IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON' BLE MR.JUSTICE R. DEVDAS WRIT PETITION NO.29870 OF 2014 (S-R) BETWEEN W. NINGAPPA S/O MALAPPA WAGGAR AGED ABOUT 60 YEARS R/A NO.1378, 10TH MAIN ROAD, VIJAYANAGAR, BANGALORE-560040 ... PETITIONER AND (BY SRI NAGA PRASANNA.M, SENIOR COUNSEL FOR M/S NAGA PRASANNA.M ASSTS., ADVOCATES) 1. CANARA BANK A BODY CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION & TRANSFER OF UNDERTAKINGS) ACT, 1970 REPTD BY ITS GENERALMANAGER (PERSONNEL), CIRCLE OFFICE, NO.86, M G ROAD BANGALORE-560001 2. CANARA BANK HRM SECTION, CIRCLE OFFICE, KHUBA COMPLEX, GULBARGA-585102 ... RESPONDENTS (BY SRI A RAVISHANKAR, ADVOCATE FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER READING- "HOWEVER, THE DATE FROM WHICH HE HAD LAST WORKED I.E., 04.08.2008 TILL 30.09.2013 I.E., THE DATE OF HIS NORMAL SUPERANNUATION WILL NOT BE TREATED FOR ANY PURPOSE WHATSOEVER." AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R. DEVDAS J., (ORAL):
The petitioner was appointed as a Clerk in the respondent Bank by order dated 18.12.1978. The petitioner joined the services on 01.01.1979. The respondent Bank having received a complaint that the caste certificate produced by the petitioner herein was a false certificate, disciplinary proceedings initiated against the petitioner. The petitioner approached this Court in W.P.No.18799/1991 calling in question the charge sheet issued by the respondent. On 23.7.1992, this Court granted an order of stay of the disciplinary proceedings that were initiated by the respondent Bank.
2. The contention of the petitioner is that he belongs to “Kadu Kuruba”, community which is a scheduled tribe as per the Presidential notification. Subsequently, another writ petition in W.P.No.24992/2003 was filed by the petitioner. On 16.05.2003, an interim order of stay was also granted by this Court. Finally, on 02.01.2007, the writ petition was allowed while quashing the order dated 26.03.2003 passed by the Thasildar. It was also directed that the Deputy Commissioner shall issue notice to the petitioner to hold an enquiry as to whether the petitioner belonged to “Kadu Kuruba” or “Kuruba” community and pass orders in accordance with law after opportunity is afforded to the petitioner. It was also observed that in the event if the petitioner does not avail the benefit of hearing by appearing before the Deputy Commissioner, the order at Annexure-G would sustain. During the proceedings before the Deputy Commissioner, the Deputy Commissioner sought for a report from the Tahsildar and therefore the Tahsildar vide communication dated 22.03.2007 reported to the Deputy Commissioner that the petitioner belongs to “Kadu Kuruba” caste which is a Scheduled Tribe. Nevertheless, the respondent terminated the services of the petitioner by order dated 31.07.2008, with retrospective effect from 29.04.2003 i.e., the date on which the Bank had passed the final order of dismissal, which had been kept in abeyance by virtue of the interim order of stay passed by this Court. As a consequence, the petitioner once again approached this Court in W.P.No.40303/2008. On 06.11.2009, this Court quashed the order of termination dated 31.07.2008 and directed the petitioner to make an appropriate application before the Caste Verification Committee constituted by the State Government as per the order dated 06.05.2009 within a period of eight weeks from the date of the order seeking validity of his caste certificate. Directions were also issued to the Caste Verification Committee. It is to be noticed that this Court directed the respondent Bank to reinstate the petitioner within a period of four weeks from the date of receipt of copy of the order, however, the reinstatement was to be subject to the result of the order to be passed by the Committee.
3. Learned Senior Counsel Sri M.Naga Prasanna, submits that inspite of a specific direction by this Court, the respondent did not reinstate the petitioner. On the other hand, the respondents preferred an appeal in W.A No.10012/2010 before the Division Bench. The Division Bench after hearing both the parties disposed of the appeal on 09.12.2010 holding that the parties will be bound by the determination of the Caste Verification Committee. It was also held that in case the Caste Verification Committee upholds the caste certificate issued by the Tahsildar on 17.11.1997, the impugned order passed by the respondent Bank terminating the services of the petitioner herein would be deemed to be set aside and the order passed by this Court in W.P.No.40303/2008 on 06.11.2009 would be deemed to be upheld. The Division Bench further held that in that eventuality, the petitioner herein shall be entitled to all consequential benefits.
