D. Sudheer Babu, vs The State Of Andhra Pradesh
2022 Latest Caselaw 8061 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                 WRIT PETITION No.11031 OF 2021

ORDER:

This Writ Petition is filed under Article 226 of the

Constitution of India for the following relief:-

"To issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus to declare the action of the Respondents in not granting Pension, Gratuity and other Retirement Benefits to the Petitioner, even though no disciplinary/criminal proceedings are pending against him as illegal, arbitrary, discriminatory and violative of Articles 14, 16 & 21 of the Constitution of India and consequently, direct the Respondents to release Pension, Gratuity and other Retirement Benefits to the Petitioner forthwith, in accordance with Rules and Law and to pass such other orders."

2. The present Writ Petition is filed for non-payment of

pensionary benefits to the petitioner on attaining the age of

superannuation on the ground that disciplinary cases pending

against him, relying on Article 351A of the Pension Code and

Rule 9(2)(a) of the Andhra Pradesh Revised Pension Rules, 1980,

after retirement of the petitioner.

3. The case of the petitioner is that he was appointed as

Assistant Executive Engineer on 13.05.1985 in the Panchayat

Raj Department, and thereafter, he was promoted to the post of

Deputy Executive Engineer on 01.10.1994 and Executive

Engineer (In-charge) on 13.04.2010 and regularly promoted in

the year 2018 and he was promoted to the post of

Superintending Engineer on 22.02.2019 and placed as In-charge

Chief Engineer/Joint Secretary on 01.07.2019 and he was finally

promoted as CE/JS regularly on 31.08.2019 and worked as

such till his retirement on attaining the age of superannuation

on 31.08.2020. The Government has issued G.O.Rt.No.762,

Panchayat Raj & Rural Development (E.I) Department dated

30.12.2019, whereunder the orders were issued regarding

retirement of certain Engineers, on attaining the age of

superannuation during the year 2020 and the petitioner and

others were permitted to retire from service without prejudice to

the disciplinary cases pending against them and also subject to

the condition that the disciplinary proceedings shall continue

against them under Rule 9(2)(a) of the Andhra Pradesh Revised

Pension Rules, 1980, after their retirement. Thereafter, the

petitioner herein has made a representation dated 30.01.2020 to

delete the condition in paragraph No.2 of the said G.O. dated

30.12.2019. As no orders are passed against the said

representation, the present Writ Petition came to be filed seeking

a direction to the respondents for release of the pensionary

benefits on the ground that no disciplinary proceedings are

pending against him on the date of retirement under Rule 9(2)(a)

of the Andhra Pradesh Revised Pension Rules, 1980, and he has

not committed any irregularity as alleged in the disciplinary

proceedings.

4. Learned counsel for the respondents filed counter

and he would submit that G.O.Rt.No.762, Panchcayat Raj &

Rural Development (Estt.I) Department dated 30.12.2019, was

issued permitting the petitioner and another individual to retire

from service on 31.08.2020 without prejudice to the disciplinary

proceedings against him. The contention of the learned counsel

for the respondents is that the petitioner has allowed one Sri

D.Ramesh Kumar, AEE, PR, Dattaluru Mandal, SPSR Nellore

District, beyond his date of superannuation, i.e., the actual date

of superannuation on 31.07.2013 and he has been continued in

service till the date of ACB trap on 28.11.2016, wherein he was

shown as Accused Officer No.1. The Government, vide

G.O.Rt.No.384, Panchayat Raj & Rural Development (Vig.II)

Department dated 15.07.2021, accorded sanction for initiation of

disciplinary proceedings against the petitioner and others under

Rule 24 of the Andhra Pradesh Civil Services (Classification,

Control and Appeal) Rules, 1991, and vide G.O.Ms.No.51,

Panchayat Raj & Rural Development (Vig.II) Department dated

15.07.2021 and G.O.Rt.No.394, Panchayat Raj & Rural

Development (Vig.II) Department dated 15.07.2021, issued

Article of charge against the petitioner under Rule 20 of the

Andhra Pradesh Civil Services (Classification, Control and

Appeal) Rules, 1991. The charge against the petitioner is hereby

extracted as follows:

"Charge:

The Government Servant while he was working as E.E., PR Division, Kavali from 1.9.2015 to 28.11.2016 failed to obtain the service register of Sri Durgam Ravi Kumar, A.E.E. from his previous station.

Thus, Sri Darsi Sudheer Babu, S/o. George the then E.E., PR Division, Kavali, SPSR Nellore District by his above mentioned acts has exhibited lack of integrity, devotion to duty and conduct unbecoming of a Government servant and violated Rules 3(1)(2) of APCS (Conduct) Rules, 1964 read with Rule 9 of A.P. Revised Pension Rules, 1980."

5. It was asserted in the counter that the pension

papers of the petitioner were processed by the 2nd respondent,

vide Letter No.G.Section/4768/2010 dated 25.08.2020 by

sending the pension proposal to the 1st respondent. The 1st

respondent after examination of the matter, vide Letter

No.PRR01-OPCL/22/2020-OP-II, dated 09.12.2020, has

submitted pension proposal to the Accountant General (A&E) AP,

Hyderabad, duly informing the status of the ACB case pending

against the petitioner and the 3rd respondent has returned the

pension proposal duly stating that the service pension case in

the case of the individual could not be finalized for the reasons,

which are not relevant for the present purpose of the case. It is

pertinent to mention herein that the pension benefits were not

released only on the ground that the petitioner herein has

continued Sri D.Ravi Kumar, A.E.E., Dattaluru Mandal, SPSR

Nellore District, beyond his actual date of superannuation, i.e.,

31.07.2012, till the date of ACB trap on 28.11.2016.

