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2014 DIGILAW 51 (KAR)

H. Venkataramana v. State Of Karnataka

2014-01-17

H.S.KEMPANNA, S.ABDUL NAZEER

body2014
JUDGMENT 1. This writ petition is directed against the order in Application No.7238/2011 dated 12.9.2013, whereby the Karnataka Administrative Tribunal, Bangalore, has rejected the application of the petitioner consequential benefits like arrears of salary, increments, seniority and other benefits. 2. The petitioner was appointed as a Cook m the Community Health Centre at Sullia by an order dated 19.3.1988. He had reported for duty w.e.f. 21.3.1988. The Medical Officer terminated his services as per the order dated 18.7.1996. The petitioner challenged the said order by filing an application LCM No.27/1996 under Section 10(4-A) of the Industrial Dispute Act, 1947, before the Labour Court, Mangalore. The Labour Court by its order at Annexure-A.2 dated 31.3.1998, set aside the order of termination dated 18.7.1996 with a further direction to the respondents to reinstate the petitioner in his original post or the post equivalent to it with full backwages, with continuity of service and all other consequential benefits. Since the respondents did not comply with the award, he filed a writ petition in W.P.No. 18127/1999 seeking implementation of the award. This Court passed an order dated 13.7.1999 directing reinstatement of the petitioner within two months from the date of the order on current wages. In obedience of the said order, the respondents reinstated the petitioner to his original post. 3. The petitioner made an application seeking regularization of his services. Since the said application was not considered, he filed Application No.8501/2001 before the Karnataka Administrative Tribunal, Bangalore, seeking regularization of his services from the date on which he was initially appointed and for grant of all the consequential benefits. The Tribunal by its order dated 27.11.2006 rejected the said application. He challenged the said order by filing W.P.No.5826/2008. A Division Bench of this Court allowed the writ petition on 28.01.2011, set aside the order of the Tribunal referred to above and directed the respondents/authorities to consider the application of the petitioner for regularization in accordance with the decision of the Apex Court in State of Karnataka and Ors., Vs. M.L. Kesari & Ors., - (2004) 9 SCC 247. The second respondent has once again rejected the application as per Annexure-A.9 dated 24.08.2011. The petitioner challenged the said order before the Tribunal in Application No.7238/2011. The Tribunal has rejected the said application by its order at Annexure-C dated 12.9.2013. M.L. Kesari & Ors., - (2004) 9 SCC 247. The second respondent has once again rejected the application as per Annexure-A.9 dated 24.08.2011. The petitioner challenged the said order before the Tribunal in Application No.7238/2011. The Tribunal has rejected the said application by its order at Annexure-C dated 12.9.2013. As stated above, the petitioner has called in question the validity of the said order in this writ petition. 4. We have heard the learned counsel for the parties. 5. Learned counsel for the petitioner would contend that the petitioner was appointed as a Cook in Community Health Centre at Sullia by order dated 19.3.1988 against the sanctioned post. He was illegally terminated by the Medical Officer with effect from 18.7.1996. The petitioner has challenged the said order by raising a dispute under Section 10 (4-A) of Act, before the Labour Court. The Labour Court has set aside the order of termination and further directed the respondents to reinstate the petitioner to his original post with full backwages, with continuity of service and all other consequential benefits. This order has been implemented by the authorities having regard to the order passed by this Court in W.P.No. 18127/ 1999. The order of the Labour Court has attained finality. Relying on the decision of the Apex Court in M.L. Kesari's case (supra) it is argued that petitioner was not working pursuant to any interim order passed by a Court or authority. The order of the Labour Court is binding on the parties. In this connection, he has drawn our attention to the decision of the Division Bench of this Court in Stats of Karnataka, represented by its Secretary to Social Welfare Department Vs. Ayyanna - ILR 2007 KAR 3932. Once the order of termination has been set aside and he has been reinstated into service and was given backwages with continuity of service, the petitioner is deemed to have been in service from the date of his termination, namely, from 18.7.1996. He has continued in service as a daily wage employee for more than ten years. His appointment was against the sanctioned post. Thus, he has satisfied the requirements contained in paragraph 53 of the decision of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi (3) & others - (2005) 4 SCC 1 and the decision in M.L. Kesari's case (supra). His appointment was against the sanctioned post. Thus, he has satisfied the requirements contained in paragraph 53 of the decision of the Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi (3) & others - (2005) 4 SCC 1 and the decision in M.L. Kesari's case (supra). Therefore, the authorities are not justified in holding that he cannot be regularized as he has continued in service pursuant to an interim order of the Court. The Tribunal without taking note of these aspects has erroneously rejected the application. 6 On the other hand, learned AGA has sought to justify the impugned order. It is her submission that continuation of service of the petitioner from the date of termination on 18.7.1996 was on account of the order of the Labour Court. She has drawn our attention to paragraphs 53 and 54 of Umadevi's case (supra). Since the petitioner has continued in service pursuant to the order of the Labour Court, the services rendered by him from 18.7.1996 cannot be taken into consideration. 7. We have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record. 