IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 25184 of 2007 Between: Smt.Maria Bombina Joseph W/o.William Francies O/o. Chief General Manager (HRD), AP TRANSCO, Vidyut Soudha, Somajiguda, Hyderabad. ..... PETITIONER AND 1 The Transmission Corporation of AP Ltd., Vidyut Soudha, Somajiguda, Hyderabad. Rep. by its Chairman & Managing Director. 2 The Jt. Managing Director (HRD), Comml., IPC & Reforms AP TRANSCO, Vidyut Soudha, Somajiguda, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or order or direction, especially one in the nature of Writ of Mandamus: a. declare the action of the respondents in not releasing petitioner's terminal benefits including that of pension and gratuity in full, as illegal, arbitrary and set-a-side the letter dt. 31.8.2006 dt. 29.11.2006 and 25.10.2007. b. consequently direct the respondents to fix and pay all petitioner's terminal benefits including the pension and gratuity in full c. and pass such other order or orders. Counsel for the Petitioner: MR.K.VASUDEVA REDDY Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.25184 of 2007 ORDER: The petitioner assails the order dated 31-08-2006, through which the 2nd respondent refused to grant the provisional pension to the petitioner. The petitioner was appointed in the erstwhile A.P. State Electricity Board, on 14-07-1971, and thereafter, became the employee of the 1st respondent. A charge-sheet dated 26-11-2004 was issued to him, alleging that he produced a false degree certificate, to acquire promotion as Personnel Officer. In the departmental inquiry, it was held that though the degree certificate is not genuine, there is no mala fide intention on the part of the petitioner. Through an order dated 08-08-2005, the 2nd respondent imposed the punishment of compulsory retirement of the petitioner. Apart from that, he has also filed a complaint in Crime No.1012 of 2004, in the Punjagutta Police Station, Hyderabad, under the relevant provisions of I.P.C., and the petitioner is facing trial in that case. The 2nd respondent did not release the pension, or other terminal benefits to the petitioner. Therefore, he made a representation dated 07-08- 2006 to the respondents, with a request to sanction, at least, the provisional pension. Through the impugned order, the 2nd respondent informed the petitioner that on account of the pendency of the criminal case, he cannot be sanctioned the provisional pension. Sri K. Vasudeva Reddy, learned counsel for the petitioner, submits that once the petitioner was inflicted with the punishment of compulsory retirement, the pension cannot be withheld, and the action of the respondents is contrary to the Andhra Pradesh Revised Pension Rules, 1980 (for short ‘the Rules’). Sri P.R. Balarami Reddy, learned counsel for the respondents, on the other hand, submits that the pendency of criminal case, against the petitioner, is a valid ground, under Rule 9, to reject the pension. The person who is inflicted with the punishment of compulsory retirement is eligible to be sanctioned the pension. Rule 39 is clear on this aspect. It is no doubt true that prosecution is launched against the petitioner, and he is facing it. That, however, cannot be a reason for the respondents, to withhold the pension. Rule 9(1), upon which reliance is placed by the respondents, reads as under: “Rule 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 re-employment after retirement: Provided that the Andhra Pradesh Public Service Commission shall be consulted before any final orders are passed. However, consultation with Andhra Pradesh Public Service Commission is not necessary, when the pensioner is found guilty in any judicial proceedings. Provided further that a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the limit specified in sub-rule (5) of Rule 45. Provided also that 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 offences of grave charges namely proved cases of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of women and misconduct”. From a perusal of this, it is evident that the question of withholding pension and gratuity would arise, only when an employee is found guilty of grave misconduct, or negligence, in any departmental or judicial proceedings. The departmental proceedings instituted against the petitioner, have resulted in the compulsory retirement of the petitioner. The judicial proceedings are still pending against the petitioner. Therefore, the occasion to invoke Rule 9 of the Rules, does not exist, in this case. Time and again, the Supreme Court held that pension is a property owned by an employee, and it cannot be withheld, except in accordance with law. Sub-rule (4) of Rule 9 mandates that even where an employee is facing departmental or judicial proceedings, as on the date of his retirement, he shall not be paid provisional pension, as provided under Rule 52 of the Rules. Viewed from any angle, the impugned order cannot be sustained in law. The writ petition is accordingly allowed, and the impugned order is set aside. The respondents are directed to sanction provisional pension to the petitioner, as provided under Rule 52 of the Rules, within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.16-04-2008. KO* To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR}