Karnataka High Court
Sri N Mallikarjunan vs The Director, Central Sericulture ... on 24 February, 2025
Author: Krishna S Dixit
Bench: Krishna S Dixit
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NC: 2025:KHC:9081-DB
WP No. 3925 of 2021
C/W WP No. 7144 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 3925 OF 2021 (L-TER)
C/W
WRIT PETITION NO. 7144 OF 2022 (L-RES)
IN WP No. 3925/2021
BETWEEN:
THE DIRECTOR
CENTRAL SERICULTURAL RESEARCH AND
TRAINING INSTITUTE,
SRIRAMPURAM,
MANANDAVADI ROAD,
MYSORE 570 008,
Digitally signed by NOW REPRESENTED
LAKSHMINARAYAN
N BY ITS RR. OKHANDIAR
Location: High Court
of Karnataka
MEMBER SECRETARY,
CENTRAL SILK BOARD,
BENGALURU 560 068
...PETITIONER
(BY SRI. NARASIMHA SWAMY N S., ADVOCATE)
AND:
MR. N. MALLIKARJUNAN,
S/O MR. NANJUNDAPPA CHETTY,
REC, BEDARAGUPPE,
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NC: 2025:KHC:9081-DB
WP No. 3925 of 2021
C/W WP No. 7144 of 2022
ANEKAL TAUK,
DIST. BANGALORE RURAL 562 106
...RESPONDENT
(BY SRI. NAIK V S., ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED AWARD OF THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL CUM LABOUR COURT IN CR
NO.77/2008 DATED 24.06.2020 (VIDE ANNEXURE-G) IN SO
FAR AS THE AWARDING OF THE 80 PER CENT OF THE
BACKWAGES TO THE RESPONDENT AND ETC.
IN WP NO. 7144/2022
BETWEEN:
SRI. N. MALLIKARJUNAN
S/O SRI. NANJUNDAPPA CHETTY,
AGED ABOUT 64 YEARS,
R/AT OLD NO.10, (NEW BBMP NO. 232)
1ST CROSS, ARAKERE MAIN ROAD,
BENGALURU - 560 076.
...PETITIONER
(BY SRI. NAIK V S., ADVOCATE)
AND:
THE DIRECTOR,
CENTRAL SERICULTURE RESEARCH
AND TRAINING INSTITUTE,
SRIRAMPURA MANANDAVADI ROAD,
MYSURU 570 008
...RESPONDENT
(BY SRI. NARASIMHA SWAMY N S., ADVOCATE)
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NC: 2025:KHC:9081-DB
WP No. 3925 of 2021
C/W WP No. 7144 of 2022
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
ENTIRE RECORDS FROM THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, BENGALURU
IN C.R.NO.77/2008 AND GRANT THE PETITIONER THE
FOLLOWING RELIEFS a) ISSUE A WRIT OF CERTIORARI OR
ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION
QUASHING THE AWARD DATED 24/06/2020 PASSED BY
THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-
LABOUR COURT, BENGALURU IN C.R. NO.77/2008, THE
CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED
AS ANNEXURE-E TO THE EXTENT THE PETITIONER IS
AGGRIEVED AND ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE G BASAVARAJA
ORAL ORDER
(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT) I. Both workman and the Management are knocking at the doors of the Writ Court, being aggrieved by the award dated 24.06.2020, whereby, the punishment of compulsory retirement dated 11.10.2005 having been upheld, the award came to be made for the payment of -4- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 80% of back-wages. It was in a peculiar circumstance that the competent authority to hand the punishment was Member Secretary of the Central Silk Board and not the one who authored it. Workman's challenge is W.P.No.7144 of 2022, whereas, that by the Management is in W.P.No.3925 of 2021.
II. Foundational Facts of the Case:
(i) Petitioner-workman gained entry to service on 30.11.1983 as Reeler/Spinner. He earned promotion as Lower Division Clerk with effect from 26.11.1991. He came to be kept under suspension vide order dated 15.11.1995 and he was paid the admissible subsistence allowance during this period. Charge-memo came to be issued against the workman on 10.06.2002. A Retired District Judge was appointed as the Inquiry Officer and inquiry proceedings were accomplished culminating into inquiry report dated 04.04.2005, holding the charges proved.
(ii) The second show-cause notice came to be issued to the workman on 23.06.2005 and he filed his -5- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 representation to the inquiry report presumably in the light of the Apex Court decision in UNION OF INDIA AND OTHERS VS. MOHMED RAMZAN KHAN1. The Disciplinary Authority having rejected the representation accepted the report and eventually an order of compulsory retirement dated 11.10.2005 came to be handed over by the Director. Workman's departmental appeal came to be negatived on 10.05.2006 affirming the order of punishment.
(iii) Mr.V.S.Naik, learned counsel in all fairness admits that the ground as to competence of Disciplinary Authority to levy the penalty/punishment was not taken up. At the instance of the workman, the Central Government referred the matter to the Central Government Industrial Tribunal (for short, CGIT) vide C.R.No.77 of 2008. The preliminary issue as to the regularity of the inquiry came to be answered in favour of the Management holding that the same was fairly accomplished.
1 AIR 1991 SC 471 -6- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022
(iv) Subsequently, in the light of a learned Single Judge's order dated 05.01.2007 in W.P.No.46579 of 2003 between R.NARAYANASWAMY VS. THE CENTRAL SILK BOARD, the order of punishment came to be interfered, in as much as in the said writ petition, it was held that the competent authority to hand punishment of the kind to the clause of employee of the kind was the Member Secretary and not the Director. The CGIT awarded 80% back-wages. Neither the workman is happy nor the Management, with the same. That is how, these two petitions are placed at our hands for disposal, this day.
