* THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR + WRIT PETITION Nos. 27607, 27614 and 22929 of 2009 % 28-01-2010 # The Chief Commissioner of Land Administration, A.P., Nampally Station Road, Hyderabad and another. ...Petitioners Versus $ R.S.Ramakrishna Rao and another. ...Respondents. ! Counsel for the Petitioners : Government Pleader for Services II ^ Counsel for Respondents : Sri P. Sai Prasad. < Gist: > Head Note: ? Cases referred: 1. 2000 (4) SLR 91 2. (1999) 9 Supreme Court Cases 43 THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.Nos. 27607, 27614 and 22929 of 2009 COMMON ORDER: (per the Hon’ble Sri Justice V.Eswaraiah) Since similar questions are involved in all these three writ petitions, relating to payment of retirement benefits, pursuant to acquittal of the applicants in spite of pendency of the criminal appeals, the same are being disposed of by this common order. 2. The 1st respondent, in all these writ petitions, is the applicant in O.A.Nos.7027 of 2006, 4168 of 2007 and 10747 of 2008 respectively. O.A.Nos.4168 of 2007 and 10747 of 2008 were disposed of by the Tribunal by a common order, dated 16-07-2009, and O.A.No.7027 of 2006 was disposed of vide order, dated 22-07-2009. 3. Since the issues are similar in all these writ petitions, the facts in W.P.No.22929 of 2009, which is the subject matter of O.A.No.7027 of 2006, are taken up for consideration. 4. The parties are hereinafter referred to as they are arrayed before the Tribunal. 5. The applicant filed O.A.No.7027 of 2006 seeking to declare the action of the respondents in not releasing pension and gratuity amounts due to him as illegal and arbitrary and also for a consequential direction to the respondents to release the same along with 18% interest per annum. The said O.A. was disposed of following the earlier order of the Tribunal in O.A.No.6507 of 2007, dated 03-03-2008, whereas O.A.Nos.4168 of 2007 and 10747 of 2008 were disposed of following the order in another O.A.No.7218 of 2006, dated 17-04- 2007, and the judgment of Calcutta High Court in STATE OF WEST BENGAL AND OTHERS Vs. HARI RAMALU AND ANOTHER[1]. 6. The Tribunal vide its order, dated 17-04-2007, allowed O.A.No.7218 of 2006 directing the respondents therein to pay full pension, gratuity and other retiral benefits to the applicants therein holding that pendency of the criminal appeal, against the order of acquittal, is of no consequence in view of Rules 9 and 52 of the A.P.Revised Pension Rules, 1980 (for short “the Pension Rules”). 7. The case of the applicant in O.A.No.7027 of 2006 is that while he was working as Town Planning Supervisor at Anantapur Municipality, a case was registered against him by the ACB Authorities for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Cr.No.7/ACB-ATP/94. After completion of investigation, a charge-sheet was filed against him and the same was numbered as C.C.No.20 of 1995 on the file of the Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, which ended in acquittal by judgment, dated 16-09-2005. During pendency of the criminal case, he was placed under suspension by the Director of Town and Country Planning, A.P., Hyderabad, vide proceedings, dated 05-07-1994, on the ground that criminal case was registered against him and he was allowed to retire on attaining the age of superannuation on 31-05-1995 subject to finalization of the criminal case. After acquittal, the request of the applicant for regularization of suspension period as on duty and to pay all retirement benefits was not considered on the ground that the State filed Criminal Appeal before this Court against the order of acquittal and the same is stated to be pending. 8. Learned Government Pleader appearing for the State in all these writ petitions submits that against the orders of acquittal, criminal appeals have been filed before this Court and the same are still pending. Under Rule 9 of the Pension Rules, the Government is empowered to withhold pension or gratuity either in full or in part when any departmental or judicial proceedings are pending against Government servant and the applicants were already sanctioned provisional pension and the pendency of the criminal appeals is continuation of criminal proceedings and till the final orders are passed in the criminal appeals, the applicants are not entitled for retirement benefits. 9. We have considered the rival contentions. 10. The facts, as narrated above, are not in dispute. In all these cases, the criminal cases filed against the applicants ended in acquittal, against which, criminal appeals were filed and the same are still pending. During pendency of the criminal cases, they were allowed to retire subject to finalization of criminal proceedings and their retirement benefits were withheld. 11. Therefore, the only question that arises for consideration is as to whether the applicants are entitled for retirement benefits immediately after the orders of acquittal? 12. Under Rule 9 of the Pension Rules, the Government has power to withhold or withdraw pension in full or in part and recover the same if the pensioner is found guilty in any departmental or judicial proceedings. 13. As per third proviso to Rule 9 of the Pension Rules, 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 proven grave offences of misappropriation, bribery, bigamy, corruption, moral turpitude, forgery, outraging the modesty of a woman and misconduct. 14. Even after retirement, if the pensioner is convicted of a serious crime or found guilty of gross misconduct, the Government is empowered to withhold or withdraw pension in full or in part permanently or for a specified period. Rules 8 and 9 of the Pension Rules deal with the power of the Government to withhold or withdraw pension after conviction either in the departmental proceedings or judicial proceedings. 15. Insofar as Rule 52 of the Pension Rules is concerned, the Government is empowered to withhold pension during pendency of the departmental or judicial proceedings. But, however, the Government employee is entitled for provisional pension from the date of retirement till the final orders are passed either in the departmental or judicial proceedings. 16. Rule 52 of the Pension Rules reads as follows:- Provisional pension where departmental or judicial proceeding may be pending:- (1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Audit Officer/head of Office shall pay the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government Servant, or if he was under suspension on the date of retirement, upto the date immediately preceeding the date on which he was placed under suspension. (b) The provisional pension shall be paid by the Audit Officer/Head of Office during the period commencing from the date of retirement to the date on which, upon the conclusion of departmental or Judicial proceedings, final orders are passed by the competent authority. (c ) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders: Provided that where departmental proceedings have been instituted under Rule 9 of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991, for imposing any of the penalties specified in clauses (i) (ii) and (iv) of Rule 9 of the said rules, except in the cases falling under sub-rule (2) of Rule 22 of the said rules, the payment of gratuity shall be authorized to be paid to the Government servant.” 