*THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR +WRIT APPEAL NOS.43 AND 49 OF 2008 %15-10-2009 # Andhra Bank (A Govt. of India Undertakaing) Personnel Department, Head Office, Rep. by its General Manager (P), Hyderabad. And Another … Appellants Vs. $ V. Vishnu Vardhan Reddy S/o. Sri V. Venkat Reddy R/o.96-C Lakshmi Srinviasam, M.L. As colony, Road No.12 Banjara Hills, Hyderabad. 500 034. … Respondent <GIST: >HEAD NOTE: ! Counsel for Appellants : Dr.K.Lakshmi Narasimha ^ Counsel for respondent : Mr.V.Rajagopal Reddy ? CASES REFERRED: 1) AIR 1987 SC 2345 = 1987 (Supp) SCC 228 2) (2008) 12 SCC 481 3) (2004) 4 SCC 484 4) (2003) 2 SCC 721 5) (2004) 2 SCC 193 6) (2006) 5 SCC 759 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 43 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 14/12/2007 in WP NO : 16996 OF 2007 on the file of the High Court.) Between: 1 Andhra Bank (A Govt. of India Undertakaing) Personnel Department, Head Office, Rep. by its General Manager (P), Hyderabad. 2 The Deputy General Manager, Andhra Bank , Personnel Department, Head Office, Hyderabad. ..... APPELLANT(S) AND V. Vishnu Vardhan Reddy S/o. Sri V. Venkat Reddy R/o.96-C Lakshmi Srinviasam, M.L. As colony, Road No.12 Banjara Hills, Hyderabad. 500 034. .....RESPONDENT Counsel for the Appellant:DR.K.LAKSHMI NARASIMHA (SC FOR ANDHRA BANK) Counsel for the Respondent No.: MR.V.RAJAGOPAL REDDY P.T.O. WRIT APPEAL NO : 49 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 14/12/2007 in WP NO : 23410 OF 2005 on the file of the High Court.) Between: 1 Andhra Bank (A Govt. of India Undertaking) Personal Department, Head Office, Hyderabad, Rep. by its General Manager(P), Hyderabad. 2 The Deputy General Manager, Andhra Bank personnel Department, ..... APPELLANT(S) AND V. Vishnu Vardhan Reddy, S/o. V. Venkat Reddy R/o. 96-C, Lakshmi Srinivasan, M.L.A.s Colony, Road No. 12, Banjara Hills, Hyderabad-34, .....RESPONDENT Counsel for the Appellant:DR.K.LAKSHMI NARASIMHA (SC FOR ANDHRA BANK) Counsel for the Respondent No.: MR.V.RAJAGOPAL REDDY The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.43 AND 49 OF 2008 COMMON JUDGMENT: (Per SK,J) Arising out of the common order in Writ Petition Nos.23410 of 2005 and 16996 of 2007, these two appeals commend disposition to a conjoined adjudication. The Andhra Bank, the respondent in the two writ petitions, is the appellant in both the appeals. The issue arises out of the action of the first respondent/writ petitioner (hereinafter referred to as ‘the Officer’) in seeking voluntary retirement from the service of the Andhra Bank (for brevity, ‘the Bank’) and his subsequent action in withdrawing therefrom. The Officer joined the service of the Bank in the year 1977 as a Rural Credit Officer in Middle Management Grade-II Scale. In the year 2003 he was working as an Assistant General Manager of the Bank at its Bhubaneswar Branch and sought transfer to Hyderabad. Upon his request, he was retained at Hyderabad for four months under the proceedings dated 02.01.2004 and was transferred to Delhi under the proceedings dated 03.04.2004. The Bank refused to accept the request of the Officer to be retained further at Hyderabad. It was then that the Officer submitted his application dated 12.04.2004 seeking voluntary retirement from service under the provisions of the Bank’s Pension Regulations. He requested the Bank to relieve him from service as per the Rules in force treating the said application as three months notice. The Officer did not cite any reasons as to why he was seeking voluntary retirement. Accepting the Officer’s application for voluntary retirement, the Bank issued proceedings dated 21.04.2004 informing him that he would be relieved from the Bank’s service on 11.07.2004, i.e., after expiry of the notice period of three months. While so, under his application dated 24.06.2004, the Officer sought to withdraw his earlier application for voluntary retirement. He stated therein that he had sought voluntary retirement from service due to health problems, but as his health condition had improved, he preferred to reconsider his decision and opted to withdraw from voluntary retirement. He referred to the acceptance of his VRS application, advising him to get relieved from service on 11.07.2004, and requested the Bank to grant permission to withdraw his resignation and allow him to work for the rest of his tenure. However, the Bank by its proceedings dated 09.07.2004 declined permission to the Officer for withdrawal of his option seeking voluntary retirement. The Bank opined that the reasons put forth by the Officer for withdrawing his option were not genuine but invented to gain unfair advantage; that the Officer was trying to make a mockery of the administration and accordingly declined the permission sought by him. He was also informed that as 11.07.2004, being the date of expiry of the period of three months notice, fell on Sunday he would be relieved on 12.07.2004 at the commencement of Office hours. On 12.07.2004, the Officer was relieved from service. He received a sum of Rs.5,02,540/- towards gratuity and leave salary on 13.07.2004. He also received an amount of