Andhra Pradesh High Court - Amravati
M.Subba Rao vs The State Of Andhra Pradesh on 3 May, 2023
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.29054 of 2021
ORDER:
This Writ Petition is filed under Article 226 of
Constitution of India for following relief/s:
"to issue a writ order or direction more particularly
one in the nature of writ of mandamus declaring
the action of the Respondent in with holding and
not releasing the Gratuity/Death-cum-Retirement
Gratuity sanctioned to the petitioner, an amount of
Rs.4,00,000/- on instructions of Pension
sanctioning officer, without any notice being issued
to the petitioner as illegal, arbitrary, irrational,
violation of principles of Natural Justice, violation
of Andhra Pradesh Revised Pension Rules, 1980,
infringement of Article 14 and 21 and violation of
Article 300 A of Constitution of India. Further
direct the Respondent to release the
Gratuity/Death-cum-Retirement Gratuity
sanctioned to the petitioner an amount of
Rs.4,00,000/- that is with held forthwith and pass
such other order or orders..."
2. The present Writ Petition is came to be filed aggrieved by
the action of the respondents in withholding the part of
Gratuity/Death-cum-Retirement Gratuity to a tune of
Rs.4,00,000/- (Rupees Four Lakhs only) out of the amount of
Rs.12,00,000/-.
3. The Petitioner was initially appointed as Secondary
Grade Teacher on 26.09.1980 and he was promoted as School
Assistant on 27.10.1984, later he was transferred to Prakasam
District as School Assistant on 01.05.1987 and he was
promoted as Headmaster on 01.06.2003 and he was
superannuated as Mandal Educational Officer on 31.05.2017
by put in service of 36 years, 8 months and 5 days.
4. The 2nd respondent in proceedings Lr.No.AG(A&E)/
AP/P2-/II/S-3873/SP955/2018-03/401 dated 07.05.2018
directed the petitioner herein to submit certain certificates to
the 6th respondent i.e. District Treasury Officer for making first
payment of the retirement benefits. From the above said
proceedings it was noted that an amount of Rs.4,00,000/-
kept withheld.
5. On withholding above said amount, the petitioner herein
has approached the Regional Joint Director of School
Education, Collectorate Campus, Guntur, Guntur District,
A.P. as well as District Treasury Officer to furnish information
for withholding of an amount of Rs.4,00,000/-. On several
persuasions, it came to known to the petitioner that at the
direction of the Regional Joint Director, School Education, the
said amount has been withhold under Rule 9 of the Andhra
Pradesh Revised Pension Rules, 1980.
6. Hence the present Writ Petition came to be filed seeking
a direction to the respondents herein to release the entire
amount of Gratuity/Death-cum-Retirement Gratuity due to
the petitioner herein on the ground that there are no
disciplinary/judicial proceedings pending against him under
Rule 9 of the Andhra Pradesh Revised Pension Rules, 1980.
The very withholding of the said amount is arbitrary and
illegal, irrational and prayed to direct the respondents herein
to release the said amount with interest.
7. The petitioner relies on the judgment of the Hon'ble Apex
Court in R.Kapur v. Director of Inspection (Painting and
Publication) Income Tax and another1, wherein the Apex Court
held that Pension and gratuity are no longer any bounty to be
distributed by the Government to its employees and also relied
on the judgment of Allahabad High Court in Shyam Narayan
Dubey v. State of U.P. Through Prin. Secy. Home Lko. & ors.,
wherein the Allahabad High Court after following the judgment
(1994) 6 SCC 589
of the Hon'ble Apex Court held that the respondent authorities
cannot withhold or deduct post retiremental dues including
gratuity or provident fund and cannot be stopped as a set for
outstanding dues against a retired employees. The Court
exerted Section 4 of Payment of Gratuity Act, 1972 which is
extracted hereunder:
"Section 4 Sub-clause (1) says that gratuity shall be
payable to an employees on the termination of his
employment after he has rendered continuous service
for not less than five years - (a) on his superannuation;
(b) on his retirement or resignation; or (c) on his death or
disablement due to accident or disease; and Sub-clause
(6) reads as under:
(6) Notwithstanding anything contained in Sub-section
(1)--
(a) the gratuity of an employee, whose services have
been terminated for any act, wilful omission or
negligence causing any damage or loss or destruction of
property belonging to the employer, shall be forfeited to
the extent of the damage or loss so caused;
(b) the gratuity payable to an employee may be wholly
or partially forfeited--
(i) If the services of such employee have been terminated
for his riotous or disorderly conduct or any other act of
violence on his part, or
(ii) If the services of such employee have been
terminated for any act which constitutes an offence
involving moral turpitude, provided that such offence is
committed by him in the course of his employment"
8. The Hon'ble Supreme Court in State of Jharkhand and
others v. Jitendra Kumar Srivatsava & another2 has framed a
question that in the absence of any provision in the pension
rules, the State Government can withheld a part of pension
and/or gratuity during the pendency of departmental/criminal
proceedings, and it is answered that it is an accepted position
that gratuity and pension are not the bounties. An employee
earns these benefits by dint of his long, continuous, faithful and
un-blemished service. Conceptually it is so lucidly described in
D.S. Nakara and Ors. V. Union of India3 by Justice D.A. Desai,
who spoke for the Bench, in his inimitable style, in the
following words:
"The approach of the respondents raises a vital and
none too easy of answer, question as to why pension
is paid. And why was it required to be liberalised?
