Allowed

M. Ramanuja Charyulu, v. Prl.Secy., Finance dept., State of T.S.

Telangana HC17 Aug 2023WP/6187/2018

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the attachment of the petitioner's pension benefits for a non-government loan. Relying on Section 60(1)(g) CPC and Section 11 of the Pensions Act, 1971, the Court held that pension amounts are exempt from attachment and ordered the release of the withheld sum.

What did the court decide?

The impugned order directing withholding of pension is set aside. Respondents directed to release Rs. 17,09,666/- within eight weeks.

M. Ramanuja Charyulu, Vs Prl.Secy., Finance… — Execution and Attachment | Telangana HC (2023)

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[³³⁰⁴ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

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WRIT PETITION N O: 6187 OF 2018

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Between:

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X,I?T?lrt:^{Charyulu, S/oLa.reyadagiraCharyutu, Aged about60 years,} ucc. Ketdj superintendent, office of the Execufive Engineering, University Buildings Division, Osmania University, Hyderabad, (Emb. tO. io. 643OO7i R/o^{flal. no. '105, Singhat Arcade,Radh'aKrishna'Coiony, peerziO,g*iJ,} Uppal, Hyderabad, Telangana - 500098.

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.PETITIONER

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AND

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1 I!9^{Slate of Telengana, Rep by its principal Secretary, Finance (pension_l)} Uepartment, Secretariat, Hyderabad.

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2 The Registrar and _S_ecretary, Executive Council, Osmania University, Hyderabad - 500007

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a The Deputy Registrar, Accounts and pension Department, Osmania University, Hyderabad - 500007.

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4 The University Engineer, University Buildings Division, Osmania University, Hyderabad - 500007.

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...RESPONDENTS

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Petition under Article 226 of rhe constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or Direction more particularly one in the nature of writ of ltrlandamus and declare the action of the respondents in withholding the payment of the pension, pensionary benefits and other terminal benefits by the respondenls and not paying the same as per the impugned order no. 301lEsltluBDl2O1 7 dated 17-06-2017 tssued by the fourth respondent as illegal, bad, arbitrary and in violation of the principles of natural justice and against ihe provisions of sec. 60 (t ) (g), CPC, Sec.1'1 of the Pensions Act,^.1971 and also against the circular Memo no. 1469162lA1|PEN.l/2010 dated 03-08-2010 issued by the first respondent which has been adopted by the Osmania University through an order no. 1 561161 1201 O/Accts/pen dated 11-O1-2011 explicifly exempting all pensionary benefits, akin to pensionary benefits i.e., FBF, GIS and GPF from Court attachments, sale and recoveries of non-government loans by various statutory laws and court judgments and direct the respondents to release

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and pay all such pension,^pensionary benefits and other terminal^{benefltsto the} petitioner forthwith in thc interest of lustice.

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lA NO: 1 OF 2018

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Petition under St:ction 15'1 CPC praying that in the circumstances^stated in the affidavit filed in s upport of the^petition, the High^{Courtmay be pleasedto} suspend the impugned^proceedings no. 301/Estt/UBD|2O07^{dated17-06-2017} issued by the respondernt no.4 clirectrrrg the respondents^{to pay the amountof} petitioner's retirement benefits to thc petitioner which have been withheld by the respondents^pending disposal of the^{Writ Petition in the circumstancesof this} case and in the interest of Justice.

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lA NO: 1 OF 2019

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Petition under Soction 15'1 CPC^praying that^{in the circumstancesstated} in the affidavit filed in s upport of^{the petition,the High Courtmay be pleasedto} permit the petitioner to engage another counsel by name^{[V]r. I,4.} Karuna Sagar, Advocate, Flat Nos. 309 & 408, Sorvmya^{apartments,Red Hills, Hyderabad, in} place of earlier counsel in the above lvrit petition.

