IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R.DEVDAS WRIT PETITION No.5872/2011 (S-RES) BETWEEN 1. MANAGEMENT OF HMS EDUCATION SOCIETY (R) BY ITS CHAIRMAN, SHETTIHALLI ROAD, TUMKUR 2. PRINCIPAL, HMS POLYTECHNIC, SHETTIHALLI ROAD, TUMKUR.
(BY SRI. NAVEED AHMED, ADVOCATE) AND 1. SRI H.S.MALLIKARJUN, S/O SRI SIDDAMALLAPPA, 44 YEARS, R/A “MOUNA MAYURA”, 3RD MAIN, GANDHI NAGAR, TUMKUR ... PETITIONERS 2. DIRECTOR OF TECHNICAL EDUCATION, PALACE ROAD, BENGALURU – 560 001.
3. SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI, BENGALURU – 560 001.
... RESPONDENTS (BY SRI. K.V. NARASIMHAN FOR R1;
SRI SRIDHAR N.HEGDE, HCGP FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 5.10.2010 PASSED BY THE PRINCIPAL DISTRICT JUDGE & EAT, TUMKUR IN EAT 13/2004 VIDE ANNEXURE-A AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
The petitioner-Institution is before this Court calling in question the judgment dated 05.10.2010, passed by the Education Appellate Tribunal in EAT No.13/2004.
2. The brief facts of the case are as follows: Respondent No.1 was appointed as a Lecturer in Civil Engineering, on 15.08.1988, in the petitioner- Institution, on consolidated salary of Rs.1,650/-(Rupees One Thousand and Six Hundred and Fifty Only). The petitioner-Institution was admitted to grant-in-aid during February 2001, vide Government order dated 05.02.2001. However, it is submitted by the learned senior counsel appearing for the petitioners that respondent No.1 never received salary under the grant-in-aid. Respondent No.1, as alleged by the petitioners, submitted his resignation on 23.02.2004 and same was accepted by the first petitioner on 26.04.2004. One Sri Chandrashekar, was appointed as Lecturer in Civil Engineering, in place of respondent No.1. Respondent No.1 wrote another letter dated 26.05.2004 withdrawing his resignation.
3. It is the contention of the petitioners that withdrawal of the resignation has given after a period of three months from the date of resignation and one month after the resignation was accepted by respondent No.1. On the other hand, it is the contention of respondent No.1 that the resignation letter, under coercion, was in fact given on 25.05.2004 and the letter withdrawing the resignation was given the very next date i.e., on 26.05.2004. Respondent No.1, therefore, approached the tribunal alleging that he was illegally terminated from service in the guise of acceptance of the resignation letter and therefore, prayed that he may be reinstated with back wages.
4. Learned senior counsel for the petitioner submits that the tribunal was not justified in arriving at a conclusion that the respondent had not tendered his resignation voluntarily and the same was taken under threat and coercion. It was also submitted that in view of the admitted fact that the respondent was gainfully employed elsewhere, the tribunal could not have directed reinstatement of the respondent, with consequential benefits.
5. It was also submitted by the learned senior counsel that in the light of the admitted fact that another person was appointed to the post of Lecturer in Civil Engineering, the petitioner-Institute cannot be forced to reinstate the respondent since there is no vacant post and the petitioner institution cannot be forced to pay salary to two persons for the same post.
6. Per contra, learned counsel for respondent No.1 submits that no fault can be found with the impugned judgment since the tribunal has carefully considered the evidence on record. On going through the evidence on record, the tribunal has concluded that the contention of the respondent herein is substantiated by the fact that the letter withdrawing the resignation bears the postal seal dated 27.05.2004, which would corroborate with the contention of the respondent that he sent the letter dated 26.05.2004 the very next day after the letter of resignation was forced to be given by the respondent on 25.05.2004. Therefore, it was submitted that the tribunal has carefully examined the evidence on record and has given a finding that the respondent was in fact forced to resign.
7. On the other aspects, i.e., another person was appointed in place of the respondent and therefore, there is no vacancy for reinstatement of the respondent, it was submitted by the learned counsel that a Division Bench of this Court, in the case of Sri N.Dasegowda v. The Secretary, Dr. Ambedkar Education Society (R) reported in ILR 2010 (KAR) 19 held that such an argument cannot be countenanced in the final analysis while granting relief to the appellant and the Division Bench directed the respondent therein to reinstate the appellant.
8. On hearing the learned counsels on both sides and on perusing the writ papers and the impugned judgment, this Court is of the opinion that the impugned judgment deserves to be upheld. The tribunal has carefully considered the evidence, both oral and documentary and has given well considered reasons for arriving at the conclusion that the resignation` tendered by the respondent, was not voluntary.
9. During the course of the proceedings, respondent No.1 was called upon to file an affidavit before this Court and he has accordingly filed an affidavit dated 16.01.2019 giving details of his employment subsequent to his termination at the petitioner-Institution. Respondent No.1 has stated on oath that he was serving at Acharya Polytechnic, Bangalore from 01.09.2004 to 16.08.2009 and in Sridevi Polytechnic College, Tumkur from 01.01.2012 to 16.06.2018.
10. In the light of the above, while directing the petitioner-Institution to reinstate respondent No.1 herein, as a Lecturer in Civil Engineering, the petitioner-Institute is also directed to pay back wages for the period 01.06.2004 to 31.08.2004, 17.08.2009 to 31.12.2012 and from 17.06.2018 till the date of reinstatement. To that extent the impugned judgment is modified.
11. It is made clear that the petitioner shall pay respondent No.1 according to his last drawn salary. On the aspect of grant-in-aid, respondent No.1 has never asserted that the was given salary including grant-in- aid. Therefore, if respondent No.1 seeks payment of salary along with grant-in-aid, in future, respondent No.1 may make a request after reinstatement and thereafter, petitioner may consider forwarding the same to the competent Authority.
The writ petition is accordingly disposed off. No order as to cost.
Sd/- JUDGE DS