Karnataka High Court
Revanasiddaiah vs Janatha Seva Co-Operative Bank Ltd on 19 February, 2025
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.41000 OF 2017 (CS-RES)
BETWEEN
REVANASIDDAIAH
S/O LATE SIDDALINGAIAH,
AGED ABOUT 60 YEARS,
RESIDING AT NO.79,
II FLOOR,I MAIN ROAD,
RHBCS LAYOUT,
ANNAPOORNESHWARI NAGARA,
VISHWANEEDAM POST,
BENGALURU-560091.
...PETITIONER
(BY SRI A V GANGADHARAPPA, ADVOCATE)
AND
1. JANATHA SEVA CO-OPERATIVE BANK LTD.
REPRESENTED BY ITS CHIEF
EXECUTIVE OFFICER,
NO.14, I MAIN ROAD,HAMPINAGARA,
VIJAYANAGARA II STAGE,
BENGALURU-560104.
2. RECOVERY OFFICER &
ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,
CENTRAL RANGE CIRCLE,
NO.32, 2ND FLOOR,
KARANTAKA CO-OP FEDERATION BUILDING,
BANGALORE URBAN DISTRICT (CENTRAL)
RACE COURSE ROAD,
BENGALURU-560001.
3. DEPUTY REGISTRAR OF
2
CO-OPERATIVE SOCIETIES
2ND RANGE, BANGALORE CITY DISTRICT,
NO.32, 2ND FLOOR,
KARNATAKA CO-OP.
FEDERATION BUILDING,
BENGALURU-560001.
4. GOVERNMENT OF KARNATAKA
REPRESENTED BY SECRETARY
TO GOVERNMENT,
CO-OPERATION DEPARTMENT,
MULTISTORIED BUILDING,
BENGALURU-560001.
...RESPONDENTS
(BY SRI SIDDHARTH BABURAO, AGA FOR R2 TO R4
SRI PRADEEP S SAWKAR, ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
30.11.2015 PASSED BY R-2 IN CASE NO. ARB - C: 45 : CEP : 578:
2014-15 AT ANNEX-K THE ORDER DATED 3.10.2016 PASSED BY THE R-
3 IN CASE NO. DRB - C / APPEAL 03 /2015-16 AT ANNEX-L AND THE
ORDER DATED 29.7.2017 PASSED BY R-4 IN CASE NO. CO : 30
CAP :2016 AT ANEX-M RESPECTIVELY AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 18.02.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT MADE THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE C.M. POONACHA
CAV ORDER
The present writ petition is filed seeking the following
reliefs:
"(a) a writ in the nature of Certiorari or any other
appropriate writ or order quashing the order dated
30.11.2015 passed by the 2nd respondent in Case
No.ARB-C:45:CEP:578:2014-15 produced as Annexure-K,
the order dated 3.10.2016 passed by the 3rd respondent
in Case No.DRB-C/Appeal 03/2015-16 produced as
Annexure-L and the order dated 29.7.2017 passed by the
3
4th respondent in case No.CO:30:CAP:2016 certified copy
of which is produced as Annexure-M respectively.
b) a writ in the nature of mandamus or any
other appropriate writ or order and direct the 2nd
respondent to recover from the 1st respondent entire
amount of `.44,74,690/- with interest at 12% pa., from
the date of petition as per the representation made by the
petitioner dated 22.7.2017 true copy of which is produced
as Annexure-K and as claimed in the execution petition
dated 9.6.2014, true copy of which is produced as
Annexure-J."
2. The relevant facts necessary for consideration of the
present petition are that, the petitioner was working as an
Assistant Manager in the first respondent - bank when he was
terminated on 2.9.1998. Being aggrieved, the petitioner
challenged the said termination in a dispute filed under Section
70 of the Karnataka Co-operative Societies Act, 19591 which
was dismissed on 19.11.2003. Being aggrieved, the petitioner
filed Appeal No.20/2004 before the Karnataka Appellate
Tribunal2. By judgment dated 14.5.2010, the Tribunal allowed
the appeal of the petitioner, set aside the order dated
19.11.2003 as well as the termination dated 2.9.1998 and the
first respondent was directed to reinstate the petitioner into
services of the bank with all consequential benefits and
1
Hereinafter referred to as the 'Act'
2
Hereinafter referred to as the 'Tribunal'
4
backwages. The order dated 14.5.2010 of the Tribunal was
affirmed by this Court in WP No.19115/2010.
3. It is further forthcoming that during the pendency of
WP No.19115/2010, consequent to the order dated 22.3.2011
passed on an interim application in the said writ petition, this
Court directed the bank to notionally fix the salary of the
petitioner admissible as an Assistant Manager from the date of
reinstatement and pay all other benefits.
4. Pursuant to the said order dated 22.3.2011, the
petitioner was reinstated and joined services on 16.8.2010. WP
No.19115/2010 was disposed of by order dated 15.9.2011.
The petitioner, thereafter made various representations
claiming arrears of salary, dearness allowance, encashment of
leave, bonus and other benefits as also promotion and since the
same was not acceded to, permission was sought by the
petitioner to prosecute the office bearers of the bank. Since
the said permission was not accorded, the petitioner preferred
WP No.29312/2013 during the pendency of which, on
29.7.2013 the first respondent bank filed a memo along with a
calculation placing on record that the petitioner was entitled to
5
a total sum of `16,22,344/- and after various deductions a sum
of `12,41,002/- was paid. The manner in which the said
calculation was made was also placed on record along with the
said memo. Having regard to the said payment, the writ
petition was disposed of vide order dated 29.7.2013 and in
view of the assertion of the petitioner that the entire amount
due and payable had not been correctly quantified and paid, it
was observed that such satisfaction was required to be decided
in execution proceedings under Section 101 of the Act.
5. Accordingly, the petitioner filed the execution
petition before the second respondent - Assistant Registrar
wherein, balance sum of `44,74,690/- was claimed by the
petitioner. The said proceedings was contested by the first
respondent - Bank. By order dated 30.11.2015 the claim made
by the petitioner was rejected by the second respondent.
Being aggrieved, the petitioner preferred an appeal under
Section 106 of the Act to the third respondent - Deputy
Registrar which was contested by the first respondent bank. By
order dated 3.10.2016 the third respondent rejected the
appeal. Being aggrieved, the petitioner preferred a revision
6
petition under Section 108 of the Act before the fourth
respondent - Government represented by its Secretary, which
proceedings was contested by the first respondent - Bank. By
order dated 29.7.2017 the said revision was rejected by the
fourth respondent. Being aggrieved the present writ petition is
filed.
6. Learned Counsel for the petitioner Sri
A.V.Gangadharappa vehemently contended that the petitioner
having been reinstated consequent to the order dated
14.5.2010 wherein, all consequential benefits and backwages
were ordered to be paid, the petitioner is entitled to various
claims made by him in the proceedings initiated under Section
101 of the Act. He further contended that the original authority
as well as the appellate authority and revisional authority have
erred in not properly considering the claims and contentions
putforth by the petitioner. Hence, he seeks for allowing of the
present writ petition and granting suitable reliefs. In support of
his submissions, he relies on the following judgments:
7
i) Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya3;
ii) Rajendra Prasad Sharma & ors., v. The State of
Jharkhand4; and
iii) The Management of Andhra Scientific Co. v.
The Presiding Officer5.
7. Per contra, learned counsel Sri Pradeep Sawkar
appearing for first respondent - bank contended that there is no
basis for the claim made by the petitioner and all the
authorities have rightly appreciated the relevant factual and
legal aspects and rejected the same, which orders are not liable
to be interfered with by this Court in the present writ petition.
In support of his submissions he relies on the following
judgments:
i) Andhra Bank v. P.Balakrishna (D) by LRs.,6;
ii) Dilbagh Rai Jerry v. Union of India7;
iii) K.R.Tyagi v. National Textile Corporation Ltd.,
& Anr.,8;
iv) K.R.Tyagi v National Textile Corporation Ltd., &
Anr.,9;
3
(2013) 10 SCC 324
4
2007(2) BLJR 1853
5
LAWS (APH)-1969-11-21
6
(2005) 13 LLJ 891
7
AIR 1974 SC 130
8
(1997) 1 LLJ 999 (Kar HC)
9
Order dated 1.6.1999 passed in WA No.9185/1996
8
v) The General Manager, Vijaya Bank Bengaluru
v. H.C.Jayaprakash10; and
vi) Sundarama Motor (P) Ltd., v. Ameerjan &
Anr.,11
8. The submissions made by both the learned counsel
have been considered and the material on record have been
perused. The questions that arise for consideration are:
i. Whether the second, third and fourth respondents
were justified in rejecting the claims made by the
petitioner?
ii. Whether the claim made by the petitioner before the
second respondent is required to be granted?
Reg. question Nos.i & ii:
9. The relevant factual matrix up to the reinstatement
of the petitioner as noticed above is undisputed. The only
aspect that is required to be adjudicated is as to whether the
petitioner is entitled to the claims made by him in the
proceedings under Section 101 of the Act before the second
respondent.
