IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE BELLUNKE A.S. WRIT APPEAL NO. 1035/2019 (S-RES) BETWEEN:
K.L. SHIVANNA S/O LAKAPPA MARVANJI MALLESHWARAM CIRCLE P.W.D QUARTERS KADUR-574 214 ... APPELLANT (BY SMT. ARCHANA MURTHY P., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY ITS SECRETARY DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATH RAJ M.S. BUILDING BENGALURU - 560 001 2. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYATH CHIKKAMAGALURU – 577 101 3. THE ZILLA PANCHAYATH ENGINEERING SUB DIVISION TARIKERE – 577 549 REP. BY ITS EXECUTIVE ENGINEER 4. THE TALUK PANCHAYATH REP. BY ITS SECRETARY TARIKERE – 577 549 CHIKKAMAGALURU DISTRICT (BY SRI P.B. ACHAPPA, AGA FOR R1 & ... RESPONDENTS SRI ASHOK N. NAYAK, ADVOCATE FOR R2 TO R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 15/02/2019 IN W.P.NO.62176/2016 & ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant, the learned Additional Government Advocate for the first respondent and the learned counsel appearing for the second to fourth respondents.
2. Sufficient cause is made out to condone delay of 22 days. Delay in filing the appeal is condoned. I.A.No.1/2019 is allowed.
3. We have heard the learned counsel appearing for the appellant.
4. The appellant who was the petitioner in W.P.No.62176/2019 has taken an exception to the judgment and order dated 15th February 2019 passed by the learned Single Judge.
5. Reference to few facts will be necessary. The appellant and similarly placed persons were working as daily wage workers in Taluk Panchayath and District Panchayath. On the basis of the order passed by this Court, the case of the appellant and similarly placed persons was considered for regularization. By the order dated 27th April 2012, the employment of the appellant was regularized. The said order was made by the Chief Executive Officer of the Zilla Panchayath. It appears that subsequently, an order was made granting regularization with retrospective effect from 1st April 1999. Thereafter, the impugned order was made by the Chief Executive Officer for recovery of the amounts paid to the appellant with retrospective effect.
6. The learned Single Judge held that there was no provision for regularizing the employment of the appellant by giving retrospective effect and the appellant was entitled to regularization only from the date on which the employment was regularized. Therefore, the learned Single Judge proceeded to dismiss the petition.
7. The learned counsel appearing for the appellant has taken us through the relevant orders. Her submission is that the order of recovery was passed in breach of the principles of natural justice. She submits that when the decision was taken to regularize the employment of the appellant with retrospective effect from 1st April 1999, that is from the date on which the appellant completed ten years of service, the said decision cannot be withdrawn without giving an opportunity of being heard to the appellant. She placed reliance on a decision of the learned Single Judge of the High Court of Madras passed in W.P.No.38059/2005 decided on 15th October 2009.
8. We have considered the submissions. As far as the decision of the High Court of Madras is concerned, apart from the fact that the said decision does not bind this Bench, the same is based on the orders passed in companion matters.
9. We have perused the order dated 27th April 2012 by which the employment of the appellant was regularized by the Chief Executive Officer. The said order makes it clear that the benefits will be available to the appellant from the date from which his employment was regularized. Notwithstanding the said order, a decision was taken to grant regularization with retrospective effect from 2nd April 1999. The learned Single Judge in paragraph 9 has rightly observed that no provision of law is pointed out by the appellant which would enable regularization of the service of the appellant with retrospective effect. Even in this appeal, no such provision of law is pointed out.
10. Even assuming that the order of recovery is passed in breach of the principles of natural justice, we must note here that the law is very well settled. If the result of setting aside the impugned order amounts restoration of illegal action / order, the writ Court exercising discretionary jurisdiction under Article 226 of the Constitution of India can always refuse to interfere. Moreover, the learned Single Judge noted that show cause notice has been served to the appellant and the similarly placed employees. Some of them have even challenge the show cause notice. We find no merit in the appeal and accordingly, the same is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN