P.Krishna Murthy vs The Commnr.Of Sericulture A.P.,

Ʀ REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 5897-98 OF 2014 (Arising out of SLP(C)Nos.4295-4296 of 2009)

P. Krishna Murthy .....Appellant(s) Versus The Commissioner of Sericulture Andhra Pradesh and another .....Respondent(s)

JUDGMENT

M.Y. Eqbal, J.:

Leave granted.

2. These appeals are directed against the judgment and order dated

3.7.2008 passed by Andhra Pradesh High Court in Writ Petition No.

18423 of 2007 and 18697 of 2007 whereby the High Court set aside

the common order dated 9.4.2007 passed by Andhra Pradesh

Administrative Tribunal at Hyderabad in O.A. No.6325 of 2006 and

O.A. No.7370 of 2006.

Signature Not Verified Digitally signed by Madhu Bala Date: 2014.07.02 14:42:28 IST Reason: 1

3. The facts of the case lie in a narrow compass.

4. The appellant at the relevant time was working as

Superintendant in the office of Commissioner of Sericulture at

Hyderabad. According to the appellant, sometime in the year 2003,

his wife fell sick with onset of menopause stage and mental imbalance

and became unable to move. On the allegation against the appellant

that he neglected in discharging his duties, a disciplinary proceeding

was initiated on 18.1.2004 and a charge memo was issued. On

3.2.2004, appellant submitted a representation requesting the

respondent authorities to permit him to retire from service w.e.f. 1.5.2004. On the basis of said representation, the appellant was

permitted to retire from service w.e.f. 1.5.2004 and an order to that

effect was issued by the Commissioner, Sericulture dated 4.3.2004.

5. In purported exercise of power of Rule 43 (1) of Andhra Pradesh

Revised Pension Rules, 1980, the appellant’s case was

that vide application dated 15.4.2004 he requested the authorities to

permit him to continue in service till age of superannuation and to

2 revoke the order issued on 4.3.2004. The said application was

rejected by the Commissioner, Sericulture vide order dated 28.4.2004.

In the meantime, the Commissioner, Sericulture passed an order on

29.7.2004 imposing punishment of 25% cut in the pension amount of

the appellant on the charges of gross negligence in discharging duties.

The appellant challenged the said order dated 29.7.2004 by filing an

appeal before the State Government. The said appeal was allowed by

the State Government vide order dated 3.4.2006 and the order of

Commissioner, Sericulture imposing 25% cut in pension amount was

set aside. After the said order was passed by the State Government,

the appellant filed another application on 27.4.2006 seeking issuance

of appropriate order for his reinstatement. However, the said

application/representation was rejected by the Government vide order

dated 1.9.2006. The appellant challenged the said order before the

Administrative Tribunal by filing O.A. No. 6325 of 2006. In the said

O.A. an interim order was passed by the Tribunal directing the

Appellate Authority of the respondent to reconsider the case of the

appellant for reinstatement. Pursuant to the said direction, the

Government considered the case of the appellant and finally passed

an order on 24.11.2006 holding that the request of the appellant for

reinstatement cannot be considered.

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6. Aggrieved by the said order dated 24.11.2006, the appellant filed

another O.A. No.7370 of 2006 before the Administrative Tribunal. The

Tribunal finally heard both the applications being O.A. No.6325 of 2006 and O.A. No.7370 of 2006 and passed a common order setting

aside the order dated 4.3.2004 issued by the Commissioner,

Sericulture permitting the appellant to retire from service w.e.f.

1.5.2004 and also set aside the order dated 28.4.2004 and

24.11.2006 and directed the respondent to allow appellant to

continue in service till he attains the age of superannuation. The

aforesaid common order was finally challenged by the respondents

before the High Court by filing writ petition. The Division Bench of the

Andhra Pradesh High Court by impugned order allowed both writ

petitions being W.P. Nos. 18423 of 2007 and 18697 of 2007 and set

aside the order passed by the Tribunal. Allowing the writ petitions,

the High Court observed as under:-

"7. It appears that the respondent has filed an appeal with the prayer that the order imposing the penalty of 25% cut in pension may be set aside to enable him to submit his pension papers to the Accountant General, Andhra Pradesh, Hyderabad. This is not disputed by the counsel appearing for the respondent. The prayer itself reveals that the respondent has not sought for reinstatement into service, but to set aside the said penalty for submitting the pension papers. Thus, the appeal is preferred in the capacity of the retired employee and

4 the Government vide its G.O. Rt. No.302 Agri. & Coop. (Vig.II) Department, dated 3.4.2006 have set aside the order of punishment. The respondent himself has stated that he had submitted the pension proposals to the Deputy Director of Sericulture, Hyderabad, for fixation of the pension.

Apart from this, the respondent sought reinstatement in service, two years after the penalty was set aside, which obviously is to circumvent the lapses on his part. In the foregoing circumstances especially the prayer in the appeal and also the conduct of the respondent, we are of the view that the impugned order is liable to be and is accordingly set aside."

