Partly allowed

Kumari G Jaganmatha Devi v. Registrar of Co. Operative Societies

Karnataka HC23 Apr 2024WP/8736/2020

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash an order dismissing an execution petition for a cooperative society award. The Court held that while reinstatement was moot due to death, the award for service benefits was executable under Section 101. The disciplinary enquiry was found vitiated due to non-compliance of mandatory procedures. The society was directed to pay admitted arrears.

What did the court decide?

Writ Petition allowed; impugned execution dismissal quashed; Society directed to pay Rs. 72,996/- within 60 days with interest; second Writ Petition dismissed.

Kumari G Jaganmatha Devi Vs Registrar of Co. Operative… — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:16101 WP No. 8736 of 2020 C/W WP No. 52946 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF APRIL, 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. 8736 OF 2020 (CS-RES)

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C/W

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WRIT PETITION NO. 52946 OF 2017 (CS-RES)

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IN WP NO.8736/2020:

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BETWEEN:

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KUMARI G JAGANMATHA DEVI, D/O LATE GUBBAIAH, SINCE DEAD BY L.RS

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G.N.B. ARADHYA, S/O LATE GUBBAIAH, AGED ABOUT 64 YEARS,

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

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SMT BRAMARAMBHA, D/O LATE GUBBAIAH, AGED ABOUT 62 YEARS, BOTH ARE RESIDENTS OF 'SHANTHI NIVASA', MADHUGIRI ROAD, KOTE, SIRA TOWN, TUMKUR DISTRICT - 572137.

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SMT CHANDRAMMA, D/O LATE GUBBAIAH, W/O LATE SHIVANNA, AGED ABOUT 66 YEARS

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SMT SUMANGALAMMA, D/O LATE GUBBAIAH AGED ABOUT 62 YEARS, PETITIONERS NO.3 AND 4 RESIDING AT YALIYUR VILLAGE, KASABA HOBLI, SIRA TOWN, TUMKUR DISTRICT - 572137.

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…PETITIONERS

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(BY SRI GANGADHARAPPA A V, ADVOCATE)

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AND:

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REGISTRAR OF CO-OPERATIVE SOCIETIES, NO.1, ALI ASKAR ROAD, BENGALURU - 560052.

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ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,MADHUGIRI SUB DIVISION, MADHUGIRI, TUMKUR DISTRICT - 572132.

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TOWN VIVIDODDESHA SAHAKARI BHANDARA NIYAMITHA, REPRESENTED BY ITS PRESIDENT SIRA TOWN, TUMKUR DISTRICT - 572137.

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TOWN VIVIDODDESHA SAHAKARI BHANDARA NIYAMITHA, REPRESENTED BY ITS SECRETARY SIRA TOWN, TUMKUR DISTRICT - 572137.

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…RESPONDENTS (BY SRI B J ESWARAPPA, AGA FOR R1 AND R2, SMT SANGEETHA A, ADVOCATE FOR R3 AND R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS AND PROCEEDINGS OF THE CASE QUASH THE IMPUGNED LETTER DTD.9.3.2020 ISSUED BY THE R-2 PRODUCED AS ANNEXURE-H. DIRECT THE R-2 TO PROCEED WITH THE EXECUTION IN C.E.P. NO.3/2017-18 PENDING BEFORE IT TRUE COPY OF WHICH IS PRODUCED AS ANNEXURE-C AND TO EXECUTE THE AWARD DTD.9.2.2007 PASSED BY THE R-2 IN DISPUTE NO.2/2000-2001 TRUE COPY OF WHICH IS PRODUCED AS ANNEXURE-A.

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IN WP NO.52946/2017:

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BETWEEN:

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TOWN VIVIDODDESHA SAHKARI BHANDARA NIYAMITHA, SIRA MAIN ROAD, TUMKUR DISTRICT-572137, (RESPONDENT NO.1 BEFORE ASSISTANT REGISTRAR AND APPELLANT BEFORE THE TRIBUNAL) REP BY ITS SECRETARY (G.KENCHAPPA) 63 YEARS.

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…PETITIONER

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(BY SMT SANGEETHA A D, ADVOCATE)

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AND:

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MR. G N B ARADHYA, S/O LATE K GUBBAIAH, AGED ABOUT 75 YEARS, R/AT SHANTHI NIVAS, KOTE, SIRA TOWN, TUMKUR-572137, (NOT PARTY BEFORE ASSISTANT REGISTRAR AND LEGAL HEIR OF RESPONDENT NO.1 IN TRIBUNAL).

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MRS.CHANDRAMMA, D/O LATE K GUBBAIAH, AGED ABOUT 74 YEARS, (NOT PARTY BEFORE ASSISTANT REGISTRAR AND LEGAL HEIR OF RESPONDENT NO.1 IN TRIBUNAL)

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MRS. SUMANGALAMMA, D/O LATE K GUBBAIAH, AGED ABOUT 67 YEARS, (NOT PARTY BEFORE ASSISTANT REGISTRAR AND LEGAL HEIR OF RESPONDENT NO.1 IN TRIBUNAL)

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MRS. BRAMARAMBA, D/O LATE K GUBBAIAH, AGED ABOUT 60 YEARS, (NOT PARTY BEFORE ASSISTANT REGISTRAR AND LEGAL HEIR OF RESPONDENT NO.1 IN TRIBUNAL)

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RESPONDENT NO.2 TO 4 ARE R/AT SHANTHI NIVAS, MARAMMA TEMPLE ROAD, KOTE, SIRA TOWN, TUMKUR-572137.

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THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MADHUGIRI SUB-DIVISION, MADHUGIRI, TUMKUR DISTRICT - 572139. (THE ADJUDICATING AUTHORITY AND RESPONDENT NO.2 IN TRIBUNAL).

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…RESPONDENTS (BY SRI A V GANGADHARAPPA, ADV.FOR C/R1 & R2 TO R4, MR B J ESWARAPPA, AGA FOR R5 )

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4 - NC: 2024:KHC:16101 WP No. 8736 of 2020 C/W WP No. 52946 of 2017

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DATED 09.02.2007 PASSED IN PROCEEDINGS NO.2/2000-01 BY THE RESPONDENT NO.5 VIDE ANNEXURE-G AND ETC.,

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THESE PETITIONS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Writ petition No.8736/2020 is filed by the legal

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representatives of deceased late Kumari G. Jaganmatha Devi. The petition is filed challenging the order marked at Annexure-H, passed by the respondent No.2.

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In terms of impugned order at Annexure-H, the Recovery Officer attached to the co-operative societies division Madhugiri has disposed of the Execution Petition filed by the petitioners holding that the Assistant Registrar has no jurisdiction to execute the order passed in dispute No.2/2000-01 on the file of Assistant Registrar of Cooperative Societies, Madhugiri.

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The petitioners have also sought a writ of certiorari to quash Annexure-J dated 03.08.2020 issued by

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the 2^nd respondent. The further relief is sought to issue a writ of mandamus to 2^nd respondent to proceed with execution in C.E.P. No.3/2017-18 to execute the award dated 09.02.2007 passed by 2^nd respondent in dispute No.2/2000-01.

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The dispute No.2/2000-01 was raised by Kumari G. Jaganmatha Devi against the 4^th respondentCo-operative Society invoking Section 70 of the Karnataka

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Co-operative Societies Act, 1959 (for short 'the Act of 1959'). Kumari G. Jaganmatha Devi assailed the order of termination passed by 4^th respondent-Co-operative Society and prayed for reinstatement with all consequential benefits. The 2^nd respondent-Assistant Registrar of Cooperative Societies allowed the petition and set-aside the order of termination dated 21.10.1999 and directed the 4^th respondent to reinstate Kumari G.Jaganmatha Devi with all consequential benefits from the date of suspension.

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The said order passed under Section 70 of the

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Act of 1959 was questioned by 4^th respondent in appeal

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No.328/2007 before the Karnataka Appellate Tribunal,

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Bengaluru. In terms of the order dated 28.01.2017, the appeal filed by the 4^th respondent -Society is dismissed and order passed by the 2^nd respondent-Assistant Registrar of Co-operative Societies in dispute No.2/200001 is confirmed.

