Allowed

M.a.Saleem, v. The State of Andhra Pradesh

Andhra Pradesh HC20 Jul 2022WP/11729/2021

Case brief

AI extract

What is this about?

The Court held that the Government cannot withhold encashment of earned leave for a retiring employee merely because criminal proceedings are pending, especially when no recovery is likely, and relied on the Division Bench judgment in W.P.No.30443 of 2016.

What did the court decide?

Respondents directed to forthwith process and pay encashment of earned leave to the petitioner with 12% interest and set aside impugned proceedings.

M.a.Saleem, Vs The State of Andhra… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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THE HON’BLE Dr.JUSTICE K. MANMADHA RAO

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WRIT PETITION No.11729 of 2021

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ORDER :

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This Writ Petition is filed under Article 226 of the Constitution

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of India, seeking the following relief:

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“…..to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus to declare the impugned proceedings SerII(1) W.P.No.8981 of 2021, dated 04.06.2021 issued by the 2^nd respondent in rejecting to release the Encashment of Earned Leave amount to the petitioner on pendency of C.C.No.21 of 2019, dated 03.06.2018 (Trap Case) and FIR No.12/RCA-EWG.17, dated 16.08.2017, (DA CASE) in the absence of any recoverable Charges, but the 2^nd respondent herein released Encashment Earned Leave amount to similarly situated employee of the Department, vide Proceedings No. Ser-II(1)/01/2020, dated 09.03.2021, in terms of G.O.Rt.No.1097, Finance dated 22.06.2000, but denying the same benefits to the petitioner as illegal, arbitrary, discriminatory and set aside the impugned proceedings dated 04.06.2021 and consequently direct the respondents to release Encashment of Earned Leave amount to the petitioner, along with 12% interest, on the same analogy of orders passed in Proceedings No. Ser-II(1)/01/2020, dated 09.03.2021, basing on the 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 W.P.No.3421 of 2021, dated 19.03.2021 and pass such other orders.”

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Heard Mr. Ramalingeswara Rao Kocherlakota, learned

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counsel for the petitioner and learned Government Pleader for Services-IV for the respondents.

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The brief facts of the case are that the petitioner was petitioner was appointed as Assistant Executive Engineer in Panchayat Raj Department on 20.01.1986 and got promoted as Deputy Executive Engineer on 01.08.2004 and finally he was working as Deputy Executive Engineer, PR & RD, Sub Division, Bhimadole,

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West Godavari District vide proceedings dated 19.12.2019 issued by the 2^nd respondent. The petitioner was allowed to retire from service on attaining the age of superannuation on 31.03.2020 and his retirement is without prejudice to the pending two criminal cases viz., C.C.No.21 of 2019 on the file of ACB Court, Rajamahendravaram and another is F.I.R.No.12/RCA-EWG/2017, dated 16.08.2017. Subsequently the 1^st respondent vide G.O.Rt.No.611, dated 04.11.2020 issued orders for sanction of 75% provisional pension under A.P.Revised Pension Rules, 1980, except the above said cases, no other recoverable case of charge is pending against the petitioner as on date. Hence the action of the respondents is questioned in this writ petition.

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Per contra, the respondents filed counter denying all material averments made in the writ affidavit and mainly contended that in G.O.Rt.No.1097, Finance and Planning (FW.Pen.I) Department, dated 22.06.2000, among others, the clarification under Para No.3(B) on Encashment of Earned Leave is as follows:

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“ As per the orders issued in G.O fourth read above i.e G.O.Ms.No.11, Finace & Planning (FW:FR.I) Department, dated 15.01.1997, the authority competent to grant leave, in the above mentioned cases may withhold whose or part of cash equivalent of earned leave, if in the view of the competent authority there is possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion, the retired employee will become eligible to the amount so withheld after adjustment of the Government dues, if any. As such, Encashment of Earned Leave can be regulated accordingly.”

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Further contended that in the event of conviction by the trial

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courts, the in-service Government servants will be dismissed from

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service and such dismissed employees are not entitled for any terminal benefits/ service benefits. In the case of retired Government servants, the correspondent penalty is withholding of entire pension and gratuity. The gratuity is a monetary benefit given by the employer to his employee at the time of retirement based on the service rendered by him. Likewise, the encashment of earned leave also will be permitted by the Government. In the above case, his savings amounts viz., Family Benefit Fund, APGIS, GPF and APGLI only will be paid to him, since there may be no recoveries can be made from these amounts. In view of the same, the writ petition is liable to be dismissed.

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Learned counsel for the petitioner draws the attention of this Court to the order passed by a Division Bench of this Court in W.P.No.30443 of 2016, wherein the Division Bench held that there is no basis for the Government to withhold the amount due towards encashment of Earned Leave and prayed for a similar order.

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Whereas learned Government Pleader for Services submitted that for grant of any payment it is a condition that till the criminal proceedings are concluded, the petitioner is not entitled for any relief and that he cannot be paid either the Earned Leave or gratuity. He points out the serious allegations made as far as the petitioner is concerned in C.C.No.21 of 2019, dated 03.06.2018 on the file of ACB Court, Rajamahendravaram and also F.I.R.No.12/RCA-EWG/2017, dated 16.08.2017, which are pending and hence he opposes any order being passed.

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This Court after considering the submissions made by the both the learned counsels perused G.O.Rt.No.1097, dated 22.06.2020. As rightly pointed out by the learned counsel for the petitioner in that G.O itself the Government considered the amounts that can be paid to the retired employee since no recoveries can be made from the amounts under Earned Leave and gratuity. In encashment of Earned Leave, the Government clearly held that the same can be with held if there is a possibility of some money becoming recovered from him on conclusion of the proceedings against him. As far as the retirement gratuity is concerned, similar matter was contemplated and ultimately it is concluded that claims up to 80% of the gratuity amount can be paid in contemplation of the final orders.

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Further the Division Bench of this Court in W.P.No.30443 of 2016 also clearly held that there is no question of withholding the amount towards encashment of Earned Leave. In the case on hand, the matter pending before the ACB Court, Rajamahendravaram, relates to demanding bribe from public, but the same cannot be a ground for initiating any recovery proceedings.

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In view of the same, this Court is of the opinion that as per directions in G.O.Rt.No.1097, dated 22.06.2000, the petitioner is entitled for encashment of Earned Leave as prayed for in the Writ Petition. The stand taken by the Government is over ruled. The respondents are directed to forthwith process and pay the encashment of Earned Leave to the petitioner, while declaring the

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impugned proceedings dated 04.06.2021 issued by the 2^nd respondent in rejecting to release the encashment of earned leave amount to the petitioner is declared as illegal and arbitrary and same is hereby set aside.

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With the above observations, the writ petition is allowed. The entire exercise should be completed within four (04) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

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

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also stand closed.

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__________________________________ DR.JUSTICE K. MANMADHA RAO

Date: 20.07.2022.

THE HON’BLE Dr.JUSTICE K. MANMADHA RAO