Is the employer, which expression will include even
the State, bound to pay pension? Is there any
obligation on the employer to provide for the
2 (2013)12 SCC 210
(1983) 1 SCC 305
erstwhile employee even after the contract of
employment has come to an end and the employee
has ceased to render service? The pension is a right
and the payment of it does not depend upon the
discretion of the Government but is governed by the
rules and a Government servant coming within those
rules is entitled to claim pension."
In Shapoor M.Mehra v. Allahabad Bank4, Bombay High Court
opined that retiral benefits including pension and gratuity
constitute a valuable right in property under Article 300A of
the Constitution of India.
9. Learned counsel for the petitioner would contend that on
similar lines the Hon'ble Apex Court in Dr. Hira Lal v. State of
Bihar and others5 the Apex Court held that right to pension
cannot be taken away by mere executive flat or administrative
instruction since pension and gratuity are not mere bounties, or
given out of generosity of employer but employee earns these
benefits by virtue of his long, continuous faithful and
unblemished service. Withholding of gratuity in terms of
circular and Government Resolution on ground of pending
criminal proceedings, in absence of any rules or statutory
provisions permitting the same is impermissible.
4 (2012) 3 Mah.L.J 126
(2020) 4 SCC 346
10. The respondents filed their counter affidavit and contend
that the petitioner has recommended for the payment of bills
and salaries of ten years of a person who was absconded to his
duties, without obtaining the orders of the higher authorities
and without verifying the DISE forms submitted by the then
Headmaster of the School in respect of Sri P.V.S.S. Prasad,
SGT, SBNRM Aided Primary School, Obulapuram, Komarole
Mandal, Prakasam District, for the same the petitioner was
made responsible and the said amount was retained by the
authorities .
11. Pension granted to a public servant is a property under
Article 31(1) of the Constitution of India as declared by Hon'ble
Apex Court in Deokinandan Prasad v. State of Bihar6 and by a
mere executive order, that the State cannot withhold the
pension or pension related benefits except by authority of law
or procedure established by the respondent authorities cannot
subvert the procedure and withhold the gratuity or pension
related benefits relating to the employee.
12. Admittedly, there are no criminal or disciplinary
proceedings were initiated or pending any proceedings against
petitioner herein under Rule 9 of the Andhra Pradesh Revised
(1971) 2 SCC 330
Pension Rules, 1980. Unless any disciplinary or criminal
proceedings initiated under sub-rule (6) of Rule 9 of Andhra
Pradesh Revised Pension Rules, 1980, the respondents cannot
withhold the pension and pension related benefits, as held by
the Hon'ble Apex Court in Dr. Hira Lal case (supra 5), the
pension cannot be taken away by mere administrative
instruction, since pension and gratuity are not mere bounties,
or given out of generosity of employer.
13. As there are no disciplinary and criminal proceedings
pending against the petitioner herein, therefore, this Court is
inclined to direct the respondents herein to release the
withheld amount of Rs.4,00,000/- (Rupees Four lakhs only)
along with interest @ 6% per annum from the date of withheld
till the date of realization, the said process shall be completed
within two months from the date of receipt of Order.
Accordingly, the Writ Petition is disposed of. However,
no costs.
Pending Interlocutory Applications, if any, shall stand
closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date 03.05.2023
HARIN
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.29054 of 2021
Date 03.05.2023
HARIN