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The delinquent employee died during the pendency of appeal before the Karnataka Appellate Tribunal. The legal representatives filed an application to recover the service benefits payable to late Kumari G. Jaganmatha Devi. The Assistant Registrar of Co-operative Societies refused to proceed with the execution proceeding

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on the premise that the execution petition is not maintainable.

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Learned counsel for the petitioners would contend that the award passed under Section 70 of the Act of 1959 can be executed before the Registrar of Cooperative Societies as if it is a decree of the Civil Court. He would submit that the decree holder has an option to file

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execution petition either before the Registrar of Cooperative Societies or before the Civil Court. Thus, he would contend that the order dismissing the execution petition for want of jurisdiction is not tenable and liable to be set-aside.

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The learned counsel for respondent No.4 would contend that the award passed by the Assistant Registrar of Co-operative Societies is one for reinstatement and payment of consequential service benefits. Since the award holder died, there is no question of reinstatement and there is no question of paying the consequential service benefits. Thus, it is urged that the 2^nd respondentAssistant Registrar of Co-operative Societies is justified in dismissing the petition.

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The 4^th respondent in W.P. No.8736/2020 has also filed a Writ Petition No.52946/2017 challenging the award passed by the Assistant Registrar of Co-operative Societies and the order passed by the Tribunal. The counsel for the Co-operative Society urged that both the

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8 - NC: 2024:KHC:16101 WP No. 8736 of 2020 C/W WP No. 52946 of 2017

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Assistant Registrar of Co-operative Societies and the Appellate Tribunal failed to take into consideration the misconduct of late employee G. Jaganmatha Devi and despite sufficient evidence being placed, erroneously passed orders setting aside the order of termination imposed by the 4^th respondent-Society. It is the further submission that the misconduct of late G. Jaganmatha Devi being established, there was no scope for the Additional Registrar of Co-operative Societies as well as the Appellate Tribunal to hold that the allegations of misconduct are not proved.

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Justifying the award passed by the Assistant Registrar of Co-operative Societies as well as the order passed by the Karnataka Appellate Tribunal, the learned counsel appearing for the legal representatives of late G. Jaganmatha Devi would urge that the mandatory procedure required to be followed while conducting disciplinary enquiry and imposing a penalty of termination are not followed by 4^th respondent- Society and the

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disciplinary enquiry is vitiated on account of noncompliance of mandatory procedures. It is further submitted that the enquiry report is not furnished to the delinquent employee and opportunity was not given to the delinquent employee to give her say on the punishment imposed before imposing the punishment. Thus, it is urged that the order of termination is totally contrary to the well established principles governing disciplinary enquiry and prayed for dismissal of the Writ Petition.

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

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Though it is contended by the learned counsel for the legal representatives of late G. Jaganmatha Devi that notice was not served on the delinquent employee before initiating disciplinary enquiry, this Court is unable to accept the said contention as it is apparent from the records that the employee has refused to receive the notice sent by 4^th respondent Society. However, what is forthcoming is post enquiry, the enquiry report is not

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furnished to the delinquent employee and no notice is issued proposing penalty of termination. It is established principle of law that before imposing penalty of termination from service, the decision of the disciplinary authority, to impose the penalty, is to be communicated to the delinquent employee and the delinquent employee is to be heard before imposing penalty. This procedure is mandatory and same is not complied. This being the position, the disciplinary proceeding gets vitiated and the penalty imposed terminating the service of late delinquent employee is unsustainable. The Assistant Registrar of Cooperative Societies as well as the Karnataka Appellate Tribunal have taken note of this aspect of the matter and rightly set-aside the order of termination from service. This Court does not find any reason to interfere with the said concurrent finding in a writ petition under Article 227 of Constitution of India.

