Karnataka High Court
Dr B O Hanumanthappa vs State Of Karnataka on 12 June, 2019
Bench: Chief Justice, H.T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
WRIT APPEAL NO.19 OF 2019 (S-RES)
BETWEEN:
DR B O HANUMANTHAPPA
S/O HIREHALLI OBAPPA
AGED ABOUT 65 YEARS
RETIRED AS DIRECTOR
BIDAR INSTITUTE OF MEDICAL SCIENCES
PRESENTLY RESIDING AT
SRI RAGHAVENDRA NILAYA
B. V. K. S. LAYOUT, 2ND MAIN
3RD CROSS,CHANDRAVALLI NAGARA
CHITRADURGA 577 501.
... APPELLANT
(BY SRI.M.S BHAGWAT, ADV.)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND
FAMILY WELFARE SERVICES
(MEDICAL EDUCATION)
REPRESENTED BY ITS
PRINCIPAL SECRETARY
VIKASA SOUDHA
BANGALORE 560 001.
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2. THE PRINCIPAL ACCOUNTANT GENERAL (A & E)
KARNATAKA , POST BOX NO.5329
PARK HOUSE ROAD, BANGALORE 560001
3. THE DIRECTOR
DEPARTMENT OF MEDICAL EDUCATION
ANAND RAO CIRCLE, BANGALORE 560009
4. BIDAR INSTITUTE OF MEDICAL SCIENCES
AN AUTONOMOUS INSTITUTION OF
GOVERNMENT OF KARNATAKA
REPRESENTED BY ITS
CHIEF ADMINISTRATIVE OFFICER
BIDAR DISTRICT, BIDAR-585 401.
... RESPONDENTS
(BY SRI.Y.H.VIJAYA KUMAR, PRL.G.A, FOR R1 & R3,
SRI.VASUDEV, CGC., FOR R2
SMT.SUMANA BALIGA, ADV. FOR R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO
a) SET ASIDE THE IMPUGNED ORDER DATED
07/12/2018 PASSED IN WRIT PETITION NO.15429/2017 BY
THE LEARNED SINGLE JUDGE AND CONSEQUENTLY
ALLOW THE SAID WRIT PETITION NO.15429/2017 AS
PRAYER FOR, FILED BY THE APPELLANT HEREIN.
b) PASS ANY OTHER ORDER AS THIS HON'BLE
COURT DEEMS FIT, IN THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING THE COST OF THIS WRIT
APPEAL
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THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE
FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant, the learned Additional Government Advocate appearing for the first and third respondents and the learned Central Government Counsel for the second respondent. By consent, taken up for final hearing.
2. By the impugned order, the learned Single Judge has disposed of the writ petition on the ground that the petitioner has an efficacious remedy to approach the jurisdictional Administrative Tribunal constituted under the Administrative Tribunals Act, 1985.
3. The submission of the learned counsel appearing for the appellant is that at the time of superannuation, the appellant was not an employee or servant of the first respondent, the State of Karnataka, but he was employed by the fourth respondent, which is an independent Society registered under the Societies' Registration Act. He has relied -4- upon the rules and regulations as well as the bye-laws in support of his contentions.
4. The learned counsel appearing for the fourth respondent opposes the appeal by contending that in fact the appellant was an employee of the State Government and that is why the appellant is seeking a relief of grant of pensionary benefits from the State Government.
5. The learned Additional Government Advocate submits that if the appellant is not claiming any relief against the State Government, he ought not to have impleaded the State Government as party-respondent.
6. We have considered the submissions. The impugned order proceeds on the footing that as the Pension Payment Order dated 20th February 2015 mentions that the petitioner joined the service of the Government on 28th February 1995 and demitted the office on 31st August 2014 after attaining the age of superannuation, the appellant will have to be treated as a Government servant. There is a prima- facie material to show that the appellant was appointed as the -5- Director of the fourth respondent, which is a Society registered under the Societies Registration Act. Prima-facie, he was not appointed on deputation.
7. In our view, issue whether the appellant was in the service of the State Government requires in-depth consideration inasmuch as the writ petition filed by the appellant has been thrown out with a liberty to the appellant to avail remedy before the jurisdictional Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. The rules and regulations as well as the bye-laws of the fourth respondent have not been taken into consideration by the learned Judge. Without considering the same, only on the basis of the Pension Payment Order, issue as to who was the employer of the appellant cannot be decided. Therefore, it will be appropriate if the writ petition is remitted to the learned Single Judge so that appropriate adjudication can be made on the said question. Only if it is established that the appellant was in Government service on the date of superannuation that the appellant can be relegated to the statutory remedy. Hence, we pass the following order:
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a) The impugned order dated 7th December 2018 is hereby set aside;
b) The writ petition is remitted to the learned Single Judge for appropriate decision in accordance with law in terms of what is observed in the judgment;
c) Accordingly, the writ appeal is partly allowed in the above terms. It is made clear that we have not made adjudication on the merits of the controversy.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE DM