IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF SEPTEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.46831 OF 2014 (S-DE) Between:
Sri H. Shivananda Reddy Aged about 59 years S/o Late Hanumanthappa Office Manager Karnataka Food and Civil Supplies Corporation Ltd., Davanagere – 577 001 Davanagere District …Petitioner (By Sri G.S.Naveen Kumar, Advocate for Sri S.B.Mukkannappa, Advocate) And:
1. The Board of Directors/ Appellate Authority Karnataka Food & Civil Supplies Corporation Ltd., No.16/1, Millers Tank Bed Area Bengaluru – 560 052 2. The Managing Director & Disciplinary Authority Karnataka Food & Civil Supplies Corporation Ltd., No.16/1, Millers Tank Bed Area Bengaluru – 560 052 ... Respondents (By Sri R.B.Sathyanarayana Singh, Advocate) This writ petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 08.05.2013 passed by the respondent No.2 vide Annexure-C to the writ petition, etc.
This petition coming on for preliminary hearing ‘B’ Group this day, the Court made the following:
ORDER The Office Manager, who has been dismissed from service by the second respondent is before this Court for a Writ of certiorari to quash the impugned order dated 08.05.2013 passed by the second respondent and also to quash the endorsement dated 24.06.2014 issued by the first respondent and for a writ of mandamus directing the respondents to treat the suspension period from 07.12.2010 to 24.02.2011 as, ‘spent on duty’ and extend all other consequential benefits.
2. The petitioner was an employee of the respondents working as Office Manager at Davanagere.
On the basis of certain charges, the second respondent, by an order dated 07.12.2010, suspended the petitioner from service, pending enquiry, under the provisions of Rule 10(1)(c) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The petitioner submitted his reply on 14.12.2010. Being not satisfied with the said reply, the second respondent issued show cause notice to the petitioner. The petitioner again submitted reply, not satisfied with the said reply the second respondent by an order dated 15.09.2012, appointed an Enquiry Officer to hold enquiry. The petitioner participated in the enquiry proceedings. The Enquiry Officer after holding detailed enquiry, submitted report dated 12.03.2013 holding that the charges are not proved. Thereafter, the second respondent passed an order treating the suspension period as ‘leave period’.
3. The petitioner submitted a representation to the second respondent on 14.03.2013 treating the suspension period as ‘duty period’. The in-charge General Manager of second respondent issued endorsement dated 27.08.2013 rejecting the claim of the petitioner and thereafter, the petitioner filed Writ Petition No.48825/2013 before this Court and this Court by an order dated 04.02.2014 disposed of the writ petition reserving liberty to the petitioner to file an appeal before the Appellate Authority. Thereafter, the petitioner filed an appeal before the Appellate authority on 18/19.02.2014. The Appellate Authority, by the impugned endorsement dated 24.06.2014, without considering the case on merits proceeded to dismiss the appeal mainly on the ground of delay of 7 months and 10 days in preferring the Appeal. Hence, present Writ petition is filed.
4. The respondents filed statement of objections and justified the endorsement issued by respondent Nos.1 and 2 and contended that the appellant has not explained the delay and therefore, the appeal came to be dismissed on the ground of delay and latches.
5. I have heard the learned counsel appearing for the parties to the lis.
6. Sri G.S.Naveen Kumar, learned counsel appearing for the petitioner reiterating the grounds urged in the Writ petition, contended that the impugned order passed by the Appellate Authority is erroneous, bad in law and the Appeal is dismissed mainly on the ground of delay and latches. He further contended that earlier a Writ petition is filed against the respondents before this Court in WP No.48825/2013. This Court disposed of the writ petition, without going into the merits of the case with liberty to the petitioner to approach the appellate authority. It is also observed that the time spent in prosecuting the writ petition from 26.10.2013 till date shall stand excluded, if the appeal were to be filed within a period of two weeks from the date of the order.
7. The learned counsel further submit that inspite of the fact that the appeal was filed before the Appellate Authority by the petitioner within the time prescribed by this Court, still the Appellate Authority proceeded to dismiss the appeal mainly on the ground of delay which is erroneous. He further contended that inspite of the directions issued by this Court to exclude the time spent before this Court and the appeal to be filed within a period of two weeks, the appeal was filed within time, the Appellate Authority ought to have decided the matter on merits. However, the appeal was dismissed only on the ground of delay and latches.
8. He would further contend that he has specifically stated about the delay in paragraph 13 of the appeal memo and same has not been considered. Therefore, he sought to quash the impugned order passed by the Appellate Authority by allowing the present Writ Petition.
9. Per contra, Sri R.B.Sathyanarayana Singh, learned counsel appearing for respondent Nos.1 and 2 sought to justify the impugned order and contended that there was a delay of seven months and ten days. Absolutely no explanation was offered. Therefore, the Appellate Authority was justified in dismissing the appeal on delay and therefore, he sought to dismiss the writ petition.
10. Having heard the learned counsel appearing for the parties, the only point that arises for consideration is;
“Whether the Appellate Authority was justified in dismissing the appeal mainly on the ground of delay of seven months and ten days, without adverting to the case on merits, in the facts and circumstances of the present case?”
11. It is not in dispute, the petitioner was appointed as Office Manager under the respondents and there was Enquiry initiated against him. Ultimately, the authority by an order dated 08.05.2013 treated the suspension period as leave period. Therefore, the petitioner filed Writ Petition No.48825/2013 against the said order passed by the second respondent and this Court, by an order dated 04.02.2014 disposed of the Writ petition and observed as under:
“Submission of learned counsel is recorded and the writ petition is disposed of without going into the merits of the matter by reserving liberty to the petitioner to approach the Appellate Authority for relief.
Needless to observe that the time spent in prosecuting of this writ petition from 26.10.2013 till date, shall stand excluded, if the appeal were to be filed within a period of two weeks from today.”
12. It is also not in dispute that in pursuance of the order passed by this Court stated supra, the petitioner filed appeal on 18.02.2014, within the time stipulated by this Court and also stated at Para-13 of the Appeal memo and explained the delay in detail and observations made by this Court in Writ Petition No.48825/2013 and Appellate Authority while passing the impugned order, proceeded to dismiss the appeal mainly on the ground of delay of seven months and ten days in filing the appeal, ignoring the directions issued by this Court that, “time spent in prosecuting the Writ Petition No.48825/2013 from 26.10.2013 till date, shall stand excluded, if the appeal were to be filed within two weeks from today.” The Appellate Authority has not considered the explanation offered in Paragraph 13 of the appeal memo dated 18.02.2014 and dismissed the appeal. On that ground alone, the impugned order passed by the Appellate Authority cannot be sustained and liable to be quashed.
For the reasons stated above, the Writ Petition is allowed in part.
The impugned order passed by the Appellate Authority only in so far as the notification vide Annexure-H dated 24.06.2014 is quashed.
The matter is remanded back to the Appellate Authority for fresh consideration to decide the appeal on merits in view of the observations made by this Court dated 04.02.2014, if the appeal was filed within two weeks from the date of the disposal of WP No.48825/2013 and pass orders in accordance with law.
The Appellate Authority is directed to dispose of the appeal within four months from the date of receipt of the copy of this Order.
Ordered accordingly.
KMV* SD/- JUDGE