Andhra Pradesh High Court - Amravati
Adapu Rathnakumari vs State Of Andhra Pradesh, on 20 January, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.18725 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
(a) "to issue appropriate writ, order or direction, particularly a Writ of Mandamus declaring the G.O.Ms.No.107 dated 11.07.2018 imposing a major penalty under Rule 9 of AP Revised Pension Rules, 1980 thereby withholding the pension in full permanently with immediate effect and subsequent proceedings in Lr.No.D4/6811/2019 (Comp.No.863647) Dt.15.07.2019 thereby rejecting petitioner's request for providing provisional pension and retirement benefits including PF and Gratuity as illegal, irregular, irrational, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and contrary to Rule 9 of A.P.Pension Rules, 1980 and consequently direct the respondents to release petitioner's retirement benefits including Gratuity and PF and other attendant benefits from 11.07.2018 along with appropriate interest as specified in Gratuity Act, 1972".
It is the case of the petitioner that she joined in service in the year 1985 as a Typist. Later, promoted as Assistant Accounts Officer and posted in the office of the District Treasury Office, Guntur. While she was working as Sub Treasury Officer in Pedakurapadu, she used to stay in the Government Quarters on rental basis and it has no connection with the department. She used to pay monthly rent of Rs.1450/- to the quarters. Later, she transferred to District Treasury Office as Assistant Accounts Officer and worked under the Deputy Director, District Treasury Office, Guntur. But, the Deputy Director, District Treasury Office, Guntur did not assign any work to her and used to keep as spare staff. She was subjected to worry by the acts of the Deputy Director. She used to share the same with her family members. While this being the case, it seems there was some MSM,J wp_18725_2020 2 miscalculation of house rent to the residential quarters in Hill Colony, Nagarjuna Sagar, Peddaveera Mandal, Nalgonda District. The District Treasury Office, Guntur received official information from the Executive Engineer, Dam Division, Hill Colony, as if the petitioner became due house rent for the residential quarters. When the information was communicated to the petitioner, she paid the due amount to the Dam Authorities and obtained necessary receipts to that effect and produced the same before the Deputy Director. But the Deputy Director did not accept the same and he said that the petitioner cannot claim HRA by staying in Government Quarters and threatened to order recovery of the same. Later, there was a demand of bribe and there were some disputes between the petitioner and the Deputy Director, District Treasury Office, Guntur. The Deputy Director demanded Rs.1,00,000/- as bribe and she refused to pay the same. Later, due to the said harassment, the petitioner shared the pain among her family members.
The Deputy Director, District Treasury Office, Guntur received a parcel on 03.11.2010 and in the said parcel there were 8 Brinjal Crackers (Vankaya Tapakayalu) with a circuit system in two rows with 9 volts battery attached to the circuit Board. The Deputy Director on 03.11.2010 lodged a complaint basing on the parcel he received as he received threatening calls. During the course of investigation, police implicated her son and his friend. Later, the petitioner was also shown as accused No.2 in Crime No.243 of 2010 on the file of the Nagarampalem Police Station. After completion of investigation, police filed a Charge sheet, and the same is registered as C.C.No.523 of 2011 on the file of the Judicial Magistrate of First MSM,J wp_18725_2020 3 Class, Special Mobile Court, Guntur. The said Calendar Case is ended in conviction though she did not play any role in the alleged incident.
It is further contended that, from the date of transfer, the petitioner was placed under the Deputy Director, DTO, Guntur and her duty is to receive any Tappal and place them before the Deputy Director, District Treasury Office (DTO), Guntur. Accordingly, she placed all the Tappals before the Deputy Director, DTO, Guntur and she has no knowledge of what are inside the covers. Merely because she served Tappals (covers) to the Deputy Director, DTO, Guntur, she cannot be made an accused. Apart from that, the defacto complainant and the petitioner have serious issues to settle. In that connection, the petitioner was falsely implicated in the case. Even her son and his friend are all innocent, that her son is polio affected person and he has no knowledge of assembling the electric circuits. Merely because he was studying degree in engineering, he was falsely implicated in the case.
The trial Court without considering the discrepancies in the evidence of P.Ws.4 and 5 with regard to bomb diffusal, found the accused therein guilty. Aggrieved by the same, the petitioner preferred Criminal Appeal No.36 of 2017 before IV Additional Sessions Judge, Guntur, but the same was dismissed by confirming the conviction and sentence imposed in Calendar Case. Later, the petitioner filed Crl.R.C.No.21 of 2019 before this Court, and this Court was pleased to grant interim suspension of sentence.
