WP/31052/2024 of J MANGAYAMMA Vs THE STATE OF AP on 31 December 2024

:: ORDER::

Thepetitioner,retiredon31.08.2024,onattainingtheageofsuperannuation, filed the above writ petitioncomplaining about not releasingthe encashment of Earned Leaveamount along with 80% Gratuity, due topendency of a criminalcase in C.C.No.9 of 2016 on the file of learned III Addl.District&SessionsJudge-cum-SpecialJudgeforACBCases,Visakhapatnam,iin terms of G,O.RtNo.1097, Finance & Planning Department,dated 22.06.2000 as illegal and arbitrary.

2HeardSri T.S.N. Sudhakarlearned counselfor thepetitioner andSri Sarath, learned Assistant GovernmentPleader for Services - II appearedfor respondents.3.A case in Cr.No.05/RCT-ACBA/ZM/2014for the offence punishableunder Section 7 & 13(2) r/w^13(1)(d) of the Prevention) of Corruption Act, 1988was registered against the petitioner by the Staterepresented by Inspector ofPolice, Anti-Corruption Bureau,'Vizianagaram Range. A charge sheet wasfiled on the file of learnedIII Addl.District & Sessions Judge-cum-SpecialJudge for ACB Cases, Visakhapatnam and the same was numberedasC.C.NO.9 of 2016. Pending the criminal case, the petitioner retired fromservice on 31.08.2024 on attaining the age of superannuation. Theproposalsof the petitioner for sanction of encashmentof Earned Leave were returned tothe Superintendent VVWH-II, Visakhapatnamby the District Women & Childlearned counselfor thepetitioner andSri Sarath, learned Assistant GovernmentPleader for Services - II appearedfor respondents.3.A case in Cr.No.05/RCT-ACBA/ZM/2014for the offence punishableunder Section 7 & 13(2) r/w^13(1)(d) of the Prevention) of Corruption Act, 1988was registered against the petitioner by the Staterepresented by Inspector ofPolice, Anti-Corruption Bureau,'Vizianagaram Range. A charge sheet wasfiled on the file of learnedIII Addl.District & Sessions Judge-cum-SpecialJudge for ACB Cases, Visakhapatnam and the same was numberedasC.C.NO.9 of 2016. Pending the criminal case, the petitioner retired fromservice on 31.08.2024 on attaining the age of superannuation. Theproposalsof the petitioner for sanction of encashmentof Earned Leave were returned tothe Superintendent VVWH-II, Visakhapatnamby the District Women & ChildWelfareandEmpowermentOfficer,VisakhapatnamvideMemoN0.59/2024/SA,dated05.12.2024(Ex.P1),duetopendencyoftheaforementioned criminalcase.N0.59/2024/SA,dated05.12.2024(Ex.P1),duetopendencyoftheaforementioned criminalcase.

4. At the hearing, learned counsel for thepetitioner and learned AssistantGovernment Pleader for Serviceswould submit that the issue involved in the Page 3 of 4X•

present writ petition is squarely covered by the judgment of Division BenchinW.A.No.196 of 2022 dated 16.02.2022, wherein the Division Bench observedthat the petitioner therein entitled for leave encashment.

5. Since the issue involved in the case at hand is covered by the judgmentin W.A.No.196 of 2022 dated 16.02.2022, this Writ Petitionis disposed of interms of the judgment in W.A.No.196 of 2022 dated 16.02.2022, directing thelearned respondent No.1 to release the encashment of Earned Leave amountto the petitioner within two (02) months.in W.A.No.196 of 2022 dated 16.02.2022, this Writ Petitionis disposed of interms of the judgment in W.A.No.196 of 2022 dated 16.02.2022, directing thelearned respondent No.1 to release the encashment of Earned Leave amountto the petitioner within two (02) months.

The Registry is directed to annex a copy of the judgment[in] W.A.No.196of 2022 dated 16.02.2022. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any,[shall][ stand][ closed.]

Sd/- M SRINIVASASSISTANT REGISTRAR//TRUE COPY//

SEON OFFICER

To,

1. ThePrincipalSecretary, WomenChildren,DisabledandSeniorCitizensDepartment,StateofAndhraPradesh,Secretariat,CitizensDepartment,StateofAndhraPradesh,Secretariat,Velagapudi, At Amaravathi, Guntur District2. TheDirector, WomenDevelopment & Child WelfareDepartment,StateofA.P,JampaniTowers,LodgeCentre,Guntur,GunturDistrict.StateofA.P,JampaniTowers,LodgeCentre,Guntur,GunturDistrict.

3. The Regional Joint Director, Women Development & Child WelfareDepartment,TBMPragatiPranganamCompound,PineapplleColony, Visakhapatnam, Visakhapatnam District.Department,TBMPragatiPranganamCompound,PineapplleColony, Visakhapatnam, Visakhapatnam District.

