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
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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
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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
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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
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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
(2013) 10 SCC 324
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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
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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
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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
