Andhra Pradesh High Court - Amravati
G.Dwarakanath, vs The State Of Andhra Pradesh on 29 January, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.870 OF 2021
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:-
"....to issue a Writ Order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in withholding the retirement benefits of the petitioner in the absence of any valid disciplinary proceedings as on date, and the Charge Memos in TEC No.116/13, TEC No.136/2013 and TEC No.172/2013, dated 21.06.2017, 25.09.2017 and rd 27.11.2017 respectively issued by the 3 respondent, stand quashed by this Court vide Orders passed in W.P.Nos.14565, 14566 and 14567 of 2019, dated 25.09.2019, as illegal, arbitrary and discriminatory and violative of provisions of A.P. Revised Pension Rules, 1980 and consequently direct the respondents to release all the pensionery benefits viz., full pension, retirement gratuity and encashment of Earned Leave and other benefits together with 12% interest from the date of retirement till the date of payment, and pass such other order."
2. The case of the petitioner in brief is that the petitioner was allowed to retire from service in the category of Assistant Prohibition & Excise Superintendent, Vijayawada, pending the Charge Memos in TEC 116/2013, 136/2013 and 172/2013 pertaining to the same incident in different places of work related to the year 2012 (liquor syndicate cases). As per G.O.Ms.No.679 the Government has fixed a maximum time limit of six (06) months for conclusion of the disciplinary proceedings pending against the employees. In terms of the said Government Order, when there is no progress in the disciplinary proceedings, the petitioner approached this Court and filed W.P.Nos.14565/2019, 14566/2019 and 14567/2019 to fix up time limit for conclusion and this Court was pleased to direct the respondent authorities to conclude the disciplinary proceedings against the petitioner within three months, failing which the Charge 2 Memos shall stand quashed. Despite issuing such direction, the respondents did not conclude the disciplinary proceedings within the time frame fixed by this Court, thereby the Charge Memos are automatically deemed to have been quashed. Non-payment of retirement benefits subsequent to the expiry of three months from the date of the orders passed by this Court in W.P.Nos.14565/2019, 14566/2019 and 14567/2019, is illegal, arbitrary and requested to issue a direction to the respondents to pay retirement benefits including full pension, retirement gratuity and encashment of Earned Leave and other benefits together with 12% interest from the date they become due to the petitioner till the date of payment.
3. Sri Ramalingeswara Rao Kocherlakota, learned counsel for the petitioner reiterated the contentions urged in the main petition, whereas learned Government Pleader for Services-I filed a memo informing that against the order in W.P.Nos.14565/2019, dated 25.09.2019, a writ appeal is preferred by the Deputy Superintendent of Police, A.C.B, Guntur in E-filing No.AP/2/WA/33634/19-12-2020, it is not yet registered, and the same is intimated by memo dated 27.01.2021. On the basis of the said memo dated 27.01.2021, the learned Government Pleader requested this Court to dismiss the writ petition, as the writ appeal is pending for consideration.
4. Undisputedly, the petitioner is retired from service as Assistant Prohibition & Excise Superintendent, Vijayawada during pendency of three Charge Memos in TEC 116/2013, 136/2013 and 172/2013 pertaining to the same incident in different places of work, related to the year 2012 (liquor syndicate cases). The Charge Memos are pending since a long time the petitioner filed W.P.Nos.14565/2019, 14566/2019 and 14567/2019 and these writ petitions are disposed 3 of by the learned Single Judge of this Court, with a direction to conclude the disciplinary proceedings against the petitioners in all the three cases, within three months, failing which the Charge Memos are deemed to be quashed. Therefore, due to automatic quash of proceedings, as on date, there are no charges pending against the petitioner. When no charges are pending against the petitioner, in view of the orders passed by this Court in the above said writ petitions, the respondents are under legal obligation to release the retirement benefits to the petitioner including full pension, retirement gratuity and encashment of Earned Leave and other benefits.
5. Hence, non-payment of retirement benefits including full pension, retirement gratuity and encashment of Earned Leave amounts to violation of Article 300A of the Constitution of India i.e., right to property. According to Article 300A of the Constitution of India no person shall be deprived of his property except by authority of law.
6. Here in this case, no Charge Memos are pending against the petitioner thereby the respondents cannot deprive the petitioner from enjoying retirement benefits such as full pension, retirement gratuity and encashment of Earned Leave, which amounts to violation of Article 300A of the Constitution of India.
7. In D.S Nakara and others v. Union of India1, Justice D.A. Desai, who spoke for the Constitutional Bench, in his inimitable style, considered the right of pension framing various issues, particularly defining pension and whether it is a property or not etc, 1 1983 AIR 130 4 concluded that pension cannot be withheld except by authority under law. The same principle is reiterated in Dr. Hira Lal v. State of Bihar and others2.
8. In State of Jharkhand v. Jitendra Kumar Srivastava3, while dealing with Rule 43(b) of Bihar Pension Rules with regard to claim of the petitioner for payment of provisional pension, gratuity etc. in terms of Resolution No. 3014 dated 31.7.1980, the Division Bench of the Apex Court held that the State had no authority or power to withhold pension or gratuity of a government servant during pendency of the departmental proceedings.
