Disposed

Sri H S Kengegowda v. the Chief Executive Officer

Karnataka HC29 Nov 2022WP/14073/2019

Case brief

AI extract

What is this about?

This writ petition concerned the entitlement of a reinstated Bill Collector for back wages after suspension. The Court directed the appellate authority to frame appropriate orders under Rule 99 of KCSR to regulate the pay period, failing to do so in the previous appeal.

What did the court decide?

Direction to the 1st respondent (Appellate Authority) to pass an appropriate order within eight weeks regarding the petitioner's pay and entitlement for the period 01.01.2008 to 17.09.2018, taking not

Sri H S Kengegowda Vs the Chief Executive… — Pension and Retirement Benefits | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE S.G. PANDIT

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WRIT PETITION No.14073/2019 (S-RES)

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BETWEEN:

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SRI H S KENGEGOWDA AGED ABOUT 55 YEARS S/O LATE SOMBEGOWDA BILL COLLECTOR, ATTAVARA HOSAHALLI GRAM PANCHAYTH DUDDA HOBLI HASSAN TALUK & DISTRICT

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...PETITIONER

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(BY SRI.G.S.NAVEEN KUMAR , ADV. FOR SRI.S.B.MUKKANNAPPA, ADV.)

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AND:

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1 . THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH, HASSAN TALUK AND DISTRICT – 573201

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2 . THE EXECUTIVE OFFICER TALUK PANCHAYATH, SAKLESHPURA, HASSAN TALUK AND DISTRICT – 573 201

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3 . THE PRESIDENT ATTAVARA HOSAHALLI GRAM PANCHAYATH, HASSAN TALUK

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AND DISTRICT – 573201

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4 . THE PANCHAYATH DEVELOPMENT OFFICER, ATTAVARA, HOSAHALLI GRAM PANCHAYATH HASSAN TALUK AND DISTRICT – 573 201

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…RESPONDENTS

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(BY SRI.J.N.NAVEEN, ADV. FOR SRI A. NAGARAJAPPA, ADV. FOR R1 TO R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DTD.20.02.2019 ISSUED BY THE R-1 VIDE ANNEXURE-P AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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Heard Sri G.S. Naveen Kumar, learned counsel for

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Sri S.B. Mukkannappa, learned counsel for the petitioner and Sri J.N. Naveen, learned counsel for Sri A. Nagarajappa, learned counsel for respondents 1 to 4. Perused the writ petition papers.

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Learned counsel for the petitioner would submit

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that petitioner was working as Bill Collector having been appointed on 01.08.1988 by the 3^rd respondentAttavara Hosahalli Gram Panchayath (for short ‘ the

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Panchayath’ ). On complaint dated 16.11.2007 of one Mr. Shivanna that petitioner demanded bribe of Rs.1,500/- in connection with katha of vacant site of grama panchayath, the petitioner was kept under suspension by Official Memorandum (Annexure-A) dated 01.01.2008. A criminal case in Special Case No.7/2009 on the file of Principal Sessions Judge and Special Judge at Hassan, was also initiated against the petitioner. The said special case was disposed of by judgment dated 26.05.2012 wherein the petitioner was acquitted of the offence alleged under the Prevention of Corruption Act, 1988 (for short ‘ the 1988 Act’ ). Thereafter the 3^rd respondent-Panchayath passed resolution dated 04.07.2014 to dismiss the petitioner from service. Learned counsel would submit that no enquiry was conducted before dismissing the petitioner. Only a summary enquiry was conducted, but no charge sheet was issued and no Enquiry Officer was appointed to enquire into the allegation against the petitioner. The petitioner filed appeal before the 1^st respondent-Chief

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Executive Officer against the order of dismissal dated 04.07.2014 in Appeal No.45/2012-13, the 1^st

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respondent Appellate Authority by order (Annexure-M) dated 02.08.2018 allowed the appeal and directed the 3^rd respondent-Panchayath to reinstate the petitioner into service. It is submitted that petitioner was reinstated into service as bill collector from 17.09.2018. Thereafter, the petitioner submitted representation dated 24.01.2019 requesting the respondents to pay wages for the period he was out of service i.e., from the date of suspension till the date of reinstatement. The said representation was considered and endorsement (Annexure-P) dated 20.02.2019 is issued to the petitioner rejecting his request for salary during the period for which, he was out of service on the ground that petitioner has not worked during that period. Aggrieved by the said endorsement, the petitioner is before this Court in this writ petition.

