G.L.N.Acharyulu, Hyd vs Md, Sbh, Hyd 2 Others
2022 Latest Caselaw 4481 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.23459 OF 2013


                                ORDER

This Writ Petition has been filed seeking a Writ of Mandamus

declaring the action of the respondents in not considering the

representations of the petitioner dt.14.05.2004, 23.03.2005 and

10.07.2013 as illegal, arbitrary and unconstitutional and consequently to

direct the respondents to consider and pass appropriate orders on the

representations of the petitioner.

2. Brief facts leading to the filing of this Writ Petition are that the

petitioner was appointed as a Cashier with State Bank of Hyderabad on

12.08.1970 and thereafter, the petitioner received promotions from time

to time and in the month of March, 1980, he was promoted as Officer

(Junior Management Grade-I). It is submitted that the petitioner was

posted as Branch Manager of Uttar Kanchi Branch, East Godavari

District, Andhra Pradesh in the month of November, 1981.

3. It is submitted that while the petitioner was working at Uttar

Kanchi Branch of East Godavari District, the respondent No.3, acting W.P.No.23459 of 2013

upon an anonymous complaint, placed the petitioner under suspension

and handed over the matter to the Central Bureau of Investigation (CBI),

Visakhapatnam for investigation. Thereafter, the petitioner was

reinstated into service in January, 1985 subsequent to the report given

by the CBI. It is submitted that the copy of the CBI report was not

served on the petitioner and the petitioner was made to believe that the

CBI has given a report in favour of the petitioner. It is submitted that

thereafter, respondent No.3 appointed an enquiry officer to conduct

departmental enquiry which resulted in imposing punishment of

compulsory retirement which was given effect to by respondent No.3 on

05.01.1989.

4. It is submitted that against the order of compulsory retirement in

D.P.C.No.676 dt.20.09.1989, the petitioner filed an appeal to the 2nd

respondent, but the same was confirmed by the order of respondent No.2

in D.P.C.No.1876 dt.30.12.1988 and to quash the same, the petitioner

filed W.P.No.15531 of 1989. It is submitted that in the above Writ

Petition, this Court had initially granted interim order vide order

dt.18.12.1992 by setting aside the order of the 1st respondent, against

which the respondents preferred an appeal in W.A.No.308 of 1993. It is W.P.No.23459 of 2013

submitted that in the Writ Appeal, the Hon'ble Court was pleased to

grant interim stay of the order in W.P.No.15531 of 1989 on the

condition that the petitioner is paid half of the salary last drawn

including permissible Dearness Allowance. It is submitted that the said

order was in force till disposal of W.A.No.308 of 1993 on 12.07.1995,

whereunder the Hon'ble Court allowed the Writ Appeal filed by the

respondents and remanded the matter to the Hon'ble Single Judge for

fresh disposal. It is submitted that the Writ Petition was also finally

dismissed vide orders dt.06.06.2001.

5. It is submitted that thereafter, the petitioner made a representation

to the respondents opting for pension instead of PPF (bank contribution)

on 18.07.1994 along with an undertaking in Annexure-B. It is submitted

that the petitioner was eligible to avail the pensionary benefits whenever

the same are made available by the respondents as per the guidelines

issued by the bank from time to time. It is submitted that the petitioner

was paid salary from 16.06.1993 to 12.07.1995 as per the direction of

this Court in W.A.M.P.No.581 of 1993 in W.A.No.308 of 1993

dt.14.06.1993 and thereafter, the respondents stopped the payment. It is

submitted that as per the guidelines of the respondent bank, the W.P.No.23459 of 2013

petitioner is entitled to pensionary benefits even after undergoing

penalty of compulsory retirement. It is submitted that the petitioner

joined the service of the bank on 12.08.1970 and remained in service till

05.01.1989 and therefore, he has rendered service for more than 18

years and 5 months and thereafter also, he continued in service till 1995

which covers the period of 2 years and 1 month and hence, if the said

period from 16.06.1993 to 12.07.1995 is also taken into consideration,

the total of service of the petitioner would be nearly 20 years 6 months

and therefore, he was eligible for pension as per the guidelines of the

bank. It is submitted that the petitioner has made representations on

14.05.2004 and 23.03.2005 with a request to sanction pension, but the

respondents have not taken any action thereon and therefore, another

representation dt.10.07.2013 was also filed, but the respondents have not

taken any action thereon. Therefore, the present Writ Petition was filed.