III. SUBMISSIONS AT THE BAR:
(a) Learned counsel, Shri.V.S.Naik appearing for the workman in his inimitable style argues that once the order of punishment is set at naught on the ground of competence, the clock turns back; therefore, full service with all benefits such as pension, gratuity, etc., ought to have been awarded. In support of his contention, he -7- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 presses into service Apex Court decision in GUJARAT STEEL TUBES LIMITED VS. GUJARAT STEEL TUBES MAZDOOR SABHA AND OTHERS2.
(b) Learned counsel appearing for the Management is not before us, although the case was passed over on the first occasion and taken up later. However, that will not come in the way of these old petitions being disposed off on merits.
IV. Having heard the learned Advocates for the workman and having perused the Petition Papers, we are marginally inclined to interfere as under and for the following reasons:
(a) The fact matrix of the case as to workman gaining entry into service, earning promotion, being suspended, payment of subsistence allowance, issuance of charge-
memo that eventually resulted into a disciplinary inquiry and the same culminating into an order of punishment by way of compulsory retirement, are all demonstrated from 2 AIR 1980 SC 1896 -8- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 the records. Mr.Naik, learned counsel in his usual fairness has not disputed all this.
(b) The contention of Mr.Naik that once the order of penalty is held to have been issued by an incompetent official, all proceedings that eventually resulted into punishment order wither away and that even the punishment order also stands obliterated, appears to be too far fetched an argument. Reasons for this are not far to seek: Firstly, workman was placed under suspension and he was paid the admissible subsistence allowance; obviously, during that period, he did not work. Secondly, disciplinary proceedings were accomplished at the hands of Retired District Judge as the Enquiry Officer, before whom the question of competence of initiation of Departmental Enquiry was not raised; even when second Show Cause Notice was replied to post-enquiry report, he did not take up the contention that the Director was not competent official. Even in his appeal, he kept mum. Had it been taken up at the earliest point of time, the appeal -9- NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 would have been allowed by the Member Secretary who happened to be the Appellate Authority and matter would have been remanded for consideration afresh. Thus, a grave mistake lies with the workman and therefore, he cannot take benefit of the same.
(c) The contention as to competence of the Director to initiate disciplinary inquiry and award the punishment, is a bit kind of afterthought. Such a contention is taken up only because of a learned Single Judge's decision, which held in another case that the Member Secretary is competent and not the Director. Had that contention be taken up ab inceptio, it would have been a different scenario. An order passed without jurisdiction ordinarily is a nullity. However, for practical implications, it remains valid till after the same is set at naught in an appropriate proceedings. This view gains support from the decision of the Apex Court in STATE OF PUNJAB AND OTHERS VS. GURDEV SINGH AND ASHOK KUMAR, AIR 1992 SC 111, wherein it is observed as under:
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NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 "5. In the instant cases, the respondents were dismissed from service. May be illegally.
The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to 'the Court with a grievance that their dismissal from service was no dismissal in law.' According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires, and not voidable. If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.
6. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, 1956 AC 736 at p.769 Lord Radcliffe observed:
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NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 "An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:
"The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and
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NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 that it may be void against one person but valid against another."(Ibid p.352)."
(d) The submission of Mr.Naik that once the order of punishment is held to be incompetent, the reinstatement has to follow, cannot be accepted as a Thumb Rule, a host of factors entering the fray. In the absence of Section 11- A of the Industrial Disputes Act, 1947, perhaps there could be scope for advancing argument of the kind. A special and peculiar power is vested in the Labour Court/CGIT to mould the relief to accord with reason & justice. The Tribunal moulded the relief is true; but the moulding should not be unfair to the Management, either. John Rawls titles his treatise as "Justice as Fairness". This indicates a lot. One who pleads fairness has to exhibit fairness to the other side too. It is not a one way traffic. Viewed from practical point of view, we are of the considered opinion that awarding 80% of back wages when the employee was out of employment throughout, is highly disproportionate and offends the sense of justice. At the same time, the workman cannot be sent empty
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NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 handed, either. A golden balance has to be struck between the two extremes; of course, that cannot be exactly in between. We are of the considered view that award of 25% of back wages in the circumstances of the case would meet ends of justice.
In the above circumstances, these petitions are disposed off with the following directions:
[i] The impugned award of the CGIT stands modified to the effect that the workman shall be paid back wages quantified at the rate of 25% within a period of three months, if already not paid and if delay is brooked, the same shall carry interest at the rate of 2 % per mensem. The interest component may be recovered from the erring officials.
[ii] The period between 30.11.1983, i.e., date of entry into service and 11.10.2005, i.e., the date of compulsory retirement, shall be considered as the qualifying service for the purpose of award and computation of all terminal benefits such as pension, DCRG, re-fixation of pay, etc., as are admissible in law.
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NC: 2025:KHC:9081-DB WP No. 3925 of 2021 C/W WP No. 7144 of 2022 Costs made easy.
Registry to send the copy of this Judgment to the Silk Board by Speed Post, immediately.
Sd/-
(KRISHNA S DIXIT) JUDGE Sd/-
(G BASAVARAJA) JUDGE DH List No.: 1 Sl No.: 0 CT:SNN