Karnataka High Court
S Rudrappa vs The Secretary on 24 March, 2014
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
®
DATED THIS THE 24TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.7640/2014 (S-RES)
BETWEEN:
S. RUDRAPPA
S/O. SHAMBULINGAPPA,
AGED ABOUT 77 YEARS,
RETD. CASHIER,
THE MYSORE MERCHANTS
CO-OP. SOCIETY LTD.,
NO.4/129, JANATHA LAYOUT,
J.P.NAGAR,
MYSORE - 570 008.
...PETITIONER
(BY SRI M. RAGHAVENDRACHAR, ADV.)
AND:
1. THE SECRETARY,
THE MYSORE MERCHANTS
CO-OP. SOCIETY LTD.,
JAGAN MOHAN PALACE ROAD,
MYSORE - 570 008.
2. THE PRESIDENT
THE MYSORE MERCHANTS
CO-OP. SOCIETY LTD.,
JAGAN MOHAN PALACE ROAD,
MYSORE - 570 008.
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3. THE JOINT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
(U/R 441) ARBITRATION CELL,
KARNATAKA STATE CO-OPERATIVE
URBAN BANK FEDERATION LTD.,
BANGALORE, NO.132,
2ND FLOOR, KSCUBF BUILDING,
K.H. ROAD, BANGALORE - 560 027.
...RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE/QUASH THE ANNEXURES - B & C PASSED BY THE 3RD
RESPONDENT AND KARNATAKA APPELLATE TRIBUNAL DATED
30.12.2006 AND APPEAL DATED 21.9.2013 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
An order of compulsory retirement passed against the petitioner on 16.09.1986 by the respondents, when questioned in a dispute filed under S.70 of the Karnataka Co-operative Societies Act, 1959 (for short 'the Act') having not been interfered with by the learned Departmental Arbitrator, Karnataka Appellate Tribunal (for short 'the Tribunal') and the learned Single Judge, W.A.No.2470/1997 filed by the petitioner was allowed by a Judgment dated 23.06.2000(reported in ILR 2001 Karnataka 14). The case having been remanded to the 3 Departmental Arbitrator and a compromise petition having been filed and the respondents having handed over to the petitioner a pay order for `2,30,000/-, the compromise was accepted and the dispute was dismissed on 30.12.2006. Appeal No.237/2007 filed by the petitioner against the said award having been dismissed by the Tribunal on 21.09.2013, this writ petition was filed, to quash the said Award and the Judgment vide Annexures-B and C.
2. Sri. M. Raghavendrachar, learned advocate, submitted that the contention of the petitioner is that he is entitled to consequential benefits on account of setting aside the order of compulsory retirement by this Court in the judgment reported in ILR 2001 Karnataka 14 and the Tribunal having misunderstood the contention has illegally dismissed the appeal and hence, interference is called for.
3. Perused the writ petition record and considered the submissions made by Sri M. Raghavendrachar. Point for consideration is, whether an appeal under S.105 of the 4 Karnataka Co-operative Societies Act, 1959, can lie against a consent Award passed by the learned Arbitrator?
4. By allowing the writ appeal filed by the petitioner, the case was remanded to the Departmental Arbitrator, to adjudicate the dispute in accordance with law, by making it clear that if the award is passed on merits, the petitioner is entitled to all the retirement benefits from the date of compulsory retirement till the date of his superannuation.
5. After the remand, during the pendency of the case, the petitioner and the respondents filed a compromise petition on 30.12.2006, which reads as follows:
"G¨sÀAiÀÄ ¥ÁnðUÀ¼ÀÄ ¸À°è¹zÀ gÁf£ÁªÉÄ ¥ÀvÀæ"
G¨sÀAiÀÄ ¥ÁnðUÀ¼ÀÄ F ªÁådåPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÉ F PɼÀPÀ AqÀAvÉ gÁf ªÀiÁrPÉÆ ArgÀÄvÁÛgÉ.
1. CfðzÁgÀgÀÄ ªÁådåzÀ°è ªÀiÁrgÀĪÀ DgÉÆ Ã¥ÀUÀ¼À£ÀÄß ªÁ¥À¸ÀÄì ÆArgÀÄvÁÛgÉ ªÀÄvÀÄÛ ªÁådåªÀ£ÀÄß ªÀeÁ ªÀiÁqÀ®Ä ¥ÀqÉzÀÄPÉÆArgÀ ¥Áæyð¸ÀÄvÁÛgÉ.
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2. 1£Éà JzÀÄgÀÄzÁgÀgÀ DqÀ½vÀ ªÀÄAqÀ½AiÀÄÄ 2£Éà JzÀÄgÀÄzÁgÀgÀ CzsÀåPÀëvÉAiÀÄ°è ¢£ÁAPÀB22-06-2006 gÀAzÀÄ £ÀqÉzÀ ¸À¨sÉAiÀÄ°è CfðzÁgÀjUÉ ¨ÁåAQ£À »vÀzÀȶÖAiÀÄ£ÀÄß UÀªÀÄ£ÀzÀ°èlÄÖPÉÆ AqÀÄ gÀÆ. 2,30,000/- (JgÀqÀÄ ®PÀëzÀ ªÀÄƪÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) J¯Áè ¨Á§ÄÛ ¸ÉÃj ¸ÀA¥ÀÆtðªÁV ¥ÀjºÁgÀzÀ ¨Á§ÄÛ ¤ÃqÀ®Ä wêÀiÁð¤¹gÀÄvÀÛzÉ.
