Dismissed

Sri H S Mallikarjun v. Management of Hms Education

Karnataka HC8 Oct 2020WA/1047/2019

Case brief

AI extract

What is this about?

This judgment dismissed two Writ Appeals filed by an employee and the Management of HMS Education Society. The High Court upheld the Single Judge's order reinstating the employee and directing back wages for periods of non-employment amidst grant-in-aid disputes.

What did the court decide?

The Writ Appeals (W.A.No.1047/2019 and W.A.No.954/2019) were dismissed; the Impugned Order of the Single Judge was upheld.

Sri H S Mallikarjun Vs Management of Hms… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF OCTOBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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W.A.No.1047/2019 (S – RES) C/W W.A.No.954/2019 (S – RES)

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In W.A.NO.1047/2019

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BETWEEN:

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Sri. H.S.Mallikarjun, S/o Sri. Siddamallappa, Aged 51 years, Presently Residing At 1^st Main, 7^th B Cross, Hanumanthapura, Tumkur – 572 107. … Appellant

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(By Sri. K.N.Nitish, Advocate)

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AND:

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Management of HMS Education Society ®, By its chairman, Shettihalli Road, Tumkur – 572 102.

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Principal, HMS Polytechnic, Shettihalli Road, Tumkur – 572 102.

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Director of Technical Education, Palace Road, Bengaluru – 560 001.

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Secretary to Government, Department of education, M.S.Building, Dr. B.R.Ambedkar Veedhi, Bengaluru – 560 001. … Respondents

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(By Sri. Naveed Ahmed, Advocate for R-1 and R-2, Sri. A.C.Balaraj, AGA for R-3 and R-4)

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This appeal is filed under Section 4 of the Karnataka High court Act praying to allow this appeal and set aside the impugned order dated 26/02/2019 passed by the learned Single Judge in WP.No.5872/2011 (S-RES) to the extent that the backwages to the appellant in the scale of grant-in-aid is not granted.

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In W.A.NO.954/2019

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BETWEEN:

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Management of HMS Education Society Represented by its Chairman, Shettihalli Road,

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Tumkur – 572 101.

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Principal HMS Polytechnic, Shettihalli Road, Tumkur – 572 101. … Appellants

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(By Sri. Naveed Ahmed, Advocate)

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AND:

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H.S.Mallikarjun,

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Son of Siddamallappa Age about 52 years, Residing at Mouna Mayura, 3rd Main, Gandhinagar, Tumkur – 572 101.

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Director of Technical Education Palace Road, Bengaluru – 560 001.

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Secretary of Government Department of Education, M.S.Building, Dr.Ambedkar Beedhi, Bengaluru – 01. … Respondents

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(By Sri.K.N.Nitish, Advocate for R-1, Sri. A.C.Balaraj, AGA for R-2 and R-3)

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This appeal is filed under Section 4 of the Karnataka High Court Act Praying to Set Aside the Order of the learned Single Judge dated:26/02/2019 in WP.No.5872/2011 [S-RES] and allow the Writ Petition as prayed for.

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These appeals coming on for Preliminary hearing this day, NAGARATHNA, J., delivered the following:

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JUDGMENT

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The legality and correctness of the order dated 26.02.2019 passed in WP.No.5872/2011 by learned Single Judge has been assailed in these appeals.

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W.A.No.1047/2019 has been filed by the employee while W.A.No.954/2019 has been filed by the Management of HMS Education Society (institution for the sake of convenience).

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Briefly stated the facts are that the appellant in W.A.No.1047/2019 was appointed as a Lecturer in Civil Engineering, on 15.08.1988, in the institution, on a consolidated salary of Rs.1,650/- per month. The institution was admitted to grant-in-aid, however, the grant-in-aid salary was not paid to the appellant/lecturer. In this regard, it is noted that the appellant/lecturer resigned from his post on 23.02.2004 and the resignation was accepted by the Management of Educational Institution on 26.04.2004. Subsequently, the appellant/lecturer sought withdrawal of his resignation on 26.05.2004 but the same was not accepted by the Management. Therefore, the appellant/lecturer filed an appeal before learned Principal District Judge, Education Appellate Tribunal, Tumkuru

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(hereinafter referred to as ‘the Appellate Tribunal’ for the sake of brevity) in EAT.No.13/2004.

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The Appellate Tribunal by its judgment dated

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05.10.2020 allowed the appeal in part and set aside the removal of the appellant/lecturer from his service and directed his reinstatement to the post of Lecturer in Civil Engineering Department to which he was appointed with effect from 26.04.2004 and to pay him all consequential benefits except the back wages prior to 26.04.2004. Being aggrieved by the said order, the Management has filed W.P.No.5872/2011 before this Court. At this stage itself it may be mentioned that the appellant/lecturer did not assail the judgment of the Appellate Tribunal before this Court.

