Karnataka High Court

The Virajpet Agricultural Produce ... vs Smt. K.N. Parvathy on 12 February, 2024

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




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 12TH DAY OF FEBRUARY, 2024

                                       BEFORE
                   THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                      WRIT PETITION NO. 4495 OF 2016 (CS-RES)
              BETWEEN:

              THE VIRAJPET AGRICULTURAL PRODUCE
              CO-OPERATIVE MARKETING SOCIETY LTD.,
              NO.281, VIRAJPET, KODAGU DISTRICT,
              REPTD., BY ITS SECRETARY/
              CHIEF EXECUTIVE OFFICER.
                                                            ...PETITIONER
              (BY SRI K S BHEEMAIAH, ADVOCATE)
              AND:

              1.    SMT K.N PARVATHY,
                    AGED ABOUT 62 YEARS,
                    W/O SRI K.N NEHRU,
                    R/AT KOLATHODU, BYGODU VILLAGE,
                    VIRAJPET TALUK, KODAGU DISTRICT-571 218.
              2.    THE JOINT REGISTRAR OF CO-OPERATIVE
Digitally
signed by C         SOCIETIES, MADIKERI SUB-DIVISION,
HONNUR SAB          MADIKERI.
Location:                                                 ...RESPONDENTS
HIGH COURT
OF            (BY SMT MANJULA KULKARNI, ADVOCATE FOR
KARNATAKA      SRI V S NAIK, ADVOCATE FOR C/R1
               SRI M SREENIVAS KUMAR, HCGP FOR R2)

                   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.
                                 -2-
                                              NC: 2024:KHC:5804
                                           WP No. 4495 of 2016




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

1. 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 petitioner-

Society 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.

2. 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

NC: 2024:KHC:5804

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.

3. 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.

4. 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.

5. Aggrieved by the aforementioned order, the

petitioner- Society is before this Court.

6. 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

NC: 2024:KHC:5804

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.1-

employee 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.

7. 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.

8. 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

NC: 2024:KHC:5804

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.

9. 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

NC: 2024:KHC:5804

Tribunal is justified in passing the order for payment of full

back wages.

10. This Court has considered the contentions raised at

the bar and also perused the records.

11. 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.

12. 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

NC: 2024:KHC:5804

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.

13. The Tribunal has referred to various judgments of

the Supreme Court and has concluded that the employee is

entitled to full back wages.

14. 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

NC: 2024:KHC:5804

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.1-

employee 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.

15. 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,

NC: 2024:KHC:5804

she is not entitled to any wages from that date till her age of

superannuation i.e., 25.01.2014.

16. 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

- 10 -

NC: 2024:KHC:5804

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.

17. 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