Karnataka High Court
Smt Kamalaxi W/O Veerupaxgouda ... vs The State Of Karnataka on 25 July, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2024:KHC-D:10499-DB
WA No.100113 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT APPEAL NO.100113 OF 2024 (S-RES)
BETWEEN:
SMT. KAMALAXI W/O VEERUPAXGOUDA NAIKPATIL
AGE. 49 YEARS, OCC. MULTI TASKING OFFICIA,
I DISTRICT SKILL DEVELOPMENT OFFICE,
RAYAPUR DHARWAD-580009, DIST. DHARWAD.
...APPELLANT
(BY SRI. M.S. HARAVI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT SKILL DEVELOPMENT,
ENTREPRENEURSHIP AND LIVELIHOOD
DEPARTMENT, M.S. BUILDING, BENGALURU-560001.
2. THE MISSION DIRECTOR (DAY-NULM)
NATIONAL LIVELIHOOD MISSION,
GOVERNMENT OF KARNATAKA, NO.4,
JAGADISH
TR
3RD FLOOR, MYSUGAR BUILDING,
Digitally signed by
JAGADISH T R
OPP. TOWN HALL, J .C ROAD, BENGALURU-560002.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
3. THE DEPUTY COMMISSIONER
(DISTRICT URBAN DEVELOPMENT CELL)
DHARWAD DIST, DHARWAD-580001.
4. THE DISTRICT SKILL DEVELOPMENT OFFICER
DISTRICT SKILL DEVELOPMENT OFFICE,
RAYAPUR, DHARWAD-580009,
DIST. DHARWAD.
...RESPONDENTS
(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO MODIFY ORDER PASSED BY
LEARNED SINGLE JUDGE IN WP NO.117366/2019 DATED
-2-
NC: 2024:KHC-D:10499-DB
WA No.100113 of 2024
10-07-2023 AND ALLOW WRIT PETITION AS PRAYED FOR FULLY BY
GRANTING BACK WAGES AND CONTINUITY OF SERVICE TO THE
APPELLANT.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S G PANDIT J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE G. BASAVARAJA
ORAL JUDGMENT
(PER: HON'BLE S.G.PANDIT) The petitioner in this intra-Court appeal filed under Section 4 of the Karnataka High Court Act, 1961, challenges the portion of learned Single Judge's order dated 10.07.2023 passed in WP No.117366/2019, whereby consequential benefits and backwages are denied to the petitioner.
2. Heard learned counsel Sri. M.S. Haravi for appellant as well as learned Government Advocate Sri. G.K. Hiregoudar for respondents/State and perused writ appeal papers.
3. The petitioner claims that she was appointed as Office Assistant in 3rd respondent's office under order dated 15.10.2013. Apparently, her appointment was on contract basis. Thereafter, under order dated 5.7.2017, services of the petitioner were terminated on the ground that her work and -3- NC: 2024:KHC-D:10499-DB WA No.100113 of 2024 performance was unsatisfactory, besides she remained unauthorizedly absent without prior sanction of leave. Challenging the said order of termination, the petitioner was before this Court in WP No.111561/2017 and this Court by order dated 9.1.2018 set-aside the order of termination and reserved liberty to the respondent No.3 to proceed against the petitioner in the light of observation made in the order. Subsequently, on 1.2.2018, the petitioner was reinstated into service as Office Assistant. Under Annexure-G, Office Memorandum dated 28.02.2019, the petitioner was relieved of her duty. Challenging the said relieving order, the petitioner was before this Court in WP No.117366/2019. This Court by order dated 10.07.2023 set-aside the said relieving order with liberty to the respondents to proceed against the petitioner as observed earlier in WP No.111561/2017.
4. It is the grievance of the petitioner that while setting aside the relieving order, learned Single Judge has not granted backwages and consequential benefits. Learned counsel Sri. M.S. Haravi for the petitioner submits that when the order of termination is set-aside, employee/workman would be entitled for all consequential benefits and backwages. To -4- NC: 2024:KHC-D:10499-DB WA No.100113 of 2024 buttress the said contention, learned counsel places reliance on decision of Hon'ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others1.
5. On the other hand, learned Government Advocate for the respondents/State would submit that when termination order is set-aside with liberty to proceed against the petitioner, consequential benefits and backwages would depend upon the outcome of proceedings to be instituted against the petitioner or action to be taken against the petitioner. Further, learned Government Advocate would submit that the petitioner would be entitled to backwages, if she establishes that she was not gainfully employed when she was out of employment. He further submits that in the entire writ appeal, there is no averment with regard to petitioner not gainfully employed. Thus, learned Government Advocate prays for dismissal of writ appeal.
6. Having heard the learned counsel for the parties and on perusal of writ appeal papers, the only point that would 1 (2013) 10 SCC 324 -5- NC: 2024:KHC-D:10499-DB WA No.100113 of 2024 arise for consideration in this appeal is as to, whether the petitioner/appellant has made out a case for interference with impugned order of learned Single Judge?
Answer to the above point would be in the "negative" for the following reasons:
7. The petitioner was relieved of her duty under Annexure-G, Office Memorandum dated 28.02.2019, since scheme under which the petitioner was working was closed. This Court set-aside the said relieving order and operative portion of the order in WP No.117366/2019 reads as under:
"The writ petition is allowed. Impugned order/official reminder dated 28.2.2019, vide Annexure-G issued by 3rd respondent and communication at Annexure-K, dated 10.05.2019 issued by 2nd respondent are quashed and consequently petitioner shall be reinstated. It is for the 3rd respondent to proceed against the petitioner in the light of liberty reserved by this Court, while disposing off WP No.111561/2017 strictly after complying with the observations made by this Court, while disposing of the said writ petition."
8. A reading of the above would make it clear that this Court while setting aside the relieving order, reserved liberty to the respondent No.3 to proceed against the petitioner in the light of liberty reserved in WP No.111561/2017. In WP No.111561/2017, this Court by order dated 9.1.2018, quashed -6- NC: 2024:KHC-D:10499-DB WA No.100113 of 2024 the termination order dated 5.7.2017 terminating the petitioner from service with liberty to the respondent No.3 to proceed in the light of observation made in the said order. There is categorical finding in the said writ petition i.e., WP No.111561/2017 that the employment of the petitioner is nothing but the contract. Further it observed that the respondents are at liberty to proceed against the petitioner in accordance with norms laid down by the 2nd respondent, Director of Municipal Administration, with regard to petitioner's conduct or work performance. Therefore, when termination is set-aside with liberty to proceed against the petitioner, consequential benefits and backwages would depend upon the outcome of proceedings that would be instituted.
9. Learned counsel for the petitioner has placed reliance on decision of the Hon'ble Apex Court in the case of Deepali Gundu Surwase (supra) to buttress his argument with regard to backwages. It is true that when the order of termination of service is set-aside with a direction for reinstatement, normally, employee/workman would be entitled for backwages, but when liberty is granted to proceed against such employee/workman, backwages and other consequential -7- NC: 2024:KHC-D:10499-DB WA No.100113 of 2024 benefits would depend upon outcome of proceedings to be instituted against such employee/workman. Moreover, as submitted by the learned Government Advocate, to get backwages and other consequential benefits, one has to prove that he/she was not gainfully employed when he/she was out of employment. Backwages would also depend on consideration of length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. There is no merit in any of the contentions of the learned counsel for the appellant. Accordingly, writ appeal stands rejected.
Pending applications, if any, are disposed off as not surviving for consideration.
Sd/-
JUDGE Sd/-
JUDGE JTR CT:VP LIST NO.: 1 SL NO.: 2