Allowed

Suvarna W/O. Late Gurubasayya Charantimath v. the Nwkrtc

Karnataka HC21 Jan 2020WP/102717/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition seeking compassionate appointment. Ruling that a dismissal order set aside by a Labour Court restores the employee to original service status at the time of death, the Court quashed a rejection order and directed the Respondent Corporation to consider the applicants' case under its scheme.

What did the court decide?

The impugned endorsement dated 12.03.2018 was set aside; the Respondent is directed to consider the case for compassionate appointment granting monetary terminal benefits as if the employee was in ser

Suvarna W/O. Late Gurubasayya Charantimath… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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Dated this the 21^st day of January 2020

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Before

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THE HON’BLE MR.JUSTICE S.G. PANDIT

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Writ Petition No.102717 of 2018 (S-KSRTC)

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BETWEEN:

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SUVARNA W/O. LATE GURUBASAYYA CHARANTIMATH AGE:53 YEARS, OCC:HOUSEHOLD WORK, R/O. NESARGI, GOKAK ROAD, TALUKA:BAILHONGAL, DIST:BELAGAVI.

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MAHESH S/O LATE GURUBASAYYA CHARANTIMATH AGE:30 YEARS, OCC:HOUSEHOLD WORK, R/O. NESARGI, GOKAK ROAD, TALUKA:BAILHONGAL, DIST:BELAGAVI. ... PETITIONERS

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(By Sri.: JAGADISH PATIL, ADVOCATE)

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AND

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THE NWKRTC REPRESENTED BY ITS DIVISIONAL CONTROLLER, NWKRTC, BELAGAVI DIVISION, BELAGAVI.

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... RESPONDENT

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(By Sri : SHIVAKUMAR S BADAWADAGI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER NO.WaKaRaSa/BeVi/Sibandi/Nemaka/515 DATED 12.03.2018 VIDE ANNEXURE-"G" PASSED BY THE RESPONDENT WITH RESPECT TO THE PETITIONERS AND ALSO DIRECT RESPONDENT TO CONSIDER THE REPRESENTATION DATED 08.07.2017 OF PETITIONERS BY APPOINTING ON COMPASSIONATE APPOINTMENT VIDE ANNEXURE-"F".

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioners are the legal representatives of one Gurubasayya Charantimath who was an employee of the Respondent/North West Karnataka Road Transport Corporation (hereinafter referred to as ‘the Corporation’ for short). Petitioners being aggrieved by the endorsement dated 12.03.2018 bearing No.WaKaRaSa/BeVi/Sibandi/ Nemaka/515 vide Annexure-G and seeking for a direction to the respondent to consider the representation dated 08.07.2017 for appointment on compassionate grounds are before this Court under Article 226 of the Constitution of India.

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The brief facts of the case leading to the filing of the present petition are that, the deceased employee Sri.Gurubasayya Charantimath who was working as a driver in the respondent/Corporation was dismissed from services of the respondent/Corporation by order dated 13.12.2012. The said order of dismissal was challenged before the Labour Court in KID No.47/2013. During the pendency of the case before the Labour Court, the said employee Gurubasayya Charantimath died on 16.02.2013. Subsequently, the petitioners/legal representatives of the said employee prosecuted the case and the Labour Court by award dated 07.10.2015 set aside the order of dismissal of Gurubasayya Charantimath and further held that the legal representatives would be entitled to receive monetary terminal benefits. Thereafter, the petitioners made representations dated 06.01.2016 and 02.06.2016 seeking implementation of the award as well as seeking appointment on compassionate grounds. The respondent/ Corporation by an endorsement dated 01.07.2016 rejected the petitioners’ claim for appointment on compassionate

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grounds. Aggrieved by the said rejection order, the petitioners approached this Court in W.P.No.103804/2017. This Court, by order dated 22.06.2017 allowed the writ petition and set aside the endorsement dated 01.07.2016, directing the respondent/Corporation to consider the representation dated 02.06.2016, within a period of two months. The respondent/Corporation again by its endorsement dated 12.03.2018 rejected the claim of the petitioners for compassionate appointment. Challenging the said endorsement, the petitioners are before this Court in this writ petition.

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Heard the learned counsel for the petitioners and learned counsel for the respondent/Corporation.

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Learned counsel for the petitioners would submit

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that the order of dismissal of Gurubasayya Charantimath was set aside under the award dated 07.10.2015 in KID No.47/2013. When once the order of dismissal is set aside, the person against whom such an order of dismissal was passed would be placed in his original position, as

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such, the said employee Gurubasayya Charantimath is deemed to be in service as on the date of his death. Thus, the petitioners would be entitled for consideration of their case for compassionate appointment as per the regulations/scheme of the Corporation. Further, it is his submission that in the earlier round of litigation, this Court had given a definite finding that Gurubasayya Charantimath is deemed to be continued in employment and therefore, it gives rise to a right to the legal representatives of the deceased petitioner for seeking compassionate appointment. That said finding is not challenged by the respondent/ Corporation and it has attained finality. Therefore, the endorsement issued by the respondent/Corporation rejecting the claim of the petitioners for compassionate appointment on the ground that there is no specific order in the award dated 07.10.2015 in KID No.47/2013 is wholly illegal and opposed to the order of this Court. Hence, prays for allowing the writ petition.