Respondent No.1 issued G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 withholding full pension. Respondent MSM,J wp_18725_2020 4 No.2 vide proceedings in Lr.No.D4/6811/2019 (Comp.No.863647) dated 15.07.2019 stopped payment of her retiral benefits. In fact the respondents do not have any power to withhold retirement benefits and gratuity. In so far as pension is concerned, they may have power but that power is not absolute, and the respondents are bound to grant provisional pension.
The petitioner is a widow and falsely implicated in a criminal case. Though rule provides for withholding of pension, the respondents still have power to grant provisional pension. The proceedings of respondent No.2 are completely vague as the case is still pending before this Court. Apart from that, though the G.O.Ms.No.107 was issued on 11.07.2018, payment of retirement benefits of the petitioner were stopped from August 2016. Till date, she was not paid even single penny by the respondents. Admittedly, no departmental proceedings were initiated as long as she was in service and post retirement, in the department.
It is the specific contention of the petitioner that Rule 9 of A.P.Revised Pension Rules 1980 does not permit the respondents to stop the payment of retrial benefits including gratuity and pension, thereby withholding pension without conducting any enquiry is a serious illegality. Thereby, G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 issued by respondent No.1, and the proceedings issued by respondent No.2 vide Lr.No.D4/6811/2019 (Comp.No.863647) dated 15.07.2019 are illegal and they are liable to be set aside.
On account of non payment of pension and other retrial benefits, the petitioner is being to put to serious financial loss and MSM,J wp_18725_2020 5 non payment of retirement benefits would amount to violation of right guaranteed under Article 14, 16 and 21 of the Constitution of India, requested to allow the writ petition.
Respondents filed counter admitting conviction of the petitioner in C.C.No.523 of 2011 on the file of Special Mobile Court, Guntur sentencing her to pay fine of Rs.1,000/- for the offence punishable under Section 507 read with 34 of I.P.C. The petitioner preferred an appeal before the Sessions Court, which ended in dismissal confirming the conviction passed by the trial Court. The petitioner preferred Crl.R.C.No.21 of 2019, wherein this Court granted interim suspension.
Respondents relied on the judgment of the Apex Court in "D.V.Kapoor v. Union of India1", the principle laid down therein will be considered at appropriate stage.
It is specifically contended that when the very incident occurred while the petitioner was working as Assistant Accounts Officer in District Treasury Office, Guntur, the petitioner was convicted by the Trial Court and imposed sentence of imprisonment. It amounts to grave misconduct. As such respondent No.1 issued the impugned order in exercise of powers conferred by Rule 25(i) of the Andhra Pradesh Civil Services (CCA) Rules, 1991 read with Rule 9 thereof, read with Rule 9(1) of Andhra Pradesh Revised Pension Rules, 1980, pursuant to the conviction of the petitioner in C.C.No.523 of 2011 on the file of Hon'ble Judicial Magistrate of First class, Special Mobile Court, Guntur.
It is contended that the pension shall be allowed subject to future good conduct as per the Rule 8 (2) of the AP Revised Pension 1 AIR 1990 SC 1923 MSM,J wp_18725_2020 6 Rules, 1980, where a pensioner is convicted of a serious crime by a Court of law, action under sub-rule (1) shall be taken in the light of judgment of the Court relating to such conviction. Further, in accordance with provisions of Rule 9 (1) of AP Revised Pension Rules 1980, the penalty of withholding of entire pension or gratuity or both may be imposed against the retired government servant upon being found guilty or upon conviction in a court of law for the grave charges, or proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of women and misconduct. Here, in the instant case, the petitioner was convicted by the Trial Court and imposed sentence or imprisonment, which amounts to grave misconduct. Therefore, the impugned orders are valid and in accordance with the law.
