Miriyala Jagannadham vs The State F Andhra Pradesh
2021 Latest Caselaw 1597 AP

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                    WRIT PETITION NO.3421 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 not releasing Encashment of Earned Leave amount

and 80% of the retirement gratuity, pending C.C.No.39 of 2011 on the

file of Special Judge for SPE & ACB Cases, Vijayawada, in terms of

G.O.Rt.No.1097, Finance & Planning (FW Pen.I) Department, dated

22.06.2000, as illegal, arbitrary, discriminatory, consequently direct

the respondents to release Encashment of Earned Leave amount

along with 80% of retirement gratuity of the petitioner in terms of

similar orders passed in W.P.No.30443 of 2016, dated 14.02.2017

and W.P.No.2545 of 2020, dated 24.02.2020 and pass such other

order."

2. The petitioner was allowed to retire from service on

31.10.2011 in the category of ASI of Police, during pendency of

ACB Case. On 30.07.2011 ACB registered a Trap Case against the

petitioner filed charge sheet, which is registered as

C.C.No.39 of 2011 and it is pending as on today without any

progress.

3. The petitioner submitted a representation, dated 09.01.2020

for release of balance of encashment of Earned Leave amount in

terms of G.O.Rt.No.1097, dated 22.06.2000. The 3rd respondent

herein forwarded the representation to the 1st respondent for

passing appropriate orders for releasing the balance earned leave

amount, but till date no orders have been passed. The Government

issued specific instructions for sanction of retirement benefits to

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

The Division Bench of this Court considered the said G.O and held

that in the absence of any recoverable charges, encashment of

Earned Leave amount has to be released.

4. Basing on the order passed by the Division Bench of this

Court in W.P.No.2545 of 2020 the petitioner sought for release of

encashment of Earned Leave amount along with 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 Trap Case, is illegal, arbitrary and contrary to proviso(2) of

Rule 52(c) of Revised Pension Rules, 1980 and requested to issue a

direction to the respondents as stated supra.

5. During hearing, Sri Ramalingeswara Rao Kocherlakota,

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.

6. 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.

7. Admittedly, the petitioner retired from service while working

as Sub-Inspector of Police, but during his service a Trap Case was

registered against him, which is registered as C.C.No.39 of 2011

pending on the file of competent Court for trial. Admittedly, there

was no progress in the trial though six (6) years period has been

elapsed as on date. On account of pendency 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 amount 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 during pendency of

Calendar Case is in controversy.

(1999) 9 Supreme Court Cases 43

8. 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 with held or withdrawn

and the retirement gratuity remains un-effected in the

contemplated final orders, the retirement gratuity can be released

upto 80%.

9. 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."

10. 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 pending from the year 2015

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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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: 19.03.2021.

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.3421 of 2021

Date: 19.03.2021

IS