Karnataka High Court
C M Shivaram S/O Marirangaiah vs Udaya Bharathi Education Society on 28 October, 2013
Bench: N.K.Patil, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF OCTOBER, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
W. A. No. 15099 of 2011 (S-RES)
Between:
C.M.Shivaram,
S/o. Marirangaiah,
Aged about 57 years,
R/at. Chikkakallur
Village, Gubbi Taluk,
Tumkur District-572 201.
...Appellant
(By Sri. M.P.Srikanth, for Sri. M.S. Parthasarathi, Advocate)
And :
1. Udaya Bharathi Education
Society ®, No.20,
North Road, Cooks Town,
Bangalore-84.
Rep. by its Secretary,
Sri. Shivaiah,
S/o. Siddalingaiah,
Aged about 59 years.
2. The Director,
Pre University
Education Board,
2
Palace Road,
Bangalore-560 012.
... Respondents
(By Sri. Fayaz Sab, Advocate for M/s. JMS Law Associates,
for R1;
Sri. B. Veerappa, AGA for R2)
This W.A. is filed under Section 4 of the Karnataka
High Court Act, praying to set aside the Order dated
09/03/2011 passed by this court in Writ petition
No.17618/2004.
This W.A. coming on for Preliminary Hearing, this day,
N.K.PATIL J., delivered the following:
:J U D G M E N T:
In this appeal, the appellant is assailing the correctness of the order dated 09/03/2011 passed by the learned Single Judge in Writ Petition No.17618/2004.
2. Along with the appeal, appellant has filed I.A.No.I/2011 of condonation of delay of 108 days in filing the appeal.
3. We have heard learned counsel for the appellant, learned counsel appearing for respondent No.1 and learned Additional Government Advocate appearing for respondent 3 No.2. Perused the statements made in the affidavit accompanying the application.
4. The learned counsel for the appellant submitted that in the light of the statements made in para-5 of the affidavit accompanying the application, the delay may be condoned and matter may be heard on merits.
5. As against this, learned counsel for respondents contended that, the inordinate delay of 108 days in fling the appeal has not been satisfactorily explained by the appellant by assigning cogent and valid reasons. To substantiate the said submission, he submitted that, statements made in the affidavit accompanying the application cannot be accepted, for the reason that, appellant is a well qualified person working as lecturer in Political Science and he is bound to explain each day's delay satisfactorily. Therefore, he submitted that IA No.I/2011 may be dismissed as mis- conceived.
6. After hearing the learned counsel for both the parties and after perusing the statements made in the affidavit, it emerges that, there is a delay of 108 days in 4 filing the appeal. The said delay has not been explained by the appellant satisfactorily by assigning cogent and valid reasons. The appellant, except stating that he could not file the appeal within time, since he was working as a Lecturer in Political Science at Udayabharathi Pre University College, Tiptur, he had to attend the II PUC examination work and thereafter, valuation work for 15 days and thereafter, he fell serious ill and the Doctors have advised him to take bed rest for about a month since the varicose veins in his legs caused serious health problem and since there was a swelling in both the legs, he could not even walk and he was bedridden for more than 60 days. Thereafter, after obtaining the papers, certified copy of the order and other documents from his former counsel, he came to Bangalore to file the appeal and in these process there is a delay of 108 days in filing the appeal. The said delay is not intentional and bonafide one. If the said delay is condoned, no harm or injustice would be caused to the 5 other side and on the other hand, if the delay is not condoned, he will be put to hardship, injury and loss which cannot be compensated by any means. But to substantiate the statements made in para-4 of the affidavit, appellant has not produced any medical certificate issued by the Doctor where he has undergone treatment. The appellant is bound to explain each day's delay in filing the appeal satisfactorily by assigning cogent and valid reasons. The explanation offered by the appellant in the affidavit is omnibus in nature and much credibility cannot be given to the same. Therefore, we are of the considered view that, in view of non explanation of the delay in filing the appeal satisfactorily by the appellant, the said delay cannot be condoned and hence, I.A.No.I/2012 is liable to be dismissed as devoid of merits. Accordingly, it is dismissed.
7. However, in the interest of justice, we have heard learned counsel for both the parties and perused 6 the order impugned passed by the learned Single Judge on 9/3/2011 in W.P.No.17618/2004, wherein, learned Single Judge has quashed the impugned judgment passed by the Tribunal with liberty to the petitioner/first respondent to conduct a fresh enquiry against the appellant/respondent No.1 as the enquiry report and the punishment imposed by virtue of the same are bad in law, after assigning valid in para-5 of its order that, "therefore, it is on that short ground though the petition deserves to be allowed as the order passed by the Tribunal on the basis of an incorrect application of the Circular at Annexure-V, the question remains that the enquiry which stands vitiated even otherwise by virtue of Rule-17 having been breached, it is in the interest of justice and all fairness that the petitioner be granted liberty to conduct fresh enquiry in accordance with law." It is significant to note that, the Tribunal has allowed the appeal filed by the appellant herein on the sole ground that, without taking prior 7 permission as per Circular dated 7.8.1972 which is in relation to grant-in-aid and therefore, the termination of services of the appellant cannot be sustained. The said reasoning given by the Tribunal is contrary to Rule 17 of the Act and Circular dated 7.8.1982 is not applicable to the facts and circumstances of the case. In fact, in the interest of the appellant only, the matter has been remitted back for reconsideration by the learned Single Judge. Therefore, we are of the considered view that, interference in the said order is not called for. Nor we find any good ground as such made out by the appellant to entertain the relief sought in this appeal. Further, in view of the well settled law laid down by the Apex Court in catena of judgments, if the matter is remanded, this Court in rarest of rare cases can interfere, but this is not one such case and therefore, it does not warrant any interference. Hence, the appeal filed by the appellant is liable to be dismissed as devoid of merits.
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8. For the foregoing reasons, the appeal filed by the appellant is dismissed on the ground of delay and laches as well as on merits.
In view of the dismissal of the appeal, IA Nos.II and III of 2011 do not survive for consideration and hence, they are disposed off as having become infructuous.
SD/-
JUDGE SD/-
tsn* JUDGE