Dr Pamu Panddurunga Rao vs State Of Ap
2021 Latest Caselaw 1553 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION No.6050 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 and declare the action of the respondents in not releasing the 80% Retirement Gratuity, on pendency of FIR No.09/RCA-CIU-ACB/2017, dated 21.6.2017, in the absence of any Charge Sheet, contrary to the terms of G.O.Rt.No.1097 Finance and Planning (FW Pen.I) Department, Dated 22.6.2000, and Rule 52(1)(c) 2nd Proviso of A.P. Revised Pension Rules, 1980 as illegal, arbitrary, discriminatory and consequently direct the respondents to release the 80% Retirement Gratuity of the petitioner, in term of G.O.Rt.No.1097, Dated 22.6.2000, and Rule 52(1)(c)II Proviso of A.P.RP.Rules, 1980, and also on the same analogy of Similar Orders passed in W.P.No.30443 of 2016, dated 14.2.2017, and W.P.No.2545 of 2020, dated 24.2.2020 and to pass......"

2. The petitioner was allowed to retire from service on

31.1.2019 in the category of Engineer-in-Chief during pendency of

ACB Case. On 21.6.2017, ACB officials registered a case vide

F.I.R.No.09/RCA-CIU-ACB/2017, dated 21.6.2017, for the

offences punishable under Sections 13(1)(e) read with 13(2) of the

Prevention of Corruption Act, 1988. Though the case was

registered against the petitioner in the year 2017, no charge sheet

has been filed against him and no charges are framed and served

as on today but the respondents are not releasing his retirement

Gratuity. Respondent No.2, vide proceedings

No.21339/CS3/2018, dated 28.10.2020, has sanctioned the

encashment of Earned Leave amount but not releasing the

Gratuity amount and the same is contrary to Rule 52(1)(c) of 2nd

Proviso of A.P.Revised Pension Rules, 1980. The Accountant

General (A&E), Andhra Pradesh, Amaravathi has issued

provisional pension payment order, dated 6.7.2020, to the

petitioner wherein 75% provisional pension only has been

sanctioned. The Government itself has regulated the payment of

retirement benefits in case of retired employees who are facing

disciplinary proceedings and criminal proceedings at the time of

retirement vide G.O.Rt.No.1097, Finance & Planning (FW-Pen.I)

Department, dated 22.6.2000. The Government issued specific

instructions for sanction of retirement benefits to the Government

servants vide G.O.Rt.No.1097, dated 22.06.2000.

3. Basing on the order passed by a Division Bench of this

Court in W.P.No.2545 of 2020, the petitioner requested to pass an

order for payment of 80% retirement Gratuity pending ACB case

and requested to issue a direction to the respondents accordingly,

while contending that withholding of 80% retirement Gratuity on

account of pendency of ACB Case is illegal, arbitrary and contrary

to 2nd proviso of Rule 52(1)(c) of Revised Pension Rules, 1980 and

requested to issue a direction to the respondents, as stated supra.

4. During hearing, Sri Ramalingeswara Rao Kocherlakota,

learned counsel for the petitioner, has drawn the attention of this

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

petitioner to get 80% retirement Gratuity. He has also drawn the

attention of this Court to the order passed by a Division Bench of

this Court in W.P.No.30443 of 2016, dated 14.02.2017, and also

to the orders passed by a learned 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(1)(c) of Revised Pension Rules,

1980, judgments and G.O referred above.

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

contended that while the ACB case is pending against the

petitioner, he is not entitled to claim release of retirement

Gratuity. By placing reliance on the judgment of Apex Court in

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

the principle laid down therein, the learned Government Pleader

for Services-II requested to reject the request for release of

Gratuity of 80% in terms of G.O.Rt.No.1097, dated 22.06.2000.

6. Admittedly, the petitioner retired from service while working

as Engineer-in-Chief but during his service, a trap case was

registered against him, which was registered as F.I.R.No.09/RCA-

CIU-ACB/2017, dated 21.6.2017, for the offences punishable

under Sections 13(1)(e) read with 13(2) of the Prevention of

Corruption Act, 1988 pending on the file of competent Court for

trial. Admittedly, there was no progress in the trial though more

than three years period has been elapsed as on date. On account

of pendency of case against the petitioner for the alleged

corruption, the respondents withheld the gratuity payable to the

(1999) 9 Supreme Court Cases 43

petitioner. The facts are not in dispute but the entitlement of the

petitioner to withdraw the Gratuity during pendency of the case is

only in dispute.

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

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 withheld or withdrawn

and the retirement gratuity remains unaffected in the

contemplated final orders, the retirement gratuity can be released

up to 80%.

8. Prior to 2nd proviso added to Rule 52(1)(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(1)(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 ACB case is pending from the year 2017

i.e., subsequent to amendment to Rule 52(c) of AP. 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(1)(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

judgments, 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 80% retirement gratuity and the respondents are

directed to 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, miscellaneous applications pending, if any, in this

Writ Petition shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 17.3.2021 AMD

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.6050 OF 2021

Date: 17.3.2021

AMD