Kona Rama Krishna vs The State Of Andhra Pradesh
2022 Latest Caselaw 3429 AP

          THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                   WRIT PETITION No.24551 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 respondents in not releasing the Encashment of Earned Leave amounts and 80% Retirement Gratuity on mere pendency of FIR 1/RCA-CIU- ACB/2020, dated 04.01.2020 pending without any progress, contrary to the Rule 52(C) II Proviso of A.P. Revised Pension Rules and also contrary to the existing Rules, G.O.Rt.No.1097 Finance and Planning (FW Pen.I) Department, dated 22.06.2000 as illegal, arbitrary, discriminatory, consequently direct the respondents to release Encashment of Earned Leave, along with 80% of Retirement Gratuity of the petitioner, pending FIR 1/RCA-CIU-ACB/2020, dated 04.01.2020 in terms of Similar Orders passed in W.P.No.2545 of 2020, dated 24.02.2020 and W.P.No.3421 of 2021, dated 19.03.2021 and Division Bench Orders passed in W.P.No.30443 of 2016, dated 14.02.2017 and pass such other orders...."

2. The petitioner was allowed to retire from service on

30.06.2020 in the category of Divisional Manager, Andhra Pradesh

Forest Development Corporation (APFDC), Eluru, during pendency of

ACB Case. On 04.01.2020 ACB registered a case against the

petitioner filed charge sheet, which is registered as

FIR No. 01/RCA-CIU-ACB/2020 and it is pending as on today without

any progress.

3. The petitioner submitted a representation to the 2nd

respondent, dated 27.09.2020 requesting to issue suitable directions

to the concerned to sanction all terminal benefits of encashment of

Earned Leave, Retirement Gratuity, GPF, APFLI etc., as he is in facing

financial crisis, 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

Divisional manager in A.P Forest Development Corporation, but

during his service a Trap Case was registered against him, which is

registered as FIR No.01/RCA-CIU-ACB/2020, and no charge sheet is

filed till date. Admittedly, there was no progress in the matter though

one and half year period has been elapsed as on date. On account of

pendency of enquiry 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.

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

(1999) 9 Supreme Court Cases 43

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 disposed of. There

shall be no order as to costs.

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

also stand closed.

___________________________ DR.K. MANMADHA RAO, J Date: 05.07.2022

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.24551 OF 2021

Date: 05.07.2022

KK