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APHC010006602021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY NINETH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NOS: 536 AND 23218 OF 2021
WRIT PETITION NO: 536 OF 2021
Between:
Rongali Buchem Naidu, ...PETITIONER
AND
Visakhapatnam Metropolitan Region Development Authority ...RESPONDENT
Counsel for the Petitioner:
1. A V S LAXMI
Counsel for the Respondent:
1. V SURYA KIRAN KUMAR (SC FOR VMRDA and MUDA)
The Court made the following:
COMMON ORDER:-
W.P.No.536 of 2021 is filed under Article 226 of the Constitution of
India, seeking the following relief:
he nature of
“…..to issue a Writ, Order or direction more particularly one in t
Writ of Mandamus declaring the action of the respondents in not releasing the
retirement benefits of gratuity, full pension, commutation, is arbitrary, illegal,
and consequently direct payment of the same forthwith together with interest
at 18% p.a and
pass such other orders....”
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W.P.No.23218 of 2021 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 impugned Charge Memo issued under
G.O.Ms.No.75, dated 23.07.2021 and G.O.Rt.No.383 Municipal
Administration and Urban Development (Vig.I) Department, dated
23.07.2021, respectively are arbitrary, illegal and without jurisdiction, contrary
to Rule 9(2) of Revised Pension Rules and also various decisions rendered
by the Supreme Court and consequently by nullifying the same direct further
action to be taken by the department to mitigate the hardship caused to the
petitioner and
pass such other orders....”
2. Heard Mrs. A.V.S.Laxmi, learned counsel for the petitioner and Mr. V.
Surya Kiran Kumar, learned Standing Counsel for VMRDA and MUDA for the
respondents.
3. These Writ Petitions arise out of the same issue and therefore are
being disposed of by a common order. Both parties to the writ petitions are
one and same.
4. The precise case of the petitioner in W.P.No.536 of 2020 is that he
joined in respondent in April, 1991 as Surveyor vide proceedings dated
27.04.1991, thereafter he got promotions as ADM and JOP vide order dated
24.02.2024 and 13.10.2016. The petitioner was retired from service on
attaining the age of superannuation vide order dated 22.10.2019 duly
mentioning therein that no charges are pending against him. The petitioner
was paid PF and encashment of leave on 30.11.2019 on the date of his
retirement, but 75% of the pension was released in August-2020. Therefore,
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the petitioner made a request to release his retirement and other
consequential benefits, but in vain. Therefore, inaction of the respondent is
questioned in this writ petition.
5. The main grievance of the petitioner W.P.No.23218 of 2021 is that
the petitioner made a request to release his retirement and other
consequential benefits, but in vain. The pension and pensioary benefits are
not a bounty but are legal rights, which the respondent cannot deny which
relates to W.P.No.536 of 2021. Long after his retirement the Government
issued G.O.Ms.No.75, dated 23.02.2021 accorded sanction to initiate
disciplinary proceedings under Sub-Clause (1) of Clause (b) of Sub-rule (2) of
the A.P.Revised Pension Rules, 1980 against the petitioner and framed
charges under G.O.Rt.No.383, dated 23.07.2021 on certain allegations that he
miserably failed in discharging his duties in establishing the exact
encroachment of VUDA land by M/s P.R.Projects Pvt., Ltd., even after
conducting survey in twice on the same site, which worth crores of rupees.
The events gave raise for the issue of the charge memo are the inspection
dated 16.06.2015, survey dated 18.11.2015 and 02.07.2016. In fact under the
survey conducted under manual by the petitioner the encroachment was more
when compared to one conducted by Assistant Director under ETS was less.
The petitioner never committed any misconduct and there was no loss to the
respondents due to his action, and the discrepancy was due to the fact that it
is the border of two villages and due to nature of the process of the survey.
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Therefore, the writ petition came to be filed questioning the inaction of the
respondents herein.
st
6. The 1 respondent filed counter-affidavit in W.P.No.23218 of 2021
denying all material allegations made in the writ affidavit and mainly
contended that the respondent authorities conducted joint survey and
concluded that the construction was covered in part extent of Sy.No.20/P of
Pedagantyada Village, which belongs to VUDA, M/s PR Projects, and others
encroached approximately an extent of 628.11 Sq.yds by constructing an
apartment along with compound wall. Therefore, the respondent concluded
that there was gross negligence of duties by some of the officials of GVMC
and VUDA and recommended to initiate action against the petitioner and
others.
7. It is further contended that basing on the recommendations of V & E
and after following due procedure in terms of A.P.Revised Pension Rules,
1980, read with Rule 20 of A.P.Civil Service (Classification, Control and
Appeal) Rules, 1991, the Government has issued Sanction Order and Charge
Memo dated 23.07.2021 against the petitioner. The petitioner has also sought
for time for submission of reply to the charge memo. The Written Statement of
Defence to the Charges framed against him is still awaited. It is further
contended that this Court passed order dated 17.11.2017 in W.P.No.38901 of
the date of occurrence of the event is
2017, wherein it was observed that “
always the date on which the effect of the event is felt or In the
found out’.
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instant case, the Vigilance and Enforcement Department submitted their
report to the Government on 17.08.2017, charges were framed by the
Government on 23.07.2021 and the petitioner retired from service on attaining
the age of superannuation on 30.11.2019. As stated above, the Charge Memo
was served on him on 13.08.2021 and as such the charge is framed and
served against him within time and as per APRP Rules, 1980 and also order
of this Court. Hence, the writ petition is liable to be dismissed.
