IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR WRIT PETITION No.2441/2016 (L-TER) Between:
Smt. Lokeshwari @ Kashi Bai W/o Sthitha Prajna Aged about 51 years Residing at No.310 “Shwetha Dweepa” Rushyashrunga Kuteera 6th Cross, (Veerabhadranagara) Narayanapura Bangalore – 560 085. Represented by Her P.A. Holder Shri Sthitha Prajna.
... Petitioner (By Smt. Lokeshwari - Party-in-person represented by GPA Holder – Sri Sthitha Prajna (GPA-Holder)) And:
1. Shri M R Doreswamy Major The Hon’ble Founder Secretary P.E.S. Institutions 50 Feet Road BSK 1st Stage, Srinagar (Hanumanth Nagar) Bangalore – 560 050.
2. Shri K N Balasubrahmanya Murthy Principal & Director P.E.S. Institute of Technology 100 Feet Ring Road BSK III Stage Bangalore – 560 085.
... Respondents (By Sri. K R Anand, Advocate for R-1 and R-2) ****** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to, set aside the termination order passed dated 21.05.2011 by the Respondent No.2 vide Annexure-D and etc., This Petition coming on for Final Hearing, this day, the Court made the following:
ORDER This writ petition is filed by one Smt.Lokeshwari @ Kashi Bai represented by her P.A.Holder Sri Sthitha Prajna with a prayer to set-aside the termination order passed by the second respondent as per Annexure-D and also to set- aside the order dated 21.10.2015 passed by the III Addl.Labour Court, Bangalore in I.D.No.25/2011 as per Annexure-E and such other reliefs.
2. The factual matrix of this petition is that, petitioner is said to be appointed as Sweeper/attender on 30.10.1999 in the respondent – P.E.S Institutions. Subsequently, she was directed to work as an Attender. On 24.03.2002 the petitioner was orally refused employment/service by the respondents. The same was challenged before the Labour Court in I.D.No.3/2003. The Labour Court vide order dated 24.07.2007 allowed the matter and directed the respondents – authority to reinstate the petitioner into service with full back wages with all consequential benefits. The said order was challenged by the respondents in W.P.No.18480/2007 before this Court which came to be dismissed on 22.11.2010. An observation was made in the said order directing to reinstate the petitioner herein with full back ages and continuity of service in compliance with the directions of the Labour court. Against the said order, a writ appeal was filed in W.A.No.2634/2009 which also came to be dismissed vide order dated 03.08.2009 and a direction was issued to pay the salary on par with one Smt.Geeta who is similarly placed with that of Smt.Lokeshwari. As the said order was not implemented by the respondent-Institution, C.C.C.No.720/2009 was filed by the petitioner before this Court. The said petition was closed in view of undertaking given by the respondent – institution to pay the salary as and when it falls due in terms of the direction issued by this court.
3. In view of the award passed in ID No.03/2003, the petitioner was reinstated into service on 20.12.2008 and thereafter, she was continued in service till she was dismissed from service on 21.05.2011. In respect of the second round of alleged mis-conducts of the petitioner, the respondents had issued show-cause notice, thereafter issued articles of charges and initiated domestic enquiry. Based on the proved misconduct of the petitioner, the respondents dismissed the petitioner from service. In this regard, the petitioner raised a dispute under the provisions of Section 10(4-A) of the I.D.Act to set-aside the order of termination dated 21.05.2011 and to direct the respondents – institution to pay the arrears of back wages/salary. The Court below on appreciation of oral and documentary evidence available on record, dismissed the claim petition filed by the petitioner vide order dated 21.10.2015. Hence, the instant petition is filed by the petitioner, seeking to set-aside the impugned order passed by the Labour Court and so also, the termination order passed by the second respondent.
4. Smt.Lokeshwari, party in person, represented by her GPA holder – Sri Sthitha Prajna and Sri K.R.Anand, learned counsel for respondents and Sri.K.Balaraju, the General Manager (HR) on behalf of respondent - P.E.S.Institutions are present before the Court.
5. A joint memorandum of settlement dated 04.11.2019 is filed before the Court. It is duly signed by Smt.Lokeshwari, petitioner-party in person, Sri Sthitha Prajna, GPA Holder for the petitioner, Dr.K.N.Balasubramanya Murthy, the second respondent who is the Principal and Director of PES Institute of Technology and learned counsel for the respondents. The terms of settlement between the parties reads as under:
1. The Petitioner undertakes and admits the contents of the preamble of this Settlement to be true and correct. The Petitioner further undertakes that in view of this settlement, the Petitioner shall not raise any fresh dispute against the Respondent Institution and / or Respondents in their individual capacity by filling any petition seeking for any additional relief, compensation, monetary or otherwise from the Respondents individually and / or the Institute on any date in future.
2. The Petitioner on further admitting that this settlement is entered into based on the negotiations held by herself along with her Power of Attorney Holder, has signed this settlement voluntarily and on her own free will.
