

Engineer was allowed to retire from service on 31.05.2014. Prior to

his date of retirement from service, the ACB authorities filed

Charge Sheet before the Hon'ble Court of SPL Judge for ACB cases,

Rajamahendravaram, in Crime No.7/RCA/RJY/05. The retirement

benefits and gratuity was not released to the petitioner on account

of pendency of C.C filed by ACB authorities. The same was

questioned by the petitioner as it is contrary to the interim order

passed by this Court in W.P.No.14263 of 2020, dated 25.08.2020

and G.O.Rt.No.1097, Finance Department, dated 22.08.2000,

wherein the Government has issued consolidate orders for release

of gratuity and other retirement benefits for the retired

Government employees. Hence the petitioner sought a direction as

stated above.

The respondents filed counter denying the material

allegations while admitting the pendency of C.C.No.110 of 2018 on

ACB Court, Rajamahendravaram. The respondents also contended

about the initiation of departmental proceedings against the

petitioner and awarding the punishment of "Stoppage of two

increments without cumulative effect" and in lieu of penalty

equivalent amount to be recovered from him at the time of

superannuation vide Memo No.HRD/DC/PO-

III/F.No.381/05/D.No.127/2014, Dated 13.03.2014. The

respondents also relied on Rule 9(1) of Andhra Pradesh Revised

Pension Rules, 1980 and the regulations applicable governing the

service conditions of this petitioner. Hence they contend that in

view of these two provisions this petitioner is not entitled to claim

release of Annual Grade Increment, Gratuity and requests to

dismiss the Writ Petition.

During hearing, the learned counsel for the petitioner

Sri.Ramalingeswara Rao Kocherlakota, reiterated the contentions

raised in the Writ Petition where as Sri.Chandra Sekhar Rao Metta,

vehemently contended that in case the petitioner is found guilty in

C.C and penalty if imposed, it is difficult for the respondent to

recover the amount if any released to the petitioner and that the

limit of 80% is in the discretion of the respondent since it is

governed by 2nd proviso Clause (c) of Sub-rule(1) of Rule 52 which

states that the respondents can release the gratuity up to 80%.

Therefore, the respondents request to dismiss the Writ Petition.

Undisputedly, the petitioner is retired from service on

attaining age of superannunation on 31.05.2014 and by that time

C.C.No.110 of 2018 is pending. But the contention of the petitioner

is that the Annual Grade Increments were not released from

11.05.2007. Coming to the in action of the respondents in not

releasing the gratuity 80% which the petitioner is entitled, the

petitioner relied on the Judgment of this Court in W.P.No.3421 of

2021 dated 18.02.2021, wherein this Court held as follows:-

"The petitioner is permitted to withdraw the amount of encashment of earned leave available to his credit and the 3rd respondent is directed to release the amount payable on encashment of earned leave to the credit of the petitioners leave account, in accordance with law, following the guidelines issued in G.O.Rt.No.1097, dated 22.06.2020".

Even otherwise, as per Rule 9 of Andhra Pradesh Revised

Pension Rules, 1980, the Government is competent authority to

withhold the pension or gratuity or both either in full or in part,

whether permanently or for withdrawing pension for specific

period. Thus, Rule 9 is applicable in case the petitioner is found

guilty in Calendar Case or found guilty in departmental

proceedings. However, during pendency of the proceedings the

respondents shall release the pensionary benefits subject to Rule

52(c) of Andhra Pradesh Revised Pension Rules.

Rule 52(c) deals with sanction of provisional pension where

departmental proceedings are pending. According to Clause (c) of

sub-rule (1) of Rule 52 of Andhra Pradesh Revised pension rules,

1980, no Gratuity shall be paid until the conclusion of the

departmental or judicial proceedings and issue of final orders. But

the 2nd provisio added by G.O.Ms.No.227, dated 10.10.1995 states

that not withstanding anything contained in Clauses (a), (b) and (c)

of Sub-rule (1) above, where a conclusion has been reached that

the portion of the pension only should be withheld or withdrawn

and the retirement gratuity remains unaffected in the

contemplated final orders the retirement gratuity can be released

up to 80%. But no limit is prescribed in 2nd proviso to Clause (c) of

Sub-Rule (1) of Rule 52. Therefore, by virtue of the above Rule, the

respondents are liable to release the retirement gratuity upto 80%.

In case the amount released is to be withheld that can be adjusted

at the time of payment of retirement benefits finally. But at this

stage the respondents are not competent to withhold the gratuity

payable to the petitioner, except to the extent of 20% and shall

release the gratuity upto 80%.

As per G.O.Rt.No.1097, dated 22.06.2000, certain

guidelines as to what is to be withheld during pendency of

Criminal prosecution, disciplinary action and recovery of amount

withheld during pendency of Criminal proceedings. According to

Clause(c) Sub-Rule(1) of Rule 52 of Andhra Pradesh Revised

Pension Rules, no gratuity shall be paid until the conclusion of

departmental proceedings and issue final orders. According to

provisions of the said rule where the Departmental proceedings

has been instituted under Rule 9 of Andhra Pradesh CCA Rules,

1991, for imposing any of the penalties specified in Clause (i), (ii)

and (iv) of Rule 9 of the said rules, except the case falling under

Sub-rule (2) of Rule 22 of the said Rules, the payment of gratuity

shall be authorized to be paid to the Government servant. It is also

further provided in the said rule that where the conclusion has

been reached that the portion of the pension only should be

withheld or withdrawn and the retirement gratuity remains

unaffected in the contemplated final orders, the retirement gratuity

can be released upto 80%. Therefore, even according to Clause(c) of

Rule 52 of Andhra Pradesh Revised Pension Rules and

G.O.Ms.No.1097, dated 22.06.2000, the respondent is liable to

release the retirement gratuity upto 80%. However, the

respondents on the ground that C.C is pending, have not released

the retirement gratuity payable to the petitioner and Annual Grade

Increments was not sanctioned to the petitioner on the ground that

C.C. is pending. Such act is contrary to Regulation No.32 of

APEPDCL regulations which is corresponding to F.R.24 of

Fundamental Rules.

Therefore, the respondents are directed to release the Annual

Grade Increment of the petitioner from 11.05.2007 till the date of

retirement and also further directed to release the retirement

gratuity in terms of 2nd proviso of Clause (c) of Sub-Rule (1) of Rule

52 of Andhra Pradesh Revised Pension Rules and

G.O.M.s.No.1097, dated 22.06.2000.

With the above direction, the Writ Petition is disposed of.

There shall be no order as to costs.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 03.03.2021 tm

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.25862 OF 2020

Date: 03.03.2021

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