The Director of Treasuries and Accounts, A.P., Ibrahimpatnam in proceedings No.16/7714/2016, dated 06.12.2016 has accorded permission for encashment of Earned Leave for 290 days and HPL for 10 days to the petitioner. Accordingly, the Encashment of EL+ HPL (290+10=300 days) for Rs. 7,18,586/- has been drawn and paid to the petitioner vide bill ID No. 43218, dated 16.01.2017 amounted to Rs. 6,67,154/- and bill ID No.43210, dated 16.01.2017 amounted to Rs. 51,432/-, The GPF final authorization of the Petitioner for an amount of Rs.4,15,981/- which was authorized by AG (A&E) AP & TS, Hyderabad under GPF Account No. GA/45603 was drawn and paid to the petitioner vide Bill ID No. 26406, dated 29.09.2016, further, the residual GPF payment amount of Rs. 26,362/- was also paid to the petitioner vide bill ID No.32021 during F.Y. 2017-18. The respondents were paid the eligible retirement benefits to the MSM,J wp_18725_2020 7 petitioner and further, it is submitted that as per Rule 52 (c ) of the AP Revised Pension Rules, 1980, no gratuity shall be paid to the Government Servant until the conclusion of the departmental or Judicial proceedings and issue of final orders. In the instant case, the judicial proceedings i.e., Criminal Revision petition is still pending as admitted by the petitioner in her affidavit. Hence, she is not entitled to get gratuity till the final orders in the Criminal Revision petition, are passed.
As per proviso to the Rule 52(1)(b) amended vide G.O.Ms.No.26 Finance (Pension-I) Department dated 05.02.2013, provisional pension shall not be paid to the Government Servant who is convicted by criminal court though appeal is pending before the Higher Court. Consequently, the petitioner is not entitled to claim any relief and the G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 issued by respondent No.1, and the proceedings issued by respondent No.2 vide Lr.No.D4/6811/2019 (Comp.No.863647) dated 15.07.2019 are in accordance with law, requested to dismiss the petition.
Sri Solomon Raju Manchala, learned counsel for the petitioner, contended that the stoppage of payment of retrial benefits without sanctioning provisional pension is contrary to the Andhra Pradesh Revised Pension Rules, 1980 and Constitutional Right guaranteed under Article 300-A of the Constitution of India, thereby stoppage of payment of retrial benefits including pension and gratuity by respondent No.1 is illegal and arbitrary, requested to set aside the impugned proceedings.
MSM,J wp_18725_2020 8 Learned Government Pleader for Finance and Planning would contend that the orders were passed strictly in accordance with the rules referred in the counter and no interference is called for, requested to dismiss the writ petition.
Joining of the petitioner in service in the year 1985 as Typist and her promotion to different categories, facing trial by the petitioner in C.C.No.523 of 2011 on the file of the learned Judicial Magistrate of First Class, Special Mobile Court, Guntur, finding her guilty in the said calendar case, and affirmed in Criminal Appeal No.36 of 2017 by the IV Additional Sessions Judge, Guntur, filing of Criminal Revision Case No.21 of 2019 on the file of this Court and suspension of substantive sentence of imprisonment are not in dispute.
In criminal revision case, this Court only suspended substantive sentence of imprisonment, but did not suspend the conviction of the petitioner. Therefore, the petitioner is a convict for the offence punishable under Section 286 and 507 of I.P.C. Though, the criminal revision is pending, that would not entitle the petitioner to claim any benefit. However, it is to be examined with reference to various rules governing the service conditions of the petitioner.
In general, when the State Government employee is guilty of grave misconduct, for imposing major penalty, the necessary procedure is prescribed under Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, which prescribed the entire procedure to be followed in conducting departmental enquiry. On finding government servant guilty, on receipt of report from inquiry officer, the disciplinary authority may MSM,J wp_18725_2020 9 accept the report or differ with the finding of the inquiry officer, in such case; the disciplinary authority has to follow the procedure prescribed under Rule 21 of the Rules. Rule 22 prescribes procedure imposing minor penalty.
Here, in this case, no enquiry by following procedure under Rule 20 was conducted, hence, the question of imposing major penalty does not arise as per Rule 20 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991.
The only reason for imposing major penalty i.e. stoppage of payment of retrial benefits including pension is only invoking Rule 25, which deals with special procedure in certain cases, it is an exception to procedure prescribed under Rule 20 to 24 of the Rules According to Rule 25, where penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (Misconduct leads to a penalty imposed as per 1st proviso under Rule 9 (ix) of these rules; where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.
Thus, the disciplinary authority exercising power under Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 read with Rule 9 thereof, read with Rule 9 (1) of the Andhra Pradesh Revised Pension Rules, 1980, passed the MSM,J wp_18725_2020 10 impugned G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 withholding the entire pension permanently as major penalty.
A bare look at Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, only in case the accused was convicted for criminal charge, such power can be exercised.
