Andhra Pradesh High Court - Amravati
A Mohana Rao vs The State Of Ap on 11 September, 2024
1
APHC010294852020
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
WEDNESDAY ,THE ELEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 19548 OF 2020
Between:
A Mohana Rao ...PETITIONER
AND
The State of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. RAMALINGESWARA RAO KOCHARLA KOTA
Counsel for the Respondent(S):
1. GP FOR ROADS BUILDINGS
2. GP FOR SERVICES II
The Court made the following:
ORDER:
-
This petition is filed under Article 226 of the Constitution of India for the
following relief:-
"to issue an order direction or writ more particularly one in the nature of Writ
of Mandamus, declare the action of the respondents in not releasing the Encashment
of Earned Leave Amount and 80% Gratuity on pendency of C.C.No.08 of 2018, in
terms of G.O.Rt.No.1097 Finance and Planning (FW Pen.I) Department, Dated
22.06.2000, in the absence of any recoverable Charges, as illegal, arbitrary,
discriminatory, consequently direct the respondents to release Encashment of
Earned Leave amount along with 80% of Retirement Gratuity of the petitioner,
pending the C.C.No.08 of 2018 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 or orders......."
2. The brief case of the petitioner he was joined as Junior Engineer in
Roads and Building Department on 18.10.1979 and on several promotions he
was promoted as Deputy Executive Engineer and he was allowed to retire
from service on 31.05.2012 on attaining the age of superannuation. While he
was working as Deputy Executive Engineer at Repalle Sub Division, Guntur, a
case in Crime No. 10/RCA-CIU- Hyderabad/2011 has registered by the ACB
and the same is pending with any progress vide C.C.No. 8 of 2018 on the file
of the Court of Special Judge for Trial of SPE & ACB Cases-cum-Additional
Metropolitan Sessions Judge, Vijayawada. Except the D.A case, there is no
other recoverable Charge is pending against the petitioner as on date and
there is no allegation of financial involvement is issued to him, causing any
loss to the Government exchequer. Therefore the petitioner is entitled to get
Earned Leave amount in terms of G.O.Rt.No.1097, dated 22.06.2000, but the
respondents did not consider the request of the petitioner inspite of several
representations. Hence the present writ petition came to be filed and
requested to allow the same.
3. Heard Mr. Ramalingeswara Rao Kocherla Kota, learned counsel for
the petitioner and Ms. Sudeepti Potluri, learned Assistant Government
Pleader, Services-II for the respondents.
4. 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.
5. Whereas, learned Assistant Government Pleader for Services-II
mainly contended that while the criminal case is pending against the
petitioner, he is not entitled to claim for release of retirement gratuity, while
placing reliance on the judgment of Apex Court in "R. Veerabhadram vs.
Government of A.P"1 and on the strength of the principal laid down therein
the learned Assistant Government Pleader for Services-II requested to reject
(1999) 9 Supreme Court Cases 43
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.
6. Admittedly, the petitioner retired from service, but during his service a
case was registered against him on several allegations, and the criminal case
in C.C.No. 8 of 2018 is pending. Admittedly, there was no progress in the
matter since then. On account of pendency of enquiry against the petitioner,
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.
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 Second 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%.
8. Despite the Second 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."
9. Second 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 Second 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 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.
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. Recently
this Court also passed similar order in W.P.No.2221 of 2022, dated
26.07.2024, which learned counsel for the petitioner relied upon.
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 Second 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 three (03)
months 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.
The miscellaneous applications pending, if any, shall also stand closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 11.09.2024
KK
