IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION NO.33808 OF 2018 (S-RES) BETWEEN:
SRI.B.R.CHELUVARAJ, S/O B.C.RAMASWAMY, AGED ABOUT 41 YEARS, RESIDING AT S- 56, RASHI NILAYA, 6TH CROSS, NEAR PUMP HOUSE, GANDHINAGAR, MANDYA – 571 401.
... PETITIONER (BY SRI.ADITHYA R CHAKRAGIRI, ADVOCATE FOR SRI. M.S.BHAGWAT, ADVS.,) AND:
THE MANAGING DIRECTOR, KARNATAKA SOAPS AND DETERGENTS LTD., NO.27, RAJAJINAGAR INDUSTRIAL SUBURB, P.B.NO.5531, PUNE NATIONAL HIGHWAY, BANGALORE – 560 055.
... RESPONDENT (BY SRI. M.R.C.RAVI, ADV.,) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.01.2018 ISSUED BY THE RESPONDENT AT ANNEXURE – J AND CONSEQUENTLY DIRECT THE RESPONDENT TO REINSTATE THE PETITIONER INTO SERVICE FORTHWITH AND PAY THE ENTIRE BACK-WAGES ALONG WITH 12% INTEREST AND ETC., THIS WP COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Short question for consideration in the present petition is whether the petitioner is entitled to monetary benefits like arrears of salary during the intervening period from 21.01.2015 to 14.6.2019 or not?
2. Undisputed facts are that the petitioner was on probation. He was discharged from service on 21.01.2015 on several allegations relating to misleading the appointing authority and obtaining an order of appointment. This Court has set aside the order of discharge dated 21.01.2015 in W.P.3517/2015 on 23.11.2015. Paragraph No.8 of the order reads as under:-
“8. The quashing of the impugned order does not automatically entitle the petitioner to the relief of reinstatement. The petitioner has not even become a permanent employee. So the question of suspending him pending enquiry would not arise. If he is a reputation risk in the perceptual assessment of the respondent, it cannot be directed to reinstate him pending enquiry. The reinstatement, the payment of backwages, etc., would depend upon the outcome of the enquiry directed hereinabove. All contentions are left open to be urged by the petitioner before the enquiry officer and / or disciplinary authority.”
3. Pursuant to the disposal of the aforesaid petition, respondent proceeded to hold enquiry and it was concluded in terminating the services of the petitioner on 14.6.2019. In this backdrop, whether the petitioner is entitled to monetary benefits i.e., arrears of salary during the intervening period from 21.01.2015 to 14.06.2019 or not?
4. Learned counsel for the respondent stated that in paragraph No.8 of the order passed in W.P.No.3517/2015, it is made clear that probation cannot be proceeded under suspension. Consequently, petitioner is not entitled for reinstatement and payment of backwages etc. Such observation is contrary to the material and the decision of the Hon’ble Supreme Court. The respondent has not appraised this Court by producing any statutory provision that the probationer cannot be placed under suspension, so as to support the observation made in paragraph No.8 of the said order.
5. Learned counsel for the respondent relied on two decisions in support of the contention that the petitioner is not entitled for arrears of pay during the period from 21.01.2015 to 14.06.2019. In the case of MANAGEMENT OF V.I.S.L., BHADRAVATHI, SHIMOGA DISTRICT AND B.VEERANNA GOWDA PATIL AND ANOTHER – 2000 (4) L.L.N.850, it has been held in paragraph No.6 as under:-
“ 6. An employee who is found to be guilty of securing appointment by playing fraud on the employee is not entitled to any equitable consideration or relief. This aspect of the matter has been clarified more than once by the Apex Court. In the case of Union of India v. M.Bhaskar and others (A.I.R. 1996 S.C. 686), it has been held that:
“When once fraud on the employer is detected, appointment orders themselves are tainted and vitiated by fraud and acts of cheating on the part of the employees, appointment orders are liable to be recalled and voidable at the option of the employer concerned. Once fraud of the employees in getting such employment was detected, the employees were proceeded against in a departmental enquiry and called upon to have their say and thereafter have been removed from service. Orders of removal would amount to recalling of fraudulently obtained and erroneous appointment orders which were awarded by the employer after following due process of law and complying with the principles of natural justice. Fraudulently obtained appointment orders would be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases, merely because the employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders, cannot create equity in their favour or any estoppel against the employer.”
6. Further relied on the decision of Hon’ble Supreme Court in the case of KERALA SOLVENT EXTRACTIONS LTD. v. A.UNNIKRISHNAN AND ANOTHER - (2006) 13 SCC 619 to paragraph No.9, it has been held as under:-
“9. Shri Vaidyanathan, learned Senior Counsel for the appellant, submitted, in our opinion not without justification, that the Labour Court’s reasoning bordered on perversity and such unreasoned , undue liberalism and misplaced sympathy would subverty all discipline in the administration. He stated that the management will have no answer to the claims of similarly disqualified candidates which might have come to be rejected. Those who stated the truth would be said to be at a disadvantage and those who suppressed it stood to gain. He further submitted that this laxity of judicial reasoning will imperceptibly introduce slackness and unpredictability in the legal process and, in the final analysis, corrode legitimacy of the judicial process”.
7. In V.I.S.L.’s case, the grievance of the respondent was claiming equitable relief for having rendered number of years of service. In Kerala Solvent Extraction’s case referred to paragraph No.9, has no application to the present case. Both the decisions do no assist the respondent, for the reasons that the petitioner is not claiming any equitable relief in the present matter.
8. Now question is whether quashed order dated 21.01.2015 and its effect, is required to be examined till 14.6.2019. The Hon’ble Supreme Court in the case of SHREE CHAMUNDI MOPEDS LTD. v. CHURCH OF SOUTH INDIA TRUST ASSOCIATION ASI CINOD SECRETARIAT, MADRAS – (1992) 3 SCC 1, in paragraph No.10, it has been held as under:-
“10. In the instant case, the proceedings before the Board under Sections 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result of these orders, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the order of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed”.
9. The Hon’ble Supreme Court had occasioned to examine the effect of quashing and stay of the order. The principle laid down in the aforesaid decision is that quashing of an order would affect restoration of original position. In view of the principle laid down in the aforesaid decision and in Chamundi Moped’s case and the observations made by this Court in W.P.No.3517/2015 read with the regulations of the respondent, that probationer can be placed under suspension, is contrary to law. Moreover, there is no statutory provision denying salary for the intervening period for quashing of discharge order and termination order. Termination order would be prospective. It has no retrospective effect i.e., from the date of discharge order, so as to deny salary to the petitioner for the intervening period. That apart, there are no statutory provision in support of respondent’s contention and observation of this Court in W.P.No.3517/2015.
10. In view of these facts and circumstances, writ petition is allowed only to the extent that the petitioner is entitled to arrears of salary from 21.01.2015 to 14.06.2019. The same shall be calculated and disbursed to the petitioner within a period of three months from the date of receipt of a copy of this order, failing which, petitioner is entitled to interest at the rate of 8% p.a. on the arrears amount.
Sd/- JUDGE VMB