8. Perused the record.
9. It is the main contention of the respondents that Charge Memo
issued to the petitioner, for which the petitioner has not given any explanation
so far, without exhausting the available remedies open to him as per APRP
Rules, 1980 read with APSC (CC&A) Rules, 1991, the petitioner straight away
filed this Writ Petition is highly illegal and arbitrary. The petitioner has not
followed due procedure and not taken steps to file written statement of
defence or making any representation to the respondent.
10. No doubt, the petitioner has not submitted any explanation to the
respondent with regard to charges levelled against him. Further the Charges
framed against the petitioner vide G.O.Rt.No.383, dated 23.07.2021.
Whereas, the petitioner retired from service on attaining the age of
superannuation on 30.11.2019 i.e after lapse of about two years, the
respondent issued charge memo to the petitioner.
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11. In support of his contention, learned counsel for the petitioner relied
on a decision of the Hon’ble Apex Court in “State of U.P and Another v. Shri
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, with regard to time limit for initiating departmental enquiry
Krishna Pandey”
against the delinquent, who was allowed to retire on superannuation. Wherein
it was held as follows:-
“5. Explanation to the rule purports to give the meaning to the words
“commencement of departmental proceedings”. It says that departmental
proceedings shall be deemed to have been instituted when the charges
framed against the pensioner are issued to him, or if the officer has been
placed under suspension from an earlier date, from such date the date of
suspension and the proceedings shall be deemed to have been instituted in
the case of criminal proceedings, on the date on which complaint is made or a
charge-sheet is submitted to a criminal court; and in the case of civil
proceedings, on the date on which the plaint is presented or, as the case may
be, an application is made to the civil court. As soon as the proceedings of the
nature referred in the articles are instituted, the authority which institutes such
proceedings shall without delay intimate the fact to the audit officer
concerned”.
6.........But the events of misconduct etc., which may have resulted in the loss
to the Government or embezzlement i.e the cause for the institution of
proceedings, should not have taken place more than four years before the
date of institution of proceedings. In other words, the departmental
proceedings must be instituted before lapse of four years from the date on
which the event of misconduct etc., had taken place. Admittedly, in this case
the officer had retired on 31.03.1987 and the proceedings were initiated on
21.04.1991. Obviously, the event of embezzlement which caused pecuniary
loss to the State took place prior to four years from the date of his retirement.
Under these circumstances, the State had disabled itself by their deliberate
omissions to take appropriate action against the respondent and allowed the
officer to escape from the provisions of Regulation 351-A of the Regulations.
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(1996) 9 SCC 395
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This order does not preclude proceedings with the investigation into the
offence and taking action thereon.”
12. Further he relied on a decision of Ho
n’ble Apex Court in “Brajendra
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Singh Yambem v. Union of India and Another herein it was held as
”
follows:-
1.In the instant case, the action of the disciplinary authority is untenable in
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law for the reason that the interpretation of the CCS (Pension) Rules, 1972
which is sought to be made by the learned Additional Solicitor General on
behalf of the respondents amounts to deprivation of the fundamental rights
guaranteed to the appellant under Para III of the Constitution of India.
Therefore, we have to hold that the disciplinary proceedings initiated by the
disciplinary authority after obtaining sanction from the President of India under
Rule 9(2) (b)(i) of the CCS (Pension) Rules, 1972, are liable to be quashed .
”
13. However, in the instant case, there are allegations against the
petitioner and issued Charge Sheet, for which the petitioner has not submitted
any explanation so far. As per decisions relied by the learned counsel for the
petitioner would show that time limit for initiating departmental enquiry more
than four years after delinquent was allowed to retire on attaining the age of
superannuation. Such enquiry, held incompetent and issued a direction to
release his pension. Therefore, it is the contention of the learned counsel for
the petitioner that the decision case (Supra) is squarely
Shri Krishna Pandy’s
applicable to the facts of the case and requested to allow the writ petition.
14. Admittedly, the petitioner retired from service and after retirement
charges were framed against him. No departmental or judicial case was
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(2016) 9 SCC 20
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instituted against the petitioner during his service. On account of the said
show cause notice, the respondents withheld the gratuity payable to the
petitioner, so also not permitted him to encash the gratuity, full pension,
commutation etc.,. The facts are not in dispute, but the entitlement of the
petitioner is only in dispute to withdraw the gratuity, full pension, commutation
etc., on the ground of pending enquiry is in controversy.
15. According to clause (c) of Sub-Rule (1) of Rule 52 of the
Andhra Pradesh Revised Pension Rules, 1980, no gratuity shall be 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%.
16. 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 (referred above)
Veerabhadram’s case
held as follows:-
“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
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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 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.”
17. 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 departmental enquiry is
pending from the year 2021 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.
18. 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, in view of
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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.
19. 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.
20. 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. Recently
this Court also passed similar order in W.P.No.2221 of 2022, dated
26.07.2024 and same is relied by the learned counsel for the petitioner.
21. 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
en
cashment of Earned Leave to the credit of the petitioner’s leave account and
also pay 80% retirement gratuity, in accordance with law, within three (03)
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months from the date of receipt of a copy of this order. It is further directed the
petitioner to submit explanation to the respondents with regard to charge
memo as expeditiously as possible; on such submission, the respondent
authorities are directed to conclude the enquiry, after giving an opportunity of
hearing of the petitioner and pass appropriate reasoned order in accordance
with law, within two (02) months thereafter. The petitioner is at liberty to
challenge the said order, if so advised. However, this order does not preclude
proceeding with the enquiry into the charges against the petitioner and taking
action thereon.
22. With the above direction, both the writ petitions are disposed of.
There shall be no order as to costs.
The miscellaneous applications pending, if any, shall also stand closed.
______________________________
DR. JUSTICE K. MANMADHA RAO
Date: 29.11.2024.
KK