Andhra Pradesh High Court - Amravati
E. Rama Krishna Rao vs The Joint Commissioner State Tax on 13 July, 2022
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
WRIT PETITION No.21218 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
a) to declare the entire action of the respondents in with holding the Gratuity commutation value of pension including EL amount and GIS and only releasing provisional pension vide letter dated 24.02.2021 of the 3rd respondent in the absence of valid departmental proceedings/criminal proceedings against the petitioner while he was in service or after retirement is as highly illegal, arbitrary, unjust, colorable exercise of power, vindictive attitude, contrary to the Rules-9(6) of Revised Pension Rules and contrary to various judicial pronouncements as well as violative of article 14 & 300-A of the Constitution of India.
b) And consequently to direct the respondents to forthwith to release full pension, Gratuity, Commutation value of pension with interest at 24 % P.A from the date of retirement to till actual payment is made and also to release EL amount GIS and pass such other orders".
2. Heard Mr. S. Satyanrayana Rao, learned counsel for the petitioner and learned Government Pleader for the Services-I for the respondents 1 and 2 and Ms. Swarna Seshu, learned Standing Counsel for 3rd respondent.
3. The brief case of the petitioner is that he was initially appointed as Typist on 22.01.1983 and he was allowed to retire from service on 31.10.2020 on attaining the age of superannuation vide Rc.No.A1/90/2010, dated 28.10.2021 of the 1st respondent stating that without prejudice to the result of disciplinary cases/ ACB cases/ charges pending if any and also subject to recovery of 2 Government dues outstanding if any from his terminal benefits. After retirement the petitioner the 1st respondent recommended for provisional pension, which was sanctioned by the 3rd respondent as per letter dated 24.02.2021. While the petitioner was working as ACTO on deputation basis at border Commercial Tax Check Post near Panchalingala, Kurnool District a surprise check was conducted by the ACB officials on 21.11.2015. However nothing was found against the petitioner and no disciplinary proceedings was initiated nor the petitioner was placed under suspension on the above said issue, even before his retirement nor after retirement, except surprise check nothing happened, but withholding all other retiral benefits only sanctioning provisional pension dated 24.02.2021 by the 3rd respondent, which is illegal and arbitrary. Hence this writ petition is filed.
4. Per contra, the 1st respondents filed counter denying all material averments made in the writ affidavit and mainly contended that the Government initiated departmental action against the petitioner and others and entrusted the case to the Tribunal for Disciplinary Proceedings for regular enquiry in the matter with regard to allegations of corruption and misconduct committed during the surprise check. The Joint Commissioner (ST) Kurnool has issued permission orders dated 28.10.2020 to the petitioner to retire from service on attaining the age of superannuation of 60 years on the A.N of 31.10.2020 without prejudice to the result of disciplinary cases/ ACB cases/ Charges pending if any and also subject to recovery of Government dues outstanding if any from his terminal benefits. As per Rule 52 of the Revised Pension Rules, 1980, pension and gratuity can be withheld 3 and only provisional pension can be paid, if departmental proceedings/ criminal proceedings were set in motion, while he was in service are pending. In the present case, disciplinary proceedings are pending against the petitioner before the Tribunal for Disciplinary Proceedings. Once the departmental proceedings attain finality in favour of the petitioner, all the pensionary benefits will be automatically released to the retired officer like petitioner. Hence, requested to dismiss the writ petition.
5. Per contra, 3rd respondent filed counter denying all material averments made in the writ affidavit and mainly contended that the 1st respondent vide letter dated 19.01.2021 requested the 3rd respondent to authorize only provisional pension to an extent of 75% of the normal pension, stating that the Government of A.P in Memo dated 18.10.2016 decided to initiate departmental action against the petitioner and others under Section 4 of A.P. Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 on the allegations of corruption and misconduct leveled against them during a surprise check. Hence the 3rd respondent authorized only Provisional Pension only. Further the 3rd respondent has no role in initiating departmental proceedings against the petitioner. Hence, requested to dismiss the writ petition.
6. During hearing learned counsel for the petitioner reiterated the contentions urged in the writ affidavit; whereas learned counsel for the respondents reiterated the contentions urged in the counter affidavits respectively. 4
7. As seen from the record, the petitioner retired from service on attaining the age of superannuation. No disciplinary action was initiated against the petitioner when he was in service. It is the contention of the learned counsel for the petitioner that the petitioner was not even placed under suspension before or after retirement and no charge memo is served on him. Further though the matter was referred to the Tribunal for Disciplinary Proceedings, so far no charge memo is served. As of now no disciplinary proceedings are initiated and no steps have been taken by the respondent authorities. When such is the case, the respondents have no authority to stop the retiral benefits to the petitioner, whereas even after long lapse of time the retiral benefits is not paid to the petitioner, which is illegal and arbitrary.
8. According to Rule 9(6) of A.P. Revised Pension Rules, Departmental Proceedings are deemed to be instituted and pending if the employee was placed under suspension and or if charge memo is issued. Whereas learned Government Pleader for Services.-I contended that there is no mention of charge are framed by the Tribunal for Disciplinary Proceedings and no material is placed with regard to allegations against the petitioner. Therefore, the respondents failed to produce iota of evidence on record with regard to allegations attributed against the petitioner, this Court is of the opinion that in view of the acts committed by the respondents as stated supra, the petitioner cannot be penalized. Hence the petitioner is entitled for the retiral benefits as claimed in the writ petitioner.
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9. Accordingly, the Writ Petition is allowed, while declaring the action of the respondents in withholding the retiral benefits, except granting provisional pension to the petitioner is highly illegal and arbitrary and directing the respondents to release full pension, gratuity, commutation value of pension with interest at 7% p.a from the date of retirement to till the date of actual payment made and also release E.L amount, GIS to the petitioner within a period of six (06) weeks from the date of receipt of a copy of this order. No costs.
As a sequel, miscellaneous petitions pending consideration if any in the writ petition shall stand closed.
____________________________ DR. K. MANMADHA RAO, J Dated 13.07.2022.
KK 6 THE HON'BLE DR.JUSTICE K. MANMADHA RAO WRIT PETITION No.21218 of 2021 13.07.2022 KK