4. During the interregnum, the State Government passed an order on 24.04.2013 canceling the earlier Government Order dated 06.05.2009, while ordering that the District Caste Verification Committee was the competent authority to decide caste certificates of all types. Consequently, the issue regarding the caste verification of the petitioner was taken up before District Caste Verification Committee and by order dated 16.09.2013, the Committee confirmed the caste certificate issued in favour of the petitioner.
5. Learned Senior Counsel submits that inspite of the specific direction being issued by this Court and the direction of the Division Bench, the petitioner was not reinstated by the respondent Bank. The petitioner attained the age of superannuation on 30.09.2013. On 31.10.2013 the petitioner made one more representation to the respondent Bank and consequently, the respondent Bank issued the impugned order dated 04.12.2013 accepting the caste status of the petitioner, however it was specifically stated in the impugned order that the date from which the petitioner had last worked i.e., 04.08.2008 till the date of superannuation i.e., 30.09.2013, shall not be treated for any purpose whatsoever. The petitioner is aggrieved by this observation in the impugned order dated 04.12.2013.
6. Learned Senior Counsel submits that this condition imposed in the impugned order is contrary to the direction issued by the Division Bench of this Court. It is submitted that in an appeal preferred by the respondent Bank this Court had specifically and clearly held that if the Caste Verification Committee were to hold that the petitioner belongs to “Kadu Kuruba” community and caste certificate issued in his favour was genuine, the order of reinstatement passed by this Court in W.P.No.40303/2008 would be deemed to be upheld and in that eventuality the petitioner shall be entitled for all consequential benefits. Therefore, the learned Senior Counsel submits that inspite of a specific direction by this Court to the respondent Bank to reinstate the petitioner, the respondent Bank having acted contrary to the direction issued by this Court, should not be allowed to blame the petitioner for not having worked from 04.08.2008. Moreover, after hearing the parties, when the Division Bench had specifically held that the petitioner shall be entitled all consequential benefits, the offending portion of the impugned order is liable to be set aside, since it runs counter to the direction issued by the Division Bench.
7. Per contra, learned counsel for the respondent Bank submits that the issue regarding caste certificate of the petitioner was not raised at the instance of the Bank. It is therefore submitted that the petitioner, not having worked for the period from 04.08.2008 till the date of superannuation, the petitioner should not be entitled for the consequential benefits. It is moreover submitted that the District Caste Verification Committee passed the order on 16.09.2013 upholding the case certificate issued to the petitioner and the petitioner attained the age of superannuation 15 days thereafter. Therefore, it should not be held against the respondent Bank that the Bank was responsible for the predicament of the petitioner.
8. Heard the learned Senior Counsel Sri M.Naga Prasanna and Sri A.Ravishankar, for the respondent Bank and perused the writ papers.
9. Having heard the learned counsels for both the parties, this Court is of the opinion that the respondent Bank is bound by the decision and direction of the Division Bench, wherein, after hearing both the parties, in the appeal preferred by the Bank, the Division Bench has specifically held that the order of reinstatement passed by this Court in W.P.No.40303/2008 dated 06.01.2009 will be deemed to be upheld. The caste certificate was found to be genuine by the competent authority and in that eventuality the petitioner shall be entitled for all consequential benefits. The respondent Bank has chosen not to reinstate the petitioner inspite of the specific direction given by the Court. If the respondent Bank had followed the direction issued by this Court, the petitioner should have been reinstated immediately after 06.11.2009 when this Court directed the respondent Bank to reinstate the petitioner. Moreover, as the learned Senior Counsel pointed out that there are number of decisions of this Court and that of the Apex Court, which would hold that once there is an order of reinstatement, and there is a specific direction to pay back wages, the employee is entitled for the said relief. In one of the decision of the Apex Court in the case of Shobha Ram Raturi /vs./ Haryana Vidyut Prasaran Nigam Limited and Ors, reported in AIR 2016 SC 157, the Apex Court has held that the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellants for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of “no work no pay”.
10. In the light of the above, the petition succeeds and the portion of the impugned order which reads, “However, the date from which he had last worked i.e,. 04.08.2008 till 30.09.2013 i.e., the date of his normal superannuation will not be treated for any purpose whatsoever” is hereby quashed and set aside. The respondent Bank shall pay the petitioner the salary for the period 04.08.2008 till 30.09.2013 and compute the pension, gratuity, leave encashment and commutation of pension by including the period between 04.08.2008 till 30.09.2013 as qualifying service for determination of all the terminal benefits. Though there is a prayer for payment of interest, the learned Senior Counsel fairly submits that the petitioner will not press for payment of interest.
11. Recording the said submission, the petition is allowed in terms of the above.
12. The respondent Bank shall pay the arrears of salary and all other benefits as stated above, as expeditiously as possible and at any rate within a period of three months from the date of receipt of copy of this order. No order as to costs.
KLY/ SD/- JUDGE