Kammasandra Milk Producers Cooperative Society Ltd. v. K. SHIVANNA
2016-01-08
B.SREENIVASE GOWDA, VINEET SARAN
body2016
DigiLaw.ai
JUDGMENT This is an appeal filed against the judgment and order dated 31.01.2012 passed by the learned Single Judge in W.P.No.7212/2007. While dismissing the writ petition filed by respondent No.1, the writ Court has issued certain directions with regard to payment of salary, as well as granting time to respondent No.1 to challenge the order of dismissal passed in 1993 after directing that the delay in challenging the same be not taken into account. 2. The brief facts of this case are that respondent No.1 was working as Secretary in Kammasandra Milk Producers Cooperative Society Ltd., (for short ‘Cooperative Society’). In the year 1989, respondent No.1 was dismissed from service, which order was challenged by him before the Assistant Registrar of Cooperative Societies and was set aside by order dated 14.05.1990. The appeal filed by the appellant herein (Society) was also dismissed. Consequently, on 14.02.1992, respondent No.1 was taken back in service but respondent No.1 absented himself from duty from the very next date i.e., 15.02.1992. On a show cause notice having been issued to respondent No.1 and a reply having been given by him, respondent No.1 was taken back in service on 26.10.1992 but, he, again absented from the very next date i.e., 27.10.1992. Consequently, respondent No.1 was dismissed from service vide order dated 30.03.1993, which was communicated to him by the appellant society on 17.04.1993. This order of dismissal was never challenged by the appellant. 3. However, in the meantime, on 22.09.1995, the Deputy Registrar of Cooperative Societies wrote to the Assistant Registrar of Cooperative Societies asking him to consider the representation of respondent No.1 seeking for prosecution of the appellant society. In response thereto, on 21.05.1997, the Assistant Registrar of Cooperative Societies did not accept the request to prosecute the appellant society and on the other hand directed for taking suitable action against respondent No.1. Respondent No.1 filed W.P.No.18614/1998, which was allowed in part and a direction was issued to consider the representation of respondent No.1 dated 21.05.1999, which was with regard to the orders dated 22.09.1995 and 21.05.1997 and not with regard to his dismissal from service vide order dated 30.03.1993 communicated on 17.04.1993. Pursuant to the order dated 19.11.1999, passed in W.P.No.18614/1998, the application of respondent No.1 was dismissed by the Assistant Registrar of Cooperative Societies. The appeal filed by respondent No.1 was also dismissed by the Karnataka Appellate Tribunal on 28.04.2006.
Pursuant to the order dated 19.11.1999, passed in W.P.No.18614/1998, the application of respondent No.1 was dismissed by the Assistant Registrar of Cooperative Societies. The appeal filed by respondent No.1 was also dismissed by the Karnataka Appellate Tribunal on 28.04.2006. Challenging the aforesaid orders dated 15.03.2005 and 28.04.2006, respondent No.1 filed the aforesaid W.P.No.7212/2007, which has been dismissed by the writ Court vide order dated 31.01.2012, and even after dismissal of the writ petition, certain directions have also been given in favour of respondent No.1. 4. We have heard Sri R.Chandranna, learned counsel for the appellant as well as Sri Y.D.Harsha, learned AGA appearing for the respondents2 and 3. Though respondent No.1 has been served and is represented through a counsel, yet no one has appeared on behalf of the said respondent. 5. The moot question to be considered by this Court is as to whether while dismissing the writ petition directions in favour of petitioner respondent No.1 herein could have been given by the writ Court or not. The Apex Court, in the case of Hema Mishra vs. State of Uttar Pradesh (2014) 4 SCC, while considering a case filed under Article 226 before the High Court wherein certain direction was issued after dismissal of the writ petition, held that “once the Court finds no merits in the challenge, the writ petition will have to be dismissed and the question of granting further relief after dismissal of the writ, does not arise”. 6. In the present case also, after dismissal of the writ petition, certain reliefs have been granted. The writ petition was filed challenging the orders dated 15.03.2005 and 28.04.2006 passed by the Assistant Registrar of Cooperative Societies and Karnataka Appellate Tribunal respectively, which do not relate to the dismissal of respondent No.1 from service. After considering the merits of the case, the writ Court dismissed the writ petition with the following order: “ i. Writ petition is hereby dismissed. ii. Respondent No.1 Society shall pay arrears of salary to the petitioner from 14.05.1990 till the date of reinstatement on 26.10.1992 within four weeks from today. iii. Liberty is reserved to the petitioner to question the communication dated 17.04.1993 dismissing the petitioner from service before the appropriate forum. iv.
ii. Respondent No.1 Society shall pay arrears of salary to the petitioner from 14.05.1990 till the date of reinstatement on 26.10.1992 within four weeks from today. iii. Liberty is reserved to the petitioner to question the communication dated 17.04.1993 dismissing the petitioner from service before the appropriate forum. iv. In the event of the petitioner questioning the impugned communication Annexure J dated 17.04.1993 within four weeks from today, the concerned authority shall decide the same in accordance with law without reference to the question of delay. Ordered accordingly.” 7. In a case where the dismissal of respondent No.1 from service was not questioned nor was there any pleading with regard to the payment of salary for any particular period, a direction to pay arrears of salary and further granting indulgence to respondent No.1 to challenge the order of dismissal from service passed on 30.03.1993/17.04.1993 and condoning the delay, cannot be justified, specially when the order of dismissal from service was not in question in the writ petition. 8. As such, we are of the opinion that the directions issued in favour of respondent No.1 while dismissing the writ petition of the said respondent cannot be justified in law. Accordingly, the directions No.(ii) and (iv) issued by the writ Court vide order dated 31.01.2012 passed in W.P.No.7212/2007 are set aside. The writ petition filed by respondent No.1 would stand dismissed as already directed by the writ Court. It is clarified that, in case, in terms of the interim order passed in W.P.No.7212/2007, any amount has been deposited by the appellant herein, the same shall be refunded to it. The appeal stands allowed to the extent as indicated above.