IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.7762 of 2008 Between: N.K. Singh, S/o. Narayan Singh, R/o. 13-3-1048/155, Indiranagar, Ziaguda, Hyderabad. ..... PETITIONER AND 1 A.P. State Road Transport Corporation, rep. by its Managing Director, Musheerabad, Hyderabad-20. 2 A.P. State Road Transport Corporation, rep. by its Depot Manager, Contonment Depot, Secunderabad. 3 A.P. State Road Transport Corporation, rep. by its Secretary, Provident Fund Trust, Musheerabad, Hyderabad-20. ....RESPONDENTS 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 call for the records from the respondents and issue an appropriate writ, order or direction, particularly one in the nature of writ of Mandamus declaring that the action of respondents in withholding the gratuity and provident fund payable to the petitioner on retirement as illegal, unjust, contrary to law, arbitrary, and violative of Articles 14, 16 and 21 of the Constitution of India, and grant all consequential benefits; and pass such other order or orders Counsel for the Petitioner: Mr.A.K.JAYAPRAKASH RAO Counsel for Respondents: Mr.K.MADHAVA REDDY(SC FOR APSRTC) The Court made the following : THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.7762 of 2008 ORAL ORDER: This Writ Petition is ﬁled seeking a Mandamus declaring the action of the respondents in withholding gratuity and provident fund payable to the petitioner on his retirement, as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India. There is no necessity of going into all the details. It is suﬃce to notice that the petitioner joined the service of the respondent-Corporation as a Cleaner on 1-12-1968 and subsequently promoted as Helper in the year 1974. Thereafter, he was removed from service on 18-6-1992 for the misconduct of absenteeism. Aggrieved thereby, he raised a dispute in I.D.No.85 of 2000 before the Industrial Tribunal-I, Hyderabad. The Tribunal passed an Award dated 9-4-2001 setting aside the removal order and directing reinstatement of the petitioner with continuity of service, but without any back wages. In the result, petitioner was reinstated into service on 26-7-2001 and retried, on attaining the age of superannuation, on 31-10-2006. On his retirement, he was paid all the beneﬁts as per his entitlement, except gratuity and provident fund. Therefore, this Writ Petition. A detailed counter aﬃdavit has been ﬁled by the respondents denying the allegations made by the petitioner and stating that the petitioner has not vacated the quarter, which was allotted to him, when he was removed from service, on 18-6-1992 and continued to be in the said quarter till December,2006 when an Order was passed by the Estate Officer. Therefore, the Corporation has decided to recover an amount of Rs.61,047/- towards the actual House Rent Allowance deductable from the salary of the petitioner for the occupation of the quarter and a penal rent of four times making a total of Rs.3,40,733/- and this amount is liable to be recovered from the petitioner; therefore, the amount against the gratuity and provident fund was not paid. Learned counsel for the petitioner states that absolutely there is no provision of law for withholding the gratuity and provident fund on the ground that the petitioner was liable to pay an amount of Rs.61,047/- towards rent recoverable for the period he was in illegal occupation of the quarter i.e. from the date of removal from service till December,2006. In fact, the Tribunal found the order of removal as illegal and directed reinstatement with continuity of service; therefore, it must be deemed, even if the petitioner is in illegal occupation, the order passed by the Estate Oﬃcer is a nullity in the eye of law. Petitioner was not paid any back wages; therefore, it must be deemed that the H.R.A. was also denied to him or it must be deemed that it was recovered from the petitioner during that time, in view of the Award passed by the Tribunal. Whereas, learned standing counsel for APSRTC appearing for the respondents strenuously contended that once the Estate Oﬃcer passed an Order, it is binding on the petitioner. Irrespective of the order passed by the Corporation, the respondents are entitled to recover H.R.A. even in a case of this nature, where back wages were denied to the petitioner by the Tribunal. Further, there is no other option for the Corporation except to resort to this illegal recovery, though the gratuity cannot be permitted to be withheld, on this ground, under any of the provisions of the Act. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. The questions whether the Order passed by the Estate Officer is legal or illegal or non est or it is binding and whether any amounts could be recovered from the petitioner towards actual rent as well as four times penalty, need not be gone into in this Writ Petition. It is suﬃce to notice that the Order of removal passed by the 2nd respondent was found to be illegal by the Tribunal and the Tribunal has granted the relief of reinstatement with continuity of service, but without any back wages. Under those circumstances, it must be deemed that the petitioner was entitled to continue in the quarter, if any that was occupied by him, during the period he was kept out of employment. However, as back wages were not awarded, it must be deemed that HRA is not paid and as such, the question of recovering such HRA from the petitioner does not arise. The Corporation is trying to make a mount out of mole and recover an huge amount of Rs.61,047/- from the retiral beneﬁts of the petitioner. Firstly, there is no provision under the Payment of Gratuity Act or under the Provident Fund Act that such retiral beneﬁts could be withheld by the respondents. Secondly, the respondents have wantonly, without any authority under the law, withheld such amounts. Therefore, both under the Payment of Gratuity Act and Provident Fund Act, petitioner is entitled for interest and penal interest. Be that as it may, under the peculiar circumstances of this case, I am of the opinion that the recovery sought to be eﬀected from the gratuity and provident fund amount payable to the petitioner is arbitrary and illegal. Respondents shall pay the gratuity and provident fund amounts, as per the entitlement of the petitioner, within a period of six weeks from the date of receipt of a copy of this Order. With the above direction, the Writ Petition is disposed of. No order as to costs. 22-10-2008 prk