Rs.37,982/- towards settlement of his Provident Fund. A sum of Rs.2,61,754/-, being the commuted pension payable under the Andhra Bank Pension Regulations, was also paid to him on 15.07.2004. At the time of filing of the counter affidavit in November, 2006 in Writ Petition No.23410 of 2005, the Officer was drawing a basic pension of Rs.13,496.33 ps. and it is stated that presently, his pension would be between Rs.16,000/- and Rs.17,000/-. The Officer filed Writ Petition No.23410 of 2005 seeking a direction to the Bank to treat his application for voluntary retirement from service as withdrawn and continue him in service. This writ petition was filed in October, 2005 but surprisingly, the Officer chose to suppress the events that had transpired in July, 2004, including the proceedings dated 09.07.2004 whereby the Bank had declined permission to allow him to withdraw his option for voluntary retirement. On the other hand, he asserted that he was still working in the Head Office of the Bank as an Assistant General Manager and that he was drawing his salary and attending to various official duties. Upon the Bank filing a counter affidavit in November, 2006 setting out the factual developments aforestated, the Officer filed Writ Petition No.16996 of 2007 in August, 2007 challenging the proceedings dated 09.07.2004 whereby the Bank had declined him permission to withdraw his application for voluntary retirement. In the affidavit filed in support of this writ petition, the Officer stated that though he had mentioned in his earlier writ petition that the action of the Bank in retiring him with effect from 11.07.2004 was wholly unjustified and unconstitutional, he did not question the order of refusal of permission by the Bank for withdrawing his offer of voluntary retirement and that it had become necessary to file the second writ petition as an objection had been taken that he did not question the said order. The fact however remains that in the earlier writ petition, the Officer chose not to advert to the events that had taken place in July, 2004, including the Bank’s proceedings dated 09.07.2004 which he impugned in the second writ petition and also the payment and receipt of pensionary benefits. The learned single Judge having taken up the two writ petitions for adjudication, framed the following questions for consideration: 1) Whether in the facts and circumstances of the case, the petitioner is entitled to seek withdrawal of his application for voluntary retirement before the expiry of the three months notice period? 2) If so, whether the 2nd respondent was justified in rejecting the application of the petitioner for withdrawing his application for voluntary retirement? 3) Whether the petitioner having been relieved from service and having received the terminal benefits, is not entitled to the reliefs claimed? 4) If not, whether the petitioner is entitled to be granted the relief of reinstatement with all consequential and monetary benefits? Though the learned Judge did not frame an issue with regard to the import and consequence of the suppression of material facts by the Officer in his first writ petition, he dealt with it in paragraphs 17 of the Judgment. Having held that the Officer had filed the first writ petition pretending as if he was in active service and there was a delay of three years in the filing of the second writ petition challenging the proceedings dated 09.07.2004, the learned Judge opined that the same would not disentitle the Officer from assailing the proceedings and more so, when his right to livelihood stood affected by the same. Holding to that effect, the learned Judge went on to consider whether the Officer had the locus poenitentiae to withdraw his application for voluntary retirement. Placing reliance on precedents on this aspect, the learned Judge held that the Officer was well within his rights in withdrawing his option for voluntary retirement before the same became effective, i.e., before the date of expiry of three months notice period, 11.07.2004. It is relevant to note that the Officer sought voluntary retirement in accordance with Regulation 29 of the Andhra Bank (Employees’) Pension Regulations, 1995. These Regulations trace their origin to Section 19(2)(f) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 and are therefore statutory in nature. Regulation 29, to the extent it is relevant for the purposes of this case, reads as under: “29. Pension on Voluntary Retirement,– (1) On or after the 1st day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service; …………………… (2) The notice of voluntary retirement given under sub- regulation (1) shall require acceptance by the appointing authority; Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) ……………………. (4) An employee, who has elected to retire under this regulation and has given necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for such withdrawal shall be made before the intended date of his retirement.” [Emphasis added] Therefore as per the above Regulation, the employee who sought voluntary retirement is precluded under clause (4) from withdrawing his notice except with the specific approval of such authority. In the present case, such approval was denied under the proceedings dated 09.07.2004, impugned in the second writ petition. In BALRAM GUPTA v. UNION OF INDIA[1], the Supreme Court was dealing with a similar pension Rule under Rule 48-A(4) of the Central Civil Services (Pension) Rules, 1972 which required that specific approval should be granted by the authority for withdrawal of the retirement notice. However, the Supreme Court did not choose to examine and decide whether the requirement under the said Rule was valid or not. The Court however made certain observations in this regard which are apposite: “11. …………. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the sub-rule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether sub-rule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot withdraw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub-rule (4) of Rule 48- A of the Pension Rules is valid or not. If properly exercised the power of the Government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. ………….” In the present case also, the learned single Judge did not choose to examine whether the requirement prescribed by Regulation 29(4) of the Bank’s Regulations was valid and whether the impugned proceedings dated 09.07.2004, in the light of the Regulation and the observation of the Supreme Court in BALRAM GUPTA, could be held to be legally sustainable. Basing on the general principle of law that an employee having tendered his notice of retirement/voluntary retirement, would have the locus poenitentiae to retract therefrom before such retirement becomes effective, the learned Judge allowed the writ petition holding that the Bank had not acted reasonably and rationally in rejecting the Officer’s application dated 24.06.2004 for permission to withdraw his notice of voluntary retirement, under its proceedings dated 09.07.2004. We do not propose to go into the issue as to whether the Officer had the locus poenitentiae, meaning literally an opportunity to repent, in so far as the withdrawal of his option for voluntary retirement is concerned. We are of the opinion that the matter is amenable to resolution on certain other crucial aspects. It is a matter of record that the Officer chose to suppress material facts in his first writ petition and in fact, went to the extent of making incorrect factual statements in his sworn affidavit. With regard to his application dated 24.06.2004 for permission to withdraw from the option of voluntary retirement, the Officer stated that he had not received any reply from the Bank and went on to state that he was still working in the Head Office as an Assistant General Manager, drawing his salary and attending to various official duties. This statement was made by the Officer in his sworn affidavit dated 28.10.2005 filed in support of Writ Petition No.23410 of 2005. This statement was obviously incorrect as the Officer had been relieved from the Bank’s service on 12.07.2004 itself and had also received pensionary benefits thereafter. It is also relevant to note that the Officer chose not to disclose the factum of the rejection of his application for permission to withdraw the option of voluntary retirement, under the proceedings dated 09.07.2004. It was only after the Bank filed its counter affidavit in the said writ petition during November, 2006, disclosing the above stated facts that the Officer chose to assail the proceedings dated 09.07.2004, whereby the Bank refused him permission to withdraw his option for voluntary retirement. Relevant to note, this writ petition was filed by the Officer long thereafter, i.e., in August, 2007. In the said writ petition, the Officer attempted to explain the delay by stating that though he did not question the order of refusal of permission by the Bank for withdrawing his offer of voluntary retirement, it had become necessary to file the second writ petition as an objection had been taken by the Bank that he did not question the said order. There is no explanation forthcoming as to why the Officer willfully chose to suppress the information relating to this Order in the first writ petition and on the contrary, chose to make factually incorrect statements to the effect that he had not received any response from the Bank and that he was still continuing in service. These aspects were not given due weightage by the learned Judge. Further, the Officer had accepted the retirement benefits due to him, during July, 2004 itself without demur and protest and continued thereafter to receive monthly pension. The consequence of such actions on the part of the Officer was not given due weightage by the learned Judge. In so far as the suppression of material facts by the Officer is concerned, the observations of the Supreme Court in K.D.SHARMA v. STEEL AUTHORITY OF INDIA LIMITED[2] are apposite: 38. …………….. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”. 