4. The District Women & Child Welfare & Empowerment Officer, DistrictWomen Development & Child Development, DRDA Building,MVPColony, Sector-9, Visakhapatnam, Visakhapatnam District.Women Development & Child Development, DRDA Building,MVPColony, Sector-9, Visakhapatnam, Visakhapatnam District.

5. One CC to Sri T. S. N. Sudhakar, Advocate [OPUC]

6. Two CC’s to GP for Service-ll, High Court of A.P. at Amaravati[OUT]7.Three CD Copies.(Along with a copy of the judgment in W.A. No.196 of 2022 dated16.02.2022)7.Three CD Copies.(Along with a copy of the judgment in W.A. No.196 of 2022 dated16.02.2022)

ssb

HIGH COURT

DATED:31/12/2024

ORDER

WP.No.31052 of 2024

:/a:lo2 3 JAN 2C25 1Co^ Current Section.

DISPOSING OF THE W.P. WITHOUT COSTS

IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE

&

HON'BLE MR. JUSTICE SUBBA REDDY SATTI

WRIT APPEAL No. 196 of 2022

(Proceedings through physical mode)

Dt: 16.02.2022

(per Prashant Kumar Mishra, O)

This writ appealis posted for hearing on admission.[However,]

with the consent of learned counsel for both the parties,[we][ proceeded]to decide the matter finally.

Conclusion

2. The writ appeal is preferred against the order dated[19.03.2021]passed in W.P.No.3421 of 2021.By the said order, the[learned][ single]Judge has allowed the writ petitionpreferred by the[writ]petitionerseeking issuanceof writ of mandamusdeclaringtheactionoftherespondents in not releasing the encashment of earned[leave][ amount]and 80% of retirement gratuity, on account of pendency[of][ C.C.No.39][ of]2011 on the file of the Special Judge for SPE & ACB[Cases,][ Vijayawada,]passed in W.P.No.3421 of 2021.By the said order, the[learned][ single]Judge has allowed the writ petitionpreferred by the[writ]petitionerseeking issuanceof writ of mandamusdeclaringtheactionoftherespondents in not releasing the encashment of earned[leave][ amount]and 80% of retirement gratuity, on account of pendency[of][ C.C.No.39][ of]2011 on the file of the Special Judge for SPE & ACB[Cases,][ Vijayawada,]

intermsofG.O.Rt.No.l097FinanceandPlanning(FWPen.I)Department, dated 22.06.2000, as illegal, arbitrary and discriminatory,andforaconsequentialdirectiontotherespondentstoreleaseencashment of earnedleave amount along with 80%ofretirementgratuity of the writ petitioner in terms of similar orders dated 14.02.2017in W.P.No.30443of 2016 anddated24.02.2020inW.P.l\lo.2545of2020.

3. The writ petitioner retired from service on attaining the age ofsuperannuation on 31.10.2011 while he was serving as[Assistant][ Sub-]Inspector of Police.During his continuation in the service, the officialsofAnti-CorruptionBureauregisteredatrapcaseagainsthimon30.07.2021, and thereafter, a charge-sheet was filed against him whichis now registeredas C.C. No.39of 2011 pendingtrialIn the SpecialCourtfor SPEand ACBCases,Vijayawada.Sinceonaccountofpendency of criminal case, thepetitioner was not paidgratuitynorallowedtoseekencashmentofEarnedLeave,hehassubmittedrepresentationdated09.01.2020onthe strengthof[G.O.Rt.No.l097]dated 22.06.2000. The representation was kept pending, therefore, thewrit petition was preferred seeking the aforesaid relief.superannuation on 31.10.2011 while he was serving as[Assistant][ Sub-]Inspector of Police.During his continuation in the service, the officialsofAnti-CorruptionBureauregisteredatrapcaseagainsthimon30.07.2021, and thereafter, a charge-sheet was filed against him whichis now registeredas C.C. No.39of 2011 pendingtrialIn the SpecialCourtfor SPEand ACBCases,Vijayawada.Sinceonaccountofpendency of criminal case, thepetitioner was not paidgratuitynorallowedtoseekencashmentofEarnedLeave,hehassubmittedrepresentationdated09.01.2020onthe strengthof[G.O.Rt.No.l097]dated 22.06.2000. The representation was kept pending, therefore, thewrit petition was preferred seeking the aforesaid relief.

4. The official respondents defended the same on the strength[of]clause (c) sub-rule (1) of Rule 52 of the A.P. Revised[Pension][ Rules][ 1980](for short, "the Rules, 1980").According to them,[G.O.Rt.No.l097][ dated]22.06.2000 has noapplication where the gratuityis[withheld]duetopendency of judicial proceedings.clause (c) sub-rule (1) of Rule 52 of the A.P. Revised[Pension][ Rules][ 1980](for short, "the Rules, 1980").According to them,[G.O.Rt.No.l097][ dated]22.06.2000 has noapplication where the gratuityis[withheld]duetopendency of judicial proceedings.

