Allowed

Mr. I K Manik S/O Khasimsaheb v. the Principal Secretary

Karnataka HC3 Oct 2023WP/102001/2023

Case brief

AI extract

What is this about?

The Court allowed the writ petition against the Karnataka State Administrative Tribunal, modified the impugned order, set aside a subsequent endorsement, and directed the respondents to pay pension dues and interest within two months in light of the Apex Court's judgment.

What did the court decide?

Impugned order modified; endorsement set aside; respondents directed to pay pension, gratuity, and interest within two months.

Mr. I K Manik S/O Khasimsaheb Vs the… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:11586-DB WP No. 102001 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA WRIT PETITION NO. 102001 OF 2023 (S-KAT)

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BETWEEN:

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MR. I.K. MANIK S/O. KHASIMSAHEB, AGE: 83 YEARS, OCC: RETIRED IN CHARGE TUTOR, R/O: MANIK BUILDING, A.I.R. ROAD, TQ. AND DIST: DHARWAD-580008.

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…PETITIONER

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(BY SRI RAVI HEGDE, ADVOCATE)

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AND:

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THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, M.S.BUILDING, BENGALURU-560001.

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.16 11:26:44 +0530

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THE DIRECTOR, DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES AROGYA SOUDHA, 5TH FLOOR,

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MAGADI ROAD, BENGALURU-560023.

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THE DISTRICT HEALTH AND FAMILY WELFARE OFFICER, DHARWAD, KESHAV NAGAR, NARAYANPURA, DIST. DHARWAD-580008.

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THE MEDICAL OFFICER, PRIMARY HEALTH CENTER, INGALAHALLI, TQ: HUBBALLI,

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NC: 2023:KHC-D:11586-DB WP No. 102001 of 2023

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DIST: DHARWAD-581209, DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES.

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THE ACCOUNTANT GENERAL (A AND E), KARNATAKA P.B.NO.5329, ANNEXURE BUILDING, PARK HOUSE ROAD, BENGALURU-560001.

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…RESPONDENTS

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(BY SRI G.K. HIREGOUDAR, GOVT. ADV. FOR R1 TO R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING THE ORDER PASSED IN APPLICATION NUMBER 11047/2021, DATED 13.01.2023, ON THE FILE OF THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL AT BELAGAVI, VIDE ANNEXURE-C, AND CONSEQUENTLY ALLOW THE APPLICATION IN ITS ENTIRETY, BY FIXING OUTER LIMIT.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, KRISHNA KUMAR, J., MADE THE FOLLOWING:

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ORDER

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This petition is directed against the impugned order dated 13.01.2023 passed in Application No.11047/2021 by the Karnataka State Administrative Tribunal, Belagavi (hereinafter referred to as the ‘KSAT’), whereby, the said application filed by the petitioner was disposed of by the KSAT.

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Heard learned counsel for the petitioner and

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learned AGA for respondent Nos.1 to 5.

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A perusal of the material on record discloses

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that the petitioner approached the KSAT seeking following reliefs:

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“(1) To issue writ certiorari quashing the order passed by respondent no.2, dated 29/9/2020, bearing no. AA.KU.KA.53.MSN/2018, vide ANNEXURE-A.7, in so far it relates to calculating the lesser amount in violation of the order of Hon’ble Apex Court, and consequently accept the calculation furnished by the applicant vide ANNEXURE-A.8 & 9, and,

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(2) To issue writ or order directing the Respondents to pay interest on the amount paid towards the difference okf wages from 30/5/1999 to 20/4/2019, vide ANNEXURE-A at the rate of 10% p.a, as per the direction issued by the Hon’ble Apex Court, and

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(3) To pass any appropriate order or direction as deems fit by this Hon’ble Tribunal under the facts and circumstances of the case in the interest of justice and equity.”

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It was specifically contented that the petitioner having retired from service on 31.05.1999, the

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respondents had not fixed his pension nor settled his retirement benefits, as a result of which, the petitioner approached the KSAT in Application No.5358/2012 which was dismissed vide order dated 10.03.2017 pursuant to which the petitioner approached this Court in Writ Petition No.107172/2017 which was also dismissed by this Court vide order dated 12.12.2017. Aggrieved by the same, the petitioner approached Hon’ble Apex Court in Civil Appeal No.113/2019 which was allowed vide order dated 07.01.2019 by holding as under:

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“ ORDER

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Leave granted.

