IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition Nos.43756-43757/2015 (S-DIS) Between :
1. The Management Sri Samrudhi Educational Cultural Charitable Trust, Rep. by Treasurer, No.13, 3rd Cross, 7th Main, Syndicate Bank Colony, Banashankari 3rd Stage, Bangalore-560085.
2. The Secretary Hi Tech Polytechnic, Gowribidanur, Chikkaballapur District. …Petitioners (By Sri M. S. Varadarajan, Advocate) And :
Sadashivaiah S/o. Siddappa, Aged about 50 years, R/at Hale Upparahalli Village, Hosur, Gowribidanur, Chikkaballapur District-561210. …Respondent (By Sri S. I. Syed Munaveer, Advocate) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned order dated 19.02.2015 passed on I.A. No.1 in EAT No.1 /2015 on the file of the Prl. District Judge/appellate tribunal, Chikkaballapur (Annexure-A) and etc.
These Writ Petitions coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following :
ORDER The petitioners, Management of Sri. Samrudhi Educational Cultural Charitable Trust, have challenged the legality of the order dated 19.2.2015, and the order dated 22.9.2015, passed by the Prl. District Judge / Appellate Tribunal. By the former order, the learned Tribunal has allowed the application filed under Section 5 of the Limitation Act, by the respondent; by the latter order, the learned Tribunal has directed the petitioners to reinstate the respondent to the post which he was holding on the date of going on leave.
2. Mr. M. S. Varadarajan, the learned counsel for the petitioners, submits that according to the learned Tribunal itself, the notice could not be served on the petitioners, as according to the endorsement of the postal authorities, the addressee had left, and the door was found to be locked. Thus, without the presence of the petitioners, the impugned order dated 19.2.2015, has been passed.
Secondly, since there was an inordinate delay of eight months in filing the appeal against the oral order of termination, the learned Tribunal is not justified in concluding that there is no inordinate delay.
Thirdly, the delay in filing of the appeal has to be explained by giving reasons. The respondent has not given sufficient reason. Thus, the learned Tribunal was not justified in condoning the delay of eight months.
As far as the order dated 22.9.2015 is concerned, the learned counsel has pleaded that the final relief cannot be given at the interim stage. Since the respondent has challenged his termination, the petitioners cannot be directed to reinstate the respondent during the pendency of the appeal.
3. On the other hand, Mr. S. I. Syed Munaver, the learned counsel for respondent, has pleaded that the respondent has succeeded in showing the cause for the delay of eight months. Therefore, the learned Tribunal was justified in condoning the delay of the said period. With regard to the order dated 22.9.2015, the learned counsel has pleaded that since the requirement of law was not followed, the learned Tribunal was justified in directing reinstatement of the respondent. Hence, the learned counsel has supported both the impugned orders.
4. Heard the learned counsel for the parties, and perused the impugned orders.
5. A bare perusal of the application filed under Section 5 of the Limitation Act, clearly reveals that the respondent had merely stated that whenever he approached petitioner Nos.1 and 2 (respondent Nos. 1 and 2 before the learned Tribunal), to reinstate him, and to pay him the arrears of salary, merely oral assurances were given. Therefore, according to the respondent, sufficient cause has been shown.
6. Admittedly, the notice was not even served upon the petitioners-respondents before the order dated 19.2.2015 was passed. Since the appeal was allegedly delayed by eight months, a fair chance should had been given by the learned Tribunal to the petitioners to argue against the condonation of delay. Further, despite the fact that notice was never served upon the petitioners, the learned Tribunal has proceeded to pass an ex-parte order, condoning the delay.
7. Therefore, this Court sets aside the order dated 19.2.2015, and directs the learned Tribunal to hear both the parties on the point of delay, and on the point of limitation. It is only after the impediment of being hit by limitation is crossed by the respondent, that he would be entitled to be heard on his temporary injunction application. Therefore, this Court also sets aside the order dated 22.9.2015, and directs the learned Tribunal to first decide the application under Section 5 of the Limitation Act. In case, the respondent succeeds in overcoming the obstacle of limitation, then to hear the parties on application filed under Order XXXIX Rules 1 and 2 of CPC.
Since the case has been hanging fire since 2015, the learned Tribunal is directed to hear both the parties on the point of limitation, within a period of two weeks from the date of receipt of certified copy of this order.
With these directions, the Writ Petitions stands disposed of.
Sd/- JUDGE *bk/-