Allowed

Mortha Bala Prakash v. The State of Andhra Pradesh

Andhra Pradesh HC22 Sept 2022WP/22481/2022

Case brief

AI extract

What is this about?

The petitioner sought writ of mandamus for encashment of earned leave and 80% gratuity, withheld due to pendency of a criminal case arising after a constitutional amendment. The court distinguished precedents not covering the post-amendment rule and allowed the petition.

What did the court decide?

Direct response to release encashment of earned leave and payment of 80% retirement gratuity within four weeks.

Mortha Bala Prakash Vs The State of… — 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.22481 OF 2022

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ORDER :

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This Writ Petition is filed under Article 226 of the

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Constitution 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 declare the action of the respondents in not releasing the Encashment of Earned Leave amounts on mere pendency of Charge Sheet in C.C.No.11 of 2019, dated 20.11.2018, ACB Court, Rajamahendravaram, pending without any progress, contrary to the existing Rules, G.O.Rt.No.1097 Finance and Planning FW Pen.I) Department, dated 22.06.2000, as illegal, arbitrary, discriminatory, consequently direct the respondents to release Encashment of Earned Leave of the petitioner, pending pending without any progress, contrary to the Rule 52(C) II Proviso of A.P. Revised Pension Rules and also contrary to the existing Rules, G.O.Rt.No.1097 Finance and Planning (FW Pen.I) Department, dated 22.06.2000 as illegal, arbitrary, discriminatory, consequently direct the respondents to release Encashment of Earned Leave of the petitioner, pending C.C.No. 11 of 2019 in terms of Similar Orders passed in W.P.No.3421 of 2021, dated 19.03.2021, and Division Bench Orders passed in W.P.No.30443 of 2016, dated 14.02.2017 and W.A.No.196 of 2022, dated 16.02.2022 and pass such other orders....”

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The petitioner was allowed to retire from service on 30.06.2018 in the category of District Registrar, Kakinada, during pendency of ACB Case. ACB registered a case against the petitioner filed charge sheet in C.C.No.11 of 2019, on the file of Special Court

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for SPE and ACB Cases, Rajamahendravaram, and it is pending as on today without any progress.

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The petitioner submitted a representation to the 3^rd respondent, dated 12.11.2021 requesting to issue suitable directions to the concerned to sanction 80% of the Gratuity, as he is in facing financial crisis, but till date no orders have been passed. The Government issued specific instructions for sanction of retirement benefits to the Government servants vide G.O.Rt.No.1097, dated 22.06.2000. The Division Bench of this Court considered the said G.O and held that in the absence of any recoverable charges, encashment of Earned Leave amount has to be released.

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Basing on the order passed by the Division Bench of this Court in W.P.No.2545 of 2020 the petitioner sought for release of encashment of Earned Leave amount along with payment of 80% retirement Gratuity, pending ACB case and requested to issue a direction to the respondents accordingly, while contending that withholding of 80% retirement Gratuity on account of pendency of ACB Trap Case, is illegal, arbitrary and contrary to proviso(2) of Rule 52(c) of Revised Pension Rules, 1980 and requested to issue a direction to the respondents as stated supra.

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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 2^nd Proviso of Rule 52(c) of Revised Pension Rules, 1980, judgments and G.O referred above.

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Whereas, learned Government Pleader for Services-I mainly contended that while the criminal cases are pending against him, the petitioner is not entitled to clam for release of retirement gratuity, while placing reliance on the judgment of Apex Court in

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“ R. Veerabhadram vs. Government of A.P”¹ and on the strength

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of the principal laid down therein the learned Government Pleader for Services-I requested to reject 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.

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Admittedly, the petitioner retired from service while working as Divisional manager in A.P Forest Development Corporation, but during his service a Trap Case was registered against him, which is numbered as C.C.No.11 of 2019, on the file of Special Court for SPE and ACB Cases, Rajamahendravaram, and no charge sheet is filed till date. Admittedly, there was no progress in the matter though one and half year period has been elapsed as on date. On account of pendency of enquiry against the petitioner for the alleged corruption, 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.

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According to clause (c) of Sub-Rule (1) of Rule 52 of the Andhra Pradesh Revised Pension Rules, 1980, no gratuity shall be

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1 (1999) 9 Supreme Court Cases 43

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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%.

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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:-

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“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

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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.”

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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 2015 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.

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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,

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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.

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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.

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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.

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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

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also pay 80% retirement gratuity, in accordance with law, within four (04) weeks from the date of receipt of a copy of this order.

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