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Heard the learned counsel appearing for the parties at length.

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This is a case which reflects how the appellant has been harassed by the State of Karnataka. He was appointed as Incharge Tutor in the year 1960. After rendering the services for more than 15 years, he was suspended in the year 1976. The Director of Heath

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and Family Welfare revoked the suspension order on 13.12.1994 and a decision was taken to reinstate him. Thereafter, he was posted to Primary Heath Centre, Ingalahalli, Hubli Taluk, Dharwad on 06.01.1995.

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The Medical Officer, Inglahalli wrote a letter to Respondent No. 2 seeking his guidance regarding annual increments, leave and other benefits to the appellant. The appellant filed a representation, however, nothing was done. Ultimately, on attaining the age of superannuation, the appellant retired from service on 31.05.1999. The appellant, thereafter, approached the State Government by way of an appeal under Rule 19 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.

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The Medical Officer, Inglahalli, wrote a letter to the District Health and Family Welfare Officer on 11.01.2008 informing that pension of Rs.1075/- per month was sanctioned and Rs.35,456/- payable as Gratuity was withheld on account of the disciplinary action. As the pension was withheld, the appellant submitted a representation on 28.08.2011. Aggrieved by the inaction, the appellant filed an original application before the Tribunal praying for the relief of regularisation of the period of suspension from 01.03.1976 TO 13.12.1994 as the period spent on duty and release the pension and other benefits also. The Tribunal dismissed the original application on the ground of delay.

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Aggrieved by the dismissal order of the Tribunal, the appellant approached the High Court by way of filing a Writ Petition, being W.P. (C) No. 107172 of 2017. The same has been decided by the impugned order dated 12.12.2017. The High Court has also dismissed the writ petition on the ground of delay.

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We have heard the learned counsel for the parties at length. In our opinion, the original application and the writ application filed by the appellant could not have been dismissed by the Tribunal and the High Court on the ground of delay. When the appellant had retired on attaining the age of superannuation in the year 1999, it was incumbent upon the respondent-State to regularise the period of suspension by passing the requisite order under the fundamental rules. That has not been done. It was a lapse on the part of the employer. The employer was required to regularise the aforesaid period as no punishment had been imposed and the appellant had been kept under suspension for the aforesaid period in question. Since the prayer of the appellant was confined to counting the period from the date of suspension to reinstatement i.e. 01.03.1976 to 13.12.1994 as spent on duty, we are of the view that once suspension has been revoked and the incumbent has been reinstated, obviously the period has to be counted as 'spent on duty’ for the purpose of grant of service benefits available on retirement. Thus, the

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period has to be counted and his retiral dues, pension and other dues payable on retirement have to be worked out afresh and to be paid to the appellant as it was the fault of the respondent-State. The same shall be paid to the appellant from the date of superannuation along with interest at the rate of 10% per annum. Let the amount be calculated and paid to the appellant positively within two months from today, failing which the same shall be treated as noncompliance of the order passed herein. Let compliance be reported to this Court immediately after two months.

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The orders passed by the Tribunal as well as by the High Court are set aside and the appeal is allowed.”

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5. As can be seen from the order passed by the

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Hon’ble Apex Court, the petitioner was entitled of the amounts claimed by the petitioner together with interest at 10% per annum from the date of superannuation onwards till the date of payment and the entire exercise was to be completed within a period of 2 months from 07.01.2019.

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Subsequently, since the said amounts as

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directed by the Hon’ble Apex Court were not paid by the respondents, the petitioner approached the KSAT in Application No.11131/2019 which was disposed of vide final order dated 26.11.2020 by holding as under:

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“ORDER

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The 1^st respondent is directed to pay the amount mentioned in the order dated 29.09.2020 [AnnexureR1] issued by the Government extending the benefits which is stated to be issued for compliance of this order by the Hon’ble Apex Court in the Civil Appeal No.113/2019 within a period of two weeks from the date of receipt of copy of this order.”