6. The case of the petitioner is that he worked as

Executive Engineer, PR Division, Kavali, in the above station

from 01.09.2015 to 28.11.2016, i.e., for a period of 14 months.

During the period he worked at Kavali station, he has not

committed any mistake in continuing one D.Ramesh Kumar as

A.E.E., Dattaluru Mandal, SPSR Nellore District, beyond his

actual date of superannuation for the reason that he was

working in the above station since 02.06.2010 and he has joined

in PR Division, Kavali, on 01.09.2015 and there was no occasion

for him to verify the service register of the individual as it was

not made available in the office and the administrative staff were

responsible for not bringing to his notice about the retirement

age of the above individual. As soon as ACB registered a case

against Sri Durgam Ravi Kumar (Accused Officer No.1) on

28.11.2016 and pursuant to the letter addressed by the ACB

dated 07.12.2016, the petitioner verified for the service register

of the individual and when it is not available in his office upon

verification, he requested the 2nd respondent to furnish the

service register of the individual and the 2nd respondent

furnished the service register on 22.12.2016 and thereafter, he

sent the same to the ACB officials and other respondents on

receiving the notice from the respondents. Therefore, he cannot

be found fault for the mistake of the office.

7. The petitioner further submitted that as per Rule 9 of

the A.P.Revised Pension Rules, 1980, when there is no charge

pending against an individual, the respondents are precluded

from withholding the pension or pension related benefits and, in

the present case, on the date of retirement of the petitioner on

31.08.2020, there was no charge pending against him, as such,

the respondents are precluded from withholding the pensionary

benefits and sought a direction to the respondents for release of

the pension and pension related benefits. In the present case,

the petitioner received all other benefits except the pension. The

petitioner has relied on the judgments of the Hon'ble Apex Court

in Union of India and others v. Anil Kumar1 and Union of India v.

K.V.Janakiraman2, whereunder, it was held that the disciplinary

proceedings commence only when charge memo is issued and

charge sheet filed in criminal case. Admittedly, there are no

proceedings initiated against the petitioner as on the date of the

retirement. Therefore, the respondents cannot withhold the

retirement or pensionary benefits by relying on Rule 9(6) of the

Andhra Pradesh Revised Pension Rules, 1980, wherein it is

clarified that the disciplinary proceedings are said to be initiated

from the date when the charge memo is issued and filed charge

sheet in criminal case.

8. Per contra, learned counsel for the respondents would

submit that the Hon'ble Apex Court in its judgment in

(2013) 4 Supreme Court Cases 161

(1991) 4 Supreme Court Cases 109

K.V.Janakiraman's case (2 supra), Union of India v. R.S.Sharma3

and Harsh Kumar Sharma v. State of Punjab 4, it was held that a

Government servant shall not be promoted until he completely

exonerated of all charges against him and the promotion is not

to be granted an the delinquent officer has to await the outcome

of the disciplinary proceedings or prosecution, as the case may

be, respectively and it is submitted that there is a dichotomy in

the views of the Hon'ble Apex Court in R.S.Sharma's case (3

supra) and Harsh Kumar Sharma's case (4 supra) on one hand

and the views expressed in Anil Kumar's case (1 supra) relied on

by the learned counsel for the petitioner is not applicable and

the law governing the field is the ratio laid down in R.S.Sharma's

case (3 supra), no law has been laid down by the Hon'ble Apex

Court.

9. Admittedly, as on the date of retirement, there are no

articles of charges or charge memo or charge sheet filed against

the petitioner under Rules 9(2)(a) and 9(6) of the Andhra Pradesh

Revised Pension Rules, 1980, and on cursory reference of the

(2000) 4 Supreme Court Cases 394

(2017) 4 Supreme Court Cases 366

material paper filed along with counter affidavit, it was asserted

in the final report of the Director General, ACB, in Letter

RC.No.144/RCT-NNL/2016 dated 22.05.2019, the date of birth

of the Accused Officer No.1 was entered in the service register as

16.07.1955 and his date of birth was shown as per online as

16.07.1958. The error was crept due to the mistake of the office,

which cannot be attributed to the petitioner herein. For the

above reasons and in view of the judgment of the Hon'ble Apex

Court relied by the learned counsel for the petitioner in

K.V.Janakiraman's case (2 supra), there are no charges or charge

memo or charge sheet is pending against the petitioner as on the

date of retirement, i.e., on 31.08.2020 and in view of the

judgment of the Hon'ble Apex Court in K.V.Janakiraman's case

(2 supra) and in view of the provisions of Rules 9(2)(a) and 9(6) of

the Andhra Pradesh Revised Pension Rules, 1980, as no charges

are pending against the petitioner, the action of the respondent

in withholding the pensionary benefits of the petitioner is

arbitrary and violative of Article 21 of the Constitution of India.

8. Accordingly, this Writ Petition is allowed, directing

the authorities to process the pension of the petitioner in

accordance with law within a period of two months from the date

of receipt of a copy of this order. There shall be no order as to

costs of the Writ Petition.

As a sequel, interlocutory applications pending, if any, in

this Writ Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 28.10.2022 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

WRIT PETITION No.11031 OF 2021

Date: 28.10.2022

siva