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Per contra, learned counsel for the respondent/ Corporation would justify the impugned endorsement dated 12.03.2018. He submits that in the award dated 07.10.2018, only the order of dismissal is set aside granting monetary terminal benefits and there is no direction to consider the applications of the petitioners for compassionate appointment. In the absence of specific order for consideration of petitioners’ case for compassionate appointment, the respondent/Corporation is justified in rejecting the claim of the petitioners. Thus, prays for dismissal of the writ petition.

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The admitted facts are that one Gurubasayya Charantimath was working as a driver in the respondent/ Corporation. He was dismissed from service by the respondent/Corporation by its order dated 13.12.2012 for his unauthorized absence. The said dismissal order was challenged before the Labour Court in KID No.47/2013. During the pendency of the dispute before the Labour Court, the dismissed employee Gurubasayya Charantimath died on 16.02.2013. The Labour Court, by its award

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dated 07.10.2015 set aside the order of dismissal and further ordered that the legal representatives of Gurubasayya Charantimath are entitled to receive monetary terminal benefits. Thereafter, the petitioners made application to the respondent/Corporation seeking appointment on compassionate grounds. The said request was rejected by the respondent/Corporation which endorsement was challenged before this Court in W.P.No.103804/2017. This Court, by order dated 22.06.2017 set aside the said endorsement and directed the respondent/Corporation to consider the representation dated 02.06.2016 afresh, in accordance with law and to pass appropriate orders. While passing the above order, this Court had given a definite finding at paragraphs 5 and 6 of the said order which reads as follows:

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“5. On looking the above endorsement, such endorsement could not have been issued by the respondent, because of the simple reason that after dismissal order of the said Karibasayya is set aside, it is deemed that the said Karibasayya continued to be the employee of the respondent. Therefore,

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it gives rise to a right to the legal representatives to file an application for appointment under compassionate ground.

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6. The said application should have been considered on the basis of the relevant laws as to whether in accordance with law the petitioners or anybody is entitled for appointment under the compassionate scheme. The respondent also should have appropriately passed an order with respect to the terminal benefits as claimed by the petitioners. Therefore, the endorsement issued by the respondent is devoid of merits and the same is liable to be quashed. Accordingly this writ petition is allowed. The endorsement dated 01.07.2016 as per Annexure-D is hereby quashed.”

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A reading of the above order would make it clear that this Court has given a definite finding that on setting aside the order dismissal, the dismissed employee is deemed to be in employment of the respondent/Corporation and hence it has given rise rights to the legal representatives to file an application for appointment on compassionate ground.

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The Hon'ble Supreme Court in a decision reported in

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AIR 1992 SC 1439 in the case of M/S. SHREE CHAMUNDI MOPEDS LTD. v/s CHURCH OF SOUTH INDIA TRUST ASSOCIATION, MADRAS at paragraph 10

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has held as follows:

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“……………………………….....

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While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence.”

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The above decision of the Hon'ble Apex Court makes it clear that when once an order is quashed or set aside, it

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would mean that it goes back to its original position as on the date of the order which is quashed. In the instant case also, when the order of dismissal is set aside by the Labour Court which is not challenged by the respondent/ Corporation, the employee is put back to his original position. As such, he is deemed to be in employment as on the date of his death. Therefore, the petitioners are entitled for consideration of their case for appointment on compassionate grounds in accordance with the regulation/scheme of the Corporation. The contention of the respondent/Corporation that there is no specific order to that effect would not stand to reasons in view of the decision of the Hon'ble Apex Court referred to above.

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For the reasons aforementioned, the writ petition is allowed . The endorsement dated 12.03.2018 bearing No.WaKaRaSa/BeVi/Sibandi/Nemaka/515 is set aside and the respondent/Corporation is directed to consider the case of the petitioners for compassionate appointment in accordance with the Regulation/scheme of the respondent/

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Corporation, as if, Late Gurubasayya Charantimath was in service as on the date of his death i.e. on 16.02.2013.

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Even though in the earlier round of litigation, this Court had specifically directed the respondent/Corporation to consider the case of the petitioners for compassionate appointment, the respondent/Corporation has failed to apply its mind and has again made the petitioners to approach this Court. Hence, the respondent/Corporation is liable to pay cost of Rs.15,000/- to the petitioners.

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Sd/JUDGE

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mpk/-*

Suvarna W/O. Late Gurubasayya Charantimath v. the Nwkrtc

Case brief

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Suvarna W/O. Late Gurubasayya Charantimath v. the Nwkrtc

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