IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No. 1141 OF 2012 (S-PRO) BETWEEN:
SRI P A BABU JAYAPRAKASH AGED ABOUT 60 YEARS SON OF V APPUKUTTY RESIDING AT NO. 28/170-B (SRA 66) THONDAGADI CALICUT, KERALA.
(BY SRI. S B MUKKANNAPPA, ADVOCATE) ….APPELLANT AND:
THE MANAGING DIRECTOR KARNATAKA SOAPS AND DETERGENT LIMITED YESHWANTHAPUR BENGALURU-560 022.
(BY SRI. M R C RAVI, ADVOCATE) ….RESPONDENT THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.10934 OF 2011 (S-PRO) DATED 24.01.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT The appellant herein has come up in appeal being aggrieved by the order dated 24.1.2012 passed by the learned Single Judge in W.P.No.10934 of 2011 in dismissing the petition.
2. The brief facts are as under :
The appellant was appointed as a Sales Supervisor by the respondent–Company on 19.8.1988 and his services came to be confirmed on completion of his probationary period. That on 19.1.1999 he had submitted a conditional letter to the Regional Manager of the Company stating that in case he does not achieve the commitment of collections, Company may treat the said letter as a resignation letter and relieve him from the services of the Company. That on the basis of the said commitment letter, he was relieved from the services on 18.02.1999. The appellant being aggrieved by the relieving order dated 18.2.1999, preferred an appeal before the Appellate Authority and the appeal came to be dismissed. Thereafter, the appellant preferred Writ Petition No.16736 of 1999 calling in question the validity of the relieving order dated 18.2.1999 and this Court allowed the writ petition filed by the appellant on 7.1.2003 and has quashed the relieving order dated 18.02.1999 with a direction to reinstate the appellant into service with all consequential benefits including 50% back wages from the date of his relieving from service till the date of reinstatement with benefits of continuity of service. This Court while allowing the writ petition directed the respondent to reinstate the appellant within four weeks from the date of the order and to settle the backwages and all other benefits within six weeks from the date of the order. The Company being aggrieved by the order of the learned Single Judge preferred Writ Appeal No.2144 of 2003 and obtained a stay of operation of the order passed by the learned Single Judge. The Division Bench was pleased to dismiss the writ appeal on 30.5.2005 and imposed a cost of Rs.3,000/- payable to the appellant herein. The Company being aggrieved by the order passed by the learned Single Judge in the above writ petition as well as by the Division Bench in the writ appeal, preferred Special Leave Petition (SLP) before the Hon’ble Supreme Court in SLP No.17183 of 2005. The Hon’ble Supreme Court dismissed the SLP filed by the Company on 29.8.2005.
After the dismissal of the SLP, the Company has reinstated the appellant into service on 30.9.2005 and subsequently promoted him from the cadre of Junior Officer (Sales) to Officer (Sales) with effect from 28.3.2006. That the appellant submitted representations on 6.3.2006 and 4.4.2006 requesting the Company to pay back wages and also to extend the other benefits and full salary from February 2003 to September, 2005. That on the basis of the representations given by the appellant, the Company has issued an endorsement dated 10.7.2006 rejecting the claim of the appellant for full backwages from February 2003 to September 2005 and also leave benefits, LTC and interest subsidy on the amount for which he was not on duty. The appellant being aggrieved by the said endorsement has preferred Writ Petition No.8957 of 2006 and also sought for a direction for payment of difference of backwages as well as full salary from 2.7.2003 to 30.9.2005. The said writ petition came to be disposed off directing the Company to reconsider the claim of the appellant in accordance with law. That in pursuance of the order passed by the learned Single Judge in the above said writ petition, the Company issued an endorsement dated 25.5.2007 rejecting the claim of the appellant for full back wages from February 2003 to September, 2005. The appellant being aggrieved by the endorsement dated 25.5.2007 filed Writ Petition No.10934 of 2011. The learned Single Judge dismissed the writ petition filed by the appellant on 24.1.2012. The appellant being aggrieved by the order passed in Writ petition No.10934 of 2011 dated 24.1.2012, has preferred this appeal.
