Ch.Bala Bhaskara Rao, vs A.P. Eastren Power Distribution ...
2021 Latest Caselaw 1303 AP

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THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                    WRIT PETITION NO.431 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, declare the action of the 1st respondent in not releasing 80% Gratuity along with the Annual Grade Increments right from 01.09.2007 to till the date of Retirement i.e.31.03.2011 on mere pendency of C.C.No.4 of 2019 in Cr.No.5/RCA/RJY/2007, in the absence of any punishment order, as illegal, arbitrary and in violation of Regulation 32 and Rule 24 of Fundamental Rules, discrimination, consequently direct the respondents herein to release the annual grade increments which fall on due from 2007 to till 2011, along with 80% Retirement Gratuity immediately to the petitioner in terms of G.O.Rt.No.1097, Finance Department, dated 22.06.2000'.

The petitioner while working as General Manager was

allowed to retire from service on 31.03.2011. Prior to his date of

retirement from service, the ACB authorities registered a

Disproportionate Assets Case against the petitioner on 24.05.2007.

He was placed under suspension on 28.05.2007 and reinstated

into service on 01.09.2007. Subsequently, the ACB authorities

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

cases, Vijayawada, in Crime No.5/RCA-RJY/2007, on 15.03.2010.

The same was transferred to ACB Court, Rajamundry, and

numbered as C.C.No.4 of 2019. The petitioner was denied payment

of Annual Increment from 01.09.2007 and after retirement from

service, 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 and G.O.Rt.No.1097, Finance Department,

dated 22.08.2000, wherein the Government has issued

consolidatory 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.4 of 2019 on

ACB Court, Rajamundry. The respondents also contended about

the initiation of departmental proceedings against the petitioner

and awarding the punishment of "Stoppage of 5% cut in pension

for one year" 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.385/07/D.No.467/2014, Dated

05.09.2014, dated 13.03.2011. 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 and 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 gratitude 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 31.03.2011 and by that time

C.C.No.4 of 2019 is pending which is re-numbered on transfer

from Vijayawada Court. But the contention of the petitioner is that

the Annual Grade Increments were not released from 01.09.2007.

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

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 a 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 01.09.2007 to 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.431 OF 2021

Date: 03.03.2021

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