Apart from misconduct that is committed during the course of the employment, conduct which has led to the conviction by a Criminal Court of an employee is also actionable. The rationale behind this is that, Government servant who manning the administration should be above board in the private life to create confidence both in the administration and in the general public that is capable of performing their functions in a just manner. If a person who has a criminal mind is retained in the administration not only loss to the administration but brings down the reputation of the administration in the estimation of general public. But it should be borne in mind that sometimes Government servants unwittingly involve themselves and are convicted on technical grounds and this happens in the normal life of everybody and it is not the intention that such convictions should be taken cognizance of, for initiating disciplinary action. With such reasonable exceptions it can be said that the conduct which has led a Government servant to conviction by a Criminal Court exposes the Government servant to punishment under the rules without an enquiry.
The above provision raises one serious controversy. The law expects that civil servants should be model of virtue, and when they MSM,J wp_18725_2020 11 cease to be so, they expose themselves to disciplinary action. But the increasing volume of social legislation has enormously increased the scope for everybody to get, if unwittingly, entangled in some crime or other. In such circumstances conviction for what crimes is actionable under the CCA Rules? The rules are silent on the point. It is therefore left to the competent authority to consider the gravity of the offence for which the employee is convicted and take suitable disciplinary action. 'Conviction on a criminal charge' however does not mean only offences involving moral turpitude. It takes in other crimes as well. Even if the words involving moral turpitude are held to be implied in conviction on a criminal charge, a member of the police force who is guilty of having been conviction at public place or who has become habituated to liquor and who is convicted by Criminal Court under the Police Act, can be punished without following the procedure intended to give him reasonable opportunity under the CCA Rules. (Vide: Durga Singh v. The State of Punjab2) While resorting to procedure under Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, more particularly, based on conviction of Government servant by criminal Court, the gravity of conduct to be considered. The conviction by a Criminal Court does not automatically become actionable. In "The Divisional Personnel Officer, Southern Railway v. T.R.Chellappan3" , it has already been observed that technical offences, for instance, violation of transport rules or the rules under the Motor Vehicles Act and so on are not actionable. This view has been reiterated by the Supreme Court in "Union of 2 AIR 1957 P&H 97 3 AIR 1975 SC 2216 MSM,J wp_18725_2020 12 India v. Tulsiram Patel4". In cases where the employee feels that even though the conduct is actionable the punishment awarded is far in excess of the gravity of the misconduct, he can file an appeal and the appellate authority is bound to consider whether the punishment awarded is justified in the circumstances of the case. The Andhra Pradesh High Court held that the competent authority has to take into consideration the nature of the conduct, the gravity of the criminal charge and the offences for which the delinquent person has been convicted before imposing the penalty. (Vide:
Karimullah Khan v. State of Andhra Pradesh5).
Where there are mitigating circumstances, extreme penalty of dismissal from service is not warranted. (Vide: K.M. Tappade v. Surubhhajhala6) Where a person has been guilty of breach of trust in respect of a small sum of Rs.500/- belonging to Government and the offence was committed under compelling circumstances, the Supreme Court held that the competent authority ought to have taken into consideration these circumstances and applied its mind. Dismissal for an offence committed under the force of adverse circumstances was held to be whimsical and was set aside by the Supreme Court. (Vide: Shankar Das v. Union of India7) In view of the law declared in the judgments (referred supra), the gravity of the misconduct, circumstances under which the offence was committed are the relevant factors to exercise power 4 AIR 1985 SC 1416 5 1981 (3) SLR 707 6 1985 (1) SLR 714 (Guj.) 7 AIR 1985 SC 772 MSM,J wp_18725_2020 13 under Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991.
Turning to the present facts of the case, while the petitioner was working in the office of the Deputy Director, Guntur, she was given non-focal seat dealing with Tappals. While attending to her duty, she received a cover, placed the same before the Deputy Director, District Treasury Office, Guntur containing 8 Brinjal Crackers (Vankaya Tapakayalu) with a circuit system in two rows with 9 volts battery attached to the circuit Board. When the petitioner was discharging her duties in office, sending such cover by her son and friend, and placing the same before the superior officer is a serious misconduct. If, for any reason, those crackers are exploded, it would have been caused serious damage to the person of Deputy Director, District Treasury Office. Such conduct is a serious misconduct. If the principles laid down in the above judgments are applied to the present facts of the case, imposition of major penalty of stoppage of payment of pension permanently is legal and no interference is warranted.