10. The first respondent - Bank vide memo dated
29.07.2013 filed in W.P.No.29312/2013, has furnished a memo
of calculation of the arrears of salary of the petitioner from
9
1998 to 2011 and as per the said memo of calculation, the
arrears of salary of the petitioner was stated to be
₹16,22,344/-. After deducting professional tax, contribution
towards PF, as also income tax, it was stated by the first
respondent - Bank that the petitioner was eligible for a sum of
₹12,41,002/- which was paid vide pay order bearing No.006071
dated 28.07.2013. The calculation made by the first respondent
- Bank which is placed on record vide the said memo dated
29.07.2013 is extracted herein below for ready reference:
SALARY PAYABLE/CALCULATION
a) Total Amount of Arrears Payable Rs.16,22,344
Less:-Deductions:-
1) Professional Tax Rs. 15,750
2) Contribution towards P.F Rs.1,67,841
-------------- Rs. 1,83,591
----------------
Payable before tax Rs.14,38,753
b) Income tax on Rs.14,38,753/-
i) Rs.14,38,753/-(-)Rs.2,00,000/-
(Exemption) ----
ii) Rs.12,38,753/-, Up to Rs.5,00,000/-
@10% Rs. 50,000
iii) Rs.7,38,753/- Up to Rs.10,00,000/-
@20% Rs.1,47,751
-------------
Rs. 1,97,751
----------------
PAYABLE AFTER TAX Rs.12,41,002
----------------
(Rupees Twelve Lakhs Fourty One Thousand Two Only). 10
ILR 2020 KAR 1783 11 AIR 1985 SC 144 10
11. As noticed above, having regard to the said memo, this Court vide order dated 29.07.2013 passed in W.P.No.29312/2013 disposed of the said writ petition reserving liberty to the petitioner to seek relief, if any, under Section 101 of the Act. This Court specifically left open the contention of both parties with regard to the satisfaction or otherwise of the order of reinstatement made vide judgment dated 14.05.2010 passed in Appeal No.20/2004 by the Karnataka Appellate Tribunal, Bengaluru, which was affirmed by this Court in W.P.No.19115/2010.
12. Thereafter, the petitioner has initiated proceedings under Section 101 of the Act before the second respondent - Assistant Registrar. In the said proceedings the claims made by the petitioner are summarized as under:
Sl. Particulars Amount (₹)
No.
1. Arrears of wages on account of automatic `7,71,819/-
promotion
2. Bonus `2,54,700/-
3. Leave Travel Concession (LTC) `1,30,762/-
4. Earned Leave `3,48,800/-
5. Interest (`17,74,004+`6,49,004) `24,23,008/-
Total `39,29,089/-
11
13. Before the claims made by the petitioner could be adjudicated, the legal position as to the entitlement of the petitioner with respect to "consequential benefits" is required to be noticed.
14. In the case of BENNETT COLEMAN AND COMPANY PVT LTD Vs. PUNYA PRIYA DAS GUPTA12, relied upon by the learned counsel for first respondent, the Hon'ble Supreme Court was considering a claim made by a workman as to whether the monetary value of free telephone, newspapers and car allowance was included as part of his wages for calculating gratuity. The Hon'ble Supreme Court held that the said allowances were required to be calculated as part of the respondent's wages and had to be taken into consideration for calculation of gratuity payable to him.
15. The Hon'ble Supreme Court in the case of DILBAGH RAI JARRY Vs. UNION OF INDIA AND OTHERS13 was considering a case as to whether the claim of a workman to "running allowance" was required to be included as part of his wages. The Hon'ble Supreme Court held that since the 12 1969 (2) SCC 1 12 workman in the said case had not worked, the said allowance was not a part of his wages.
16. The Hon'ble Supreme Court in the case of BHARAT ELECTRONICS LIMITED Vs. INDUSTRIAL TRIBUNAL, KARNATAKA, BANGALORE AND ANOTHER14 considered the legal position as held in the case of BENNETT COLEMAN AND COMPANY PVT LTD12 as well as DILBAGH RAI JERRY13 and held as follows:
"14. Now confluencing the two legal thoughts expressed in Bennett Coleman's case12 and Dilbagh Rai Jarry's case13, the stream of thought which inevitably gurgles up is that an allowance which from the term of employment flows as not contingent on actual working is part of wages for the purposes of section 33(2)(b) but an allowance which is earnable only by active serving is not an allowance which will form part of wages, within the meaning of the said provision.
15. In Ramakrishnappa's case15 Hon'ble Single Judge of the Karnataka High Court employed Bennett Coleman's case to come to the conclusion that night shift allowance was part of the wages by observing as follows:
"Therefore, I find it difficult to accede to the contention of the management that conveyance allowance, night shift allowance and turnout allowance were not wages as defined in section 2(rr) of the Act, and therefore, they were not required to be included in computing the wages of the petitioner for one month. The decision of the Supreme Court in Bennett Coleman and Co., though it arose in the context of quantification of gratuity, the view taken therein that the allowances given for purchase of newspapers, towards telephone and conveyance also 13 (1974) 3 SCC 554 14 (1990) 2 SCC 314 15 ILR 1987(1) KAR 378 13 should be calculated in computing one month's wages for the purpose of computing gratuity, supports the construction placed on section 2(rr) of the Act for the petitioner, for, the Supreme Court invoked the said definition as the word "wages" had not been defined in the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955. In the Case of Jarry, on which the learned counsel for the respondent 2 relied, the question decided was, whether wages payable to a railway guard for the period he was kept out of service consequent on his dismissal from service till he was reinstated included the amount of running allowance, which was under the rules payable only if the railway servant has gone on duty, and the Supreme Court held that it was not, in view of the condition. Section 2(rr) of the Act did not come up for consideration in that case and, therefore, not apposite to this case."
This view, as said before, was adopted by the Tribunal to decline approval to the management. But for reasons set out before, we are of the view that the Hon'ble Single Judge fell into an error in enlarging the scope of Bennett Coleman's case and dwarfing that of Dilbagh Rai Jarry's case. Thus the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift. The night shift allowance automatically did not form part of his wages and it was not such an allowance like in Bennett Coleman's case which flowed to him as his entitlement not restricted to his service. Thus we hold that the Tribunal fell into a grave error in declining the application of the management for approval on the ground of short payment of Rs.12 on account of night shift allowance, which the workman supposedly would have earned had he gone to report on duty, which in the circumstances he could not, or having worked rotationally at night, which he did not, and that too fictionally, in the month following the month and the date of the application, on which date the dismissal was to be effective."
(emphasis supplied) ( 14
17. In the case of K.R.TYAGI Vs. NATIONAL TEXTILE CORPORATION LTD AND ANOTHER16 relied upon by the learned counsel for first respondent, a Co-ordinate Bench of this Court was considering the claim of a workman who was reinstated into service, wherein, the workman claimed benefits such as earned leave salary, Leave Travel Concession17, medical reimbursement, and other benefits. This Court after noticing the judgments of the Hon'ble Supreme Court in the case of BENNETT COLEMAN AND COMPANY PVT LTD12, DILBAGH RAI JERRY13 and BHARAT ELECTRONICS LIMITED Vs. INDUSTRIAL TRIBUNAL, KARNATAKA, BANGALORE AND ANOTHER14 as also the judgment of this Court in the case of RAMAKRISHNAPPA15 has held as follows:
"14. This Court while disposing of the writ petition has not ordered for reinstatement of the dismissed employee, but has made a declaration to the effect that the petitioner is entitled to all consequential benefits in view of quashing of the order of termination. What is the effect of such declaration? Undoubtedly two consequences would flow - (a) that the employee/worker is reinstated and that the contract of service is restored; (b) that from that date he is entitled to the wages at the rate he was entitled to prior to the date of dismissal. The word "re-instatement"
has been explained by several courts to mean, replacing a 16 1997 ILLJ 999 17 Hereinafter referred to as 'LTC' 15 person in the position from which he was dismissed, restoration of status quo ante as it existed prior to the order of termination. Ordinarily reinstatement contemplates payment of backwages. Though the Officer was not on duty, he must be deemed to have remained in service once the order of termination is set aside. Then the employee is entitled to benefits which would have accrued to him as if the order of termination was never passed. Thus the effect of the order of reinstatement is merely to set at naught the order of wrongful dismissal. Now the question that requires to be considered is whether the employee, apart from backwages is entitled for any other monetary benefits, in the present case earned leave salary, leave travel concession, medical reimbursement and annual increments."
(emphasis supplied) 17.1. In the said case, with regard to the claim made towards earned leave, this Court held as follows:
"The amount payable towards encashment of leave will not be able towards encashment of leave will not be reckoned as salary for the purpose of overtime, bonus, gratuity, etc. A conjoint reading of clauses-6 and 7 of the Leave Rules leaves no manner of doubt that this leave has to be earned while in service and not while out of service. If the workman/employee did not perform any work during the period of termination, it is not open to him to demand leave with wages or compensation in lieu thereof. In my view this claim cannot be treated as either legal or valid, since the earned leave cannot have been earned as a matter of right but only by actual working."
(emphasis supplied) 17.2. With regard to the claim towards LTC, this Court held as follows:
"15. An employee will be entitled to claim full reimbursement of actual cost of travel as per the 16 entitlement rules. This gives a clear indication that the employee should actually travel to claim leave travel concession. If he does not travel, he cannot encash leave travel concession. Since petitioner was out of employment, the question of himself and his family members undertaking travel and incurring actual cost of travel would not arise. Once again question of deeming that, if the employer not prevented the employee, in the present petitioner, he would have travelled and he would have incurred expenses cannot be imported into the language employed in the Rules and in my view this claim of the petitioner is also unsustainable in law and in the face of unambiguous language employed in the Rules."
(emphasis supplied) 17.3 With regard to the claim of medical reimbursement, this Court held as follows:
"The third claim of the petitioner is in respect of medical reimbursement and this claim has also been rejected by the company solely relying upon Employees Medical Rules, 1978. Medical reimbursement once again depends on the actual medical expenses incurred by the employee concerned. Again there is nothing like a notional expenditure for a notional illness when the employee concerned was out of employment in view of the termination order. In my view since the reimbursement is only on actual expense, while in service, the petitioner's claim in my view is highly imaginary and wholly unjustified."
(emphasis supplied) 17.4 Hence, this Court with regard to the claim of the workman in the said case, held as follows:
"In my view the earned leave salary, leave travel concession and medical reimbursement are not part of wages, but which are more or less in the nature of night shift allowance and running allowance which were considered by Apex Court in the case of Bharat Electronics 17 Ltd. and in Dilbagh Rai Jerry's case. In that view of the matter, it cannot be said that the earned leave salary, LTC and medical reimbursement were due to the petitioner as part of his wages for the entire period when he was prevented from performing his duties in the respondent- company."