39. If the primary object as highlighted in Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” The suppression of material facts by the Officer in the present case was obviously with the mala fide intention of obtaining interim orders in the first writ petition as he sought to project before this Court as if he was still continuing in service. Such an action on the part of the Officer was a clear abuse of process of the Court. Having approached this Court with unclean hands, the Officer then filed the second writ petition assailing the proceedings dated 09.07.2004 with considerable delay. Except for stating that he had done so because of the objection taken by the Bank in the counter affidavit filed in the first writ petition, there is no other explanation for the delay. The said delay assumes greater significance in the light of the admitted fact that the Officer had received his retirement benefits without protest and was also in receipt of monthly pension since July, 2004. In such circumstances, the issue as to whether the Officer was entitled to question the proceedings dated 09.07.2004 three years thereafter, necessarily had to be decided in the light of the facts and circumstances obtaining in the case. Merely because the livelihood of the Officer was involved, it would not absolve him of the fraud played by him as detailed supra. These crucial aspects therefore ought not to have been brushed aside. With regard to the third question framed for consideration by the learned Judge as to whether the Officer having received terminal benefits was disentitled to the relief claimed by him in the writ petition, the learned Judge was of the opinion that the Officer could not be held to be disentitled to the reliefs sought by him in the writ petitions merely because he had received the retirement benefits due to him. The learned Judge distinguished the Judgments cited before him in this regard stating that the facts of the present case stood on a different footing. However, the principle culled out by the Supreme Court in various Judgments on this aspect is clear. I n PUNJAB AND SIND BANK v. S.RANVEER SING BAWA[3], the Supreme Court observed that where an employee received the retirement benefits without objection and appropriated the same for his benefit, he could not resile from the retirement scheme. Reliance was placed by the Supreme Court on its earlier Judgment in BANK OF INDIA v. O.P.SWARNAKAR[4], wherein it was held that the employees who had accepted the payments/benefits under the Voluntary Retirement Scheme cannot approbate and reprobate nor can they be permitted to withdraw. This Judgment proceeded on the principle of estoppel – one, who knowingly accepts the benefit of a contract, is estopped from denying the binding effect on him of such contract. The Court held that this Rule had to be applied to do equity and accordingly, those optees, who knowingly received the payments and utilized them, were not entitled to withdraw from the Voluntary Retirement Scheme. Similar was the view taken by the Supreme Court in PUNJAB NATIONAL BANK v. VIRENDER KUMAR GOEL[5] and GYANENDRA SAHAY v. TATA IRON AND STEEL CO. LTD.[6]. It is not in dispute that the Officer received sizeable retirement benefits in July, 2004 after he was relieved from service and ostensibly, without protest. He thereafter continued to receive monthly pension also. In such view of the matter, this was a clear case where the principle of estoppel would have to operate and the Officer having committed himself to a particular course of conduct could not be permitted to retract therefrom and seek an undue advantage after a lapse of three years. The second writ petition was thus liable to be dismissed on the ground of delay and laches. We are therefore of the opinion that the first writ petition, W.P.No.23410 of 2005, was clearly an abuse of process of the Court and the Officer having come to the Court with unclean hands was plainly disentitled to any relief in the said writ petition. As pointed out by the Supreme Court in K.D.SHARMA, this Court would be failing in its duty if this writ petition is not rejected on the ground of suppression of material facts by the Officer. The second writ petition filed with inordinate and unexplained delay and laches was also not maintainable. All the more so, in the light of the admitted fact that the Officer had received his retirement benefits without protest and was continuing to receive monthly pension for over three years by the date of filing of the said writ petition. The Officer is therefore liable to be non-suited in both the writ petitions on the aforestated grounds. The direction to the Bank to reinstate the Officer in service with consequential benefits but without monetary benefits, is therefore unsustainable on facts and in the light of the aforestated legal position. The Writ Appeals are accordingly allowed setting aside the common order dated 14.12.2007 in Writ Petition Nos.23510 of 2005 and 16996 of 2007. In the circumstances of the case, we do not deem it appropriate to make any order as to costs. _____________________ B.PRAKASH RAO, J. ____________________ SANJAY KUMAR, J. ________ October, 2009. Note: L.R. copy to be marked. B/O VGSR [1] AIR 1987 SC 2345 = 1987 (Supp) SCC 228 [2] (2008) 12 SCC 481 [3] (2004) 4 SCC 484 [4] (2003) 2 SCC 721 [5] (2004) 2 SCC 193 [6] (2006) 5 SCC 759