IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.324 of 2009 1.THE STATE BANK OF INDIA through the General Manager [Development and Personnel Banking], Local Head Office, Patna. 2.The Branch Manager, Amnour Branch, State Bank of India, Saran. …………………….Petitioners-Appellants. Versus KESHAV BHARTIYA, Son of H.K.P. Asthana, Resident of Sumati Path, Ranighat, Mohalla, P.S. Sultanganj, Town and District-Patna. ………Respondent-Respondent. WITH LPA No.330 of 2009 1.THE STATE BANK OF INDIA through the General Manager [Development and Personnel Banking], Local Head Office, Patna. 2.The Branch Manager, Amnour Branch, State Bank of India, Saran. …………………………Respondents-Appellants. Versus KESHAV BHARTIYA Son of H.K.P. Asthana, Resident of Sumati Path, Ranighat, Mohalla Mahendru P.S. Sultanganj, Town and District-Patna. ………Respondent-Respondent. For the Appellants Sri Chittaranjan Sinha (Sr. Advocate) Sri Siddhartha Prasad (Advocate) For the Respondents Sri Kishore Kumar Thakur (Advocate) ----------- 7/ 12.10.2009 Heard learned Counsel for the appellants and learned Counsel for the respondents. Both the appeals relate to the same matter arising out of C.W.J.C. No. 3587 of 2001 filed by the respondent, a class-II Officer of the Bank against voluntary retirement order dated 2 05.07.1999 issued in terms of the provisions contained in Sub-rule (3) of Rule 40 of the State Bank of India Officers Service Rules which empowers the Bank to voluntarily retire an Officer who has remained absent for 90 or more consecutive days, after giving notice to the concerned officer. The writ petition was allowed by a short order dated 30.06.2008. LPA No. 330 of 2009 is directed against that order but before preferring that appeal the appellants preferred Review Petition bearing Civil Review No. 233 of 2008. The ground for review was that the writ petition had been filed without disclosing to the Court that the petitioner had already accepted the order of voluntary retirement as well as retiral dues. That petition was dismissed by order dated 18.02.2009 on the ground that such plea could not be 3 considered because the Bank had not brought those facts to the notice of the Court prior to disposal of the writ petition on 30.06.2008. L.P.A. No. 324 of 2009 is directed against disposal of the review petition. The writ petition has been allowed on the solitary ground that notice in terms of Sub-rule (3) of Rule 40 of the rules could not be shown to have been served upon the writ petitioner and in the counter affidavit the bank had to admit that the office copy of the notice was no longer available in their records nor there was any documents to show service of such notice. On behalf of appellants, that is the State Bank of India and its officials, it has been submitted that the leave granted to the writ petitioner expired on 08.09.1997 and 4 when he did not resume his duties and remained absent unauthorizedly, a notice by registered post with A/D was sent on 30.06.1998 and this fact is mentioned, in the order dated 05.07.1999 for voluntary retirement contained in Annexure-1 to the writ petition which was admittedly communicated to the petitioner. It was pointed out that by Annexure-1 to the L.P.A., a letter dated 02.08.2000 the writ petitioner made a claim for dues of provident fund which was paid to him vide Annexue-2 to the L.P.A. on 30.08.2000. That annexure shows a receipt by the petitioner granted for a sum of Rs. 2,64,368/- towards the proceeds of employees provident fund with interest thereon on account of his leaving the bank service. It was further pointed out that Annexure-3 to this Appeal (Annexure-2 to the writ 5 petition) is a letter of writ petitioner dated 25.01.2001 wherein the writ petitioner has not alleged non- receipt of notice dated 30.06.1998 nor has protested against the order for voluntary retirement but has only made a demand for payment of further money which according to him was due to less payment towards his terminal benefits. The representation of the writ petitioner contained in Annexure-3 to the memorandum of appeal has also been annexed as Annexure-2 to the writ petition preferred by the writ petitioner and that is the only representation on record having been brought by the writ petitioner. That does not show that he had ever, on receipt of the order for voluntary retirement raised a grievance regarding non-receipt of registered notice dated 30.06.1998 which was mentioned in the 6 order of voluntary retirement dated 05.07.1999. He never made a demand that order for voluntary retirement should be set aside or recalled by the bank. To the contrary he accepted the retiral dues and thereafter made demand for further money. On carefully going through the aforesaid facts and materials on record, we are of the view that it was the writ petitioner who suppressed material facts and he could not be granted any relief against the order for voluntary retirement as he never filed any representation against such order before the authorities of the bank for more than 1 ½ years till he preferred the writ petition in this Court in March, 2001. The conduct of petitioner shows acquiescence and acceptance of order impugned in the writ petition which suffered from 7 deliberate suppression of material facts and clearly a false belated plea was raised that he had not received the notice dated 30.06.1998. The writ petition is found fit to be dismissed. In view of aforesaid facts and discussions the appeal is found to have merit. It is therefore allowed. The orders under appeal are set aside and the writ petition is dismissed but without costs. kksinha/- (Shiva Kirti Singh, ACJ.) ( Shyam Kishore Sharma, J. )