P. KRISHNA MURTHYversusTHE COMMNR. OF SERICULTURE ANDHRA PRADESH, & ANR.

                  [2014] 7 S.C.R. 907


                    P. KRISHNA MURTHY                               A
                               v.
THE COMMNR. OF SERICULTURE ANDHRA PRADESH,
                      & ANR.
       (Civil Appeal Nos. 5897-5898 of 2014)
                                                                    B
                        JULY 01, 2014
   [JAGDISH SINGH KHEHAR AND M.Y. EQBAL, JJ.]

     Service Law - Voluntary Retirement - Non-acceptance
of withdrawal of voluntary retirement - Challenged to -             C
Disciplinary proceeding pending against employee on
charges of gross negligence in discharge of duties -
Employee seeking permission to retire - Acceptance of
permission - However, subsequent request by employee to
permit him to continue in service, rejected - Meanwhile,            D
conclusion of disciplinary proceeding by imposing
punishment of 25% cut in pension amount of the employee
- In appeal, said order set aside by the Commissioner- Grant
of pensionary benefits to employee - After lapse of two years,
employee seeking reinstatement in service - Tribunal                E
directing the employee to continue in service till h'e._attains
superannuation - Writ Petition thereagainst, allowed by High
Court - Held: Justified - High Court rightly concluded that the
employee filed an appeal before the State Government
against the order of cut in pension as a retired employee and       F
he himself stated that he had submitted the pension
proposals for fixation of pension - Thus, the employee 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 - AP. Revised Pension                G
Rules, 1980.
    Disciplinary proceedings were initiated against the
appellant-employee on the charge of gross negligence in
discharge of duties. During pendency, the appellant filed
                          907                                       H
    908      SUPREME COURT REPORTS             [2014]   7 S.C.R.
A an application seeking permission to retire from service
  w.e.f. 1.5.2004. By order dated 4.3.2004, the appellant was
  permitted to retire w.e.f. 1.5.2004. Before expiry of the said
  date, appellant submitted another application requesting
  the authorities to permit him to continue in service and
B to revoke the order dated 4.3.2004. The authority rejected
  the application on 28.4.2004. Thereafter, disciplinary
  proceeding concluded and the Commissioner passed an
  order imposing punishment of 25% cut in pension
  amount of the appellant on the ground of gross
c negligence in discharging duties.,.The appellant
  challenged the said order. The State Government set
  aside the order passed by the Commissioner. The
  appellant after two years filed another application seeking
  issuance of order for reinstatement. The State
0 Government rejected the application. However, in appeal,
  the tribunal directed the respondent to allow the appellant
  to continue in service till he attained the age of
  superannuation. Aggrieved, the respondents filed a writ
  petition. The Division Bench of the High Court set aside
E the order passed by the tribunal. Hence, the instant
  appeals.
          Dismissing the appeals, the Court
       HELD: 1.1. The appeal against the order of 25% cut
  in pension, the State Government considered it
F 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.
  After his request for revocation of withdrawal of voluntary
  retirement was finally rejected, the appellant instead of
G 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
H shown by the Government in the order passed in appeal
      P. KRISHNA MURTHY v. THE COMMNR. OF                  909
                SERICULTURE A.P.
  on 3.4.2004, the appellant took a chance to move an             A
  application after two years i.e. on 27.4.2006 requesting
  the authorities for reinstatement in service. [Para 14] [917-
  E-G]

       1.2. The High Court in the impugned order rightly 8
  concluded that the appellant preferred an 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. Furthermore, having regard to the fact that the C
  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 · D
  Government. Thus, there is no error in the impugned
  order. (Para 15, 16] (918-A-D]

       Bairam Gupta v. Union of India and another 1987 Supp
/ sec 228; J.N. Srivastava v. Union of India and another          E
' (1998) 9 sec 559 - distinguished.
                       Case Law Reference:
     1987 Supp sec 228           Referred to        Para 15·
                                                                  F
     (1998) 9 sec 559            Referred to        Para 15
      CIVIL APPELLATE JURISDICTION : Civil Appeal No
  5897-5898 of 2014.

      From the Judgment and Order dated 03.07.2008 in WP          G
  No. 18423/2007, WP No. 18697/2007 of the High Court of A.P.
  at Hyderabad.