(emphasis supplied)
18. The judgment of the Learned Single Judge in the case of K.R.TYAGI16 was challenged before the Division Bench of this Court in Writ Appeal No.9185/1996. Vide order dated 01.06.1999, this Court held as follows:
"In view of the above contentions, the question that arises for consideration is whether the appellant is entitled to the benefits claimed by him. Sick leave is granted to a person who is sick and no monetary benefit can be given in lieu of the sick leave. When the person has not availed to either sick leave or casual leave, he is not entitled to reimbursement or payment in lieu of availing such leave. The leave travel concession can be reimbursed in case the employee incurs such expenses for travelling. Unless a person travels and produces the tickets, he does not get reimbursement. In the present case, there is no evidence that in the relevant year, the appellant has travelled and incurred any expenditure. Therefore, granting of such expenditure in lieu of leave travelling concession does not arise.
Learned counsel for the appellant has placed reliance on the judgment in D G VENKATARAMU & ORS Vs THE MANAGING DIRECTOR, PANDAVAPURA SAHAKARA SAKKARE KARKHANE LTD & ANR - 1969 (1) Mys.LJ 578; BENNETT COLEMAN CO PVT LTD Vs PUNYA PRIYA DAS GUPTA - AIR 1970 SC 426; WESTERN INDIA AUTOMOBILE ASSOCIATION Vs THE INDUSTRIAL TRIBUNAL, BOMBAY & ORS - ATR (36) 1949 FC 111 and another judgment of this Court in W.P 35546/93.
Accordingly, the appellant has worked for three years and seven months. Therefore, we think it just and proper 18 to direct the respondent to permit him to encash 80 days earned leave."
(emphasis supplied)
19. In the case of The GENERAL MANAGER, VIJAYA BANK, BENGALURU Vs. H.C.JAYAPRAKASH18 relied upon by the learned counsel for first respondent, a Division Bench of this Court was considering a claim made by an employee who was reinstated with 60% backwages along with consequential benefits. The employee sought to encash 240 days of earned leave which was granted by the learned Single Judge. However, the Division Bench after noticing various judgments held as follows:
"14. Earned leave is a privilege a workman would be entitled only by actual working and it cannot be earned as a matter of right even if he did not work. Even if he were to be in employment, he becomes entitled to it only if he works and earns it, otherwise not. It is similar to night shift or traveling allowance which accrue only if the person decides to work. If he does not work, in that event, he is not entitled to it. Hence, earned leave unless the relevant regulations expressly specifies otherwise cannot be considered as part of consequential benefits."
(emphasis supplied) 18 ILR 2020 KAR 1783 19
20. In the case of ANDHRA BANK and another Vs. P. BALAKRISHNA (dead) BY LRs AND OTHERS19 relied upon by the learned counsel for first respondent, a Full Bench of the Andhra Pradesh High Court was considering a case wherein the claim made by an employee who was reinstated into service, was towards encashment of leave. The Full Bench was considering the following question:
"5. The core question that arises for determination is whether an employee is entitled to the benefit of leave encashment of the period for which he was kept out of employment consequent on initiation of disciplinary proceedings which ultimately ended in favour of the employee and he came to be reinstated into service."
(emphasis supplied) 20.1. After referring to various judgments it was held as follows:
"15. After going through various settlements of memoranda between the workmen and the employer, we are in no doubt to conclude that the privilege is intended for rest and recuperation and the workman has to render active service and thereby earn privilege leave to his credit. A workmen out of service for any reason whatsoever is not entitled to privilege leave."
(emphasis supplied)
21. In the case of DEEPALI GUNDU SURWASE Vs. KRANTI JUNIOR ADHYAPAK MAHAVIDYALAYA (D.ED.) 19 2005 III LLJ (AP) 891 20 AND OTHERS20 relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court was considering a case, wherein, a teacher employed in a school was terminated from employment, which was set aside by the Tribunal and the employer was directed to pay full backwages. A learned Single Judge of the High Court had set aside the order of the Tribunal for payment of backwages. The Hon'ble Supreme Court while considering the appeal of the employee held as follows:
"The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically 20 (2013) 10 SCC 324 21 plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."
(emphasis supplied) 21.1. The Hon'ble Supreme Court in the said case of DEEPALI GUNDU SURWASE19 after noticing various judgments, at paragraph No.38 has laid down various principles, inter alia, that in the case of wrongful termination of service, reinstatement with continuity of service and backwages is the normal rule. Further, the various parameters for claiming backwages were also laid down. The Hon'ble Supreme Court set aside the order of the learned Single Judge of the High Court and restored the order of the Tribunal reinstating the teacher with full backwages. However, the facts of the said case are inapplicable to the facts of the present case inasmuch as the Hon'ble Supreme Court in the said case did not adjudicate upon as to what would include "consequential benefits". 22
22. In the case of RAJENDRA PRASAD SHARMA AND OTHERS Vs. THE STATE OF JHARKHAND21 relied upon by the learned counsel for the petitioner, a Co-ordinate Bench of the Jarkhand High Court while considering a contempt petition where the workmen having been entitled for consequential benefits, since the same was not paid, noticing the factual matrix of the said case, it was held as follows:
"The only dispute in this contempt petition relates to the question whether monetary consequential as directed by this Court means only the wages being paid at the time of retrenchment of the workmen or may include the wage revision, increments and other allowances during the interregnum i.e. between the period of retrenchment and reinstatement as directed by this Court. The monetary consequential benefits are to be construed in the context of the judgment of the Court. This Court set aside the order of retrenchment of the petitioners and directed their reinstatement with all monetary and consequential benefits The simple, legal, logical, and rational interpretation has to be given on the basis of language used by this Court which alone can reveal the intention in issuing such directions. It is not in dispute that monetary benefit means all financial benefits. Consequential benefits are to be construed accordingly. It simply means all consequences emanating from the order setting aside the retrenchment of the petitioners. The natural and legal consequence of setting aside the order of retrenchment is that the workmen are deemed to be in service. Once they are deemed to be in service the consequential benefits shall include all the monetary and other service benefits which were/are payable to other similarly situated employees of the Company. If there has been any pay revision. increments payable or revision of allowances, all are payable to these workmen except the bonus or any other amount which has direct relation with the actual performance of duties. The 21 2007(2) BLJR 1853 23 judgment must be understood, construed, and implemented in this sense."
(emphasis supplied)
23. In the said case of RAJENDRA PRASAD SHARMA AND OTHERS21 reference was made to the judgment of the Hon'ble Supreme Court in the case of APSRTC AND ANOTHER Vs. S. NARSAGOUD22. In the said case, the Hon'ble Supreme Court was considering the case of a workman being reinstated into service with continuity of service but without back-wages. In the said case, a dispute was raised by the workman before the High Court that while fixing wages payable to him on his reinstatement, the periodical increments which have been earned by him had he been in service during the period of absence were not taken into account. The High Court directed the employer to compute the periodical increments that would have been earned by the workmen had he been in service during the period of absence from duty and fix the wages payable to the workman after his reinstatement by taking into account the said increments. The said order was challenged by the employer before the Hon'ble Supreme Court. Considering the said case, the Hon'ble Supreme Court held as follows: 22
(2003) 2 SCC 212 24 "9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service.
10. The Regulations referred to hereinabove clearly spell out that the period spent on the extraordinary leave or leave without pay or a period of overstayal after the expiry of leave or joining time cannot count towards increments; unless the order of the competent authority sanctioning the extraordinary leave or leave without pay or the order commuting the period of over-stayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorised absence from duty treated as a misconduct and held liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of overstayal.
Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave the entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorised absence from duty though held liable to be punished in departmental inquiry proceedings would amount to putting a premium on the misconduct of the employee."
(emphasis supplied)
24. The said case of RAJENDRA PRASAD SHARMA AND OTHERS21 will not aid the case of the petitioner, inasmuch as in the said case it has been held that the 25 reinstated workman is entitled to all monetary benefits except which has direct relation with the actual performance of duties.
25. In the case of THE MANAGEMENT OF ANDHRA SCIENTIFIC COMPANY Vs. THE PRESIDING OFFICER23 relied upon by the learned counsel for the petitioner, a Division Bench of the Andhra Pradesh High Court was considering a case as to whether the Labour Court had power under Section 33-C(2) of the ID Act to interpret an award. In the said case it was held that "the employee cannot be denied all the incidental benefits which accrued to the post which he is deemed to have held without a break by reason of reinstatement". Further, it was held as follows:
"17. In the instant case, the employee is asking for any higher scale of pay by reason of his working in any superior or higher grade, but asking for what he is entitled to in the grade to which he was reinstated and it is within the jurisdiction of the Labour Court to grant him the incidental benefits attached to the post.
18. We have no hesitation in holding that Section 33C(2) is wide enough to cover a case like this where the Labour Court merely gave the benefit of back wages without specifying the amount the employee had become entitled to receive from the employer.
19. Writ Appeal No.23 if 1968, must therefore, fail.
20. As regards the claim for bonus and conversion of leave of the employee into cash, the must say that the 23 W.A No.23 and 144 of 1968 dated 25.11.1969 26 claim is untenable. The bonus is excluded from the definition of "Wages" in Section 2(rr) of the Act. So, there is a statutory bar to claim bonus and what was awarded to the employee was back wages. The employee is also not entitled under the award to get the benefit of conversion of leave into cash, as what was preserved by reinstatement was continuity of service. He would not be entitled to leave unless he had actually worked during the period. Leave has to be earned to entitle him to the benefit of conversion of leave into cash. Since he had not earned any leave, his claim for conversion of leave into cash has to be negative."
(emphasis supplied)
26. The said case of THE MANAGEMENT OF ANDHRA SCIENTIFIC COMPANY23 will not aid the case of the petitioner since in the said case also it has been held that the workman would not be entitled to leave unless he has actually worked during the said period.
27. Keeping in mind the legal position as noticed above, the case put forth by the petitioner in the present writ petition is required to be considered. However, before considering the case of the petitioner, it is relevant to notice the manner in which the second, third and fourth respondents have considered the case of the petitioner.
