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2019 DIGILAW 1570 (KAR)

S. T. Dase Gowda v. State Of Karnataka

2019-07-04

P.B.BAJANTHRI

body2019
JUDGMENT : P. B. Bajanthri, J. In the instant petition petitioner has sought for the following reliefs; "(a) Direct the 6th respondent-Management to make payment of the salary payable to the petitioner from the date 23.09.2009 of his initial appointment till the petitioner was removed from service dated 14.08.2013 in the interest of justice and equity. (b) Pass order of consequential relief or any other appropriate order or direction as this Hon'ble Court deems fit in the facts and circumstances of the case in the ends of justice and equity." 2. There was dispute relating to the payment of salary to the petitioner by 6th respondent-Management. He was agitated the matter in WP.No.52965/2013 before this Court, wherein, direction has been given to the Management to consider the petitioner's representation. Pursuant to the direction, Management has issued an endorsement/communication dated 23.04.2014 (Annexure-P). The 6th respondent- Management has disputed that Management have already paid whatever dues to the petitioner. Aggrieved by the same, petitioner has presented this writ petition seeking a direction to the 6th respondent to make payment of the salary payable to the petitioner from the date of initial appointment till the date of his removal. In other words, during the intervening period from 23.09.2009 to 14.08.2013. 3. Core issue involved in the present petition is whether writ petition is maintainable or not on the ground that availability of alternative remedy and so also maintainability of writ petition. 4. 6th respondent has already rejected the petitioner's representation on 23.04.2014. Question arises for consideration is in the absence of challenge to endorsement Annexure-P whether writ of mandamus could be issued to 6th respondent for making payment or not. 5. The petitioner in paragraph-9 of the writ petition has stated as under; "9. The petitioner has no other alternative and efficacious remedy except to approach this Hon'ble Court on the following amongst other grounds to be urged at the time of hearing the writ petition on merits." 6. 5. The petitioner in paragraph-9 of the writ petition has stated as under; "9. The petitioner has no other alternative and efficacious remedy except to approach this Hon'ble Court on the following amongst other grounds to be urged at the time of hearing the writ petition on merits." 6. In view of not exhausting alternative remedy of appeal before the State Government under Section 131 of the Karnataka Education Act, 1983, learned counsel for the petitioner has relied upon the decision of this Court passed in the case of Mohammed Safifull V/s. Sri.K.S.Govindaraju and others in WP.No.21938/2010 and connected matters and decision of the Division Bench in the case of Vidyavardhaka Sangha and another V/s. S.K.Joshi and others, 2005 SCConlineKar 325 Paragraph-8 which are reproduced as under: "8. The law with regard to the locus in the light of umpteen pronouncements of the Apex Court and the High Courts by and large has been crystallised. It is well-settled that the power of the High Court under Article 226 can be invoked by any other person or any body to enforce a public obligations against any person or body of persons who is under such public law obligation. The learned judge having considered the provisions of Section 131 of the Act has rightly opined that the remedy provided under that provision by way of revision to the State Government could not be regarded as adequate and efficacious. Be that as it may, we are dealing with this question in the jurisdictional Civil Court. In taking this opinion we are fortified by what is observed in paragraph 5 of the judgment of this Court in the case of B.T.Krishnegowda V. Karnataka State Cooperative Apex Bank Limited, relying upon the judgment of the Apex Court in Raj soni's case. Therefore, the first contention of Sri.Raghupathy is not acceptable to us and consequently, we answer the first point against the management." Another decision in the case of S.K.Joshi and another V/s. Vidyavardhaka Sangh and others, (2003) ILR(Kar) 1896 paragraph-27 which is reproduced as under; "27. Section 130 of the Act envisages that any person of Governing Council aggrieved by an order passed by an Officer or authority under the Act may prefer an appeal before the prescribed authority within the prescribed period. Section 130 of the Act envisages that any person of Governing Council aggrieved by an order passed by an Officer or authority under the Act may prefer an appeal before the prescribed authority within the prescribed period. These provisions can be made use of by any person or a Governing Council, if they are aggrieved by an order made by an Officer or other authority under the Act and it cannot be a teacher or other employee of a private educational institution. Therefore, the appeal remedy provided under Section 130 of the Act cannot also be pressed into service by the petitioners for redressal of their grievances." 7. Aforesaid contention read with the decision cited supra are not applicable in view of latest Supreme Court decision in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others, (2016) AIR SC 3006 paragraph-20 reads as under; "20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s. Dosu Aardeshir Bhiwandiwala and others, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:- "The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved; The petition reveals all material facts; The petitioner has any alternative or effective remedy for the resolution of the dispute; Person invoking the jurisdiction is guilty of unexplained delay and laches; Ex facie barred by any laws of limitation; Grant of relief is against public police or barred by any valid law; and host of other factors." 8. For the purpose of present case adjudication of writ petition involves in complex and disputed question of facts and whether they can be satisfactorily resolved, as the petitioner has not availed alternative or efficacious remedy for resolving the dispute are attracted. 9. From perusal of Annexure-P, it is evident that 6th respondent stated that all pending dues were paid to petitioner already. So also in the statement of objections to the petition in paragraphs 3 to 5, respondent No.6 has explained relating to payment. In this regard, petitioner is disputing to the extent that it is only a statement, which is not supported by any documents. So also in the statement of objections to the petition in paragraphs 3 to 5, respondent No.6 has explained relating to payment. In this regard, petitioner is disputing to the extent that it is only a statement, which is not supported by any documents. In other words, there is a dispute between the petitioner and the 6th respondent-Management with regard to due payment. In such an event, the writ petition cannot be entertained under the Article 226 of Constitution of India, as held by Supreme Court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others, (2016) AIR SC 3006. Petitioner has failed to appreciate under what circumstances he has not exhausted the remedy of appeal at paragraph-9. Supreme Court in the identical matter in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others, (2016) AIR SC 3006 considered that in not appraising the Court by giving reasons as to why the petitioner has not availed alternative statutory remedy of appeal. Statement made in the paragraph-9 in identical statement is taken into consideration by Supreme Court. In view of these facts and circumstances, petition stands dismissed on the ground of alternative remedy and the fact that there is dispute of factual aspect between the petitioner and 6th respondent relating to payment of salary, for which criteria No.1 of Jammu and Kashmir's case is attracted in not maintainable of writ petition. 10. At this stage, learned counsel for the petitioner insisting that regarding his statement at paragraph-15 of the writ petition, highlighted that reasons for not availing remedy. Petitioner even though suffered by the communication by 6th respondent management referred at Annexure-P, has not questioned the same even to this day before Revisional authority. Therefore, there is no substance in the statement at paragraph-15 of the writ petition.