       Bina Madhavan, S. Udaya Kumar Sagar, Shivendra Singh
  (for Lawyers's Knit & Co) for the Appellant.
    910       SUPREME COURT REPORTS               [2014] 7 S.C.R.


A       A.T.M. Rangaramanujam, D. Mahesh Babu, Suchitra
    Hrangkhawl, Amjid Maqbool, Amit K. Nain, B. Ramakrishna
    Rao, Aditya Jain for the Respondents.
          The Judgment of the Court was delivered by
8         M.Y. EQBAL, J.: 1. L,eave 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
C passed by Andhra Pradesh Administrative Tribunal at
  Hyderabad in O.A. No.6325 of 2006 and O.A. No.7370 of
  2006.
          3. The facts of the case lie in a narrow compass.

0      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
E 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
F 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
G 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 revoke the order issued on 4.3.2004.
  The said application was rejected by the Commissioner,
H Sericulture vide order dated 28.4.2004. In the meantime, the
     P. KRISHNA MURTHY v. THE COMMNR. OF                  . 911
         SERICULTURE A.P. [M.Y. EQBAL, J.]
Commissioner, Sericulture passed an order on 29.7.2004 A
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 B
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        c
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
                                                                   0
 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.                       '
                                                                   E
       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 F
 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 G
 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
                                                                  H
    ·912       SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A   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
B
           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
c          pension papers. Thus, the appeal is preferred in the
           capacity of the retired employee and 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
D          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
E          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.
F
         8. Ms. Bina Madhavan, learned counsel appearing for the
    appellant put heavy reliance on the decision of this Court in the
    case of Bairam Gupta v. Union of India and another, 1987
    Supp sec 228, and submitted that the instant case is squarely
G   covered by the ratio laid down in Bairam 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,
H   Sericulture was clearly contrary to the principle laid down in the
     P. KRISHNA MURTHY v. THE COMMNR. OF                  913
         SERICULTURE A.P. [M.Y. EQBAL, J.]
aforesaid case. Learned counsel submitted that the principle A
laid down in Bairam Gupta case was finally approved by this
Court in the case of J.N. Srivastava v. Union of India and
another, (1998) 9 sec 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 B
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 c
 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 D
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 E
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
proceeding was finally concluded by imposing penalty of 25%
cut in pension, the same was challenged in appeal before the f
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. G
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     H _
    914      SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A   would like to discuss the decision of this Court relied upon by
    the appellant.

          11. In Bairam 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
8
    basis of the said letter, by an order dated 201h 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
C   changed his mind and consequently by letter dated January 31,
    1981 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
D   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
    t~at the rules enabled the Government servant to withdraw his
    application for voluntary retirement only with the approval of the
E   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
F   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 Bairam Gupta's case
  (supra) and put the same view that even if the voluntary
G retirement notice is moved by an employee and gets accepted
  by thf' authority within the 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
H
     P. KRISHNA MURTHY v. THE COMMNR. OF                    915
         SERICULTURE A.P. [M.Y. EQBAL, J.]
the authority concerned and the retirement came into effect, the A
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:-
                                                                    8
    "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        C
    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     D
    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          E
    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 fixed, before the date of retirement is reached, the       F
    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 Bairam 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     G
    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 wa~
    rejected by the authority concerned on 26-12-1989 and
    when the retirement came into effect on 31-1-1990 the           H
    916       SUPREME COURT REPORTS                  [2014] 7 S.C.R.


A         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,
B         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
c         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."
D        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
E 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
F 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
G 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
H
     P. KRISHNA IVIURTHY v. THE COMMNR. OF                  917
         SERICULTURE AP. [M.Y. EQBAL, J.]
order dated 28.4.2004 rejecting the request of the appellant for   A
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:-                          B

    "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 tile Pree.RC. No.194/2004-82, dtd. 29.7.2004 and
    recognize my track of my entire service rendered in the
                                                                   c
    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           D
    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        E
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   F
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           G
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 tl:le authorities for reinstatement in service.

    15. In these factual backgrounds of the instant case, we
are of the considered opinion that the principles laid down in     H
    918          SUPREME COURT REPORTS           [2014] 7 S.C.R.


A   Bairam 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
B 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 h.is application
  for revocation of pension at any time rather he proceeded and
c 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 Governme11.t.

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

    Nidhi Jain                                    Appeals dismissed.