Partly allowed

The Virajpet Agricultural Produce Co-Operative Marketing Society Ltd., v. Smt. K.N. Parvathy

Karnataka HC12 Feb 2024WP/4495/2016

Case brief

AI extract

What is this about?

Petitioner Society challenged Appellate Tribunal's award of full back wages to reinstated employee. Court held 100% unjustified due to lack of unemployment claim and admitted misconduct. Awarded 50% back wages from dispute date to reinstatement end.

What did the court decide?

Respondent entitled to 50% back wages from 18.08.2006 to 30.07.2012 with consequential benefits including continuity of service.

The Virajpet Agricultural Produce Co-Operative… — Writ and Judicial Review | Karnataka HC (2024)

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1 - NC: 2024:KHC:5804 WP No. 4495 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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WRIT PETITION NO. 4495 OF 2016 (CS-RES)

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BETWEEN:

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THE VIRAJPET AGRICULTURAL PRODUCE CO-OPERATIVE MARKETING SOCIETY LTD., NO.281, VIRAJPET, KODAGU DISTRICT, REPTD., BY ITS SECRETARY/ CHIEF EXECUTIVE OFFICER.

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…PETITIONER

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(BY SRI K S BHEEMAIAH, ADVOCATE)

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AND:

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SMT K.N PARVATHY, AGED ABOUT 62 YEARS, W/O SRI K.N NEHRU,

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R/AT KOLATHODU, BYGODU VILLAGE, VIRAJPET TALUK, KODAGU DISTRICT-571 218.

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Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA

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THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MADIKERI SUB-DIVISION, MADIKERI.

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…RESPONDENTS (BY SMT MANJULA KULKARNI, ADVOCATE FOR SRI V S NAIK, ADVOCATE FOR C/R1 SRI M SREENIVAS KUMAR, HCGP FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED JUDGEMENT AND ORDER DTD 27.11.2015 PASSED BY THE APPELLATE TRIBUNAL AT BANGALORE IN APPEAL NO.486/2012(CS) AFTER CALLING FOR THE ENTIRE RECORDS OF THE LOWER COURTS.

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THIS PETITION COMING ON FOR REPORTING SETTLEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is a Co-operative Society. Respondent No.1 was an employee of the petitioner-Society. The petitioner-Society initiated disciplinary enquiry against respondent No.1 on the charges that respondent No.1 is not regularly attending the work and she has repeatedly sought leave on medical grounds. It is urged that the petitionerSociety insisted the respondent No.1-employee to undergo medical examination under District Surgeon in Udupi, and the employee did not respond to the call of the employer and thereafter respondent No.1-employee was terminated from service in the year 2003. Before terminating respondent No.1 from service, departmental enquiry was held.

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Respondent No.1/employee raised a dispute under Section 70 of the Karnataka Co-operative Societies Act, 1959 (for short hereinafter referred to as 'the Act of 1959'), in the year, 2006. The Assistant Registrar of Co-operative Societies acting under Section 70 of the Act of 1959, after trial, has concluded that the departmental enquiry conducted by the

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petitioner-Society was an exparte enquiry and has set aside the order of termination and ordered reinstatement. However, back wages were declined from 14.06.2003 i.e., from the date of order of termination, till the date of reinstatement.

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The aforementioned order passed by the Assistant Registrar of Co-operative Societies is accepted by the petitioner-Society. The employee/respondent No.1 filed an application before Karnataka Appellate Tribunal in Appeal No.486/2012 challenging the order refusing back wages.

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The Karnataka Appellate Tribunal vide order dated 27.11.2015 allowed the appeal and passed an order for payment of back wages from 14.06.2003 till the date of reinstatement pursuant to the award dated 18.06.2012.

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Aggrieved by the aforementioned order, the petitioner- Society is before this Court.