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lA NO: 2 OF 2019

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Petition under St:ction 151 CPC^praying that in the circumstances^stated in the affidavit filed in support of the^{petition, the High Courtmay be pleasedto} direct the respondent:i b forthwith release a^sum of^{Rs. 6,34,9'101by} considering my represe ltalton Dl 10;12 2018^{pending disposalof the above WP.}

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Counsel for the Petitioner: SRI VENUGOPALA^{RAO PASNOORU}

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Counsel for the Respondent No.1 : GP FOR FINANCE^{& PLANNING}

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Counsel for the Respondent No.2 to 4: SRI^{CH.JAGANNADHARAO,} SC FOR SMANIA UNIVERSIW

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The Court made the foliowing: ORDER

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HON'BLE SRI JUSTICE NAMAVARAPU RAJESHIVARA RAO WRIT PETITION No.6187 of 2O18

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ORDER

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This writ petition is frled seeking the following reliel '.....,.. to issue a writ, Order or Direction more particularly one in the nature of writ of Mandamus and declare the action of the responclcnts ln withholding the payment of the pension, pensionary benefits and other Lerminal bencfits by the respondents and not paying the same as per the impugned order No. 3O1, /Estt/UBD /2Ot7 dated 17 .06.2017 issued by the fourth respondent as illegal, bad, arbitrary and in violation of the principles of natural justice and against the provisions of Sec. 60 (1) (g) CpC, Sec. 11 of the Pcnsions Act, 1971 and also against the Circular Memo No. 1469 /62 lA1 /PLN.Il2Ot0, dated 03.O8.2010 issued by the hrst respondent which has been adopted by the Osmania University through an order No. LS6 / 16I l2O lO/Accts/pen dated 11.01.2O 11 explicitly exempting pensionary benehts akin to pensio ary benefits i.e., FBF', GIS ancl GpF from Court attachmcnts, sale and recoveries of nongovernment loans by various statutory laws

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anc court ju,Jgrnents ar-ld direct the respondents to reiease and pay all such pension, pensjonary benefifs and other tcr ninal bencll t s i o tl're pctitioner forthr"r,ittr

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Heard learned counsel appearing for the petitioner and the learned Standing Counsel aF,pearing for the i-espondents.

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Learned cc,unsel appearrng for the petitioner had contended that the petitioner u,as aDpointed as a1t Accor,rnts Clerk on 01.06.1984 and subsequenllr he rras promotecl to the post of Senior Assistar-rt in the 5'ear i 984. Therealier. the pctitioner u,as promoted to the post of Supelir-rter-ident in the year 2C 16 in the office of the Exer utive Engrneering. L)niversity Buildings Division, Osmania Univerrrity, Flyderaba.cl and he has discl-rarged his duties to the satislaction of the sr-rperior authoriries. Thereafter, on attaining the age of superanrLuation on 31.03.2017, the petitioner retired as Superintendent. While things stoocl thus, on 3i.05.2017, the petitioner hao applied for sanction of pension benehts and cther ter-rninal^-oer-refits. But, the respondents have not sanctionecl the pensionary benehts to the petitioner. Hou.ever, the 4Lh responden t issued letter No.3O1/Estt/U]H-D /2012, dateC 17.06.2O1i, informing about the

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outstanding amount due from the petitioner to the tune of Rs. 17,71,515.00 a:-rcl an amount of Rs.17,O9,666/- was withheld pursuant to various Court orders addressed to the respondents to r,r,ithhold a total amount of Rs.17,09,6661- from out of the retirement benefits of the petitioner. pursuant thereto, the petitioner submitted a representation to the respondents on 72.08.2O17 stating that deduction of an amolrnt of Rs. 17,09,666/- from out of the petitioner's pensionary benehts is illegal and contrary to the Circular Memo, dated 03.0g.20i0 issued by the then Government of Andhra pradesh, which was adopted .by the Osmalia University through an order dated 11.01.2011 expiicitly exempting all pensionary benehts i.e., FBF, GIS and GPF being exempted from Court attachments, sa_le and recoveries of non government loans by various Statutory laws and Court judgmenrs.

