Karnataka High Court
Sri. Gurudas S. Fayde S/O Subraya Fayade vs Union Of India on 11 October, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:12320-DB
WP No. 103953 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 103953 OF 2023 (S-CAT)
BETWEEN:
SRI. GURUDAS S. FAYDE,
S/O. SUBRAYA FAYADE,
AGED ABOUT 45 YEARS,
FIREMAN, NAVALBASE,
SEABIRD PROJECT, KARWAR.
...PETITIONER
(BY SRI GIRISH A. YADAWAD, ADVOCATE)
AND:
1. UNION OF INDIA
R/BY SECRETARY
DEPARTMENT OF DEFENCE
SAMREEN RAKSHA BHAVAN, NEW DELHI.
AYUB
DESHNUR
2. FLAG OFFICER, COMMANDER IN
CHIEF HEADQUARTERS (CCPO),
Digitally signed
by SAMREEN WESTERN NAVAL COMMAND, MUMBAI.
AYUB
DESHNUR
Date:
2023.10.18 3. COMMANDER SR. STAFF OFFICER (CIVILIAN)
11:19:38 +0530
HEADQUARTERS, KARNATAKA NAVAL AREA, ]
NAVAL BASE, KARWAR,
UTTARA KANNDA DISTRICT 581308.
...RESPONDENTS
(BY SRI VENKATESH M.KHARVI, CGSC)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO MODIFY THE
IMPUGNED ORDER PASSED BY THE CENTRAL ADMINISTRATIVE
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NC: 2023:KHC-D:12320-DB
WP No. 103953 of 2023
TRIBUNAL, BANGALORE BENCH, BANGALORE IN
O.A.NO.170/00673/2018 DATED 14.06.2019 ANNEXURE-M IN
SO FAR AS IT RELATES TO GRANTING THE CONSEQUENTIAL
RELIEFS AND DIRECT THE RESPONDENTS TO GRANT ALL
CONSEQUENTIAL RELIEFS TO THE PETITIONER HEREIN IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, KRISHNA KUMAR J., MADE THE FOLLOWING:
ORDER
This petition arises out of the impugned order dated 14.06.2019 passed in Original Application No.170- 00673/2018 by the Central Administrative Tribunal, Bengaluru (for short, 'the Tribunal'). The said application was filed by the petitioner-applicant seeking quashing of the impugned order dated 03.04.2018 passed by the respondent No.4 terminating the services of the petitioner and for reinstatement into services together with back wages and consequential benefits.
2. By the impugned order, the Tribunal came to the conclusion that the termination/dismissal of the petitioner from services was illegal and arbitrary and directed reinstatement of the petitioner into services. However, the Tribunal declined to grant back wages or any other benefits and granted only notional seniority in favour of -3- NC: 2023:KHC-D:12320-DB WP No. 103953 of 2023 the petitioner, who is before this Court by way of the present petition.
3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that in the absence of any pleadings or proof that during period from dismissal till the date of re-instatement the petitioner was gainfully employed elsewhere, the Tribunal was not justified in declining to grant all consequential benefits including back wages. It was also submitted that having come to the conclusion that the petitioner had been illegally and arbitrarily dismissed/terminated form services, petitioner was entitled not only to reinstatement but also the consequential benefits and back wages, which had been erroneously refused by the Tribunal. In this context, learned counsel placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (Dead) and Anothers - (2013) 10 SCC 324, in order to contend that so long as the petitioner was not gainfully employed elsewhere during -4- NC: 2023:KHC-D:12320-DB WP No. 103953 of 2023 period from date of dismissal till the date of his re- instatement, he would be entitled to back wages and other consequential benefits, particularly, when his termination/dismissal had been found to be illegal and arbitrary and reinstatement was ordered by the Tribunal. It is therefore submitted that the impugned order passed by the Tribunal partly rejecting the application deserves to be set aside and the application deserves to be allowed in fully as sought for by the petitioner.
4. Per Contra, learned CGSC appearing for respondents would support the impugned order and submit that there is no merit in the petition and same is liable to be dismissed.
5. As rightly contended by learned counsel for the petitioner in Deepali's case the Hon'ble Apex Court held as under :
"38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full -5- NC: 2023:KHC-D:12320-DB WP No. 103953 of 2023 back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
41. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice.
42. In the result, the appeal is allowed, the impugned order is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant's suspension till the date of actual reinstatement."-6-
NC: 2023:KHC-D:12320-DB WP No. 103953 of 2023
6. As held by the Hon'ble Apex Court in the aforesaid Judgment, the onus is on the respondents to establish that the petitioner was gainfully employed during the period from date of dismissal/termination till the date of his reinstatement. In the instant case, as stated supra, respondents had not placed any material to establish that the petitioner was gainfully employed during the aforesaid period and consequently having come to the conclusion that the petitioner was illegally and arbitrarily dismissed and that the respondents were liable to reinstate him into service on account of his illegal dismissal/termination, the petitioner was clearly entitled to all consequential benefits and back wages which cannot be denied as wrongly held by the Tribunal. Under these circumstances, we are of the considered opinion that having come to the conclusion that the petitioner's dismissal/termination was illegal and arbitrary and he deserves to be re-instated by setting aside the same, the Tribunal fell in error rejecting the claim for consequential benefits and back wages and as such, the impugned order deserves to be set aside to the said extent and the application filed by the petitioner -7- NC: 2023:KHC-D:12320-DB WP No. 103953 of 2023 deserves to be allowed in full as sought for by the petitioner. In the result, we pass the following :
ORDER
(i) Petition is allowed.
(ii) The impugned order dated 14.06.2019 passed in O.A.No.170/ 00673/2018 by the Central Administrative Tribunal, Bangalore Bench in sofar as it relates to rejecting the claim for consequential benefits and back wages sought for by the petitioner is hereby set aside.
(iii) The application filed by the petitioner is
allowed in full and in addition to
reinstatement as already directed by the Tribunal, the respondents are also directed to grant all consequential benefits and back wages in favour of the petitioner as expeditiously as possible and within a period of three months from the date of receipt of a copy of this order.
Sd/-
JUDGE Sd/-
JUDGE Ckk List No.: 1 Sl No.: 22