28. The second respondent/Assistant Registrar while considering the claim made by the petitioner has noticed the claim made as under:
27
"ªÉÄÃ¯É «ªÀj¹zÀAvÉ ¢£ÁAPÀ 22-07-2015 gÀ CfðAiÉÆA¢UÉ rQæ ºÉÆîØgï EªÀgÀÄ F PɼÀV£ÀAvÉ QèêÀiï C£ÀÄß ªÀiÁrgÀÄvÁÛgÉ :-
(1) ¸ÀA§¼À, vÀÄnÖ ¨sÀvÉå, ªÀÄ£É ¨ÁrUÉ ¨sÀvÉå, £ÀUÀgÀ ¥ÀjºÁgÀ ¨sÀvÉå -gÀÆ.7,71,819/-
(2) ¨ÉÆãÀ¸ï - 1998 jAzÀ 2010 gÀªÀgÉUÉ -gÀÆ.2,54,700/-
(3) gÀeÉ £ÀUÀ¢ÃPÀgÀt 2 ªÀµÀðUÀ½UÉ gÀÆ.1,30,762-00 240 ¢£ÀUÀ½UÉ gÀÆ.3,48,800-00 gÀÆ.4,78,562/-
MlÄÖ: -gÀÆ.15,05.281/-
§rØ
(1) 14-05-2010 jAzÀ 29-07-2013 gÀªÀgÉUÉ gÀÆ.17,74,004/-
(2) 13-8-2014 jAzÀ 22-07-2015 gÀªÀgÉUÉ gÀÆ.6,49,004/- -gÀÆ.24,23,008/-
ªÉÄð£À PÉëëÄUÉ ¥ÀÄl ¸ÀASÉå-1 jAzÀ 5 ¯ÉPÁÌZÁgÀzÀ vÀBSÉÛAiÀÄ£ÀÄß ®UÀwÛ¹gÀĪÀÅzÁV rQæ ºÉÆîØgï EªÀgÀÄ «ªÀj¹zÁÝgÉ."
28.1. While considering the claim of the petitioner with regard to the arrears of salary, the second respondent held as follows:
"rQæ ºÉÆîØgï EªÀgÀÄ ¢£ÁAPÀ 23-07-2015 gÀAzÀÄ ¸À°è¹gÀĪÀ «ªÀgÀUÀ¼À ¥ÀÄl ¸ÀASÉå 1 jAzÀ 3 gÀ°è ¸É¥ÉÖA§gï 1998 jAzÀ DUÀ¸ïÖ 2010 gÀªÀgÉUÉ gÀÆ.23,94,063-00 UÀ¼À£ÀÄß ¯ÉPÀÌ ºÁQ EzÀgÀ°è FUÁUÀ¯Éà ¨ÁåAQ¤AzÀ ¥ÀqÉ¢gÀĪÀ gÀÆ.16,22,344-00 UÀ¼À£ÀÄß PÀ¼ÉzÀÄ gÀÆ.7,71,819-00 UÀ¼À£ÀÄß ¥Àæ¸ÀÄÛvÀ CªÀįÁéj CfðAiÀÄ°è PÉÆÃjzÁÝgÉ. DzÀgÉ, F jÃw PÉèêÀiï C£ÀÄß ¯ÉPÀÌ ºÁPÀĪÁUÀ ªÉÄÃ¯É «ªÀj¹zÀAvÉ, ºÀÄzÉÝUÀ¼À ªÀÄÄA§rÛAiÀÄ£ÀÄß vÁ£Éà H»¹PÉÆAqÀÄ, ¸ÀA§¼À ¯ÉPÀÌ ºÁQzÁÝgÉ. EzÀÄ CªÉÊeÁÕ¤PÀ ªÀÄvÀÄÛ PÁ£ÀƤUÉ «gÀÄzÀÞªÁVzÉ. DzÀÝjAzÀ ªÉÄÃ¯É «ªÀj¹zÀ PÀArPÉ 3 (1) gÀ PÉèêÀiï gÀÆ.7,71,819-00 UÀ½UÉ rQæ ºÉÆîØgï EªÀgÀÄ CºÀðjgÀĪÀÅ¢®è JAzÀÄ, wgÀ¸ÀÌj¸À®Ä ¨ÁåAPÀÄ PÉÆÃjzÉ.
ªÉÄÃ¯É «ªÀj¹zÀ ªÀåvÁå¸ÀzÀ ¨ÁQ gÀÆ.7,71,819-00 UÀ¼À §UÉÎ rQæ ºÉÆîØgï EªÀgÀ PÉèêÀÄð C£ÀÄß ¨ÁåAPÀÄ ¸À°è¹gÀĪÀ DPÉëÃ¥ÀuÉ ªÀÄvÀÄÛ G¨sÀAiÀÄvÀægÀÆ ºÁdgÀÄ¥Àr¹gÀĪÀ £ÁåAiÀiÁ®AiÀÄUÀ¼À wÃ¥ÀÄðUÀ¼À£ÀÄß ¥Àj²Ã°¸À¯ÁV, rQæ ºÉÆîØgï EªÀgÀÄ ªÉÄÃ¯É «ªÀj¹zÀ PÉèêÀiï gÀÆ.7,71,819-00 UÀ½UÉ CºÀðjgÀĪÀÅ¢®è. rQæ ºÉÆîØgï EªÀgÀÄ ¸ÀPÁðj 28 £ËPÀgÀ£À®èzÉà EgÀĪÀÅzÀjAzÀ, PÀ£ÁðlPÀ ¸ÀPÁðgÀªÀÅ PÁ®PÁ®PÉÌ vÀ£Àß £ËPÀgÀjUÉ C£ÀéAiÀĪÁUÀĪÀAvÉ ºÉÆgÀr¹gÀĪÀ vÀÄnÖ¨sÀvÉå DzÉñÀUÀ¼ÀÄ rQæ ºÉÆîØgï EªÀjUÉ C£Àé¬Ä¸ÀĪÀÅ¢®è. PÁgÀt wgÀ¸ÀÌj¹zÉ."
28.2. While considering the claim of the petitioner with respect to bonus, the second respondent held as follows:
"gÀÆ.2,54,700-00 UÀ¼À ¨ÉÆãÀ¸ï C£ÀÄß rQæ ºÉÆîØgï EªÀgÀÄ PÉèêÀiï ªÀiÁrzÁÝgÉ. F §UÉÎ ¨ÁåAPÀÄ ¸À°è¹gÀĪÀ DPÉëÃ¥ÀuÉUÀ¼À°è, PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À PÁAiÉÄÝ 1959 gÀ PÀ®A 57 (3) (J¥sï) gÀ£ÀéAiÀÄ £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ°è ¤gÀƦ¹gÀĪÀAvÉ ¨ÉÆãÀ¸ï ¥ÁªÀw¸À§ºÀÄzÁVzÉ JAzÀÄ PÁ£ÀƤzÉ. DzÀgÉ, £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ°è ¨ÉÆãÀ¸ï ¤ÃqÀĪÀ §UÉÎ G¯ÉèÃR EgÀĪÀÅ¢®è. DzÀÝjAzÀ ¨ÉÆãÀ¸ïUÉ CºÀð«gÀĪÀÅ¢®è JAzÀÄ «ªÀj¹ ¨ÉÆãÀ¸ï PÉèêÀiï C£ÀÄß wgÀ¸ÀÌj¸À®Ä ¨ÁåAPÀÄ PÉÆÃjzÉ. F ¨ÁåAPÀÄ £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ ¥ÀæwAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹zÉ.
ªÉÄÃ¯É «ªÀj¹zÀ ¨ÉÆãÀ¸ï PÉèêÀiï §UÉÎ G¨sÀAiÀÄvÀægÀ ºÉýPÉUÀ¼À£ÀÄß ¥Àj²Ã°¸À¯ÁUÉzÉ. Section 57 (3) (f) of the Act provides for the following:
"Section 57-Net profit and their disposal:- (3) (f) The payment of bonus to the employees of the society, to the extent and in the manner specified in the byelaws." ¨ÁåAQ£À DPÉëÃ¥ÀuÉAiÀÄ£ÀÄß UÀªÀĤ¸À¯ÁV, £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ°è ¨ÉÆãÀ¸ï §UÉÎ. G¯ÉèÃR EgÀĪÀÅ¢®è JAzÀÄ «ªÀj¹zÉ. EzÀ£ÀÄß «gÉÆâü¹, rQæ ºÉÆîØgï EªÀgÀÄ AiÀiÁªÀÅzÉà zÁR¯Áw CxÀªÁ ¤AiÀĪÀÄUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è. rQæ ºÉÆîØgï EªÀgÀÄ PÀArPÉ 3 (2) gÀ°è «ªÀj¹gÀĪÀ ¨ÉÆãÀ¸ï PÉèêÀiï gÀÆ.2,54,200-00 UÀ½UÉ CºÀðjgÀĪÀÅ¢®è. PÁgÀt wgÀ¸ÀÌj¹zÉ."
