IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH THURSDAY THIS THE TWENTY FOURTH DAY OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.40205 of 2012 Between: G.Shyam Sunder . PETITIONER And Transmission Corporation of Andhra Pradesh, Vidyut Soudha, Hyderabad and 2 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.40205 of 2012
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking a Writ of Mandamus, declaring the action of the respondents in not releasing the retiral benefits including the pension, gratuity, encashment of earned leave and general provident fund accumulation due to the petitioner as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently direct the respondents to release the benefits together with interest at 12% per annum from the date of eligibility.
I have heard the learned counsel appearing for the petitioner. There is no representation on behalf of the respondents for the last two adjournments.
The brief facts necessary for considering the writ petition may be stated as follows:
The petitioner worked as Additional Assistant Engineer in the respondent Corporation and retired from service on 31.05.2012 on attaining the age of superannuation. The petitioner submitted pension papers through proper channel six months prior to his retirement. As per the revised pension rules, the petitioner is entitled to pension and also gratuity apart from other benefits. However, the petitioner was not paid his retiral benefits. The petitioner addressed letters dated 05.08.2012 and 22.08.2012 to the Chief Engineer/Metro Zone requesting him to settle his retirement benefits. The Additional Secretary also addressed letter dt.30.08.2012 to the Chief Engineer/Metro Zone to take necessary action with regard to settlement of the retiral benefits of the petitioner. But he was not paid the retiral benefits.
The respondents filed counter contending inter alia that at the time of relief, physical custodian of the stores has to handover the stores material and submit I to V statements (including pairing off material) in full shape to the higher authorities. But the petitioner has submitted I to V statements to the Executive Engineer/TLC (Transmission Lines Construction) Stores on 02.08.2008, though he was relieved on 02.06.2007. The SE/TLC/Hyderabad has returned the I to V statements to the petitioner through EE/TLC and AEE/TLC for certain rectifications/recommendations to the petitioner in 2011. Regarding submission of revised I to V statements and handing over of Notes in full shape, the EE/TLC Stores had issued repeated reminders vide his Memo dated 21.03.2012 and 29.05.2012 in addition to oral requests many times.
It is further contended that in the meanwhile, the A.P.Transco has issued retirement notice vide Memo dated 27.07.2011 to the AAEs/Officers who are retiring in the Calendar Year 2012 in which the petitioner’s date of retirement is mentioned as 31.05.2012. According to the respondents, it is a regular process that if the retiring officer is having any dues to the Department, they have to be cleared before his retirement. On receipt of notice, the petitioner has submitted his pension proposals and same were received SE/O&M/400 KV/L&SS/Mamidipally/APTransco vide his letter dated 13.04.2012. Meanwhile, the petitioner had retired from service on 31.05.2012 on attaining the age of superannuation, pending submission of revised I to V statements in full shape. Therefore, finalization of Pension/Terminal benefits of the petitioner could not be settled due to non-receipt of revised I to V statements from the petitioner. It is further contended that the petitioner has submitted an undertaking on 13.09.2012 stating that the due outstanding amount in O/o.Executive Engineer/TLC/Stores/Erragadda/Hyderabad against him may be recovered from his pensionery benefits. Finally, the petitioner has submitted the revised I to V statements in full shape on 30.01.2013.
According to the respondents, the shortage of stores material has been arrived at Rs.67,88,992/- without pairing off stores material and Rs.31,49,712/- after pairing off stores material and the said amounts have to be recovered from the petitioner’s terminal benefits.
Nextly, it is contended that the revised I to V statements submitted by the petitioner have been submitted to the Headquarters duly recommending for pairing off I to V statements. In the circular dated 10.04.2006, the A.P.Transco has permitted pairing off like nature and like quantities (Statement III) and pairing off like nature and unlike quantities on one time basis. Pending approval of pairing off stores material by the Headquarters, the provisional pension has been sanctioned to the petitioner on humanitarian grounds vide memo dated 02.02.2013 for Rs.9,467/- per month w.e.f.01.06.2012 i.e. 75% of admissible pension of Rs.12,622/-for the qualifying service of 19.5 years. It is further contended that the provisional pension sanctioned shall be adjusted in full from the regular pension to be sanctioned after finalization of outstanding dues of stores material (pending finalization) if any found or established later. Contending above, the respondents pray for dismissal of the writ petition.
The point that arises for consideration in the present writ petition is whether the respondents have any legal authority to withhold the pensionery benefits of the petitioner on the ground that he failed to submit the revised I to V statements.
Point:
The learned counsel appearing for the petitioner submitted that the petitioner was not served with any memo or charge sheet while he was in service regarding the aforesaid revised I to V statements, and the respondents somehow to deprive the petitioner of his pensionery benefits, created the said theory and withheld the pensionery benefits intentionally. To appreciate the aforesaid question, the learned counsel appearing for the petitioner placed reliance on the following judgments of the Apex Court.
In State of Jharkhand and ors. V. Jitendra Kumar Srivastava
[1]
and anr. the Hon’ble Supreme Court held as follows:
“The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.(1971 SCR 634) wherein this Court authoritatively rules that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. v. Iqbal Singh (1976(2) LLJ 377).”
“It is thus hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India.”
“Article 300 A of the Constitution of India reads as under:
“300A persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.”
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.”
“It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.”
I n Bhagirathi Jena v Board of Directors, O.S.F.C[2] the Hon’ble Supreme Court held that in the absence of any provision, the Corporation had no legal authority to make any reduction in the retiral benefits of the employee. There is also no provision for conducting a disciplinary enquiry after retirement of the employee and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits.
If we examine the facts of the present writ petition in the light of the aforesaid law laid down by the Hon’ble Supreme Court, obviously no disciplinary proceedings were initiated against the petitioner while he was in service, not even a memo or charge sheet was served on him for not submitting revised I to V statements. The respondents have failed to show any regulation enabling them to conduct disciplinary enquiry against the petitioner after his retirement. More over, no disciplinary enquiry has been initiated against the petitioner. In the absence of any specific provision, disciplinary enquiry against a retired employee cannot be conducted. The respondents cannot withhold the entire pensionary benefits of the petitioner or any portion thereof. Under Article 300 A of the Constitution of India, a person cannot be deprived of his pension without the authority of law. The petitioner is therefore entitled to receive the pensionery benefits as claimed for in the present writ petition.
For the reasons stated above, the Writ Petition is allowed. The respondents are directed to release the entire retiral benefits to the petitioner including the pension, gratuity, encashment of earned leave and general provident fund accumulation due etc., within a period of 6 (six) weeks from the date of receipt of a copy of this order. In the circumstances, there shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 24.07.2014 Dsr
[1] 2013 Law Suits (SC) 714
[2] (1999) 3 SCC 666