IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.56647 OF 2018(CS-RES) BETWEEN:
SRI.K.SIPPE GOWDA S/O LATE SRI.CHIKKA JAVAREGOWDA AGED ABOUT 66 YEARS RESIDING AT NO.76, 3RD STAGE 4TH BLOCK, BASAVESHWARANAGAR BENGALURU – 560 079.
(BY MR.M.NAGAPRASANNA, SR. ADV. FOR MR.SHIVAPRASAD SHANTANAGOUDAR, ADV.) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY VIDHANA SOUDHA BENGALURU – 560 001.
2. THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIEITES (H & M) NO.1, ALI ASKAR ROAD BENGALURU – 560 052.
3. THE KARNATAKA STATE JUDICIAL DEPARTMENT EMPLOYEES HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED NO.7/2, SURYA CHAMBERS 2ND FLOOR, I MAIN ROAD SESHADRIPURAM BENGALURU – 560 020 REPRESENTED BY ITS SECRETARY … PETITIONER 4. SRI.T.SHIVANANDA S/O LATE SRI.THYARA MALLAPPA AGED 69 YEARS RESIDING AT NO.326, 75TH CROSS KUMARSWAMY LAYOUT I STAGE BENGALURU – 560 078.
5. SRI.G.S.SHIVA KUMAR S/O LATE SRI.SIDDALINGAIAH AGED ABOUT 71 YEARS RESIDING AT NO.1065, D.M.C.J.NILAYA 6TH MAIN ROAD 3RD STAGE, 3RD BLOCK WEST OF CHORD ROAD BASAVESHWARANAGAR BENGALURU – 560 079.
(BY MR.V.SHIVAREDDY HCGP FOR R1 & R2 SMT.B.V.VIDYULATHA ADV. FOR R3 MR.B.VACHAN ADV. FOR R4 & R5) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 14.12.2018 PASSED BY THE KARNATAKA APPELLATE TRIBUNAL AT BENGALURU IN REVISION PETITION NO.34/2018 VIDE ANNEXURE-D AND CONSEQUENTLY THE ORDER DATED 10.09.2018 PASSED BY R2 IS TO BE RESTORED [ANNEXURE-C].
THIS WRIT PETITION COMING ON FOR DISPOSAL THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Nagprasanna, Learned Senior Counsel for Mr.Shivaprasad Santanagoudar, learned counsel for the petitioner.
Mr.V.Shivareddy, learned High Court Government Pleader for respondent Nos.1 and 2.
Smt.B.V.Vidyulatha, learned counsel for respondent No.3.
Mr.B.Vachan, learned counsel for respondent Nos.4 and 5.
2. Petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition, the petitioner inter alia seeks a writ of ceritiorari for quashment of the order dated 14.02.2018 passed by the Karnataka Appellate Tribunal, Bengaluru.
4. Facts giving rise to filing of the writ petition briefly stated are that on 14.02.1972 the petitioner joined the services of Second Division Assistant in the High Court. The petitioner was promoted to the post of Court Officer on 17.06.1994. In the year 2004, the petitioner was placed under suspension and eventually by an order dated 12.09.2005, a penalty of dismissal from services was imposed on the petitioner. The petitioner challenged the order of dismissal in W.P.No.26158/2005. The aforesaid writ petition was allowed in part by a Bench of this Court by order dated 31.03.2011 and the penalty of dismissal imposed on the petitioner was modified and was directed to be treated as compulsory retirement. The petitioner challenged the order passed by the learned Single Judge in writ appeal. Aggrieved by the order passed by the learned Single Judge, the petitioner also filed a writ appeal viz., W.A.No.4203/2011.
5. The respondent Nos.4 and 5 filed a dispute before the Additional Registrar of Cooperative Societies. In the aforesaid proceedings, on 01.09.2018, the respondent No.2 granted interim order restraining the petitioner from holding the post of President of respondent No.3-Society. Subsequently, the respondent No.2 vacated the interim order of stay on 10.09.2018. The aforesaid order was challenged by respondent Nos.4 and 5 before the Karnataka Appellate Tribunal in a revision. The tribunal by an order dated 14.12.2018, set aside the order passed by respondent No.2. In the aforesaid background, the petitioner has approached this Court.
6. Learned Senior counsel for the petitioner submitted that the Karnataka Appellate Tribunal grossly erred in interpreting the order passed by the Bench of this Court and in holding that since, the petitioner is a dismissed employee, therefore, he is not eligible to hold the post of the President of the Society. It is further submitted that the Tribunal ought to have appreciated the fact that the undertaking was only to put the order of the learned Single Judge in suspended animation and the order passed by the learned Single Judge is valid in the eye of law and is binding on the parties and only its execution was put in abeyance on account of the undertaking furnished by the petitioner before the Division Bench. It is also urged that it was not open for the Appellate Tribunal to implement the order passed by the Division Bench of this Court and while acting so, it has traveled beyond the scope of its authority. Learned counsel for the respondent No.3 has supported the submissions made by the Learned Senior Counsel for the petitioner.
7. Learned counsel for the respondent Nos.4 and 5 submitted that the petitioner furnished an undertaking that he shall not implement the order passed by the Learned Single Judge till the disposal of the appeal and the undertaking furnished by the petitioner relegated him to the status of ‘dismissed employee’. Therefore, he is not entitled to continue as President of the Society. It is further submitted that the order passed by the Appellate Tribunal is perfectly just and legal and does not call for any interference.
8. I have considered the submissions made by learned counsel on both the sides and have perused the record. Before proceeding further, the undertaking, which was furnished by the petitioner before the Division Bench may be noticed, which is contained in the order dated 07.06.2011, which reads as under:
“Today, the learned Senior counsel for the respondent, on instruction from the respondent submits that his undertaking that he will not take any step for implementation of the order passed by the learned Single Judge till the disposal of the appeal may be recorded. The said undertaking is recorded. Therefore, it is unnecessary to pass any order on Misc.W.No.4517/2011 for stay.
9. From perusal of the aforesaid undertaking, it is evident that the implementation of the order passed by the Learned Senior Judge was kept in abeyance on account of the undertaking furnished by the petitioner. In other words, the extent of the order passed by the Learned Single Judge was in no way wiped out. The order passed by the learned Single Judge is very much in existence, which declares the status of the petitioner as an employee who has been compulsorily retired. The Supreme Court in ‘SHREE CHAMUNDI MOPEDS LTD., VS. CHURCH OF SOUTH INDIA TRUST ASSOCIATION CSI CINOD SECRETARIAT, MADRAS’, (1992) 3 SCC 1 has held that 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. The effect of an order of stay is that the order is kept in abeyance. Therefore, the contention of respondent Nos.4 and 5 on account of undertaking furnished by the petitioner, he is relegated to the status of ‘dismissed employee’ does not deserve acceptance. The Tribunal grossly erred in holding that merely by furnishing an undertaking, status of the petitioner was reduced to that of dismissed employee and therefore, he was not eligible to hold the post of President of the Society. The impugned order neither suffers from jurisdictional infirmity nor any error apparent on the face of the record and is based on interpretation of the order passed by the Division Bench even otherwise, it was not binding on the Tribunal to interpret the order passed by the division bench of this Court and in case it had any doubt with regard to legal impediment of the order passed by the division bench of this Court, the tribunal ought to have relegated the parties to seek clarification from the division bench. In view of the preceding analysis the impugned order dated 14.12.2018 is quashed and set aside. In the result, the petition is allowed.
Sd/- JUDGE SS