28.3. While considering the claim of the petitioner with regard to Earned Leave, second respondent held as follows:
"UÀ½PÉ gÀeÉ £ÀUÀ¢ÃPÀgÀtzÀ §UÉÎ ¨ÁåAPÀÄ ¸À°è¹gÀĪÀ DPÉëÃ¥ÀuÉUÀ¼À°è «ªÀj¹gÀĪÀ CA±ÀUÀ¼ÉAzÀgÉ ¢£ÁAPÀ 02-09-1998 jAzÀ DUÀ¸ïÖ 2010 gÀªÀgÉUÉ C£ÀéAiÀĪÁUÀĪÀ PÀ£ÁðlPÀ ¸ÀPÁðgÀ ¸ÀºÀgÀPÁgÀ ¸ÀAWÀUÀ¼À ¤AiÀĪÀÄ 1960 gÀ (3)(iii) gÀ£ÀéAiÀÄ PÉ®¸À ¤ªÀð»¹zÀ CªÀ¢UÉ ªÀiÁvÀæ UÀ½PÉ gÀeÉUÉ £ËPÀgÀ£ÀÄ CºÀð¤gÀÄvÁÛ£É. DzÀgÉ, rQæ ºÉÆîØgï EªÀgÀÄ ¢£ÁAPÀ 02-09-1998 gÀAzÀÄ ¸ÉêɬÄAzÀ ªÀeÁUÉÆArzÀÄÝ, DUÀ¸ïÖ 2010 gÀ°è ¸ÉêÉUÉ ¥ÀÄ£Àgï £ÉêÀÄPÀ DVzÁÝgÉ. ¸ÀzÀj CªÀ¢üAiÀÄ°è ¸ÉÃªÉ ¤ªÀð»¹gÀĪÀÅ¢®è. PÁgÀt UÀ½UÉ gÀeÉUÉ rQæ ºÉÆîØgï EªÀgÀÄ CºÀð«gÀĪÀÅ¢®èªÉAzÀÄ «ªÀj¹. F ¸ÀA§A¢ü¹zÀ PÉèêÀiï C£ÀÄß wgÀ¸ÀÌj¸À®Ä ¨ÁåAPÀÄ PÉÆÃjzÉ. F ¸ÀA§A¢ü¹zÀAvÉ UËgÀªÁ¤évÀ PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ jmï Cfð¸ÀASÉå, 735/1989 gÀ ¥ÀæPÀgÀtzÀ°è ¢£ÁAPÀ 11-09-1996 gÀAzÀÄ wÃ¥Àð£ÀÄß G¯ÉèÃT¹, wæð£À eÉgÁPïì ¥ÀæwAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹zÉ.29
UÀ½PÉ gÀeÉ £ÀUÀ¢ÃPÀgÀtzÀ PÉèêÀiï §UÉÎ G¨sÀAiÀÄvÀægÀ ºÉýPÉUÀ¼À£ÀÄß ¥Àj²Ã°¸À¯ÁVzÉ. ªÉÄÃ¯É «ªÀj¹zÀ CªÀ¢üAiÀÄ°è The Karnataka Co-operative Societies Rules, 1960. Rule 18(3) (iii) provides for the following: "An employee shall be entitled for "earned leave on full pay at the rate of 1/11th of the period spent on duty. ¢£ÁAPÀ 02-09- 1998 jAzÀ DUÀ¸ïÖ 2010 gÀªÀgÉUÉ, CAzÀgÉ ¸ÉêɬÄAzÀ ªÀeÁUÉÆAqÀ CªÀ¢üAiÀÄ°è, rQæ ºÉÆîØgï EªÀgÀÄ ¨ÁåAQ£À°è PÉ®¸À ¤ªÀð»¹gÀĪÀÅ¢®è. DzÀÝjAzÀ, UÀ½PÉ gÀeÉ £ÀUÀ¢ÃPÀgÀt ¸Ë®¨sÀåPÉÌ rQæ ºÉÆîØgï EªÀgÀÄ CºÀðjgÀĪÀÅ¢®è. F »£É߯ÉAiÀÄ°è UËgÀªÁ¤évÀ PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ ¤ÃrgÀĪÀ ªÉÄð£À wæð£À PÀArPÉ 14 £ÀÄß UÀªÀĤ¸À§ºÀÄzÁVzÉ. DzÀÝjAzÀ, PÀArPÉ 3(3) gÀ°è «ªÀj¹gÀĪÀ 4,78,562-00 CºÀðjgÀĪÀÅ¢®è. PÁgÀt wgÀ¸ÀÌj¹zÉ."
28.4. With regard to the claim of the petitioner to interest, second respondent held that the order of reinstatement not having specified that interest ought to be paid, refused the claim for interest.
29. The third respondent - Deputy Registrar while considering the appeal of the petitioner vide its order dated 03.10.2016 held as under:
"¨ÁåAPÀÄ PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À C¢ü¤AiÀĪÀÄzÀ£éÀAiÀÄ £ÉÆÃAzÀtÂAiÀiÁVzÀÄÝ, ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¤AiÀĪÀÄUÀ¼ÀÄ 1960 gÀ ¤AiÀĪÀÄ 17 ªÀÄvÀÄÛ 18 gÀAvÉ ªÉÃvÀ£À ¨sÀvÉåUÀ¼À£ÀÄß £ËPÀgÀgÀÄ ¥ÀqÉAiÀÄ®Ä CºÀðjgÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. CzÀgÀAvÉ ¸ÀºÀPÁgÀ E¯ÁSÉAiÀÄ DzÉñÀzÀ ¢£ÁAPÀ:06-03-2004 gÀ£ÀéAiÀÄ ªÉÃvÀ£À±ÉæÃtÂUÀ¼À£ÀÄß ¥ÀjµÀÌj¹zÀÄÝ, CzÀgÀAvÉ ¥ÁªÀw¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. ªÉÄîä£À«zÁgÀgÀÄ ¸ÀºÁAiÀÄPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÁV PÉ®¸À ¤ªÀð»¹zÀÄÝ, ªÀeÁUÉƽ¹gÀĪÀ PÁgÀt D ºÀÄzÉÝAiÀÄ ªÉÃvÀ£À ¨sÀvÉåUÀ¼À£ÀÄß ¥ÁªÀw¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. CzÀgÀAvÉ ¸ÀzÀjAiÀĪÀjUÉ gÀÆ.16,22,344/- UÀ¼À£ÀÄß ¯ÉPÁÌZÁgÀ ªÀiÁr ¥ÁªÀw¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. DzÀgÉ ªÉÄîä£À«zÁgÀgÀÄ ªÀÄÄA§rÛAiÀÄ£ÀÄß ¥ÀjUÀt¹ PÉèÃA ªÀiÁrgÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. F §UÉÎ «ªÀgÀªÁzÀ vÀ:SÉÛ ¤ÃrgÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. ¨ÉÆãÀ¥ï ªÀÄvÀÄÛ gÀeÉ £ÀUÀ¢üÃPÀgÀtªÀ£ÀÄß ¸ÀºÀ ¥ÁªÀw¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. F ªÉÄð£À J¯Áè PÁgÀtUÀ½AzÀ CfðzÁgÀgÀÄ ¸À°è¹gÀĪÀ ªÀÄ£À«AiÀÄ£ÀÄß wgÀ¸ÀÌj¸À¨ÉÃPÉAzÀÄ PÉÆÃjgÀÄvÁÛgÉ.
vÀzÀ£ÀAvÀgÀ ªÁ¢ vÀªÀÄä °TvÀ ªÁzÀ ªÀÄAqÀ£ÉAiÀÄ°è ªÉÄîä£À«AiÀÄ°è w½¹gÀĪÀ CA±ÀUÀ¼À£ÀÄß ¥ÀÄ£ÀgÀÄZÀÑj¸ÀÄvÁÛ 12 ªÀµÀðUÀ¼À CªÀ¢üAiÀÄ°è ªÉÃvÀ£À ¨sÀvÉå, 30 ¨ÉÆãÀ¸ï gÀeÁ ¸ÀA§¼À EvÁå¢ ¸ÉÃj MlÄÖ gÀÆ. 45,04,782/- UÀ¼À£ÀÄß ±ÉÃPÀqÀ 18 gÀ §rØAiÉÆA¢UÉ ¥ÁªÀw¸À¨ÉÃPÉAzÀÄ ªÀÄ£À« ªÀiÁrgÀÄvÁÛgÉ. ºÁUÀÆ ¥ÀæwªÁ¢ ¥ÀgÀ ªÀQîgÀÄ ¸ÀºÀ vÀªÀÄä DPÉëÃ¥ÀuÉAiÀÄ°è ¸À°è¹gÀĪÀ CA±ÀUÀ¼À£Éß ¥ÀÄ£ÀgÀÄZÀÑj¸ÀÄvÁÛ ¸ÀºÁAiÀÄPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÀ ºÀÄzÉÝAiÀÄ ªÉÃvÀ£À±ÉæÃtÂUÀ¼À£ÀÄß PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¤AiÀĪÀÄUÀ¼ÀÄ 1960 gÀ ¤AiÀĪÀÄ 17 ªÀÄvÀÄÛ 18 gÀAvÉ ¯ÉPÁÌZÁgÀ ªÀiÁr ¥ÁªÀw¹gÀĪÀÅzÁV ¥ÀæzsÁ£À ªÀåªÀ¸ÁÜ¥ÀPÀgÀ ºÀÄzÉÝAiÀÄ ªÉÃvÀ£À §rÛUÀ¼À£ÀÄß ¥ÁªÀw¸À®Ä CªÀPÁ±À«gÀĪÀÅ¢®èªÉAzÀÄ ºÁUÀÆ ¸ÀPÁðj £ËPÀgÀjUÉ ¥ÁªÀw¸ÀĪÀ ªÉÃvÀ£À ¨sÀvÉåUÀ¼À£ÀÄß ¥ÁªÀw¸À®Ä CªÀPÁ±À«gÀĪÀÅ¢®èªÉAzÀÄ w½¹gÀÄvÁÛgÉ. ºÁUÀÆ PÀmÁªÀuÉ ªÀiÁrgÀĪÀ DzÁAiÀÄ vÉjUÉ ªÉÆvÀÛªÀ£ÀÄß ¸ÀºÀ ªÀgÀªÀiÁ£À vÉjUÉ E¯ÁSÉUÉ ¥ÁªÀw¹gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ. F J¯Áè CA±ÀUÀ¼À£ÀÄß ¥ÀjUÀt¹ ªÉÄîä£À«zÁgÀgÀ ªÀÄ£À«AiÀÄ£ÀÄß wgÀ¸ÀÌj¸À®Ä ªÀÄ£À« ªÀiÁrgÀÄvÁÛgÉ."
