Attempt To Take Away Part Of Pension Or Gratuity Or Leave Encashment Without Any Statutory Provision Is Violative Of Article 300A Of Constitution: Andhra Pradesh HC

The Andhra Pradesh High Court has observed that as per the mandate of Article 300A of the Indian Constitution, an attempt 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.

In that context, the Bench of Justice Venkata Jyothirmai Pratapa observed that, "A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A 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."

In 2010, the petitioner, a Junior Assistant at the Greater Visakhapatnam Municipal Corporation (GVMC), was caught in an Anti-Corruption Bureau (ACB) trap for allegedly accepting a bribe of Rs. 2,500. In 2014, he was convicted by a special ACB court and sentenced to two years of rigorous imprisonment. Following his conviction, he was dismissed from service in December 2014. The petitioner appealed his conviction, and the appeal is currently pending before the High Court.

In December 2018, the petitioner applied for the encashment of his earned leave, but his request was rejected by the authorities due to the pending criminal appeal. The legal issues involved are whether a dismissed employee is entitled to earned leave encashment while his criminal appeal is pending and if earned leave encashment can be withheld without statutory backing.

The petitioner's counsel argued that earned leave is the property of an employee under Article 300A of the Constitution and cannot be withheld without legal authority, citing a Madras High Court judgment in support. The respondents' counsel contended that leave encashment is only payable upon superannuation, not dismissal and that the pending judicial proceedings justify withholding the payment.

The Court observed that, "the Petitioner is entitled for earned leave encashment, though the Appeal is pending for consideration before the Appellate Court as there is no Rule stipulating otherwise. In that view of the matter, the impugned Memo... passed by the Respondent No.1 rejecting the claim of the Petitioner is liable to be interfered with as the due is only relating to payment of earned leave encashment, but not gratuity."

Case Number: WP No. 16011 of 2019

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