Initially, the prayer in the Writ Petition was to give a direction to the

respondents to dispose of the representations of the petitioner

dt.14.05.2004, 23.03.2005 and 10.07.2013 and that the matter was

admitted on 08.08.2013 and thereafter, the matter came up only on

20.06.2022 and was finally heard on 22.06.2022.

W.P.No.23459 of 2013

6. In the counter affidavit filed by the respondents, it is stated that

since the petitioner had put in only 18 years of service till 05.01.1989,

the date on which the order of compulsory retirement was passed and

since the punishment imposed on him was given effect to, the petitioner

is not entitled to pensionary benefits. It is submitted that the payment of

half of the salary last drawn by the petitioner thereafter for a period of 2

years and 1 month was only pursuant to the directions of this Court and

therefore, the said period cannot be considered for grant of pension as

per the guidelines of the bank. It was further submitted that the

representation of the petitioner dt.18.07.1994 was duly replied to by the

PPG Department of the bank vide letter dt.03.06.1995 stating that the

option to exercise pension from 01.01.1993 is available only to those

employees who retired on superannuation and were working as on

01.01.1993 and as the petitioner did not retire on superannuation and

was not working as on 01.01.1993, he is not entitled to pensionary

benefits. It is submitted that since the representation of the petitioner

was already disposed of, the subsequent representation dt.10.07.2013 for

the very same relief was not replied to.

W.P.No.23459 of 2013

7. The petitioner has filed a reply affidavit to the counter affidavit

filed by the respondents stating that the petitioner has put in 20 years

and 6 months of service inclusive of the period from 06.06.1993 to

12.07.1995 and therefore, he was eligible for pensionary benefits

particularly since he was deemed to have been working as on

01.01.1993. He further submitted that the petitioner is entitled for

pension even if the compulsory retirement is imposed by way of

punishment.

8. The learned counsel for the petitioner reiterated the submissions

made in the writ affidavit and also placed reliance upon the following

judgments in favour of his contentions that even when a person retires

on account of compulsory retirement, if he has put in more than 20 years

of service, he would still be eligible for pensionary benefits.

(1) M.V.R. Sastry Vs. The Govt. Of India and others1.

(2) A.P. Srivastava (Dead by LRs.) Vs. Union of India and

others2.

1995 (2) ALD 695

(1995) 6 SCC 227 W.P.No.23459 of 2013

(3) Ram Ekbal Sharma Vs. State of Bihar and another3.

9. Learned Standing Counsel for the bank, on the other hand,

supported the averments made in the counter affidavit and submitted

that the period during which the petitioner claims to have been working

under the interim orders of this Court cannot be considered as service of

the petitioner for the reason that he was not working but was being paid

only half of the salary he was last drawing and therefore, it cannot be

considered as his full service.

10. Having regard to the rival contentions and the material on record,

it is seen that the main prayer in the Writ Petition was to dispose of the

representations of the petitioner for grant of full pension on account of

his completing more than 20 years of service. This matter is coming up

after nearly 10 years and since the counter affidavit speaks of the

reasons for non-consideration of the petitioner's request for pension, this

Court is of the opinion that no useful purpose would be served by

directing the respondent bank to consider and dispose of the

(1990) 3 SCC 504 W.P.No.23459 of 2013

representations of the petitioner at this late stage. Thus, this Court deems

it fit and proper to dispose of the Writ Petition on merits itself.