30. The fourth respondent while considering the revision of the petitioner under Section 108 of the Act, after noticing the various contentions framed the following points for consideration:
"1. 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ¤AzÀ CfðzÁgÀjUÉ ¥ÁªÀw¸À¨ÉÃPÁzÀ ¨ÁQ ªÉÃvÀ£À ªÀÄvÀÄÛ ¨sÀvÉåUÀ¼ÀÄ ºÁUÀÆ EvÀgÀ ¸Ë®¨sÀåUÀ¼À ¨Á§ÄÛ CfðzÁgÀgÀÄ PÉèöÊA ªÀiÁrgÀĪÀ ªÉÆvÀÛ gÀÆ. 45.04,782-00 UÀ½UÉ CºÀðgÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. 2 ªÀÄvÀÄÛ 3£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ºÉÆgÀr¹gÀĪÀ ¥Àæ²ßvÀ DzÉñÀUÀ¼ÀÄ £ÁåAiÀĸÀªÀÄävÀªÁVgÀĪÀÅ¢®èªÉAzÀÄ CfðzÁgÀgÀÄ ¸ÀªÀÄyð¸ÀĪÀgÉÃ?
3. CfðzÁgÀjUÉ 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ¤AzÀ ¥ÁªÀw¸À¨ÉÃPÁzÀ ¨ÁQ ªÉÃvÀ£À ªÀÄvÀÄÛ ¨sÀvÉåUÀ¼À ¨Á§Ä gÀÆ. 16,22.344-00UÀ½UÉ ªÀiÁvÀæ CfðzÁgÀgÀÄ CºÀðgÉAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ¸ÀªÀÄyð¸ÀĪÀgÉÃ?
4. 2 ªÀÄvÀÄÛ 3£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ºÉÆgÀr¹gÀĪÀ ¥Àæ²ßvÀ DzÉñÀUÀ¼ÀÄ £ÁåAiÀĸÀªÀÄävÀªÉAzÀÄ 1£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀĪÀgÉÃ?
5. ºÁUÁzÀgÉ F ¥Áæ¢üPÁgÀzÀ DzÉñÀªÉãÀÄ?"
30.1. The fourth respondent while considering the claim of the petitioner with regard to arrears of salary has held as follows:
31
"CfðzÁgÀgÀ ªÉÄîÌAqÀ ºÉýPÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯ÁV CfðzÁgÀgÀÄ CAzÁf£À ªÉÄÃ¯É ªÉÃvÀ£À ªÀÄvÀÄÛ ¨sÀvÉåUÀ¼À£ÀÄß ¯ÉPÀÌ ºÁQ PÉèöʪÀiï ªÀiÁrgÀĪÀ CA±ÀªÀ£ÀÄß CfðzÁgÀgÉà M¦àPÉÆArgÀĪÀÅzÀÄ ¸ÀàµÀÖªÁVgÀÄvÀÛzÉ. C®èzÉ CfðzÁgÀgÀ ªÀÄ£À«AiÀÄ°è G¯ÉèÃT¸ÀÄgÀĪÀ DzÉñÀUÀ¼ÀÄ gÁdå ¸ÀPÁðgÀ £ËPÀgÀjUÉ vÀÄnÖ¨sÀvÉå ªÀÄAdÆgÁw ªÀiÁrgÀĪÀ DzÉñÀUÀ¼ÁVzÀÄÝ F DzÉñÀUÀ¼ÀÄ 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À £ËPÀgÀjUÀÆ C£ÀéAiÀĪÁUÀÄvÀÛªÉA§ CA±ÀªÀ£ÀÄß ¸ÀªÀÄxÀð¤ÃAiÀÄ zÁR¯ÉUÀ¼ÉÆA¢V CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¹gÀĪÀÅ¢®è ªÀÄvÀÄÛ CfðzÁgÀgÀÄ ¸ÉêɬÄAzÀ ªÀeÁ DzÀ ¥ÀjuÁªÀĪÁV ¥ÀzÉÆãÀßw¬ÄAzÀ ªÀAavÀgÁVgÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà ªÀiÁ»w CxÀªÁ zÁR¯ÁwUÀ¼À£ÀÄß MzÀV¹gÀĪÀÅ¢®è. DzÀÄzÀjAzÀ gÁdå ¸ÀPÁðj £ËPÀgÀjUÉ C£ÀéAiÀĪÁUÀĪÀ vÀÄnÖ ¨sÀvÉå zsÀgÀzÀ°è ¨ÁQ ªÉÃvÀ£ÀPÉÌ vÀÄnÖ ¨sÀvÉåAiÀÄ£ÀÄß ¯ÉPÀÌ ºÁQgÀĪÀÅzÀÄ ªÀÄvÀÄÛ ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ, ¸ÀºÁAiÀÄPÀ ¥ÀæzsÁ£À ªÀåªÀ¸ÁÜ¥ÀPÀgÀÄ ºÁUÀÆ ¥ÀæzsÁ£À ªÀåªÀ¸ÁÜ¥ÀPÀgÀ ºÀÄzÉÝUÀ½UÉ C£ÀéAiÀĪÁUÀĪÀ ªÉÃvÀ£À ªÀÄvÀÄÛ ¨sÀvÉåUÀ¼À£ÀÄß PÉèöʪÀiï ªÀiÁrgÀĪÀÅzÀÄ ¸ÀªÀÄxÀð¤ÃAiÀĪÀ®èªÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀnÖzÉ."
30.2. The fourth respondent while considering the claim of the petitioner towards bonus has held as follows:
"CfðzÁgÀgÀÄ PÉèöʪÀiï ªÀiÁrgÀĪÀ ¨ÉÆãÀ¸ïUÉ ¸ÀA§A¢ü¹zÀAvÉ 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À ¥ÀgÀ ªÀQîgÀÄ ªÀÄAr¹gÀĪÀ °TvÀ ªÁzÀzÀ°è PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À PÁAiÉÄÝ 1959 gÀ PÀ®A 57(3)(J¥sï) gÀ°è£À CªÀPÁ±ÀzÀAvÉ ¸ÀA§AzsÀ¥ÀlÖ ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ/¨ÁåAQ£À £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ°è ¤gÀƦ¹gÀĪÀAvÉ ¨ÉÆãÀ¸ï ¥ÁªÀw¸À®Ä CªÀPÁ±À«zÀÄÝ, 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À G¥À¤AiÀĪÀÄzÀ°è ¨ÉÆãÀ¸ï ¤ÃqÀĪÀ §UÉÎ G¯ÉèÃR«gÀĪÀÅ¢®èªÁzÀÝjAzÀ CfðzÁgÀgÀÄ ¨ÉÆãÀ¸ï CºÀðjgÀĪÀÅ¢®è JA§ÄzÁV ªÁzÀ ªÀÄAr¹zÀÄÝ. 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À £ÉÆÃAzÁ¬ÄvÀ G¥À¤AiÀĪÀÄzÀ°è ¨ÁåAQ£À £ËPÀgÀjUÉ ¨ÉÆãÀ¸ï ¥ÁªÀw¸ÀĪÀ PÀÄjvÀÄ CªÀPÁ±À ªÀiÁrPÉÆArgÀĪÀ §UÉÎ CfðzÁgÀgÀÄ AiÀiÁªÀÅzÉà ªÀiÁ»w/zÁR¯ÁwUÀ¼À£ÀÄß MzÀV¹gÀĪÀÅ¢®è. C®èzÉ UËgÀªÀ GZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ jmï Cfð ¸ÀASÉå. 19115/2010 (¹J¸ï-DgïEJ¸ï) gÀ°è£À «Ä¸À¯ÉäAiÀĸï fà ¸ÀASÉå 1367/2011 gÀ°è ¢£ÁAPÀ:
22-03-2011 gÀAzÀÄ ¤ÃrgÀĪÀ wæð£À°è CfðzÁgÀ£ÀÄß ¸ÉêɬÄAzÀÀ ªÀeÁ DVgÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è ¸ÀºÁAiÀÄPÀ ªÀåªÀ¸ÁÜ¥ÀPÀgÁV PÁAiÀÄð¤ªÀð»¸ÀÄwÛzÀÄÝ. ¸ÀzÀj ºÀÄzÉÝUÉ C£ÀéAiÀĪÁUÀĪÀ ªÉÃvÀ£ÀÄß ¤UÀzÀ¥Àr¸ÀĪÀAvÉ ºÁUÀÆ CfðzÁgÀ£ÀÄß ¸ÉêÉAiÀÄ°è ¥ÀÄ£Àgï¸ÁÛ¦¹zÀ ¢£ÁAPÀ¢AzÀ C£ÀéAiÀĪÁUÀĪÀAvÉ ªÉÃvÀ£À ªÀÄvÀÄÛ EvÀgÉ ¸Ë®¨sÀåUÀ¼À£ÀÄß ¥ÁªÀw¸ÀĪÀAvÉ £ÁåAiÀiÁ®AiÀĪÀÅ DzÉò¹gÀÄvÀÛzÉ. DzÀÄzÀjAzÀ CfðzÁgÀgÀÄ 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À ¸ÉêɬÄAzÀ ªÀeÁUÉÆAqÀ CªÀ¢ü¬ÄAzÀ ¸ÉêÉAiÀÄ°è ¥ÀÄ£Àgï ¸Áܦ¹gÀĪÀ CªÀ¢üAiÀĪÀgÉV£À CªÀ¢üUÉ ¨ÉÆãÀ¸ï PÉèöÊA ªÀiÁrgÀĪÀÅzÀÄ £ÁåAiÀĸÀªÀÄävÀªÀ®èªÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀnÖzÉ."