5. Learned Government Pleader for Services-Ireiterated thestandof the official respondents and would take us to the text of Rule 52(l)(c)of the Rules, 1980 as well G.O.Rt.No.l097 dated 22.06.2000.He wouldsubmit that learned single Judge has not considered the application ofof the official respondents and would take us to the text of Rule 52(l)(c)of the Rules, 1980 as well G.O.Rt.No.l097 dated 22.06.2000.He wouldsubmit that learned single Judge has not considered the application of G.O.Rt.No.l097 in proper perspective nor Rule 52(l)(c) has been giveneffect in its true sense.

6. On the other hand, learned counsel for the writ petitioner[would]support the impugned order. He would also refer to the order passed bythe Division Bench of common High Court in W.P. No.30443 of 2016.According to him, proviso to clause (c) of sub-rule1 of Rule 52 of theRules, 1980 clearly empowers the official respondents[to][ release] 80%[ of]theeligibleretirementgratuitydespitependencyofthejudicialproceedings.support the impugned order. He would also refer to the order passed bythe Division Bench of common High Court in W.P. No.30443 of 2016.According to him, proviso to clause (c) of sub-rule1 of Rule 52 of theRules, 1980 clearly empowers the official respondents[to][ release] 80%[ of]theeligibleretirementgratuitydespitependencyofthejudicialproceedings.

7. At the outset,it would be appropriate to reproduce clause(c) ofsub-rule (1) of Rule 52 of the Rules, 1980, hereunder;sub-rule (1) of Rule 52 of the Rules, 1980, hereunder; "52. Provisional pension where departmental orjudicial proceeding may be pending :-

a) (a)

(b)

(c) No gratuity shall be paid to the Governmentservantuntil theconclusion of thedepartmental orjudicialproceedingsandissueoffinalorders:Provided that where departmental proceedingshave been instituted under Rule 9 of Andhra PradeshCivil Services (Control Classiifcation and Appeal) Rules,1991,for imposing any of the penalties speciifed inclauses(i),(ii) and (iv) of Rule 9 of the said rules,except the cases falling under sub-rule (2) of Rule[22][ of]thesaidrules,the paymentof gratuityshallbeauthorisedtobepaidtotheGovernment servantProvided further that notwithstanding anythingcontained in clauses (a),(b) and (c) of sub-rule (1)above,where a conclusion has been reached that aportion ofpension only should be withheld or withdrawnand the retirement gratuity remains uneffected in the contemplated final orders, the retirement gratuity[can]be released upto 80%."

8. Extending the import of proviso to clause (c) of sub-rule (1) ofRule 52 of the Rules, 1980, the Government of Andhra Pradesh issuedG.O.Rt.No.l097dated22.06.2000.TherelevantpartoftheG.O.Rt.No.l097 is extracted hereunder:Rule 52 of the Rules, 1980, the Government of Andhra Pradesh issuedG.O.Rt.No.l097dated22.06.2000.TherelevantpartoftheG.O.Rt.No.l097 is extracted hereunder:

'C. Retirement Gratuity:

According to clause(c) of sub-ruie (1) of Rule 52of the Andhra Pradesh Revised Pension Rules, 1980,noGratuity shall be paiduntiltheconclusionof thedepartmental or judicial proceedings and issue the finalorders. According to the proviso to the above said Rule,where Departmental Proceedings have been institutedunder Ruie 9 of the Andhra PradeshCivii Services(Ciassihcation,Control and Appeal) Rules,1991,forimposing any of the penalties specified in ciauses (i), (ii)and (iv) of Ruie 9 of the said Ruies, except the casesfalling under sub-ruie (2) of Ruie 22 of the said Rules,the payment of Gratuity shall be authorised to be paidto the Government ServantIt is also further providedinthe said Ruiethat where a conclusionhas beenreached that a portionof pensiononiy shouid bewithheid or withdrawn and theRetirement Gratuityremains unaffected in the contempiated finai orders,[the]Retirement Gratuity can be released upto 80% of theeligible Retirement Gratuity."