3. CfðzÁgÀgÀÄ gÀÆ. 2,30,000/- (JgÀqÀÄ ®PÀëzÀ ªÀÄƪÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) UÀ¼À£ÀÄß ¸ÀA¥ÀÆtðªÁV ¥ÀjºÁgÀzÀ ¨Á§ÄÛ ¥ÀqÉAiÀÄ® ®ÄÄ M¦à ªÀÄvÀÄÛ E£ÀÄß ¨ÉÃgÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ ¥ÀjºÁgÀªÁUÀ°Ã, ºÀtªÁUÀ°Ã JzÀÄgÀÄ CfðzÁgÀgÀÄUÀ½AzÀ ¸ÀAzÁAiÀĪÁUÀ¨ÉÃQ®èªÉAzÀÄ M¦àgÀÄvÁÛgÉ ªÀÄvÀÄÛ F ¢£À 1£Éà JzÀÄgÀÄzÁgÀjAzÀ ¸ÀA¥ÀÆtð ¥ÀjºÁgÀzÀ ¨Á§ÄÛ CfðzÁgÀgÀ ºÉ¸Àj £À°è gÀÆ. 2,30,000/- (JgÀqÀÄ ®PÀëzÀ ªÀÄƪÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀiÁvÀæ) UÀ¼À£ÀÄß 1£Éà JzÀÄgÀÄzÁgÀgÀ ¨ÁåAQ£À ¦sà DqÀðgï £ÀA. 000231, ¢£ÁAPÀ 30-12-2006 £ÀÄß F £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ¥ÀqÉ¢gÀÄvÁÛgÉ.
DzÀÝjAzÀ F ªÉÄîÌAqÀ PÁgÀtUÀ½UÁV F ªÁådåªÀ£ÀÄß RZÀÄð ¥Áææyð¹PÉÆ ¼ÀÄîvÁÛgÉ.
gÀ»vÀ ªÀeÁ ªÀiÁqÀ¨ÉÃPÉAzÀÄ G¨sÀAiÀÄ ¥ÁnðUÀ¼ÀÄ ¥Á (Emphasis supplied) The Departmental Arbitrator, by accepting the said compromise petition, dismissed the dispute by an order/award dated 30.12.2006, which reads as follows:
"Case called. The petitioner is present, the respondent and President of the Bank present, files a compromise petition, and pay order No.000231 dated 30.12.2006 for Rs.2,30,000/- has been handed over to the petitioner, in lien of the compromise petition, jointly signed by both the 6 parties. The compromise petition is accepted, and the case is dismissed without cost. The order pronounced in the open Court."
6. Questioning the said award, an appeal under S.105 of the Act was filed, inter alia contending that in view of the judgment passed in writ appeal, the petitioner being entitled for all the service benefits, the acceptance of the compromise petition is not correct. The Tribunal having found that the petitioner has compromised the matter with the respondents and that there is no evidence brought on record to the effect that the compromise dated 30.12.2006 was made under duress and there being no evidence with regard to fraud played in the matter of entering into the compromise, has held that the appeal is not maintainable. Further, by noticing that there being consent and the sum agreed has been received, Tribunal has held that no interference in appeal is warranted.
7. There is no dispute with regard to the fact that a compromise petition dated 30.12.2006 was presented jointly by the petitioner and the respondents before the 7 Departmental Arbitrator and that the respondents paid to the petitioner `2,30,000/- by way of a 'pay order'. Thus, by entering into a compromise and accepting the sum shown therein, in full and final satisfaction of all the claims, the petitioner had sought dismissal of the dispute. It is on account of the compromise petition having been accepted, the dispute was dismissed without cost, in terms of the mutual agreement arrived at by the parties to the case. The need for awarding of retirement benefits from the date of compulsory retirement from service of the petitioner till the date of his superannuation, would have arisen, if there was adjudication of the dispute and an Award was passed. Before the dispute was adjudicated the parties entered into compromise and the case was closed accordingly.
8. It is trite that, the burden of proof that a compromise arrived at was tainted by coercion or fraud lies upon the party, who alleges the same. In the instant case, the burden is upon the petitioner. There is neither 8 any pleading nor proof placed in that regard. The basic rule of pleading is that in order to make out a case of fraud or coercion, there must be (a) an express allegation of coercion or fraud and (b) all material facts in support of such allegation must be laid down in full and with a high degree of precision. In short, if coercion or fraud is alleged, it must be set out with full particulars. In this regard, it is appropriate to notice the ratio of the decision in BISHUNDEO NARAIN vs. SEOGENI RAI, AIR 1951 SC 280,wherein the Apex Court has held as follows:
"24. We turn next to the questions of undue influence & coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate & separable categories in law & must be separately pleaded.
25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must set forth full particulars & the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. (See Order 6 Rule 4 of the Civil Procedure Code.)"
(emphasis supplied) 9 Since, the particulars in support of the allegation of fraud or coercion has not been set out as required by law, either in the appeal memorandum filed in the Tribunal or in the memorandum of this writ petition, no credence can be given to the bald statement made in this regard by the petitioner.
9. With regard to binding nature of a consent decree, in SHANKAR SITARAM SONTAKKE Vs. BALKRISHNA SITARAMA SONTAKKE, AIR 1954 SC 352, Apex Court has held as follows:
"9. The obvious effect of this finding is that the plaintiff is barred by the principle of 'res judicata' from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata'."
(emphasis supplied)
10. The petitioner having received the agreed sum of `2,30,000/- from the respondent - Bank, towards full and final satisfaction of the amount payable to him and 10 having declared that he is not entitled to any further payment and having also further declared that he is not entitled to any other relief from the respondents, is not entitled to question the consent award by filing the appeal. Thus, no appeal can be maintained against a consent Award.
In view of the above, the Tribunal has not committed any error or illegality in dismissing the appeal filed by the petitioner as against the consent award passed by the Arbitrator. There being no ground to issue Rule Nisi, the writ petition being devoid of merit is rejected.
Sd/-
JUDGE sac*