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7. Subsequently, since the directions issued by

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Hon’ble Apex Court to pay interest at the rate of 10% per

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annum on the pension and other dues inclusive of dearness allowance were not complied with by the respondents, the petitioner once again approached the KSAT by filing the instant application which was contested by the respondents inter alia contending that the interest

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on dearness allowance was not payable in view of the Government order dated 02.09.2004 and excluding the same, all amounts due payable in favour of the petitioner had been settled by the respondents.

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After hearing both sides, the KSAT recorded a finding that basic pension includes dearness allowance and same was an essential ingredient of basic pension. Accordingly, the KSAT upheld the claim of the petitioner and rejected the claim of respondent No.4. It is the grievance of the petitioner that despite submitting the detailed memo of calculation at Annexures – A-8 comprising of the basic pay without dearness allowance and Annexure – A-9 comprising of pay including dearness allowance, the KSAT passed the impugned order disposing of the petition by remitting the matter back to the respondents for reconsideration of the memo of calculation at Annexures – A8 and A9 submitted by the petitioner which is not only contrary to the material on record but also the directions issued by the Hon’ble Apex Court in

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Civil Appeal No.113/2019 dated 07.01.2019 and as such, the petitioner is before this Court by way of the present petition.

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A perusal of the material on record including the impugned order will indicate that the reliefs sought for by the petitioner in the application before the KSAT were pursuant to the directions issued by the Hon’ble Apex Court in Civil Appeal No.113/2019 dated 07.01.2019. As can be seen from the reliefs sought for in the prayer column to the application, there is absolutely no ambiguity with regard to the directions issued by the Hon’ble Apex Court as regards the entitlement of the interest payable in favour of the petitioner. So also, the KSAT has recorded a categorical finding that the basic pension includes dearness allowance which was an essential ingredient of basic pension and that dearness allowance also needs to be taken into account for the purpose of calculating interest payable in favour of the petitioner. Under these circumstances, we are of the considered opinion that the

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KSAT committed an error in not granting reliefs sought for by the petitioner by passing the impugned order which was clearly inconsistent with the order passed by the Hon’ble Apex Court in Civil Appeal No.113/2019 referred to supra and consequently, the impugned order passed by the KSAT deserves to be modified and the application filed by the petitioner deserves to be allowed in full by granting him relief sought for by him in the application particularly when the respondent/State has not challenged the findings recorded by the KSAT as regards inclusion of dearness allowance as being an essential ingredient of basic pension payable in favour of the petitioner.

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Insofar as the contention urged by the learned AGA that pursuant to the impugned directions issued by the KSAT and during the pendency of the present appeal, the said directions have been complied with by the respondents who have issued an endorsement dated 22.05.2023 rejecting the claim of the petitioner is concerned, since the said endorsement came into

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existence and was issued during the pendency of the present petition, in the light of the above findings that the application filed by the petitioner deserves to be allowed by granting him reliefs sought for by him, we deem it just and appropriate to exercise our powers under Article 226 of the Constitution of India and mould the reliefs sought for by the petitioner by setting aside the said endorsement in order to do substantial justice to prevent multiplicity of proceedings by driving the petitioner to one more round of litigation.

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In the result, we proceed to pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The impugned order dated 13.01.2023 passed in Application No.11047/2021 on the file of the Karnataka State Administrative Tribunal is hereby modified and the application filed by the petitioner

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is fully allowed by granting him the reliefs sought for in the application.

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(iii) The endorsement dated 22.05.2023 issued by the respondents during the pendency of the present petition stands set aside.

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(iv) Respondents are directed to disburse all the amounts payable in favour of the petitioner bearing in mind the judgment of the Hon’ble Apex in Civil Appeal No.113/2019 dated 07.01.2019 as well as the observations made in the body of this order within a period of 2 months from the date of the receipt of the copy of this order.

Sd/JUDGE

Sd/JUDGE

LIST NO.: 1 SL NO.: 25

Mr. I K Manik S/O Khasimsaheb v. the Principal Secretary

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Mr. I K Manik S/O Khasimsaheb v. the Principal Secretary

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