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2006 DIGILAW 324 (KAR)

B. SRIKANTAIAH BASAVAIAH v. STATE OF KARNATAKA

2006-03-24

CYRIAC JOSEPH, V.G.SABHAHIT

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( 1 ) THIS writ petition is filed by the applicant in Application No. 1310/1998 being aggrieved by the order passed by the Karnataka Administrative Tribunal, Bangalore, dated 9. 12. 2004 in so far as the order denies entitlement to any monetary benefit including back wages for the period from 26. 3. 1996-the date of dismissal order to the date of superannuation. ( 2 ) THE petitioner was appointed as Second Division Assistant in the Department of Agriculture on 5. 8. 1963 and promoted as First Division Assistant in the year 1974 and promoted as superintendent in the year 1982. While he was working as Superintendent in the Office of the agricultural Officer (Soil Conservation), Nagamangala in the District of Mandya during the year 1983-84, 1984-85 and 1985-86 he was served with the charge memo alleging that while he was incharge of the cash section which included the duty of drawing and disbursing the salary to the employees for the period from October 1983 to May 1986 a sum of Rs. 94,050-55ps was drawn as Dearness Allowance and out of that, a sum of Rs. 82,840/- had to be invested in National savings Certificates, but the applicant invested only a sum of Rs. 30,790/- and the balance of Rs. 52,050/-was temporarily misappropriated and later invested in NSCs in the month of November 1986 and thus, temporarily misappropriated a sum of Rs. 52,050/ -. ( 3 ) BY Government order dated 13. 6. 1988 Government decided to proceed against the applicant and two other Agricultural Officers Sr. H. Venkatesha Murthy and Sr. Shivaram who are at relevant period working at Nagamangala. After due enquiry, the Disciplinary Authority passed order of dismissal on 26. 3. 1996 as per Annexure-A5 which was challenged in the appeal and the appellate Authority confirmed the order of dismissal as per Annexure-A6 dated 10. 7. 1997 and being aggrieved by the same, the petitioner approached the Karnataka Administrative Tribunal at bangalore in Application No. 1310/1998. ( 4 ) THE Karnataka Administrative Tribunal by order dated 9. 12. 2004 held that the enquiry had not been held in accordance with law and the same has prejudice the cause of the applicant and as such, the older of dismissal passed on the basis of the said enquiry is not sustainable in law. ( 4 ) THE Karnataka Administrative Tribunal by order dated 9. 12. 2004 held that the enquiry had not been held in accordance with law and the same has prejudice the cause of the applicant and as such, the older of dismissal passed on the basis of the said enquiry is not sustainable in law. However, the Administrative Tribunal felt that it was unnecessary to order fresh enquiry in the matter having regard to the fact that the incident is of the year 1996 and employee has already retired on attaining the age of superannuation and he has undergone agony and suffering during the period of 18 years and therefore it would not be just and appropriate to direct fresh enquiry in the matter and the Tribunal found that there is material to show that the amount deducted from the Dearness Allowance was not invested in the purchase of National Savings Certificates and there was temporary misappropriation of the amount and therefore, it is necessary to mould the relief claimed by the petitioner and held that order of dismissal cannot be maintained and there cannot be any direction for fresh enquiry and accordingly, set aside the order of dismissal dated 26. 3. 1996 passed as per Annexure-A5 and the order passed in Appeal vide Annexure-A6 dated 10. 7. 1997 and further held that the State shall work out the salary of the applicant drawn on the date of his superannuation as if he was continued in service and accordingly work out his pension in accordance with rules and pay him all pensionary benefits including gratuity etc. , within four months from the date of order and continue to pay him the pension and made it clear that applicant is not entitled to any other monetary benefits including back wages for the period from the date of impugned order 26. 3. 1996 and the date of superannuation and if the payment as directed is not paid within four months, the applicant would be entitled to interest at 12% p. a. on the amount that becomes due, Being aggrieved by the finding of the Tribunal in so for as it holds that the applicant is not entitled to any other monetary benefit including back wages for the period from the date of impugned order 26. 3. 3. 