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Learned counsel for the petitioner would submit that once the order of termination is set aside, the

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petitioner would be entitled for back-wages; that the Appellate Authority failed to pass any specific order with regard to entitlement or otherwise of back-wages to the petitioner. It is submitted that dismissal order was passed by the 3^rd respondent-Panchayath without issuing charge memo and without conducting enquiry. In the said circumstances, it is submitted termination would be wholly illegal. The Appellate Authority set aside the order of dismissal. When an order of dismissal is set aside, the employee would be entitled for full back-wages. Further learned counsel would submit that there is no Rule providing for regulating the period during, which the petitioner was out of service. In the absence of any Rule in that regard, learned counsel would submit that 3^rd respondent-Panchayath ought to have taken note of the provisions contained in KCSR, particularly Rule 99 and passed appropriate order. Hence he prays for allowing the writ petition.

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Per contra Sri J.N. Naveen, learned counsel would submit that Appellate Authority has not passed any

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order with regard to entitlement of the petitioner for back-wages or otherwise. Hence the petitioner would not be entitled for back-wages. Further he submits that petitioner accepted the order of the Appellate Authority at Annexure-M but has not challenged the same further. Hence it is not open for the petitioner at this stage, to claim back-wages. Learned counsel would bring to the notice of this Court The Karnataka Grama Swaraj and Panchayat Raj (Staffing Pattern, Scale of Pay, Method of Recruitment and Other Conditions of Service of Employees of Grama Panchayat) Rules 2020 (for short ‘the 2020 Rules’ ) and submits that the same provides for conditions of service, Method of Recruitment etc. But conditions of service would not specifically provide for regulating the period for which an employee of Panchayat is out of service. Thus he prays for dismissal of the writ petition.

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The petitioner was working as Bill Collector in the 3^rd respondent-Panchayath. Under Official Memorandum (Annexure-A) dated 01.01.2008 the 3^rd

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respondent-President of the Panchayath kept the petitioner under suspension on the allegation that petitioner is trapped by Lokayukta Police while receiving illegal gratification. On the allegation of demanding and accepting illegal gratification, Special Case No.7/2009 was filed before the Principal Sessions Judge and Special Judge, Hassan. By judgment dated 26.05.2012 the petitioner was acquitted of the offences alleged under the 1988 Act. Subsequent to acquittal of the petitioner in the special case, the 3^rd respondentPanchayath passed resolution dated 04.07.2014 to dismiss the petitioner from Panchayath service. The said resolution was communicated to the petitioner under Annexure-J dated 04.07.2014. The said order of dismissal was challenged by the petitioner before the 1^st respondent in appeal as provided under Section 113 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short ‘the 1993 Act’ ). The 1^st respondentAppellate Authority under Annexure-M allowed the appeal and directed the 3^rd respondent-Panchayath to

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reinstate the petitioner into service as Bill Collector. In

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terms of the order of the Appellate Authority, the petitioner was reinstated into service as Bill Collector on 17.09.2018. The Appellate Authority is silent with regard to the entitlement of the petitioner for backwages and that Appellate Authority failed to regulate the period from 01.01.2008 the date on which the petitioner was kept under suspension, up to 17.09.2018 the date on which he was reinstated into service as Bill Collector. It was the duty of the Appellate Authority, which set aside the order of dismissal to pass a specific order, with regard to the entitlement of the petitioner for back-wages during the period, for which he was out of service. 2020 Rules or Section 113 of 1993 Act are silent with regard to regulating the period for which an employee of Panchayath would be out of service. When the Rules are silent with regard to a particular action, it is for the authorities to fall back on to KCSR. Rule

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99 of the KCSR provides for regulating the period, when

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a government servant who is dismissed, removed or

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compulsorily retired is reinstated into service, as a result of an appeal or review, the authority competent to order reinstatement shall consider and make a specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, and whether or not the said period shall be treated as period spent on duty. KCSR makes it abundantly clear that Appellate Authority shall pass appropriate order regulating the period during which government servant is out of service. In the instant case, the Appellate Authority has exercised its power under Section 113 of the 1993 Act and set aside the order of dismissal of the petitioner. While setting aside the order of dismissal of the petitioner, the Appellate Authority ought to have passed a specific order with regard to regulating the period or otherwise, during which the petitioner was out of service. Thus the

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Appellate Authority has failed to perform its duty. Hence the following order :-

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The 1^st respondent-Appellate Authority in

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pursuance to its order dated 02.08.2018 in Appeal No.GPA MHA/ AaC (12)13GRAPAMNYA-45/2012-13 (Annexure-M) pass appropriate order within a period of eight weeks from the date of receipt of a copy of this order, taking note of Rule 99 of KCSRs and regulate the period during, which the petitioner was out of service including the period of suspension i.e.,

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from 01.01.2008 to 17.09.2018

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With the above, the writ petition stands disposed of.

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Sd/JUDGE

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NG* CT:bms

Sri H S Kengegowda v. the Chief Executive Officer

Case brief

What is this about?

What did the court decide?

Sri H S Kengegowda v. the Chief Executive Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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