30.3. With regard to the claim of the petitioner towards earned leave, fourth respondent has held as follows: 32
"CfðzÁgÀgÀÄ PÉèöʪÀiï ªÀiÁrgÀĪÀ UÀ½PÉ gÀeÉ £ÀUÀ¢ÃPÀgÀt ªÉÆvÀÛzÀ ¸ÀA§AzsÀªÁV 1£Éà ¥ÀæwªÁ¢ ¨ÁåAQ£À ¥ÀgÀ ªÀQîgÀÄ ¸À°è¹gÀĪÀ °TvÀ ªÁzÀzÀ°è PÀ£ÁðlPÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¤AiÀĪÀÄ 1960 gÀ ¤AiÀĪÀÄ 18(3)(iii) gÀ°è£À CªÀPÁ±ÀzÀAvÉ PÀvÀðªÀå ¤ªÀð»¹zÀ CªÀ¢üUÉ ªÀiÁvÀæ UÀ½PÉ gÀeÉUÉ CºÀðvɬÄzÀÄÝ, CfðzÁgÀgÀÄ ¢£ÁAPÀ:02-09-1998 gÀAzÀÄ ¸ÉêɬÄAzÀ ªÀeÁUÉÆArzÀÄÝ, DUÀ¸ïÖ 2010 gÀ°è ¥ÀÄ£À: ¸ÉêÉUÉ ¥ÀÄ£Àgï £ÉêÀÄPÀªÁVgÀÄvÁÛgÉ. F CªÀ¢üAiÀÄ°è CfðzÁgÀgÀÄ PÁAiÀÄð¤ªÀð»¹gÀĪÀÅ¢®èªÁzÀ PÁgÀt CfðzÁgÀgÀÄ ¤AiÀĪÀiÁ£ÀĸÁgÀ UÀ½PÉ gÀeÉ £ÀUÀ¢ÃPÀgÀt ¸Ë®¨sÀåPÉÌ CºÀðgÁVgÀĪÀÅ¢®èªÉAzÀÄ ªÁzÀ ªÀÄAr¹zÀÄÝ, CªÀgÀ ªÁzÀªÀ£ÀÄß ¸ÀªÀÄyð¸À®Ä jmï Cfð ¸ÀASÉå. 735/929 gÀ°è ¢£ÁAPÀ:11-09-1996 gÀAzÀÄ ¤ÃrgÀĪÀ wÃ¥Àð£ÀÄß G¯ÉèÃT¹ wæð£À ¥ÀæwAiÀÄ£ÀÄß C£ÀħAzsÀ Dgï 1(7) gÀ°è ¸À°è¹gÀÄvÁÛgÉ. F ¸ÀA§AzsÀªÁV CfðzÁgÀgÀ ¥ÀgÀ ªÀQîgÀÄ ¸À°è¹gÀĪÀ ºÉýPÉAiÀÄ°è CfðzÁgÀgÀ£ÀÄß ¸ÉêɬÄAzÀ ªÀeÁUÉƽ¹gÀĪÀ DzÉñÀªÀ£ÀÄß vÀ½îºÁQgÀĪÀÅzÀjAzÀ CfðzÁgÀgÀÄ ¸ÉêÉAiÀÄ°è ªÀÄÄAzÀĪÀgÉ¢gÀĪÀgÉAzÀÄ ¥ÀjUÀt¹. vÀvÀìA§AzsÀªÁzÀ ¸Ë®¨sÀåUÀ¼ÀÄ ªÀÄvÀÄÛ ¨ÁQ ªÉÃvÀ£ÀªÀ£ÀÄß UËgÀªÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÁ£ÀĸÁgÀ ¥ÁªÀw¸À¨ÉÃPÁUÀÄvÀÛzÉ JA§ÄzÀÄ ¸ÀªÀÄxÀð¤ÃAiÀĪÁVgÀĪÀÅ¢®èªÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀnÖzÉ."
30.4. The fourth respondent after noticing the scope of revision as contained under Section 108 of the Act has recorded a finding that the power of revision under Section 108 of the Act is not akin to the power of appeal under Section 106 of the Act and in the absence of the order under revision being contrary to law or resulting in miscarriage of justice, the power of revision is not liable to be exercised.
31. It is forthcoming that second respondent - Assistant Registrar has noticed the various claims made by the petitioner and has adjudicated upon the same. The third respondent - Deputy Registrar while considering the appeal of the petitioner has noticed the findings of the second respondent and 33 dismissed the appeal. As also, the fourth respondent while considering the revision of the petitioner has noticed various claims made by the petitioner as well as the adjudication of the same. Further, the scope of revision under Section 108 of the Act was noticed and dismissed the revision.
32. Although the claim of the petitioner has been considered by three authorities namely, the second respondent, the third respondent as well as the fourth respondent, a detailed consideration of the case of the petitioner is undertaken having regard to the fact that the petitioner has been litigating for many years for benefits which he claims are due and payable to him from the first respondent - bank.
33. It is relevant to note that the claim of the petitioner is primarily on the following aspects:
i. Arrears of salary together with the periodic promotions and increments as claimed by the petitioner;
ii. Encashment of earned leave;
iii. Bonus;
iv. Leave Travel Concession (LTC);34
v. Interest.
34. Learned counsel for the petitioner, in support of his contentions put forth in the above writ petition has filed memo dated 14.12.2023 together with following documents:
i) Copy of the relevant portion of bye-laws of the first respondent -Society.
ii) Copy of the relevant portion of 28th Annual Report of the first respondent -Society.
iii) Copy of the relevant portion of 32nd Annual Report of the first respondent -Society.
iv) Calculation sheet produced by the petitioner before the third respondent.
35. The relevant extracts of bye-law No.67 with regard to staff strength, bye-law No.68 with regard to the service conditions of the employees of the first respondent have been produced.
36. The extract of the 20th Annual Report of respondent No.1-Society for the year 2008-09 has been produced which indicates at Sl.No.36 and 38 regarding payment of bonus. The 35 extract of the 32nd Annual Report of the first respondent for the year 2012-13 pertaining to payment of bonus at Sl.No.38 has been produced.
37. A copy of the calculation sheet produced by the petitioner before the third respondent indicates that the petitioner has made a total claim of ₹45,04,782/- wherein the petitioner has produced a chart to demonstrate the amounts claimed towards salary for the post of Manager from 01.01.1999 to 31.12.2003; the salary paid to the post of Assistant General Manager from 01.01.2004 to 31.12.2008; and salary paid for the post of General Manager from 01.01.2009 till August-2010. It is clear from the said chart that the petitioner has made his claim for arrears of salary by placing on record that the salary constitutes basic pay, dearness allowance, house rent allowance and city compensatory allowance.
38. Hence, it is clear that the petitioner has claimed the arrears of salary as also other allowances together with the probable enhancement of salary and allowances by averring that he would have been periodically promoted from the post of 36 Manager to that of Assistant General Manager and thereafter to that of General Manager. However, the petitioner has not produced any material to demonstrate that promotions in the employment of the first respondent - Bank are periodic in nature and merely by working for a specific period of time the petitioner would have automatically been granted the promotion.
39. At this juncture, it is relevant to notice that in the memo dated 29.7.2013 filed by the first respondent - bank in WP No.29312/2013 (which has been referred to in detail at para 10 hereinabove), the first respondent has calculated the amounts payable to the petitioner as arrears of salary and other benefits as `16,22,344/- and after deducting the amounts towards professional tax, contribution towards provident fund and admissible TDS, the first respondent has calculated the amounts payable to the petitioner in a sum of `12,41,002/- which was paid as noticed in the said memo. Along with the said memo, the basis of calculation that is made in the said memo are produced as Annexure-F to the present writ petition. 37
40. It is forthcoming from a perusal of Annexure-F that the first respondent while calculating the salary from September 1998 up to August 2010 has placed on record the basis of the calculation of the said salary by indicating the various constituents of the said salary i.e., Basic Pay, Dearness Allowance (D.A.), HRA and CCA. The deductions made towards Professional Tax and Provident Fund have also been indicated.
41. It is further relevant to note that while calculating the Basic Pay of the petitioner, the first respondent - Bank has taken the Basic Pay as `1,440/- for the year 1998, `1,480/- for the year 1999, `1,520/- for the year 2000, `6,150/- for the year 2001, `6,300/- for the year 2002, `6,450 for the year 2003, `6,600/- for the year 2004, `6,750/- for the year 2005 up to June 2006, `6,900/- from July 2006 up to June 2007, `7,050/- from July 2007 to December 2007, `14,050/- from January 2008 to June 2008, `1,440/- from July 2008 to June 2009, `1,480/- from July 2009 to June 2010 and `15,200/- for the Month of July 2010. Similarly insofar as the other constituents like D.A., HRA, CCA, periodically higher amounts 38 have been taken, commensurate with the increase in the basic pay.
42. It is the submission of learned counsel for the bank that whenever there has been periodic increments/revisions in the Basic Pay and the corresponding increase for other constituents, the same has been calculated while calculating the arrears of salary of the petitioner.
43. It is relevant to note here that the petitioner has not pointed out any error with regard to the calculation made by the first respondent - bank in terms of the calculation produced as Annexure-F to the writ petition, although the petitioner has disputed the same as being incorrect and has filed a memo indicating the amounts claimed as already noticed hereinabove. However, in the absence of the petitioner demonstrating any error in the calculations made by the first respondent - Bank, it is not open for this Court to undertake a calculation of the same in the present writ petition.
44. It is further relevant to note that reference has been made to Section 57(3)(f) of the Karnataka Co-operative 39 Societies Act, 195924 and Rule 18(a)(3)(iii) of the Karnataka Co-operative Societies Rules, 196025 with regard to payment of bonus and earned leave. In this context, it is relevant to note the said provisions as under:
44.1. Section 57(3)(f) reads as follows:
"57.Net profits and their disposal-(1) The net profits of co-operative societies shall be determined in accordance with such rules as may be prescribed and different rules may be made for different classes of co-operative societies.
(3) The balance of the net profits may [xxxxx] be utilized for all or any of the following purposes, namely-
[(a)xxxx;
(b)xxxx;]
(c) payment of bonus to members on the amount or volume of business done by them with the society to the extent and in the manner specified in the bye-laws:
Provided that no bonus shall be payable to members in a credit society;
(d) .............