1996 to the date of superannuation, the applicant has preferred this writ petition and it is clear from the material on record that the pension of the petitioner has already been computed as per the direction of the Administrative Tribunal and pension amount is being paid as per the order. ( 5 ) WE have heard the learned Counsel appearing for the petitioner. ( 6 ) LEARNED Counsel for the petitioner submitted that the Tribunal haying held that the enquiry is held not in accordance with law and order of dismissal is liable to be set aside ought to have awarded back wages from the date of dismissal to the date of superannuation and was not justified in denying the claim of back wages for the period from the date of dismissal to the date of superannuation. The learned Counsel submitted that when the order of termination is set aside automatically the petitioner would be entitled to back wages and the reasons assigned by the administrative Tribunal for denying the benefit of back wages from the date of dismissal to the date of superannuation is illegal and arbitrary. The learned Counsel has relied upon the decision of the Hon'ble Supreme Court in Manorama Verma v. State of Bihar (1994) 28 Administrative tribunal Cases 709 wherein the Hon'ble Court has held that once termination is found to be illegal, consequential order of grant of back wages must follow unless there are reasons justifying a departure from normal order. He has also relied upon the decision of the Honble supreme Court in Ishwarbhai B. Vhandra v. Union of India 1994 IILLJ 878 wherein Hon'ble supreme Court has held that back wages cannot be denied without adducing any reasons, learned Counsel has also relied upon the decision of this Court in Syndicate Bank v. B. A. Bhat ILR1992 KAR 3107 , 1992 (3 ) Karlj537 , (1993 )I LLJ152 Kant wherein the Division Bench of this Court has held that payment of back wages depends upon the employee not being employed elsewhere during the period of his illegal dismissal. ( 7 ) WE have considered the contention of the learned Counsel appearing for the petitioner and scrutinised the material on record. ( 7 ) WE have considered the contention of the learned Counsel appearing for the petitioner and scrutinised the material on record. ( 8 ) IT is clear from the perusal of the order passed by the Karnataka Administrative Tribunal that the Tribunal has assigned reasons for denying back wages for the period from the date of impugned order 26. 3. 1996 till the date of superannuation in 1999 us. The Tribunal has held that having regard to the fact that the transaction is of the year 1996 and 18 years have elapsed it would not be just and appropriate to direct fresh enquiry in the matter and since there is material on record to show that the applicant has drown the amount from the Dearness Allowance and has not invested the same in the National Saving Certificates the interest of justice would be met by moulding the relief and has accordingly held that the petitioner shall be entitled to pension and respondent-State shall work out the pension by treating the petitioner to have continued in service and based on that settled pensionary benefits and pay him all benefits within four months from the date of order and it is not disputed that the said direction issued by the Administrative tribunal has already been complied with and pension of the petitioner has been fixed by treating that the petitioner has continued in service and on the basis of the last salary drawn on the date of superannuation. There is no merit in the contention of the learned Counsel appearing far the petitioner that once the order of termination is set aside, automatically the petitioner would be entitled to full back wages as the award of back wages is automatic by setting aside the order of dismissal. There is no merit in the contention of the learned Counsel appearing far the petitioner that once the order of termination is set aside, automatically the petitioner would be entitled to full back wages as the award of back wages is automatic by setting aside the order of dismissal. Hon'ble Supreme Court in U. P. State Brassware Corporation Ltd. v. Udai Narain pandey 2005 AIR SCW 6314 has held that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago and further held that the relief claimed by the employee can be moulded and award of back wages is not automatic and in view of this decision of the Hon'ble Supreme Court, the decisions relied upon by the learned Counsel for the petitioner is not helpful to him in the present case. Having regard to the fact that the Tribunal has assigned valid reasons for denial of back wages for the period from the date of dismissal 26. 3. 1996 till the date of superannuation in the year 1999 as the charges pertain to the year 1986, it was unnecessary to direct enquiry in the matter and having regard to the material on record, it was appropriate to mould the relief by awarding pensionary benefit as if he had continued in service and the Tribunal felt that denial of back wages for the period from the date of dismissal 26. 3. 1996 to the date of superannuation would meet the ends of justice and therefore the reason assigned by the. 3. 1996 to the date of superannuation would meet the ends of justice and therefore the reason assigned by the. Tribunal in denying back wages for the period from the date of impugned order to the date of superannuation is justified and the discretion exercised by the Tribunal in denying back wages from the date of dismissal to the date of superannuation cannot be said to be perverse or arbitrary and accordingly, we do not find any reason to interfere with the order passed by the Administrative tribunal so for as it is impugned in this writ petition. Accordingly, the writ petition is dismissed.