3. Heard learned counsels for the parties.
4. The appellant contends that the Company has caused a delay in implementing the direction of this Court. Thus he is entitled for full back wages from February 2003 to September 2005. The learned Single Judge has committed an error in dismissing the writ petition filed by the appellant without considering the directions issued by this Court in the earlier writ petition. He further submits that the Company has already paid 50% of back wages as per the direction of this Court and further submits that out of the remaining 50% backwages due to him from the Company, he is ready to forego 25% of the remaining backwages.
5. Learned counsel appearing for the respondent-Company submits that the Company has already complied with the directions issued by this Court and further submitted that there was an interim order in the writ appeal filed by the Company and for the said reason, they could not reinstate the appellant into service till the disposal of the SLP by the Hon’ble Apex Court. The appellant is not entitled for full back wages for the period February 2003 to September 2005.
6. It is seen that as per the direction of this Hon’ble Court in W.P.No.16736 of 1999, the Company was directed to reinstate the appellant into service and four weeks time was given to the Company to comply with the directions so far as reinstatement is concerned and six weeks time was granted to settle the backwages and all other benefits.
7. That the Company did not comply with the directions issued in the order dated 7.1.2003. On the contrary, they filed a writ appeal and obtained an interim order of operation of the order of the learned Single Judge and subsequently, the Division Bench dismissed the writ appeal filed by the Company and the same was affirmed by the Hon’ble Apex Court.
8. That when the direction was issued by the learned Single Judge, the said order became operative and the appellant was entitled to reinstatement by the Company. However, the respondent obtained an interim order of stay in the Division bench unconditionally and subsequently, the said writ appeal came to be dismissed. Though the appellant was entitled for reinstatement within four weeks from the date of passing the order in the writ appeal, the respondent did not comply with the order passed by the learned Single Judge only on the ground that the order passed by the learned Single Judge was stayed by the Division Bench and only after disposal of the Special Leave Petition, the Company has complied the order of the learned Single Judge and reinstated the appellant-employee into service and paid back wages. When the Company did not comply with the order passed by the learned Single Judge, the appellant is entitled for full backwages from February 2003 to September 2005. The order of the learned Single Judge will come into operation from the date of passing the order. Hence, the appellant is entitled for 100% back wages from 2003 till he has been reinstated as held by the Hon’ble Supreme Court in M.L.BOSE AND CO., PRIVATE LTD., CALCUTTA – vs.
EMPLOYEES reported in AIR 1961 Supreme Court 1198, the relevant portion is extracted below :
“8. The award has directed that 1/3 of the total emoluments should be paid to the workmen for the period from the date of dismissal till reinstatement; that was because it appeared to the Tribunal that the workmen had earned from time to time by different work. Mr Sanyal has suggested that we should direct a similar payment at a similar reduced rate from the date of the award until the date of reinstatement. We do not propose to make such an order. After the award became operative the workmen were entitled to reinstatement by the appellant, but the appellant obtained an order for stay from this Court unconditionally. In such a case we do not see any reason for depriving the workmen of their full wages from the date the award became operative to the date of their reinstatement.”
9. In view of the law laid down by the Hon’ble Apex Court it is apparent that even if the respondent has obtained stay, the right of the appellant cannot be deprived of in regard to full wages from the date of the order of the learned Single Judge dt.7.1.2003 which became operative. The said aspect has not been considered by the learned Single Judge in regard to the fact that the order of the learned Single Judge comes into operation from the date of passing an order. Merely because the respondent has preferred an appeal and obtained a stay that does not mean that the appellant is not entitled for full backwages from the date of issuing a direction by this Court dt.7.1.2003. That in view of the law laid down by the Hon’ble Supreme Court in the aforesaid judgment, the appellant is entitled for full backwages from the date of the order became operative to the date of his reinstatement. Hence, we are of the view that the learned Single Judge has committed error in dismissing the writ petition.
10. The appellant has already received 50% of backwages from February 2003 to September 2005 and he is entitled for remaining 50% of backwages for the said period. However, in view of the submission made by the learned counsel for the appellant that the appellant is ready to forego 25% of remaining backwages, the submission of the learned counsel for the appellant is taken on record and we direct that the appellant is entitled for the remaining 25% of the backwages from February 2003 to September 2005.
11. Hence, we proceed to pass the following ORDER The Writ appeal is allowed. The order dated 24.1.2012 passed by the learned Single Judge in Writ petition No.10934 of 2011 is set aside. The appellant is entitled to 25% of additional back wages from February 2003 to September 2005.
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JUDGE JUDGE rs