9. A joint reading of clause (c) of sub-rule (1) of Section[52][ of][ the]Rules, 1980 along with G.O.Rt.No.l097 dated 22.06.2000[would][ make]itclear that the proviso appended to clause (c) concerns[a situation][ where]theretiredGovernmentServantisundergoingdepartmentalproceedings.The proviso doesnot deal witha situation[where][ the]retired Government Servantis facing judicial proceedings.While thefirst part of clause(c) of sub-rule(1) of Rule 52of theRules,1980providesthatnogratuityshallbepaiduntiltheconclusionofdepartmentalor judicial proceedings or issue of the final orders, theproviso enables the Government to release 80% of the eligible gratuityin appropriate cases, where the retired Government Servant is facing thedisciplinary proceedings.However, the said enabling proviso has notdeait witha situation where theretired Government Servantis facingjudicial proceedings.Rules, 1980 along with G.O.Rt.No.l097 dated 22.06.2000[would][ make]itclear that the proviso appended to clause (c) concerns[a situation][ where]theretiredGovernmentServantisundergoingdepartmentalproceedings.The proviso doesnot deal witha situation[where][ the]retired Government Servantis facing judicial proceedings.While thefirst part of clause(c) of sub-rule(1) of Rule 52of theRules,1980providesthatnogratuityshallbepaiduntiltheconclusionofdepartmentalor judicial proceedings or issue of the final orders, theproviso enables the Government to release 80% of the eligible gratuityin appropriate cases, where the retired Government Servant is facing thedisciplinary proceedings.However, the said enabling proviso has notdeait witha situation where theretired Government Servantis facingjudicial proceedings.

10. The case decided by the Division Bench of common High[Court][ in]W.P.No.30443of2016wasdealingwiththeprayerofaretiredGovernment Servantforreleaseofleaveencashment.Itwasnotdealing with the prayer for release of 80% of gratuity.The judgment inthe matter of R. Veerabhadram vs. Government of A.P. reported in(1999) 9 Supreme Court Cases 43 referred by the learned[single]Judge clearly holds that by virtue of Rule 52(c) of[the][ Rules,][ 1980,][ there]is an express power empowering the Government to withhold gratuityduring the pendency of any judicial proceedings against[the][ employee.]EventhoughthesaidjudgmentwasrenderedbeforeissuanceofG.O.Rt.No.l097, the fact remains that thereis no amendmentinthemain part of clause (c) of sub-rule (1) of Rule 52[of][ the][ Rules,][ 1980.]Aswe have mentioned earlier, the proviso only concerns[a situation][ where]the employeeisfacingdisciplinary proceedings andnot whenheisW.P.No.30443of2016wasdealingwiththeprayerofaretiredGovernment Servantforreleaseofleaveencashment.Itwasnotdealing with the prayer for release of 80% of gratuity.The judgment inthe matter of R. Veerabhadram vs. Government of A.P. reported in(1999) 9 Supreme Court Cases 43 referred by the learned[single]Judge clearly holds that by virtue of Rule 52(c) of[the][ Rules,][ 1980,][ there]is an express power empowering the Government to withhold gratuityduring the pendency of any judicial proceedings against[the][ employee.]EventhoughthesaidjudgmentwasrenderedbeforeissuanceofG.O.Rt.No.l097, the fact remains that thereis no amendmentinthemain part of clause (c) of sub-rule (1) of Rule 52[of][ the][ Rules,][ 1980.]Aswe have mentioned earlier, the proviso only concerns[a situation][ where]the employeeisfacingdisciplinary proceedings andnot whenheis facing judicial proceedings.In our considered view, the judgment in thecase of R. Veerabhadram (supra) would still hold in a case where theemployee is facing judicial proceedings.

11. Learned counsel for the writ petitioner submits that the petitioneris entitled for leave encashment.To this extent, learned State counselwould not object to the prayer because, according to him, the judgmentrendered by the Division Benchin W.P. No.30443 of 2016 deals withencashment of leave and moreover, clause(c) of sub-rule(l)[of][ Rule 52]of the Rules, 1980 deals with gratuity and not with leave encashment.is entitled for leave encashment.To this extent, learned State counselwould not object to the prayer because, according to him, the judgmentrendered by the Division Benchin W.P. No.30443 of 2016 deals withencashment of leave and moreover, clause(c) of sub-rule(l)[of][ Rule 52]of the Rules, 1980 deals with gratuity and not with leave encashment.

12. For the foregoing discussion, the said part of the impugned orderpassed by the leaned single Judge allowing paymentof 80%of theretirement gratuity to thewrit petitioneris setaside.However, weobserve that the writ petitioner is entitled to leave encashment.passed by the leaned single Judge allowing paymentof 80%of theretirement gratuity to thewrit petitioneris setaside.However, weobserve that the writ petitioner is entitled to leave encashment.

13. Accordingly, the writ appealis allowedinpart, modifyingtheorder of the learned single Judge to the above extent. No costs. Pendingmiscellaneous applications,if any, shall stand closed.order of the learned single Judge to the above extent. No costs. Pendingmiscellaneous applications,if any, shall stand closed.

PRASHANT KUMAR MISHRA, CJ

SUBBA REDDY SATTI, J

GM