3. In view of the categorical, unconditional assurance given by the Petitioner and her Power of Attorney Holder, as stated above, the Petitioner has on this day paid a sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) by Demand Draft bearing No.321898, dated 10.10.2019; drawn on Union Bank of India, PESIT Extension Branch, Bengaluru-85, in favour of the Petitioner in full and final settlement of all reliefs sought by the Petitioner in the above writ petition as also in CC No. 52097/2015 (Old CC No.14744/2012) in PCR No.22716/2011, if any; presently pending before the Hon’ble 10th Additional Chief Metropolitan Magistrate Court, Mayo Hall, Bengaluru, and accordingly, acknowledges Demand Draft bearing No.321898, dated 10/10/2019; drawn on Union Bank of India, PESIT Extension Branch, Bengaluru – 85, for Rs.6,50,000/-(Rupees Six Lakhs Fifty Thousand Only) paid to her.
4. In view of this settlement under which Petitioner is paid a sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) as ex-gratia which is in lieu of all reliefs sought for by the Petitioner in the above matter, Writ Petition No.14261/2016 [L-RES] and / or CC No.52097/2015 (Old CC No.14744/2012) in PCR No.22716/2011; presently pending before the Hon’ble 10th Additional Chief Metropolitan Magistrate Court, Mayo Hall, Bengaluru, the Petitioner shall not be eligible or entitled to any other amount / reliefs from the Respondent Institution. The Petitioner shall not be eligible or entitled to any other amount from the respondent institutions either by way of compensation and / or legal dues since amount paid to the Petitioner under this settlement is full and final and covers all such legal dues, if any payable to the Petition including earned wages / leave wages if any, gratuity if any and other benefits if any.
5. The Petitioner confirms that the sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) paid to her is as ex-gratia in lieu of all claims whatsoever claimed in all the writ petition / complaints and therefore, the same shall not attract the P.F., E.S.I., and / or any other statutory benefits etc. However, the P.F. contribution remitted by the Respondents upto the last working day of Petitioner could be sought refund by the Petitioner from the P.F. Department, if need be for which the Respondents would be willing to sign necessary documents, as and when, the Petitioner seeks for the same.
6. In view of this settlement, the Petitioner confirms that, question of her seeking / claiming relief of reinstatement, re-employment and / or fresh employment in any of the Institutions managed by the P.E.S. Institutions anywhere in Karnataka or elsewhere would not arise and that the Petitioner has executed this settlement by specifically giving up of all such reliefs against the Institutions and Respondents individually of the institution.
7. Consequently, the Petitioner agrees to withdraw the Criminal Complaint pending in CC No.52097/2015 (Old CC No.14744/2012) in PCR No.22716/2011; presently pending before the Hon’ble 10th Additional Chief Metropolitan Magistrate Court, Mayo Hall, Bengaluru, by filing copy of this joint memo with a prayer to the said Hon’ble Court to dispose of the complaint as settled in terms of this settlement pursuant to which only, will she be paid Demand Draft for Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only), before this Hon’ble Court.
8. The parties above named have herewith agreed that a sum of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand Only) as Full & Final Settlement payable by the Respondents to the Petitioner by way of Demand Draft. The Petitioner shall also be entitled for the withdrawal of the EPF amount accrued in her account as per the provisions prevalent to the applicable Laws. Wherein, the Petitioner has agreed to withdraw the said complaint in CC No. 52097/2015; before the Hon’ble 10th Additional Chief Metropolitan Magistrate Court; and 9. Whereas, the Petitioner herewith agrees, confirms and declares that apart from the present cases / claims which shall be withdrawn hereinafter as settled, the Petitioner shall not claim or file any fresh complaint / petition / case whatsoever in nature, against the said Respondent Institution and Chairman, Secretary, Chancellor, Pro Chancellor, Vice Chancellor, Registrar, Principal, Executives etc/or its members on any date in future and / or claim any other relief monetary or otherwise either for the period of service rendered or thereafter; and 10. For the purpose of income tax, since the payment of ex-gratia is in lieu of back-wages, continuity of service and all other consequential benefits the same would be prayed to be proportionately appropriated / distributed from the date of the Award dated 21.10.2015 till date and both parties pray this Hon’ble Court to pass suitable order(s) based on the judgment of the Hon’ble Supreme Court reported in 1984 – 2 LLJ – Page 22 copy of which is also enclosed to this settlement.
11. In view of this settlement, relationship of employer – employee, between the Respondent Institution and the Petitioner, ceases.
12. Wherefore, both parties hereto, most respectfully pray this Hon’ble Court to substitute this settlement with the Award dated 21/10/2015 passed by the 3rd Additional Labour Court, Bengaluru in ID No.25/2011 which is impugned in the above Writ Petition.
In terms of the joint settlement a demand draft for a sum of Rs.6,50,000/-(Rupees six lakh fifty thousand only) has been handed over by the respondents to Smt.Lokeshwari – petitioner-party in person in the open Court and she acknowledges the receipt of the same.
Accordingly, in terms of the joint memorandum of settlement between the parties to this petition, this writ petition stands disposed of.
DKB Sd/- JUDGE