7. We have heard learned counsel appearing for the parties.

8. Ms. Bina Madhavan, learned counsel appearing for the appellant

put heavy reliance on the decision of this Court in the case of Balram

Gupta v. Union of India and another, 1987 Supp SCC 228, and

submitted that the instant case is squarely covered by the ratio laid

down in Balram Gupta’s case. Learned counsel submitted that there

cannot be unilateral termination of service and the employee is at liberty to withdraw his notice of voluntary retirement any time before

1.5.2004, and the order of rejection dated 28.4.2004 passed by the

Commissioner, Sericulture was clearly contrary to the principle laid

down in the aforesaid case. Learned counsel submitted that the

principle laid down in Balram Gupta case was finally approved by this

5 Court in the case of J.N. Srivastava v. Union of India and another,

(1998) 9 SCC 559, but the High Court has not correctly appreciated

the law laid down by this Court in the aforesaid decisions and if the

impugned order of the High Court is allowed to stand it would

virtually put a seal of approval on the unfair and illegal conduct of the

respondent authorities. Learned counsel lastly submitted that

merely because of having accepted the retirement benefit, the

appellant was not stopped from challenging the non-acceptance of his

withdrawal notice of voluntary retirement.

9. Mr. A.T.M. Rangaramanujam, learned senior counsel appearing

for the respondent contended that the request for voluntary

retirement was accepted and the same was communicated to the

appellant. Learned senior counsel submitted that when the

disciplinary proceeding was pending against the appellant on the

charges of gross negligence in the discharge of his duties, he

submitted an application on 3.2.2004 seeking voluntary retirement.

The said request of the appellant was examined and he was permitted

to retire. When the subsequent request of the appellant for

withdrawal of voluntary retirement was declined in accordance with

Rule 43 of A.P. Revised Pension Rules, 1980 and the disciplinary

6 proceeding was finally concluded by imposing penalty of 25% cut in

pension, the same was challenged in appeal before the State

Government. In the said appeal, the appellant did not pray for

reinstatement in service. On the contrary, the appellant filed several

representations relating to the pensionary benefits. All the

representations were considered and the eligible pensionary benefits were drawn and paid to the appellant. Lastly, the learned senior

counsel contended that the appellant filed the appeal after a lapse of

about two years for setting aside the punishment order and not for

reinstatement in service.

10. Before going into the facts of the present case, we would like to

discuss the decision of this Court relied upon by the appellant.

11. In Balram Gupta’s case (supra), the appellant while working as

an accountant sought voluntary retirement from the service by letter

dated 24th December, 1980. Acting on the basis of the said letter, by

an order dated 20lh January, 1981, the appellant was allowed to retire

voluntarily from service prospectively with effect from the afternoon of

March 31, 1981. In the meantime, however, on the alleged persistent

and personal request from the staff members, the appellant had

changed his mind and consequently by letter dated January 31, 1981

7 withdrawn his notice of voluntary retirement and requested the

authorities to treat the letter of voluntary retirement as cancelled. The

said request of the appellant was not allowed and he was relieved by

an order dated 31st March, 1981. The appellant challenged the said

order before the High Court stating that the said order was illegal and

invalid. The Delhi High Court dismissed the appellant’s writ petition

on the ground that the rules enabled the Government servant to

withdraw his application for voluntary retirement only with the

approval of the Government. The High Court found no reason to

interfere with the order. From these facts, this Court, after

considering the earlier decisions, held that the notice of voluntary

retirement by the employee can be withdrawn at any time before

retirement becomes effective notwithstanding any Rule providing for

obtaining of specific approval of the concerned authority as a

condition precedent to the withdrawal notice.

12. In J.N. Srivastava’s case (supra), this Court followed and

relied upon the decision rendered in Balram Gupta’s case (supra) and

put the same view that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the

8 time fixed, before the retirement is reached, the employee has locus

poenitentiae to withdraw the proposal for voluntary retirement. It is

further held that once the request for cancellation of voluntary

retirement was rejected by the authority concerned and the

retirement came into effect, the employee had no choice but to give up

the charge of the post to avoid unnecessary complications. For better

appreciation, the relevant portion of para 3 of the said decision is

quoted herein below:-

"3. The short question is whether the appellant was entitled to withdraw his voluntary retirement notice of three months submitted by him on 3-10-1989 which was to come into effect from 31-1-1990. It is true that this proposal was accepted by the authorities on 2-11-1989. But thereafter before 31-1-1990 was reached, the appellant wrote a letter to withdraw his voluntary retirement proposal. This letter is dated 11-12-1989. The said request permitting him to withdraw the voluntary retirement proposal was not accepted by the respondents by communication dated 26-12-1989. The appellant, therefore, went to the Tribunal but the Tribunal gave him no relief and took the view that the voluntary retirement had come into force on 31-1-1990 and the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently, he was estopped from withdrawing his voluntary retirement notice. In our view the said reasoning of the Tribunal cannot be sustained on the facts of the case. It is now well settled that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time

9 fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India (1987 Supp.SCC 228). In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31-1-1990. It is to be noted that once the request for cancellation of voluntary retirement was rejected by the authority concerned on 26-12-1989 and when the retirement came into effect on 31-1-1990 the appellant had no choice but to give up the charge of the post to avoid unnecessary complications. He, however, approached the Tribunal with the main grievance centering round the rejection of his request for withdrawal of the voluntary retirement proposal. The Tribunal, therefore, following the decision of this Court ought to have granted him the relief. We accordingly, allow these appeals and set aside the orders of the Tribunal as well as the order of the authorities dated 26-12-1989 and direct the respondents to treat the appellant to have validly withdrawn his proposal for voluntary retirement with effect from 31-1-1990. The net result of this order is that the appellant will have to be treated to be in service till the date of his superannuation which is said to be somewhere in 1994 when he completed 58 years of age."

13. So far as the instant case is concerned, the admitted facts which

are not in dispute are as under: -

The appellant’s application dated 3.2.2004 requesting the

authorities to permit him to retire from service with effect from

10 1.5.2004 was allowed vide order dated 4.3.2004 and he was permitted

to retire from service w.e.f. 1.5.2004. Before the expiry of the

aforesaid date, the appellant submitted another application dated

15.4.2004 requesting the authorities to permit him to continue in

service and to revoke the order issued on 4.3.2004. The said

application was considered by the authority concerned and finally

rejected on 28.4.2004. Curiously enough the said order dated

28.4.2004 was not challenged by the appellant before any authority

or any forum. After about three months, the disciplinary proceedings

was concluded and on 29.7.2004, the authority passed an order

imposing punishment of 25% cut in the pension amount of the

appellant on the ground of gross negligence in discharging duties. The

said order dated 29.7.2004 was, however, challenged by filing an

appeal before the State Government. In the said memo of appeal, the

appellant has not whispered or challenged the legality and validity of

the order dated 28.4.2004 rejecting the request of the appellant for

withdrawal of order of voluntary retirement. In the said memo of

appeal, the appellant only assailed the order of penalty of 25% cut in

pension on various reasons including his wife’s ailment and his

performance in service. In the memo of appeal, the appellant made

the following prayer:-

11 "In the above circumstances, I humbly request your highness to kindly consider my appeal petition mercifully on humanitarian grounds and set aside the final order issued in the Proc.RC. No.l94/2004-B2, dtd. 29.7.2004 and recognize my track of my entire service rendered in the department without receiving even a single memo and save me and my family from the mental tension and provide relief by issuing favourable orders duly setting aside the orders of imposing of 25% cut on pension permanently to enable me to submit my pension papers to the AGAP, HYD for which act of kindness my whole family will remain grateful to the Government."

14. The aforesaid appeal against the order of 25% cut in pension,

the State Government considered it sympathetically and allowed the

appeal and set aside the order of imposing penalty and directed to

drop the proceedings against the appellant, who is a retired officer. It

is also worth to mention here that after his request for revocation of

withdrawal of voluntary retirement was finally rejected, the appellant

instead of challenging the said order filed several representations for

release of the pensionary benefits. The said representations were

considered and the eligible pensionary benefits were drawn and paid

to the appellant in 2004 and 2005. Taking advantage of the leniency

shown by the Government in the order passed in appeal on 3.4.2004,

the appellant took a chance to move an application after two years i.e.

on 27.4.2006 requesting the authorities for reinstatement in service.

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15. In these factual backgrounds of the instant case, we are of the

considered opinion that the principles laid down in Balram Gupta’s

case and S.N. Srivastava’s case (supra) are not applicable and are

distinguishable. The High Court in the impugned order has rightly

came to the conclusion that the appellant preferred appeal before the

State Government against the impugned order of cut in pension as a

retired employee and he himself stated that he has submitted the

pension proposals for fixation of pension. Besides the above, we are

further of the opinion that having regard to the fact that the appellant

did not assail the order rejecting his application for revocation of

pension at any time rather he proceeded and assailed only the order

of 25% cut in pension. Hence, the appellant cannot be allowed to

proceed further, that too after expiry of two years seeking

reinstatement in service taking the benefit of the order passed by the State Government.

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16. In the aforesaid circumstances, we do not find any error in the

impugned order passed by the High Court. There is no merit in these

appeals, which are accordingly dismissed with no order as to costs.

................................J. (Jagdish Singh Khehar)

................................J. (M.Y. Eqbal) New Delhi, July 1, 2014

14 ITEM NO.1B COURT NO.12 SECTION XIIA

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal Nos.5897-98/2014 @ Petition(s) for Special Leave to Appeal (C) No(s). 4295-4296/2009

P.KRISHNA MURTHY Petitioner(s)

VERSUS

THE COMMNR.OF SERICULTURE A.P.,& ANR. Respondent(s)

Date : 01/07/2014 These matters were called on for pronouncement of judgment today.

For Petitioner(s) M/s. Lawyer S Knit & Co ,Adv.

For Respondent(s) Mr. D. Mahesh Babu ,Adv. Mr. Amit K. Nain,Adv.

..........

Hon’ble Mr. Justice M.Y. Eqbal pronounced the judgment of the Bench comprising Hon’ble Mr.Justice Jagdish Singh Khehar and His Lordship.

Leave granted.

The appeals are dismissed with no order as to costs in terms of the signed reportable judgment.

(MADHU BALA) (SNEH LATA SHARMA COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)

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