11. Admittedly, the petitioner had put in 18 years and 5 months of

service as on the date of imposition of the punishment of compulsory

retirement on 05.01.1989. Thereafter, when the petitioner had

challenged the punishment order in the Appeal, the Appeal was

dismissed and the Writ Petition filed against the appellate order in

W.P.No.15531 of 1989 was allowed vide order dt.18.12.1992. However,

this order was also not implemented in view of the Writ Appeal being

filed by the respondent bank, i.e., W.A.No.308 of 1993 and this Court

had admittedly granted interim stay of the order in W.P.No.15531 of

1989 on the condition that the petitioner be paid half of his salary last

drawn including permissible dearness allowance. This order was in force

till disposal of the Writ Appeal dt.12.07.1995. Therefore, the petitioner

is claiming that since the Writ Petition was allowed vide order

dt.18.12.1992, he is deemed to be in service till the said order was

ultimately set aside in the Writ Petition. Since he was paid salary from

16.06.1993 to 12.07.1995, according to the petitioner, it covers the

period of 2 years and 1 month, and since the total period of such service W.P.No.23459 of 2013

(if put together) comes to 20 years 6 months, he is eligible for

pensionary benefits. As per the judgments relied upon by the learned

counsel for the petitioner, an employee who has put in the minimum

qualifying service prescribed for grant of pension, even if subsequently

retired compulsorily by way of punishment, is eligible for pensionary

benefits. It is therefore necessary to examine the applicability of the

above decisions to the facts of the case before this Court.

12. In the case of M.V.R. Sastry Vs. The Govt. Of India and others

(1 supra), the Hon'ble High Court of Andhra Pradesh was considering

the case of the petitioner therein whose qualifying service was to be

counted by taking the age of entry into service and in the said case, he

entered into service before reaching 17 years of age. The facts are

therefore distinguishable and therefore, the judgment is not applicable to

the case of the petitioner herein.

13. The issue in the case of Ram Ekbal Sharma Vs. State of Bihar

and another (3 supra) was whether the compulsory retirement was in

public interest or by way of punishment. The Hon'ble Supreme Court

has held that the Court can lift the veil of the innocuous order in

appropriate cases to find out the real basis, i.e., where the order made W.P.No.23459 of 2013

under Rule 74(b)(ii) of the Bihar Service Code against an officer having

an excellent and unblemished service record was actually based on a

report of ex parte enquiry concerning grave charges of misconduct

against the officer, the Hon'ble Supreme Court has held that the order of

compulsory retirement imposed therein was by way of punishment and

as such violative of Articles 311 and 14 of the Constitution of India and

Rule 74(b)(ii) of the Bihar Service Code, 1979. Therefore, this decision

is also of no help to the petitioner herein, as it is distinguishable on

facts.

14. In the case of A.P. Srivastava (Dead by LRs.) Vs. Union of

India and others (2 supra), the Hon'ble Supreme Court has held that

compulsory retirement will not affect entitlement of the employee to

pension if the same is payable for voluntary retirement as on that date.

In the said case, the petitioner therein had completed more than 20 years

of service before being imposed with the punishment of compulsory

retirement and in such circumstances, the Hon'ble Supreme Court has

held that when a person voluntarily retires after putting in 20 years of

service, he is eligible for pensionary benefits, and therefore, even in the

case of imposing of punishment of compulsory retirement after such 20 W.P.No.23459 of 2013

years of service, a Government servant is entitled to pensionary benefits.

Applying this judgment to the facts of the case herein, it is noticed that

though the petitioner has put in 18 years and 5 months of service prior to

imposition of compulsory retirement, he had not rendered any service

thereafter, but was paid half of the salary last drawn as per the interim

directions of this Court as an interim measure. In view thereof, the

period for which the petitioner has been paid salary cannot be treated as

service rendered by the petitioner and cannot be added to the qualifying

service for payment of pensionary benefits. Accordingly, this Court does

not find any infirmity in the action of the respondents in not granting the

pension to the petitioner.

15. In view of the above, the Writ Petition is dismissed as being

without merit. No order as to costs.

16. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 08.09.2022 Svv