THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1117 of 2001 Dated: 22-06-2011 Between: Dasari Nookaraju .. Petitioner And State Bank of India, rep. by its Chief General Manager, L.H.O., Hyderabad .. Respondent This Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1117 of 2001 JUDGMENT: The plaintiff in O.S.No.107 of 1987 on the file of the II Additional Subordinate Judge, Visakhapatnam is the appellant herein. The suit was filed for declaration that the order of the defendant dated 07.02.1986 is illegal, arbitrary and inoperative and for recovery of a sum of Rs.1,50,000/-, which is said to be the salary arrears from 07.02.1986 to 06.02.1990. The allegations in the plaint goes to show that the plaintiff worked as an officer in the defendant bank and when he was working in Vizianagaram, as he met with an accident, he was transferred to Visakhapatnam in 1985. In the year 1985 he had some health problem and on 28.10.1985 he was asked to work at Andhra, which is a rural area without any medical facility. The plaintiff made several representations about his difficulties and due to the attitude he sent another representation on 20.11.1985 for voluntary retirement by 01.12.1985 if there is no other place to accommodate the plaintiff. Subsequent representations were also made and the plaintiff applied for sick leave and it was granted upto 06.02.1986 thereby showing that his earlier representations were not acted upon. While so, on 07.02.1986 when the plaintiff was discharging his duties he was called by the Regional Manager and served with the notice informing that his services are not required. Therefore, the termination of the services are not proper and against the Service Rules and the plaintiff has to retire only by the end of February, 1990 and the order is, therefore, liable to be set aside. The defendant has filed written statement denying most of the allegations in the plaint about the victimization and the inconveniences caused to the plaintiff. In fact, there were adverse comments with regard to his performance in the previous years. The transfer to Andhra is not good to the plaintiff to any inconvenience. The plaintiff cannot choose a place of his choice for working. The plaintiff by his repeated representations dated 07.11.1985, 20.11.1985 and 07.12.1985 expressed his desire for voluntary retirement and it was accordingly accepted and the plaintiff had received his pensionary benefits without any demor to a tune of Rs.1,21,440-36 ps. It is not a case of termination of services of the plaintiff arbitrarily but it is a case of voluntary retirement opted by the plaintiff. Having done so, the plaintiff cannot now question the above order, the suit is, therefore, not maintainable. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether the plaintiff is entitled for a declaration that the order of the defendant dated 07.02.1986 is illegal, arbitrary and inoperative? 2. Whether the plaintiff is entitled to damages for Rs.1,50,000/- in lieu of salary from 07.02.1986 to 1990? 3. Whether the plaintiff is entitled to claim interest at 12% from the date of the suit? 4. To what relief? On behalf of the plaintiff, P.W.1 was examined and marked Exs.A-1 to A-6 and on behalf of the defendant, D.W.1 was examined and marked Exs.B-1 to B-8. After considering the material and the evidence on record, the learned II Additional Subordinate Judge, Visakhapatnam dismissed the suit of the plaintiff and aggrieved by the said judgment and decree dated 26.09.1995, the present appeal is filed. The points that arise for consideration are: 1. Whether the plaintiff is entitled for the declaration as prayed for? 2. Whether the plaintiff is entitled for the damages? 3. Whether the judgment and decree passed by the learned II Additional Subordinate Judge, Visakhapatnam is legal and sustainable? 4. To what relief? POINTS 1 to 4: There is no dispute about the fact that the plaintiff was an employee of the defendant and during the year 1985 there was some problem with regard to his employment and it is also not in dispute that the plaintiff himself has sent representations for transfer or permit him to voluntarily retire from service. Merely because, the voluntary retirement request of the plaintiff was not immediately accepted, it does not mean that the defendant has no right to act upon the earlier representation. In fact, Ex.B-1 dated 17.01.1986 clearly goes to show that the sick leave was granted upto 06.02.1986 on full pay and the plaintiff requested that he may be paid compensation atleast from 07.02.1986. It is to be noted that at no point of time the plaintiff has recalled his representation to seek voluntary retirement. In fact, as per the Service Rules, the Management has got discretion to continue an officer either after attaining the age of 50 years or after 30 years of service. Even according to the case of the plaintiff, he did not report for duty on 07.02.1986 though he claims to have protested for the benefits, which is the issue, there is nothing on record to show that he objected for the payment of the pensionary benefits or other benefits when he was paid. This clearly goes to show that the intention of the plaintiff was to accept the retirement. It is not as if that the plaintiff is not aware of the procedure and the consequence of the acceptance of pensionary benefits. In fact, there is nothing on record to show that from 07.02.1986, the plaintiff attended the office. The evidence of P.W.1 or the plaint does not show any malafides of any of the employees of the plaintiff. The power to retire is inherent in the Management. In fact, the suit was filed in the year 1986 itself but future amounts were also claimed as damages or salary, which is not tenable. When a plea of arbitrariness and illegality are pleaded, it is for the plaintiff to prove the same. But the evidence on record, does not substantiate it and on the other hand, the conduct of the plaintiff is to retire from service. The learned II Additional Subordinate Judge, Visakhapatnam has considered all the contentions in the right perspective and the order passed was only at the request of the appellant and it is not arbitrary order prematurely retiring the appellant from the service. Therefore, the judgment and decree passed by the learned II Additional Subordinate Judge, Visakhapatnam does not call for any interference. Accordingly, the points are answered. In the result, the Appeal Suit is dismissed, however, without costs. ________________________ N.R.L. NAGESWARA RAO, J Date: 22-06-2011 MR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 1117 of 2001 -06-2011 MR