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The learned Single Judge of this Court on considering the affidavit filed by the appellant/lecturer dated 16.01.2019 giving details of his employment subsequent to cessation of his service from the

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institution noted that the appellant/lecturer was serving at Acharya Polytechnic Bangalore from 01.09.2004 to 16.08.2009 and in Sridevi Polytechnic College, Tumkuru, from 01.01.2012 to 16.06.2018. Consequently, the learned Single Judge modified the judgment of the Appellate Tribunal while confirming the reinstatement of the appellant/lecturer and directed the institution to pay back wages for the period from 01.06.2004 to 31.08.2004, from 17.08.2009 to 31.12.2012 and from 17.06.2018 till the date of reinstatement. It was clarified that the salary would be paid for the aforesaid period should be in accordance with his last drawn salary. The learned Single Judge has also noted that the appellant/lecturer was never given salary as per grantin-aid. In the circumstances, a direction was issued that after reinstatement of the appellant/lecturer, the Management may consider forwarding the name of the appellant/lecturer to the competent Authority for inclusion in the grant-in-aid. Being aggrieved by the

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directions of the learned Single Judge, the appellant/lecturer as well as the Management filed their respective appeals.

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We have heard the learned counsel for

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respective parties and perused the material on record.

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It is noted that while the Appellate Tribunal granted relief of reinstatement with all consequential benefits except back wages prior to 26.04.2004, the learned Single Judge has modified the direction with regard to payment of back wages and has confirmed reinstatement of the appellant/lecturer with all consequential benefits.

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The learned Single Judge has modified the direction with regard to payment of back wages on the basis of the affidavit filed by the appellant/lecturer inasmuch as on the basis of the dates stated by the appellant/lecturer during which he was working in the other institutions, by excluding those periods, the

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learned Single Judge has directed Management to pay the back wages for the periods during which he was not in gainful employment and till his reinstatement.

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Learned counsel for institution contended that the appellant/lecturer was receiving a sum of Rs.1,650/as a consolidated salary in the post of Lecturer in Civil Engineering in the institution. Although, the appeals have been filed for assailing the order of learned Single Judge inasmuch as being aggrieved by the order of reinstatement being confirmed and granting all consequential benefits, if this Court is to direct that the appellant/lecture ought to be reinstated then institution would reinstate him subject to the payment of salary as per the directions of the learned Single Judge.

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Per contra, learned counsel for the appellant/lecturer sought to contend that the back wages cannot be at the rate at which the appellant was receiving consolidated salary when he resigned from the

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post that the appellant/lecturer is entitled to grant-in-aid salary, therefore, the appellant/lecturer may be paid at what he would have received, if he has been admitted to grant-in-aid but for the illegal termination.

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We have considered the rival contentions in

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this regard and we find that at the out set, having regard to the Appellate Tribunal declining to pay the back wages prior to 26.04.2004, the appellant/lecturer has not challenged the same as far as the period subsequent to 26.04.2004 is concerned. Learned Single Judge has taken note of the fact that the appellant/lecturer who was working in two institutions and has accordingly excluded the period during which he was in gainful employment and has awarded back wages only for the remaining period during which he was not in employment. We find that, the said approach of learned Single Judge is just and proper as it is based on the affidavit filed by the appellant/lecturer. It is needless to observe that no

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employee can draw salary from two places while being engaged in service in one of the institutions only.

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That apart, the learned Single Judge has directed the institution to consider the case of the appellant/lecturer for the purpose of inclusion of his name in the grant-in-aid pay scale and to take steps in that regard by forwarding the same to the competent Authority. We find that the said direction issued by the learned Single Judge is also a salutary one. Therefore, the appellant/lecturer had no cause to file any appeal as against the order of the learned Single Judge.

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In the circumstances, we do not find any merit in both these appeals. Consequently, the appeals are dismissed.

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It is needless to observe that the appellant/institution will give effect to the direction issued by the learned Single Judge within a period of one week from the date of receipt of certified copy of

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this judgment and to pay the back wages in terms of the directions of learned Single Judge as expeditiously as possible in terms of the last drawn salary of the appellant/lecturer.

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In view of the dismissal of the appeals, I.A.No.1/2019 filed in W.P.No.954/2019 also stands

dismissed.

Sd/JUDGE

Sd/JUDGE

KTY

Sri H S Mallikarjun v. Management of Hms Education

Case brief

What is this about?

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Sri H S Mallikarjun v. Management of Hms Education

Case brief

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