17. A perusal of Rule 52 (1) (b) of the Pension Rules makes it clear that the Government employees, against whom the departmental or judicial proceedings are pending, are entitled for provisional pension from the date of their retirement till the final orders are passed either in the departmental or judicial proceedings. 18. As per Rule 52 (1) (c) of the Pension Rules, the Government is empowered to withhold gratuity till the final orders are passed either in the departmental or judicial proceedings. Once final orders are passed, there is no provision that empowers the Government to withhold retirement benefits. 19. The final orders, as indicated in Sub-rules (b) and (c) of Rule 52 (1) of the Pension Rules, are the orders to be passed by the Department upon conclusion of the departmental or judicial proceedings. Once the departmental proceedings end in favour of delinquent employee, there is no question of agitating the orders of the disciplinary authority by the Department itself. Therefore, the final orders are required to be passed for the purpose of payment of retirement benefits. 20. Insofar as the criminal cases are concerned, the Department has got a right to file an appeal. But, it cannot be said that the judicial proceedings have not been concluded. Once the criminal court acquits the accused, it must amount to be the conclusion of the judicial proceedings in the first instance. Therefore, the appeals filed against the acquittal orders cannot be treated as continuation of criminal proceedings. The same view was taken by a Division Bench of Calcutta High Court in STATE OF WEST BENGAL’s case (1 supra), referred to above. Para 9 of the said judgment reads as follows:- “The submission of Mr.Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondent No.1 is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rules 3 operative in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3 must be given a restrictive interpretation.” 21. If the appeal is not in continuation of original criminal proceedings, the order of acquittal is a final order within the ambit of Rule 52 of the Pension Rules, referred to above. After the orders of acquittal passed by the criminal court, as already stated above, there is no power for the Government to withhold pension or retirement benefits. The said benefits, therefore, are liable to be paid immediately after acquittal order. 22. If the appeal or revision proceedings are in continuation of the criminal proceedings, there will be no end for the litigation and the employees, who have been acquitted honourably, shall not get retirement benefits till conclusion of all appeals, revisions, special leave petitions etc. Appeal against acquittal, not being continuation of original criminal proceedings, Rule 52 as above, will not be available to Government for withholding retirement benefits. 23. For the aforesaid reasons, we are of the opinion that the Tribunal was correct in passing the impugned order and we do not see any error committed by the Tribunal warranting interference by this Court under Article 226 of the Constitution of India. 24. Even otherwise, we have held in W.P.No.8000 of 2009 and batch, dated 17-11-2009 that when a Government employee suffers conviction and he is dismissed from service under Rule 25 of the State and Subordinate Service Rules, 1996, mere pendency of the criminal appeal and suspension of sentence does not enable such convicted Government employee to seek either reinstatement or payment of retirement benefits. The same analogy applies in the instant cases of acquittal as well and once the Government employee is acquitted of the criminal charge, merely because the State preferred an appeal, the Government cannot withhold retirement benefits of the Government employees, on account of pendency of the appeals against acquittal. 25. Insofar as awarding of interest in O.A.No.7027 of 2006, which is the subject matter of W.P.No.22929 of 2009, is concerned, withholding of pension or gratuity during pendency of the criminal proceedings is justified in the light of Rule 52 of the Pension Rules, referred to above, and after the acquittal, the employee is entitled to all retirement benefits and consequently, if the said benefits are not paid on acquittal of the employee of the criminal charges, there is no reason why the Government should not be made liable for paying interest over retirement benefits from the date of acquittal. Therefore, we do not see any illegality in awarding interest @ 8% per annum on the retirement benefits from the date of acquittal. 26. Leaned Government Pleader has relied upon a decision in R.VEERABHADRAM Vs. GOVERNMENT OF ANDHRA PRADESH[2] in support of the proposition that interest is not accruable to the pensioner. 27. In the said decision, by the time the Special Leave Petition was filed, the criminal proceedings against the employee, who retired during pendency of the criminal proceedings, were still pending and it is only during pendency of the S.L.P., the criminal proceedings came up for hearing and he was acquitted of the charges and thus his retirement benefits were withheld till the date of acquittal. Even as per Rule 52 of the Pension Rules, we do not think that the said decision helps the State. As already noticed above, since withholding of retirement benefits by the State is permissible and authorized by Rule 52 of the Pension Rules, referred to above, the Supreme Court held that withholding of retirement benefits during pendency of the criminal proceedings cannot be said to be illegal or unauthorized and therefore, the interest was not granted from the date of withholding till the date of acquittal. In the present case, we are of the view that from the date of acquittal, the retiree is entitled to interest. Therefore, the said decision is not applicable to the case on hand. As such, the writ petitions are devoid of merit and the same are liable to be dismissed. 28. Accordingly, the writ petitions are dismissed. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________________ VILAS V. AFZULPURKAR, J Dated: 28-01-2010 Note: L.R.Copy to be marked (B/o) Prv [1] 2000 (4) SLR 91. [2] (1999) 9 Supreme Court Cases 43