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Therefore, learned counsel appearing for the petitioner submits that withholding of the above said amor.rnt is illegal and contrary to the Circular dated 03.08.2010 issued by the respondents. In support of his contention, learned counsel appearing for the petitioner relied upon Rule (2) of Circular dated 03.08.2010, which reacls as follows :

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- <br>

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Aci:ording tLr Section I 1 c.f Lh.r: Pcnsiorrs

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Act, 187 l.

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1 i.px_g@p!!rrl A[ pe4s1e!_.{qgl4 4t!4cLmqt_tq! No per sion granttrl iri cortirr.red br'^(lov<:rnment on political considcr-:rt ic.n s. or on :tccount ol past senices or prcsent intllmitles or as:l compassiorr allowance, and on nrone\ cluc or to ltccornc due on account of ani' sucl'r pei-ision or aliorvance shall bc iiable t,r seizure, a i'!aoirr'l:lcn I or scciuesLr?ltion Lrl,r process: Ol ally Cou:1 ai thc inslcnc" rll u t.rudittrr. for. an l. dernand a.qainst thr: oensjo;rcr, or in satisfaction of a de(irrrc rI order O[ ani, sur:h Court."

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Learned cou-nsel appeanng for the petitiorrer has also relied upon a der:ision of the Hon blr: Apr:x Couri ir.r RADIIEY SHYAM GUPTA Es" PtliV,-rjB NATIANAL BANK AND AN.OTHERI, wherein the Hon'ble Apex Court held as 1b11o,;r,s

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".^. .... How,ever, we are also of the vie'u,' that havrng regard tilproviso (g) Lo Section 6O(1) of t,he Cocle, the High Court comrnittr:d a jurisdictlonal crror in direcrrng that a portitrn of the decretal amou n1 be satished frr-rm the fixc:d deposit receipts of the appellanl. held by thc Llanh.^'lhe High Cr.r'urt aiso erred in piacing thl unus cil the :rppcliant rcr produce l.he Mat::c1or in question for bei:tg

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I (2009) 1 Supreme Court ( ase5 376

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auctioned lbr recoverv of the decretal dues. ln other u.ords, the High Court erred in altcring thc decree of the trial court in its revisional jurisdiction, pa,r[icularly when the pension and gratuity of the appellant, u,hich had been converted into fixed deposits, could not be attached undcr the provisions of the Code of Civil Procedure. The decision tn Jyoti Chit Fund case l(19761 3 SCC 6071 has been considerably watered down by later decisions which have been indicated in para 22 hcreinbefore and it has been held that graruity payable would not be liable t<.r attachment for satisfaction of a court decree in view of proviso (g) to Secrion 60( l) ol- the Code.

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We also agree rvi th Ms Shobha that the High Court could not have gone behind the decrec in the execution proceedings and the alteration in the. manner of recovery of the decretal.amount was erroneous and cannot be sustained.

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We also agree with Ms.Shobha that even after the retiral bencfits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code. Except for the decision in Jgoti Chit Fund and. Finance case[(I976l 3 SCC 607] , where a contrary view was taken, the consistent view taken thereafter supports the contention that merely because of the lact that gratuity and pensionary benefits had been received by the

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appcllzlr t in cash, ir clu ld no longer- bc iclt:ntrticd as sLrcl-r retiral bene is paid to the appellani."

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Learned cc unsr:l appe<tlng for the pet-iiioner has aiso relied upon a decjsion oI this^(jo,.rrt ir: G.,--s[.RyA KUIEARI Vs. UMO/V BANK OF IIVD-IA. IIVDERABAD2,^\i,hereiir this Court held as follou,s

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Tl-ie case ol ttrt: rr:s;r:onclents b,.rnk is tirat son of tire ceiitioner I,.'1;. Gajadi Sanjeer.' [(;;mar has avaijed an educatjonal loan oi Rs.4-,00,000t (Rupees iour laki-r:r onlr'1 for prosecuring N1.B.A. at WoJvelhamptclr LlniversitJr, tJ.K.. on 05.02..1() 10. The pertir iouer stood ars persorrrl glrarantor lor il-rc sairl loitn and also for the loan takcn b',. Lrcr anotht:r' son viz., Gajacii tiiran Kumar. The petitioner a:rC her son its co obligan tr. failed tc repav thc lo;rn availed l,,y the;1. lhe suit in u.s. No.2i.j cf 20'l ,5 r..'as ftled b1' rcspondert No.1 bt.fo.c t.hc lca;-ncci /ll Senior Civil Juclge, City Civil Court, Hydera.bad. against Itle^petilionel' and her sons and the sarne^.,vas dismisse,l for non-representation on 20.08.2O i 9. An iipplication u.as liled bv lhe bank lbr restorati')n of the su.t.

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(') It is submittecl thar the petitioner 1'r arl

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opet.rer:l {bha1,.i Colrl S:rvings Banlc Account

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' 2.022 (3) ALD 673 (TS)

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bearins No.052 I 1OO25OS3S22 wirh thc respondents - bank on IO.l2_2OOT. On retirement oI the petitioner from service. at her request, the pension received from the Government of India is being credited to the said account without opening an exclusive pension account. The petitioner \ /as making other transactions also through the said account. Thus, the account of the petitioner is not exclusive pension account, but it is like any other ordinary savings bank account. Once the amount of pension is credited to Lhc account and it is mixed up with other amount in the account, it loses its character of pension. Hence, the banker is entitled to exercise the right ol set_off and banker's general lien towards amounts due to it.

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In State of Jharkhand v. Jitendra Kumar Srivastava3, it was held that right to receive pension was treated as right to property under Article 3O0-A of the indian Constitution. Paragraph No. 16 of the judgment reads as under:

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" L6, The fact remains that there is an imprimatur to the lega1 principle that the right to receive pension is recognised as a right in "propert/. Article 300-A of the Constitution of India reads as under:

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' lzor:1^{tz scc} zro

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"3OO-A. Fersons flot to be ciepriued oJ pt opertg sau€ bg autharitg oJ ldw.- No person sh.ll bc deprilt,C of hrs prollertv save br dull ori ) of l;,ir.'

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(Jnce rvc proceed on that premise, the ans\er to the questton posed by us in the [,cii:rr. rs. oi rltis irr,l.:r-,.n1 bccomes too obvious. A, pers( n cannot be rieprived of this pc:nsior-i ',r.rith.-ru^{L tl-rc authorit.,' oflalv, which istl're} constitl ticlral mandate enstrrined in Artick: 3O0A of tl're Constitution. It lollows that attempt of thc app,:llarrt to take away a part oI pcusion or g,riitur ' or i'('n lci,r'c , rrcashmeni r.vithnut any statutor'r provision aud unrier the umbragc ol adrrir-iis ralive irrslfuction caltnot be cour-tLen.Lnced."

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'l-hus. u pet'sorl carmot be deprivecl o[ pcnsicn u'itbout due process ol law. As noted abovc, ttrerr: is a bar under Secti.on 60(t)(g) of CpC read with Ser:tion 11 of the Pension Act, 1871, for atta(hin I lite peltsirn alnounts alld thc rcspond^.nts banl< is dcbarred lronr exercising lien on the pcnsion ElccoLlnt.

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ln liadhey Shyam Gupta's Case (Supra 1), the disptrte involved tr,as regarding attachment of pr:nsion and gratu jtv amounts r,r,,hich u,ere convertc(l into fixe ri cleposit receipts. The contenti( )n of the b:rnk placing reliarce on the judgmenr- of the IIon,blc Supreme Court in Union

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wry

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of India v. Jyoti Chit Fund and Financea was that once payments^(pension arld gratuitl)^are made, their character stood altered as^they become mixed wrth the other assets ol^the employee concerned [Paragraph^No.27 in^Radhey Shyam Guptat Case (Supra 1)1. However, such contention was impliedly rejected by^{making the} following observations:

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"33. However, we are also of the vie'"v^that having regard to proviso (g) to Section 60(1) of the Code, the High Court committed a jurisdictional error in directing that a portion of the decreta-l arnount be satisfied from the f-txed deposit receipts of the appellant held by the Bank. The High Court a.lso erred in placing the onus on the appellant to produce the Matador in question for being auctioned for recovery of the decretal dues. In other words, the High Court erred in altering the decree of the trial court in its revisional^{jurisdiction,} particularly when the pension and gratuity of the appellant which had been converted into fixed deposits, could not be attached under the provisions of the Code of Civil Procedure. The decision in Jgoti Chit Fund case has been considerably watered down by later decisions which have been indicated rn' para 22 hereinbefore arrd it has been held that gratuity payable would not be liable to attachment for

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satisia{jtion a,f :r ccrtt clecrcc ir-r v.ietr of proviso (g) Lo ,c ecLion 50( 1 ) ,,t' iiLc Code.,,

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Thereforc. learneci cc,rrnsel aplteadng for. the petitioncr submits thitt rpproi_.\riare .rt.ders mav be passed in the r(.rit petitio. directirrq Lhe *'sp.r r ci,,-lr rs to ferrlase thc *atriherd amourlt perta-ining to thr: petitioner.

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B. On tlre otirer^'harnci, leanred Stancling Counsel ap.,pearing fol. the rcspondr .rr:. hiri ( oiil(,rrrl, ..] llrat the petitiore!. lras adtjressed a lettcr date.l I g.O2.2O2O ro rhe Registrilr. Osrnetrria lJniversitv, Fl;-derabad. lor tire rctcasc ot pension artd perr sionirrlr l).r.1rt* 1;t'rtaiiring l{^lne I),'rit inlr.,t..^pursr-ianI thl,t-eto. , ir.,, c orrlir No,,17161 I2017 Accts,/pc, . riatecl I5 0.1.2020, the r.esi;onderirs l-ran e sanctjr.,nr<i tite prrrsior anci peirsionary berrefits lo tht petitr<rr-rer u.. c . l. 0 | O1 .r:.O 17 ancl accoriingly pa_i<t an arnount of Rs.9,110.504/. ,lt lt.Ct4.2O2O b1, duly withhoiciing the araounr of Rs. tr7,09,666i - pertaining to 1.l.re Court attachment orcler.

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9 ' 'l'his cor-ri t hz.'i.g, c.irsiclcrecr tirc rivzrl submissiorrs macit by leerrncd courr.;c.l for tht, rcspecl_ive partres, is of the colsiclered vi er,r' thart in vier,,, ol the abot.c .iudqmenis of the Hon,ble Apex Court anci this Cor_tri as; u.eil as Rule 2 of Circulal. dated 03.t)8.201O issr-rc,i bw ihe rr:spondents, a:j contendecl try lezrr.ned

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counsel lbr the petitioner, the action of the respondentsⁱⁿ u'ithholding the amount of the petitioner is illegal ald^arbitrerry ancl rhereiore, the impugned order is fiabie to be set aside^{and it} is accordingly set aside.

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Accordingll', the writ petition is allovl'ed. The respondents are dirccted to release the amount of Rs. 17,09,666i^(Rupees sevenreen Iakhs nine thousand six huncired and sixty six only) to the peutioner pertaining to the court attachment order u,ithin a period of eight weeks from the date of receipt of a copl'' oi this order. No order as to costs.

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As a sequei, the miscellaneous petitions pending, il any, shall stand closed.

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That Rule Nisi^{has been madeAbsolute as above} vriiin".. tne non,uie-sit^{alox ARADHE,The chief Justice on this} fnrrsiiy, it " Seventeenttt^{Day Of August, Two ThousandAnd Twenty Three}

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SD/- MOHD. SANAULLAH^ANSARI ASSISTANT REGISTRAR //'RUE coPY// se6#ru oFFtcER

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