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As far as the petition filed by the legal representatives of deceased employee challenging the

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order on dismissal of execution petition is concerned, the impugned order has to be set-aside as the award passed in Dispute No.2/2000-01 is an executable award under Section 101 of the Act of 1959. The Registrar of Cooperative Societies is competent to execute the award. The observation of Additional Registrar of Co-operative Societies that award is in-executable is without any basis. However, it is to be noticed that the delinquent employee is no more and there is no question of reinstatement of delinquent employee. Thus, what remains to be executed is the award for payment of service benefits in terms of the award.

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During the course of hearing, the parties were directed to explore the possibility of settlement. However, the dispute is not resolved on the quantum of service benefit payable. The petitioners claimed more than Rs.5,37,874/- whereas, the respondent Co-operative Society made a statement that the petitioners are entitled to Rs1,30,777/-, which according to the respondent

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Society includes Rs.86,616/towards principal and Rs.44,161/- towards interest at the rate of 10% per annum. It is further claimed by the respondent Society that Rs.57,781/- is already paid towards subsistence allowance and deducting the said sum, Rs.72,996/- is the amount due to the petitioners.

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It is also relevant to note that during the course of hearing, a fresh contention is raised relating to the date of birth and retirement of late Jaganmatha Devi. The petitioners claim that late G. Jaganmatha Devi was born in 1949 whereas, the respondent Society by producing a copy of the extract of the School Register issued by the Government School is contending that late G. Jaganmatha Devi was born on 08.09.1941. Thus, the respondent Society has taken year of superannuation as 1999. Whereas, the petitioners claim that late G. Jaganmatha Devi would have attained superannuation in 2008. This Court is not going to decide this new controversy raised for the first time before this Court. However, the age

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difference being substantial, this Court directs the Authority executing the award shall also adjudicate the controversy relating to the date of birth.

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Since, Rs.72,996/is admitted by the respondent-Society as the amount due, this Court is of the view that the respondent Society shall pay the admitted amount to the petitioners within 60 days from the date of this order. If the amount of Rs.72,996/- is not paid within

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60 days from today, the said amount admitted by the respondent Society shall carry interest at the rate of 8% per annum from 09.02.2007 the date of the award till the payment of the amount.

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If the petitioners intend to execute the award passed by the 2^nd respondent Assistant Registrar of Co-operative Societies for recovery of service benefits, in excess of the amount admitted by the respondent Society, same has to be adjudicated in execution proceeding already initiated. In the said proceeding, the executing Court shall also decide on the disputed date of birth of late

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G. Jaganmatha Devi if the petitioners press their claim relating to date of birth recorded in the service register. It

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is made clear that this Court has not expressed any opinion on the date of birth or date of superannuation of late Jaganmatha Devi.

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Hence, the following:-

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ORDER

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(i) The Writ Petition No.8736/2020 is allowed .

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(ii) Impugned Annexure-H dated 09.03.2020, and the letter dated 03.08.2020 issued by the 2^nd respondent marked at Annexure-J are quashed.

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(iii) The 2^nd respondent Additional Registrar of Cooperative Societies is directed to proceed with the execution proceeding in case the petitioners in W.P. No.8736/2020 seek to recover the alleged difference of service benefits.

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(iv) In case, the execution proceeding is prosecuted by the petitioners, the 2^nd respondent Assistant Registrar shall decide the questions relating to alleged arrears including the date of

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birth/superannuation of late G. Jaganmatha Devi on its own merits as this Court has not adjudicated on the alleged arrears of service benefits payable.

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(v) The respondent-Society shall pay Rs.72,996/the admitted amount due to the petitioners within 60 days from the date of this order. If the amount of Rs.72,996/- is not paid within 60 days from today, the said amount shall carry interest at the rate of 8% per annum from

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09.02.2007 the date of the award till the payment of the amount.

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(vi) The Writ Petition No.52946/2017 is dismissed .

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CHS

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Sd/JUDGE

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List No.: 1 Sl No.: 2

Kumari G Jaganmatha Devi v. Registrar of Co. Operative Societies

Case brief

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Kumari G Jaganmatha Devi v. Registrar of Co. Operative Societies

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