(e)donations of amounts not exceeding ten percent of the net profits for any charitable purpose as defined in Section 2 of Charitable Endowments Act, 1890 (Central Act VI of 1890); and
(f) payment of bonus to employees of the society, to the extent and in the manner specified in the bye-laws:
Provided that the bonus payable in any year to any employee shall not exceed two months' pay."24
Hereinafter referred to as the 'ACT' 25 Hereinafter referred to as the 'Rules' 40 44.2. Rule 18(a)(3)(iii) of the Rules reads as follows:
"18.(a) Conditions of service of officers and employees of Co-operative Societies.
(3) Leave
(iii) An employee shall be entitled for "earned leave" on full pay at the rate of one-eleventh of the period spent on duty. The earned leave can be accumulated up to a maximum period of [240 days];"
45. It is clear that Section 57(3)(f) of the Act merely provides that the bonus to the employees shall be paid in the manner specified under the bye-laws and Rule 18(a)(3)(iii) of the Rules stipulates that an employee shall be entitled for earned leave on full pay at the rate of one-eleventh of the period spent on duty and that earned leave can be accumulated up to a maximum period of 240 days.
46. Bye-law No.68(7)(c) of the first respondent -Society states as follows:
"¨ÉÆãÀ¸ï ¥ÁªÀw PÁAiÉÄÝ 1965gÀ G¥À§AzsÀUÀ¼À£ÀéAiÀÄ ¨ÁåAQ£À ¹§âA¢ ªÀUÀðPÉÌ ªÀÄAqÀ°AiÀÄÄ ¨ÉÆãÀ¸Àì£ÀÄß PÉÆqÀvÀPÀÌzÀÄÝ. ¤ÃqÀ¨ÉÃPÁzÀ ¨ÉÆãÀ¹ì£À ¥Àj«ÄwAiÀÄ£ÀÄß ¨ÉÆãÀ¸ï PÁAiÉÄÝ 1965gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ jÃwAiÀÄ°è ¤zsÀðj¸ÀgÀPÀÌzÀÄÝ. ¨ÉÆãÀ¹ìUÉ ºÀQÌ®èzÀ ¨ÁåAQ£À ¹§âA¢UÉ ¸ÁªÀiÁ£Àå ¤PÁAiÀÄzÀ C£ÀĪÉÆÃzÀ£É ªÉÄÃgÉUÉ ¨ÉÆãÀ¹ìUÉ §zÀ¯ÁV ¤ªÀé¼À ¯Á¨sÀzÀ°è C£ÀÄUÀæºÀ PÉÆÃqÀÄUÉAiÀÄ£ÀÄß (JPÉìUÉæöAiÀiÁ) PÉÆqÀ§ºÀÄzÀÄ. DzÁUÀÆå C£ÀÄUÀæºÀ PÉÆqÀÄUÉAiÀÄ UÀjµÀ× ¸ÀAzÁAiÀĪÀÅ ¨ÉÆãÀ¸ï PÁAiÉÄÝAiÀÄ°è £ÀªÀÄÆ¢¹gÀĪÀ UÀjµÀ× ªÉƧ®UÀ£ÀÄß «ÄÃgÀvÀPÀÌzÀÝ®è."41
47. Having regard to the legal position as noticed above and the factual matrix of the present case, it is clear that the petitioner has failed to demonstrate that the periodic promotion as claimed by him i.e., from the post of Manager to the post of Assistant General Manager from 01.01.2004, and from the post of Assistant General Manager to the post of General Manager from 01.01.2009 is not an automatic process. It is clear that the various promotional avenues might have enured to the petitioner, only if the petitioner had actually worked and discharged his duty. The petitioner has not placed any material on record to demonstrate that either under the Act, the Rules or by the bye-laws of the Society, the promotions claimed by the petitioner is automatic upon the petitioner being in service for a specified period of time.
48. It is further relevant to note that along with the arrears of salary, the petitioner has claimed dearness allowance, house rent allowance and city compensatory allowance. Having regard to the legal position as noticed by the Hon'ble Supreme Court in the case of DILBAGH RAI JERRY13, the petitioner was required to demonstrate that the allowance 42 claimed flows from the term of employment not contingent on actual working, which he has failed to do. The legal position has also been noticed by a Division Bench of this Court in the case of The GENERAL MANAGER, VIJAYA BANK, BENGALURU17, wherein, the earlier judgments of the Hon'ble Supreme Court have been noticed and it was held that the claim of the petitioner towards earned leave is unsustainable and not liable to be granted, which is squarely applicable to the factual matrix of the present case.
49. With regard to the claim of the petitioner towards bonus and leave travel concession, in view of the fact that the said two items are payable only upon the petitioner actively serving his employment and actually undertaking the travel respectively, the claim of the petitioner towards the same is also unsustainable and not liable to be granted.
50. Having regard to the aforementioned, it is clear that the petitioner has failed to demonstrate his entitlement in respect of the amounts claimed by him in the proceedings before the second respondent.
43
51. An another aspect in respect of which submissions have been made was that the petitioner was not an income tax assessee and the first respondent ought not to have deducted the income tax amount of ₹1,97,751/- while making payment of sum of ₹12,41,002/-. In this context, reliance has been placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in the case of SUNDARAM MOTORS (P) Ltd. And AMEERJAN AND ANOTHER26, wherein, the Hon'ble Supreme Court held as follows:
3. "Mr. Ramamurthy pointed out that in view of the provision contained in Section 192(1) of the Income Tax Act, 1961, it would be obligatory upon the appellant to deduct Income-tax from the amount of compensation ordered to be paid by this Court as per its judgment dated 7th August, 1984, at the average rate of income-tax computed on the basis of the rates in force for the financial year in which the payment is made, on the estimated income of the assessee under the head "Salaries" for that financial year. After drawing our attention to S.89 of the I.T Act, 1961, which provides that "where, by reason of any portion of an assessee's salary being paid in arrears or in advance or by reason of his having received in any one financial year salary for more than twelve months or a payment which under the provisions of Cl.(3) of S.17 is a profit in lieu of salary, his income is assessed at a rate higher than that at which it would otherwise have been assessed, the ITO shall, on an application made to him in this behalf, grant such relief as may be prescribed", he proceeded to submit that unless, the relief as provided by S.89 is claimed, the appellant-
employer is under a statutory obligation to deduct the income- tax from the lump sum directed to be paid by the judgment of 26 AIR 1985 SC 144 44 this Court and, therefore, the appellant will be in a position to make payment to the tune of Rs.1,11,000/- only after deducting the requisite amount payable as income-tax and which will have to be deposited by the appellant with the concerned authority under the IT Act.
4. We have made it abundantly clear in our judgment and order dated 7th August, 1984, that the compensation awarded is in lieu of back-wages, and future wages in lieu of reinstatement which were and would be payable from year to year. Therefore, we made it very clear that the entire amount awarded by our judgment shall be spread over from 1970 to 1989, 1970 being the year of dismissal from service and 1989 being the year of retirement on superannuation as per the relevant service rules. We are, accordingly, clear in our minds that viewed from any angle, respondent-Ameerjan, the workman is fully entitled to the relief under S.89 of the I.T Act. No other view on this point is possible. In order to satisfy the requirements of law, the respondent-Ameerjan shall with the assistance of the appellant and its income-tax consultants make the necessary application to the ITO having jurisdiction in the matter at Bangalore for relief under S.89 and the officer concerned shall, without further enquiry, grant him immediate relief under S.89 and dispose of the proceedings within a period of three months from the date of the application, so that the spirit and purpose of our judgment and order would be implemented without unnecessary delay and the agony and torture of unemployment heaped upon the lowly paid respondent Ameerjan from 1970 be relieved."
(Emphasis supplied)
52. Section 89 of the Income Tax Act, 196127 states as follows:
"89. Where an assessee is in receipt of a sum in the nature of salary, being paid in arrears or in advance or is in receipt, in any one financial year, of salary for more than twelve months or a payment which under the provisions of clause (3) of section 17 is a profit in lieu of salary, or is in receipt of a sum in the nature of family pension as defined in the Explanation to clause (iia) of section 57, being paid in arrears, due to which his total income is assessed at a rate higher than that at which it would otherwise have been 27 Hereinafter referred to as the 'IT Act' 45 assessed, the Assessing Officer shall, on an application made to him in this behalf, grant such relief as may be prescribed.
Provided that no such relief shall be granted in respect of any amount received or receivable by an assessee on his voluntary retirement or termination of his service, in accordance with any scheme or schemes of voluntary retirement or in the case of a public sector company referred to in sub-clause (i) of clause (10c) of section 10, a scheme of voluntary separation, if an exemption in respect of any amount received or receivable on such voluntary retirement or termination of his service or voluntary separation has been claimed by the assessee under clause (10c) of section 10 in respect of such, or any other, assessment year."
53. It is clear from the aforementioned that first respondent had calculated the total amount of arrears payable to the petitioner in a sum of ₹16,22,344/-. The said amount was in respect of the arrears of salary from 1998 to 2011. Hence, the petitioner was entitled for the benefit under Section 89 of the IT Act i.e., for the relief of spread over.
54. In view of the discussion made above, the questions framed for consideration are answered in the negative. However, having regard to the basis of calculation furnished by first respondent - bank vide memo dated 29.7.2013, the present writ petition is partly allowed only to the extent of directing that the amount of ₹16,22,344/- assessed by first respondent as the total arrears payable to the petitioner be 46 spread over for the period 1998 to 2011. Consequently, although first respondent has deducted a sum of ₹1,47,751/- as TDS in respect of payment made to the petitioner, the same shall be liable to be considered for appropriate relief under Section 89 of the IT Act and for the said purpose it shall be open to the petitioner to make necessary application to the tax authorities for claiming relief under Section 89 of the IT Act and if such an application is made, the tax authorities shall consider the same expeditiously in accordance with law.
55. Ordered accordingly.
Sd/-
(C.M.POONACHA) JUDGE Bs/nd/sh