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Learned counsel for the petitioner-Society would urge that the Tribunal erred in passing an order for payment of back wages. It is his submission that the Tribunal has misinterpreted the circumstances prevailing in the case. He

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would further submit that the Tribunal has erroneously held that respondent No.1-employee was harassed by the petitioner-Society without there being any material to support her contention. He would also submit that respondent No.1employee has not made any claim before the Registrar of Co-operative Societies that she was not employed when the disciplinary enquiry and Section 70 proceeding were pending. Thus, he would urge that respondent No.1 is not entitled to any back wages as she has not worked with the petitioner - Society.

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It is also his submission that after the order of reinstatement passed by the Assistant Registrar of Co-operative Societies, the petitioner-Society reinstated respondent No.1 on 28.07.2012. He would further point out that after attending the office for two days, respondent No.1 tendered resignation on 30.07.2012 and she did not attend the petitioner-Society thereafter.

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Learned counsel appearing for respondent No.1 would submit that respondent No.1 was dismissed from service in the year 1986. The said order of dismissal was questioned by the respondent No.1. The Authority has set aside the order of

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dismissal and thereafter the petitioner-Society filed a Writ Petition before this Court and the said Writ Petition in W.P.No.15657/1997 was allowed in part and back wages were denied and the order of reinstatement is confirmed. Thereafter, again in the year 2003, respondent No.1 was wrongly removed from services without there being any valid reasons. It is the further contention of the learned counsel for respondent No.1 that respondent No.1, was not keeping in a good health and she has availed leave. Suspecting the health reasons assigned by respondent No.1 the petitioner-Society wanted the respondent No.1 to be examined by the District Surgeon in Udupi, though the District Surgeon was very much available in Madikeri, where the respondent No.1 was working. Thus, it is urged that the Tribunal is justified in passing the award for payment of full back wages as respondent No.1 was not allowed to work in the petitioner-Society from 2003 to 2012.

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It is her further submission that after reinstatement, she joined the service in the petitioner-Society and the atmosphere in the petitioner-Society was so hostile and respondent No.1 had to tender resignation after two days. Referring to all these circumstances, it is urged that the

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Tribunal is justified in passing the order for payment of full back wages.

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This Court has considered the contentions raised at the bar and also perused the records.

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From the records placed before this Court, it is very much apparent that respondent No.1 was once removed from the services in the year 1986. The said order of termination was set aside and there was an order for payment of full back wages. This Court in W.P.No.15657/1997 which was filed by the petitioner-Society confirmed the order of reinstatement, however denied the back wages. Thereafter, again the petitioner was removed from service in the year 2003. The order of termination is again set aside by respondent No.2 and back wages award is denied. This time, the petitioner filed an appeal before the Appellate Tribunal seeking full back wages and the same has been granted.

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It is also to be noticed from the impugned order of the Tribunal, that the Tribunal has referred to well recognized principles relating to the payment of back wages. It is forthcoming from the order of Tribunal that while passing the

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award for back wages, the Courts are required to consider whether the employee was employed elsewhere during the course of disciplinary enquiry or other proceedings, challenging the order of termination.

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The Tribunal has referred to various judgments of the Supreme Court and has concluded that the employee is entitled to full back wages.

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However, it is relevant to note that the Tribunal has not considered the fact whether the employee has made out a case for payment of back wages. As per the law laid down by the Apex Court, the principle of law relating to back wages is not automatic in all cases of reinstatement. The question depends on various factors. One of the factors is whether the misconduct is proved or not? and another relevant factor that requires consideration is whether the employee was working elsewhere during the departmental enquiry or proceeding challenging the departmental enquiry. It is relevant to note the Tribunal has also culled out a paragraph of a judgment in page No.14 of the impugned order. The very same paragraph which has been extracted, it is held that the employee has to assert

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that he remained unemployed after his termination. If such assertion is made then the burden is on the employer to establish that the employee remained unemployed after termination. This Court has posed a question to the learned counsel for respondent No.1 whether respondent No.1employee has made any claim that she was not gainfully employed during the course of departmental enquiry and proceedings before respondent No.1, the learned counsel appearing for respondent No.1 has made a statement that no such claim is made in the petition under Section 70 of the Act of 1959. This being the position, this Court is of the view that the petitioner-Society was under no obligation to establish that respondent No.1 was employed elsewhere.