The main grievance of the petitioner is that without conducting enquiry, finding the petitioner guilty and imposition of major penalty is a serious illegality. No doubt, in ordinary course, an enquiry has to be conducted under Rule 20 of CCA Rules and follow the procedure under Rule 21 to 24 of CCA Rules for imposing major penalty. But Rule 25 is an exception to general procedure contained in Rule 20 to 24. Thus, in view of the exception contained in Rule 25, failure to conduct enquiry while the petitioner was found guilty for the offence punishable under Section 286 and 507 read with 34 of I.P.C., MSM,J wp_18725_2020 14 sentenced her to pay a fine of Rs.1,000/- for the offence punishable under Section 286 read with 34 of I.P.C. and also sentenced her to suffer simple imprisonment for 4 months for the offence punishable under Section 507 read with 34 of I.P.C., for imposition of major penalty invoking power under Rule 25, is legal. No enquiry need be conducted by following the procedure under Rule 20 to 24 of CCA Rules. Hence, the contention of Sri Solomon Raju Manchala, learned counsel for the petitioner, that imposition of major penalty without conducting enquiry is illegal and arbitrary, is hereby rejected.
The respondents after imposing penalty invoking Rule 9 (1) of the A.P.Revised Pension Rules, 1980 and Rule 25 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, stopped payment of entire pension permanently vide G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 as measure of punishment. Learned counsel for the petitioner contended that the petitioner is entitled to provisional pension. Failure to release at least provisional pension is a grave illegality and violative of Article 300-A of the Constitution of India.
Whereas, respondents invoked procedure under Rule 9 (1) of the A.P.Revised Pension Rules, 1980 read with Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 while referring to Rule 8 of the A.P. Revised Pension Rules. According to Rule 8 of the A.P.Revised Pension Rules, 1980 future good conduct is an implied condition for very grant of pension and its continuance under the rules. But in the present case, the question of future good conduct does not arise as the petitioner was found guilty for misconduct while in service, such Rule 8 of the MSM,J wp_18725_2020 15 A.P.Revised Pension Rules, 1980 cannot be made applicable to the present facts of the case.
Rule 9 (1) of the A.P. Revised Pension Rules, 1980 conferred power on the Government to withhold or withdraw pension, which reads as follows:
9. Right of Government to withhold or withdraw pension:
(1) The Government reserves to themselves the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specific period and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused, to the Government and to the local authority if, in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement.
According to sub-rule (1) of Rule 9 of the A.P. Revised Pension Rules, 1980 when the Government Servant is found guilty in any departmental or judicial proceedings for grave misconduct or negligence during the period of his/her service, including service rendered upon reemployment after retirement, the Government is entitled to withhold or withdraw the pension. As such, Rule 9 (1) of the A.P.Revised Pension Rules, 1980 enables the Government to withhold the pension either in whole or part, permanently when the individual was found guilty for any grave offence in judicial proceedings. As on date, criminal revision case is pending after confirming the conviction by the appellate Court, mere suspension of substantive sentence of imprisonment does not amount to suspension of conviction. In general, the Courts will not suspend the conviction except in extraordinary circumstances where such conviction leads to irreversible consequences. It is evident from the record that conviction was not suspended, hence the petitioner is a convict and guilty of misconduct, thereby the respondents rightly MSM,J wp_18725_2020 16 exercised power under Rule 9 (1) of the A.P.Revised Pension Rules, 1980 read with Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 in withholding entire pension payable to the petitioner.
Rule 25 (1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 provides that the provisions relating to procedure to be followed before inflicting penalty shall not be applied where it is proposed to impose penalty on the ground of conduct which has led to his conviction on a criminal charge.
According to Rule 52 (1) (b) of the A.P.Revised Pension Rules, 1980 as amended by G.O.Ms.No.26 Finance (Pension - I) Department dated 05.02.2013 provisional pension shall not be paid to the Government Servant who is convicted by Criminal Court though the appeal is pending before the higher Court. Proviso to Rule 52 (1) (b) of the A.P.Revised Pension Rules, 1980 is as follows:
"Provided that provisional pension shall not be paid to the Government Servant who is convicted by a Criminal Court on the charges of indulging in corruption and criminal misconduct with effect from the date of such conviction though appeal is pending before the higher Court against such conviction."
In the present case, the petitioner was not convicted for corruption charges, but for the offence punishable under Section Section 286 and 507 of I.P.C. Whether such conduct attract criminal misconduct is again a question, but it was not defined anywhere in the Conduct rules. Criminal misconduct is defined under Section 13 of the Prevention of Corruption Act, which is as follows:
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
MSM,J wp_18725_2020 17
(a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the period of his office.
Explanation 1.--A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for.
