IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR W.P.NO.17546/2014 (L KSRTC) BETWEEN KARNATAKA STATE ROAD TRANSPORT CORPORATION HASSAN DIVISION, HASSAN BY ITS DIVISIONAL CONTROLLER REPRESENTED BY ITS CHIEF LAW OFFICER.
(BY SMT. H R RENUKA, ADV.) AND 1. THE DEPUTY LABOUR COMMISSIONER AND THE APPELLATE AUTHORITY ... PETITIONER UNDER THE PAYMENT OF GRATUITY ACT HASSAN REGION, HASSAN 2. THE ASSISTANT LABOUR COMMISSIONER AND CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT CHIKMAGALUR DIVISION CHIKMAGALUR 3. MANJAPPA S/O NINGEGOWDA, ADULT R/O MANACHANAGALLI VILLAGE KELERGERE POST CHANNARAYAPATNA TALUK HASSAN DISTRICT.
(BY SRI B.P RADHA, AGA FOR R1 & R2, SRI M.RAMESH, ADV. FOR R3.) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 31.12.2012 VIDE ANN-G PASSED BY THE R-2 ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Heard the learned counsel for the petitioner. There is no representation on behalf of the respondents.
2. Petitioner is before this Court being aggrieved by the order passed by the Controlling Authority under Section 7 of the Payment of Gratuity Act, 1972, whereby the Controlling Authority has been pleased to admit the period during which the petitioner was out of service pursuant to the order of removal as period of service.
3. It is the case of the petitioner that the 3rd respondent- workman came to be appointed by proceedings dated 05.10.1976 produced at Annexure-A. The name of the 3rd respondent is found at Serial No.38. The petitioner was then assigned work as Badali Conductor and was discharging his duties in Sakaleshpur Depot. The 3rd respondent was found to have committed misappropriation of cash on two dates involving an amount of Rs.342/-. Show cause notice came to be issued on 26.03.1976, the reply was considered and by order dated 09.05.1979, 3rd respondent who was discharging duties as Badali Conductor was removed from the list of Badali Conductors of Sakaleshpur Depot. Thereafter the 3rd respondent once again approached the Appointing Authority and appealed to the Appointing Authority and he along with 34 others came to be appointed on 24.10.1986 vide Annexure-C to the writ petition. It is submitted that the appointment of the petitioner along with 34 others made on 24.10.1986 was an appointment afresh as the order of removal had become final as the same had not been called in question either before the Statutory Authority or before the Courts. The service of the petitioner was confirmed in 1989. 3rd respondent retired on attaining the age of superannuation and that the calculation of the dues is made with reference to the date of confirmation of the second appointment i.e., from the date of confirmation of his service in 1989.
4. It is the case of the petitioner that the reference to the writ petition is misplaced. Learned Counsel would submit that as in the case of respondent No.3, several conductors had been removed without an enquiry and that the matter had reached this Court and in a batch of writ petitions, this Court had directed that the petitioners so removed be absorbed in the services of the Corporation as and when vacancies arose. The autograph register pertaining to W.P.No.14382/1986 was summoned. On perusal of the same, it is seen that in all about 40 petitioners had preferred writ petitions and all the writ petitions came to be disposed off by the following order:
“These Writ Petitions are treated as having been posted for final hearing and I have heard the learned Counsel for the parties.
2. The facts in these petitions are similar to those in Writ Petitions 19782 to 19840 and other connected Writ Petitions disposed of on 25/26.3.1986. The order of this Court in the aforementioned Writ Petitions was affirmed by the Division Bench in Writ Appeal Numbers 1592 to 1743 of 1986 disposed of on 15.7.1986 with a modification, more particularly mentioned in paragraph-6 of the appellate order.
3. Under the circumstances, the petitioners are entitled to be absorbed as and when vacancies arise in the Corporation subject to the observations made in paragraphs 31 and 32 of the order dated 25/26.3.1986 as modified by the Division Bench in Writ Appeal Nos.1592 to 1743 of 1986. However, it is made clear that the petitioners shall not disturb the ranking of the Conductors who have already been appointed prior to the disposal of these petitions.”
5. Further, on perusal of the cause title, it is seen that the petitioner in W.P.No.14382/1986 is described as one Kusamakara Shetty S/o Lakkanna Shetty and further it can be seen that the name of the petitioner is not found amongst the list of petitioners. In this background, the learned Counsel for the petitioner would contend that the respondent-authorities have seriously erred in holding that the petitioner continued in service from 1976 onwards.
6. It is the case of the petitioner that respondent No.3 joined the services of the Corporation in the year 1976 and was removed in the year 1979 and between the period from 1979 to 1986, respondent No.3 had not even raised his little finger against the removal and that subsequently, he was appointed afresh and there is no binding judicial decision or proceedings of any authority, whereby service benefits in respect of the period between 1979 to 1986 has been restored. The contention of the petitioner’s counsel merits consideration.
7. It is seen that there is no material placed on record either before the authority or before this Court to demonstrate the continuity of respondent No.3 in the services of the Corporation between 1979 to 1986. It is apparent from the order passed in W.P.No.14382/1986 that the petitioners are entitled to be absorbed into the services of the Corporation. Further, the order directing absorption specifically directed that the absorption of the petitioners therein shall not in any manner disturb the seniority of the members who had already been appointed prior to the disposal of the writ petitions. Even assuming for the sake of argument that the order extends a benefit in favour of the parties therein, respondent No.3 cannot seek any advantage under the said order as he is not one of the parties to the writ petition proceedings. That being the obtaining facts, the impugned finding that respondent No.3 is entitled for the consideration of service between 1976 to 1986 is erroneous and contrary to the material on record.
8. That apart, one of the points that requires consideration, is the fact that the petitioner has committed an error in calculating the gratuity from the date of confirmation of service of respondent No.3 after he re- entered service in 1986. In the opinion of this Court, the date of confirmation is irrelevant and the service benefits have to be calculated from the date of entry into service and not from the date of confirmation of service.
9. In that view of the matter, this writ petition is partly allowed. Respondent No.3 is entitled for gratuity for the period commencing from the date of appointment i.e., 24.10.1986 till the date of retirement.
10. It is contended by the learned Counsel for the petitioner that there is delay in respondent No.3 approaching for redressal and hence, respondent No.3 should be denied interest for such period.
11. Though the argument appears to be reasonable, yet the fact remains that the onus was on the petitioner to calculate the dues properly and settle the same. Even though the service for a period of 10 years has been denied, admittedly, there has been an error in the calculation of service period and the period during which respondent No.3 worked i.e., 1976 to 1979 has been omitted from calculation. In that view of the matter and as also the long pendency, ends of justice would be served if the interest awarded at the rate of 10% is modified and awarded at the rate of 6%. Respondent No.2 shall calculate the sum due to respondent No.3 in accordance with the observations made herein above and in the event there being any excess amount, the same shall be refunded to the petitioner. Otherwise, the sum due shall be paid within four weeks from today, failing which the same shall be paid with interest @ 10%.
No order as to costs.
Sd/- JUDGE SBS/KK CT-HR