9. In State of West Bengal v. Haresh C. Banerjee and Ors4, the Apex Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty- Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained as a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution, the same is reiterated by Division Bench of Apex Court in Hari Krishna Mandir Trust v. State of Maharashtra5. Right to receive pension was treated as right to property. The High Court of Judicature of Bombay in Purushottam Kashinath Kulkarni and others v. The State of Maharashtra and others6 and The High court of Chattisgarh in Ramlal Sharma v. State of Chattisgarh7 relying on D.S Nakara and others v. Union of India (referred supra), concluded that payment of pension cannot be deferred. It is thus a hard earned benefit of an employee in the nature of property. 2 Civil Appeal No.1677-1678 of 2020 dated 18.02.2020 3 (2013) 12 SCC 210 4 (2006) 7 SCC 651 5 Civil Appeal No.6156 of 2013 dated 07.08.2020 6 W.P.No.2630 of 2014 dated 16.02.2016 7 W.P.No.352 of 2014 dated 27.11.2015 5
10. The word 'property' is inclusive of both movable and immovable property, both pension and salary payable to an employee can be said to be part of the property, as held by the Apex Court in Madhav Rao Scindia v. Union of India8, where the Apex Court opined that that Prievy Purse payable to ex-rulers is property. In K. Nagraj v. State of A.P9, Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan10 the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia Vs. State of M.P11, and State of M.P. Vs. Ranojirao12, the Apex Court opined that property in the context of Article 300-A includes 'money', salary accrued pension, and cash grants annually payable by the Government ; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute.
11. Thus, in view of the law laid down by Apex Court referred above, amount payable towards leave encashment is an amount payable by an employer to an employee for the service rendered by him under a tacit contract of employment. In the present case, there is a contract for payment of salary for the leave period encashed, between the State and its employees on their retirement on superannuation. When, there is a contact between the employee and employer for payment of salary towards leave encashment. 8 AIR 1971 SC 530 9 AIR 1985 SC 553 10 AIR 1985 SC 356 11 AIR 1961 SC 298 12 AIR 1968 SC 1053 6
12. Payment of salary towards leave encashed or pension to the employees is only to eke out their livelihood after retirement by way of pension. If, whole or part of the salary or pension is deferred, it amounts to denial of right to life guaranteed under Article 21 of the Constitution of India. Initially, right to livelihood was not recognized as fundamental right under Article 21 of the Constitution of India. But, later it was recognized as Fundamental Right by judicial interpretation to Article 21 of the Constitution of India.
13. Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
14. In Re: Sant Ram13 a case which arose before "Maneka Gandhi Vs. Union of India14", the Supreme Court ruled that the right to livelihood would not fall within the expression "life" in Article 21. The Court observed as follows:-
13 AIR 1960 SC 932 14 AIR 1978 SC 597 7 "The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."
15. In "Olga Tellis Vs. Bombay Municipal Corporation15" the Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article
21."
(Emphasis is supplied).
16. The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
15 AIR1986SC180 8
17. In "Delhi Transport Corporation v. D.T.C. Mazdoor Congress16", the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
18. The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India and it is relevant to refer the principle in "M. Paul Anthony Vs. Bharat Gold Mines Limited17, the Apex Court held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not loose his right to life. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.
19. Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word 'right to life' includes 'right to livelihood', right to livelihood is a fundamental right, and it is an integral part of right to life guaranteed under Article 21 of the Constitution of India. 16 (1991)ILLJ395SC 17 AIR 1999 SC 1416 9
20. The major contention of the petitioner from the beginning is that, deferment of payment of amount for the leave period encashed and non-payment of pension as stated above, is contravention of Article 300A of the Constitution of India. No doubt, as per Article 300-A of the Constitution of India, no citizen of India be deprived of his/her right to property, except by authority of law. As leave salary and pension form part of property of an individual to attract Article 300-A of the Constitution of India, such right cannot be taken away except by authority of law.
21. On a bare look at Article 300-A of the Constitution of India, any citizen of India cannot be deprived of their right to property, except by authority under law. That means a property of any citizen of India cannot be taken unless the State is authorized to do so. In Shapoor M. Mehra v Allahabad Bank18, wherein Bombay High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property.
22. In Deoki Nandan Prasad v. State of Bihar (referred supra), the Apex Court held as follows:-
"(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable."
11. In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision 18 (2012) 3 Mah.L.J 126 10 made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues..."
23. Thus, both leave salary and pension payable to the employees in service or retired from service falls within the definition of property under in Article 300-A of the Constitution of India.
24. Though the Constitution of India permits the State to deprive any person's right in property by authority of law, the respondents were unable to show any provision which authorized the State to defer payment of leave salary/pension to the employees retired from service. In the absence of any statute governing deferment of leave salary or pension, deprivation of right to property by retired employees would amount to violation of constitutional right guaranteed under Article 300-A of the Constitution of India. In this regard, it is profitable to mention few judgments of the Apex Court and other Courts with regard to right of the state to defer payment of pension etc.,
25. At this stage, it is relevant to refer the meaning of 'authority of law'. The Apex Court while considering the word used 'law' under Article 13 and 300-A of the Constitution of India, construed the meaning of word "Law" not only with reference to Article 13 of the Constitution of India, but also with reference to Article 300-A and 31C of the Constitution of India. The Apex Court in "Bidi Supply Co. Vs. Union of India19" and "Edward Mills Co.Ltd. Vs. State of Ajmer20" held that the law, in this Article, means the law made by the legislature and includes intra vires statutory orders. The orders 19 AIR 1956 SC 479 20 AIR 1955 SC 25 11 made in exercise of power conferred by statutory rules also deemed to be law. (Vide: State of M.P. Vs. Madawar G.C.21") The Law does not, however, mean that an administrative order which offends against a fundamental right will, nevertheless, be valid because it is not a "law" within the meaning of Article 13 (3) of the Constitution of India (Vide: Basheshar Nath Vs. C.I.T.22 and "Mervyn Coutindo Vs. Collector, Customs Bombay23")
26. Therefore, whatever legislation made by the Legislature or Parliament alone can be said to be law within the meaning Article 13 (3) of the Constitution of India. At the same time, the Apex Court in "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh24" while deciding the issue with reference to Article 300-A of the Constitution of India defined the word "authority of law", held that Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word 'law' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.
21 1955 (1) SCR 599 22 AIR 1959 SC 149 23 AIR 1967 SC 52 24 AIR 1982 SC 33 12
27. In "Hindustan Times Vs. State of U.P.25" the Apex Court while referring to "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh" (referred supra) held as follows:-
"By reason of the impugned directives of the State the petitioners have been deprived of their right to property. The expression 'law', within the meaning Article 300A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law."
28. Thus in view of the law laid down by the Apex Court in the judgments (referred supra), law means the legislation passed by the parliament or State Legislation or Statutory rules or orders.
29. No doubt, as discussed above, right to livelihood of a person can be deprived by authority of law. Article 300-A of the Constitution of India, protects right of an individual, but such right in the property can be deprived of save by authority of law.
30. The right to property is now considered to be not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the constitution or a fundamental right, human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.26) 25 AIR 2003 SC 250 26 AIR 2013 SC 565 13
31. Right to property of a private individual, though, permitted to be deprived of, it must be by authority of law. Still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, which reads as follows:-
"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
32. India is a State Party to the declaration, but the right to property is not being considered as human right till date by many Courts. Right to property in India at present protected not only under Article 300-A of the Constitution of India, but also recognized as human right under Article 25 (1) of the Universal Declaration of Human Rights. A liberal reading of these two provisions, the intention to protect the owners of either movable or immovable only from Executive fiat, imposing minimal restrictions on the power of the State. This is in sharp contrast to the language adopted in the Indian Constitution.
33. In the instant case on hand, except reduction of pensionary benefits under Rule 9 of the Andhra Pradesh Revised Pension Rules and reduction of salary in terms of C.C.A Rules, if the government servant is found guilty of misconduct after conducting necessary enquiry, no other procedure is available in any statute to defer payment of leave salary, pension or leave salary or pension in part or in full. But the charges against the petitioner are quashed vide Orders passed in W.P.Nos.14565, 14566 and 14567 of 2019, dated 25.09.2019. Therefore, non-payment of leave salary and pension to 14 retired employees is deprivation of a citizen in right to property. Such deprivation is violative of fundamental rights guaranteed under Article 21 and Constitutional Right to property under Article 300-A of the Constitution of India and Human Rights of livelihood as per Article 25(1) of Universal Declaration of Human Rights, since the government servants after retirement being pensioners would be deprived of their livelihood, though they are under obligation to meet different expenses, including maintaining their health condition for the rest of their life.
34. Though the learned Government Pleader for Services-I filed a memo stating that an appeal is preferred by the Deputy Superintendent of Police, A.C.B, Guntur against the order dated 25.09.2019 passed by this Court in W.P.No.14565/2019, as on date, there is absolutely no stay of operation of the order passed by this Court. Mere filing of appeal by the Deputy Superintendent of Police, A.C.B, Guntur would not operate as stay automatically.
35. The locus standi of the Deputy Superintendent of Police, A.C.B, Guntur, is now questioned, as the W.A.No.36/2021 was already dismissed by this Division Bench of this Court on 27.01.2021. But, this Court cannot decide the locus standi of the Deputy Superintendent of Police, A.C.B, Guntur in filing writ appeal before the Division Bench of this Court, without hearing the Deputy Superintendent of Police in appropriate proceedings. Therefore, leaving it open to the petitioner to raise all these issues in the writ appeal filed before the Division Bench of this Court, if it is registered and the contention of the petitioner is rejected for the present. 15
36. In the result, the writ petition is allowed granting writ of Mandamus, declaring the action of the respondents is illegal, arbitrary and violative of Articles 21 and 300A of the Constitution of India and the 1st respondent is directed to fix the pension payable to the petitioner and pay the retirement benefits such as full pension, retirement gratuity, encashment of Earned Leave and other benefits to the petitioner together with interest at 12% from the date they become due till the date of payment. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 29.01.2021 IS 16 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.870 OF 2021 Date: 29.01.2021 IS