Explanation 2.--The expression ''known sources of income'' means income received from any lawful sources.] (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 2 [four years] but which may extend to 3 [ten years] and shall also be liable to fine. "
Hence, the proviso to Rule 52 (1) (b) of the A.P.Revised Pension Rules cannot be applied to the present facts of the case.
Basing on the observation of the Hon'ble Supreme Court of India in "K.C.Sareen v. CBI, Chandigarh8" Government have issued the following instructions, to be followed scrupulously in Memo No. 1621/Spl.B/2001-1, GA (Spl.B) Dept dated 26.11.2001.
"Action has to be taken forthwith for dismissal of public servant convicted of corruption and criminal misconduct immediately upon such conviction without waiting for any appeal and that the appointing / disciplinary authorities will be personally held responsible for non- implementation of these instructions and that they will be liable for disciplinary action. In spite of these instructions it is found, convicted officers continuing in service without being dismissed immediately or continue to receive provisional pension, if they have already retired, in the meantime without action to withhold pension and other pensionery benefits or withdraw pension entirely as the case may be disagreeing these instructions. It is also directed therein that salary/ pension / provisional pension paid after the judgment convicting the accused public servant shall be liable to be recovered from the appointing authority. Consultation with Andhra Pradesh Public Service Commission in such cases has also been dispensed with".
8
2001 (5) Supreme 437 MSM,J wp_18725_2020 18 Learned Government Pleader for Finance relied on the judgment of the Apex Court in "D.V.Kapoor v. Union of India", wherein it is held that "as seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of withholding pension as measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employees' right to pension is a statutory right. The measure of deprivation therefore must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Article 14 of the Constitution."
Therefore, the contention of the respondents that based on proviso to Rule 52 (1) (b) of the A.P.Revised Pension Rules, 1980 provisional pension is not sanctioned is without any justification and not in consonance with Rule 52 (1) (b) of the A.P.Revised Pension Rules, 1980. Hence, the contention of the learned Government Pleader for Finance is hereby rejected to that extent.
MSM,J wp_18725_2020 19 On an overall consideration of entire material on record and rules governing payment of pension, impugned Government Order issued by exercising power under Rule 25 of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 and Rule 9 (1) of the A.P.Revised Pension Rules, 1980, the action of the respondents cannot be declared as illegal and violative of Articles 14, 16 and 21 of the Constitution of India, on the other hand, the action of State is justifiable in view of serious misconduct of petitioner.
One of the major contentions urged by the learned counsel for the petitioner before this Court is that non-payment of pension amounts to violation of right guaranteed under Article 300-A of the Constitution of India.
No doubt, if the retired government servant is entitled to such benefits like pension, encashment of earned leave etc., depriving such employee except authorised by law is violation of Article 300-A of the Constitution of India.
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 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.
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 away unless the State is authorized to do so. In Shapoor M. Mehra v Allahabad Bank9, wherein Bombay 9 (2012) 3 Mah.L.J 126 MSM,J wp_18725_2020 20 High Court opined that retiral benefits including pension and gratuity constitute a valuable right in property.
In Deoki Nandan Prasad v. State of Bihar10, 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 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..."
Thus, pension payable to the retired government servants falls within the definition of property under Article 300-A of the Constitution of India.
At the same time, the Apex Court in "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh11" 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.
Relying on the said principles, the Division Bench of this Court in "Dinavahi Lakshmi Kameswari v. The State of Andhra Pradesh12" (to which I am a member) held that non-payment of pension, if not authorised by law, is violation of Article 300-A of the Constitution of India. In the present case, such withholding or non- 10 (1971) 2 SCC 330 11 AIR 1982 SC 33 12 2020 (5) ALT77 MSM,J wp_18725_2020 21 payment of pension respectively is authorised by law i.e. the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 and A.P. Revised Pension Rules, 1980. Therefore, withholding the pension in full cannot held to be violative of Article 300-A of the Constitution of India. Hence, the contention of the learned counsel for the petitioner is hereby rejected.
Though several contentions were raised by both parties for non-payment of gratuity and other retiral benefits, they are not relevant, since the claim is regarding non-payment of provisional pension to the petitioner. Therefore, no finding is recorded on other pleas as G.O.Ms.No.107 Finance (Admn.I) Department dated 11.07.2018 impugned herein was issued only for permanent stoppage of total pension.
In view of my foregoing discussion, I find no ground to grant relief to the petitioner. Consequently, the writ petition is liable to be dismissed.
In the result, the writ petition is dismissed. No costs. Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 20.01.2021 Ksp