8. It is clear from the materials on record that petitioner was appointed as a Cook in the Community Health Centre at Sullia as against the sanctioned post. He was terminated from service. Therefore, he raised a dispute before the Labour Court under Section 10(4A) of I.D. Act. The Labour Court by its order dated 31.3.1998 set aside the order of termination and directed the respondents to reinstate the petitioner with continuity of service, with full backwages and other consequential benefits The operative portion of the order is as under: " AWARD The application is allowed. The termination order dated 18.7.96 passed by respondent No.1 terminating the services of Applicant w.e.f. 18.7.1996 is hereby set aside with a direction to the respondents to reinstate the Applicant in his original post or the post equivalent to it with full backwages, with continuity of services and all other consequential benefits along with cost of proceedings of Rs.500/-" 9. Since the said award was not implemented, the petitioner filed W.P.No. 18127/1999. This Court has passed an order directing the respondents to implement the said award. It is also clear that pursuant to the order of this Court, the order of the Labour Court has been implemented by the respondents. Since the said award was not implemented, the petitioner filed W.P.No. 18127/1999. This Court has passed an order directing the respondents to implement the said award. It is also clear that pursuant to the order of this Court, the order of the Labour Court has been implemented by the respondents. The petitioner continues to work as a Cook in the Primary Health Centre at Sullia. 10. The application filed by the petitioner seeking regularization of his services was rejected by the third respondent. Therefore, he filed application No.8501/2001 seeking regularization of services and for grant of all the consequential benefits. The said application was rejected by the Tribunal by order dated 27.11.2006. The petitioner challenged the said order by filing the writ petition before this Court in W.P.No.5826/2008. A Division Bench of this Court by order dated 28.01.2011 has set aside the order of the Tribunal and directed the respondents to consider the claim of the petitioner for regularization with reference to the decision of the Apex Court in M.L. Kesari's case (supra). As noticed above, the third respondent has again rejected the application of the petitioner seeking regularization of his services which has been confirmed by the Tribunal by the impugned order. 11. In Umadevi's case (supra), the Constitution Bench of the Apex Court has held that the appointment made without following due process or the rules did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re- engagement or making them permanent. In para 53 of the said decision, the Apex Court has made an exception to the above position as under: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa R.N. Nanjundappa and B.N. Nagarajan and referred to para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 12. In para 54 of the said decision, the Apex Court further clarified as under: "54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents." 13. It is clear from the above passage that earlier decisions running counter to the principles settled in the decision in Umadevi's case (supra) will not be treated as precedents. It cannot mean that the judgment of a competent Court delivered prior to the decision in Umadevi's case and which has become final and binding on the parties need not be honoured and implemented. The mere reversal or over-ruling of the judgment does not have the effect uprooting a quasi judicial determination made in another case relying upon that decision at a time when it was a binding precedent. It is trite proposition that even inter-parties, if the law laid down in a pronouncement is later over ruled, as distinguished from it being reversed, its binding effect inter-parties is not set at naught. The decision itself has to be assailed and got rid of in a manner known to or recognized by law. (See D.P. Sharma Vs. State Transport Authority - ILR 1987 KAR 3255). The decision itself has to be assailed and got rid of in a manner known to or recognized by law. (See D.P. Sharma Vs. State Transport Authority - ILR 1987 KAR 3255). 14. In Ayyanna's case (supra), a Division Bench of this Court while considering an identical question has held as under: "The only contention of the learned Government Advocate appearing for the appellants is that in the light of the decision of the Supreme Court in Umadevi's case, the earlier judgments of this Court in favour of the respondent cannot be and need not be complied with. In support of his contention learned Government Advocate invited our attention to paragraph 54 of the judgment in Umadevi's case which reads thus: "It is also clarified that those decisions which run counter to the principles settled in this decision or in which directions running counter to what we have held herein will stand denuded of their status as precedents. We understand the above clarification of the Hon'ble Supreme court only to mean that that earlier decisions running counter to the principles settled in the decision in Umadevi's case will not be treated as precedents. It cannot be mean that the judgment of a competent Court delivered prior to the decision in Umadevi's case and which has become final and binding on the parties need not be honoured and implemented. In our view, notwithstanding the clarification in paragraph 54 of the judgment in Umadevi's case, the appellants cannot escape the liability to comply with the direction in the judgment in Writ Petition No.25912 of 2002 which had become final and binding on the appellants and the respondent long prior to the decision in Umadevi's case." 15. In M.L. Kesari's case (supra), the Apex Court after considering Umadevi's case (supra) has laid down two conditions for regularization as under: "7. it is evident from the above that there is an exception to the general principles against "regularization" enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any Court or Tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." 16. The decision of the Labour Court has attained finality and is binding on the parties. Since the order of termination has been set aside and he was reinstated to his original post with full back wages, continuity of service with all other consequential benefits, he is deemed to have been in service from the date of his termination i.e., from 18.07.1996. The petitioner continues to work in Primary Health Centre at Sullia. He has satisfied the conditions laid down in Para 53 of Umadevi's case (supra) and M.L. Kesari's case (supra). He is not continuing in service with the benefit or protection of interim order of the Court or Tribunal. Therefore, the Tribunal is not justified in rejecting the claim of the petitioner seeking regularization. 17. In the result, the writ petition succeeds and is accordingly allowed. The order of the Tribunal in Application No.7238/2011 dated 12.9.2013 is hereby set aside. The order at Annexure A.9 dated 24.8.2011 passed by the second respondent is also hereby quashed. We direct respondent No.3 to consider the application of the petitioner for regularization in accordance with law and in the light of the observations made in this order. No costs.