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Admittedly, respondent No.1 did not work in the petitioner- Society from 2003 to 2012. Thereafter, she joined the services for two days pursuant to the order of reinstatement and later tendered her resignation. It is also submitted that after tendering resignation in the year 2012, respondent No.1 did not join the service. Since respondent No.1 did not continue her service with effect from 30.07.2012,

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she is not entitled to any wages from that date till her age of superannuation i.e., 25.01.2014.

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Now the question is whether the respondent No.1 should be given full back wages from 2003 to 2012. It is evident that she has not worked from 2003 to 2012 and as already noticed she did not make a claim that she was not employed elsewhere. It is also relevant to note that the Authority under Section 70 of the Act of 1959 has recorded a finding that respondent No.1 has repeatedly gone on leave and thereby caused inconvenience in the functioning of the Society and has also recorded a finding that respondent No.1-employee has been rude and has not followed the orders issued by the Management. It is also noticed by the Authority under Section 70 of the Act of 1959 that the employee has refused to undergo medical test as ordered. These findings are not challenged. However, only the order denying back wages is challenged. As already noticed, the respondent No.1 employee did not make a claim that she was not working elsewhere during the course of enquiry and proceeding before the Assistant Registrar of Co-operative Societies. When the Authority under Section 70 of the Act of 1959 has found that

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the employee is guilty of certain misconducts alleged and challenge before the Appellate Tribunal is relating to denial of back wages, this Court is of the view that award of 100% back wages to the employee is not justified particularly in a situation where the employee did not raise the contention that employee was not working elsewhere when the enquiry was under progress or when the challenge to the dismissal order was pending before the Authority. Under these circumstances, this Court is of the view that the order granting 100% back wages is to be interfered with.

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It is also relevant to note that respondent No.1 was dismissed on 14.06.2003 and raised a dispute only in the year 2006. No explanation is forthcoming why the dispute is not raised at the earliest possible opportunity. Though, the period of limitation prescribed to raise a dispute is six years when the Court is deciding the claim for back wages, the time spent within the prescribed period to launch the prosecution should also be taken into consideration. Since no explanation is provided as to why there was a delay of two years and four months in raising a dispute, this Court is of the view that the

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back wages is to be awarded from the date of petition under Section 70 of the Act of 1959.

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As already noticed, the Authority though has held that the enquiry is vitiated has concluded that there was a misconduct on the part of the employee. However, the order of dismissal is set aside on the premise that punishment imposed is disproportionate. The Authority declined back wages and the order declining back wages is set aside by the Tribunal. The Tribunal ordered full back wages without there being any plea by the employee that she was not working elsewhere when the enquiry was held and when the dispute was pending. Since there is a finding relating to misconduct of the employee, in the peculiar facts of this case, this Court is of the view that 50% back wages from the date of petition under Section 70 of the Act of 1959 till 30.07.2012, the date on which the employee resigned after reinstatement would be appropriate.

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Hence, the following:

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ORDER

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(i) The Writ Petition is allowed in-part .

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(ii) The impugned order dated 27.11.2015 marked at Annexure-B is partly set aside. Respondent No.1 is entitled to 50% back wages from 18.08.2006 till 30.07.2012 with all other consequential benefits including continuity of service.

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(iii) The petitioner-Society shall pay the said amount within two months from the date of receipt of certified copy of this Order, failing which the petitioner-Society is liable to pay interest @ 6% per annum on the amount due from 18.08.2006 till the date of payment.

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Sd/JUDGE

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GVP

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List No.: 1 Sl No.: 21

The Virajpet Agricultural Produce Co-Operative Marketing Society Ltd., v. Smt. K.N. Parvathy

Case brief

What is this about?

What did the court decide?

The Virajpet Agricultural Produce Co-Operative Marketing Society Ltd., v. Smt. K.N. Parvathy

Case brief

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What did the court decide?

What the court decided

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