IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT APPEAL NO.6759 OF 2017 (S-RES) BETWEEN 1. SRI KRISHNADEVARAYA EDUCATIONAL TRUST NO.16, BELLARY ROAD, SADASHIVANAGAR, BANGALORE-560080 REPRESENTED BY ITS IN-CHARGE CHAIRMAN, SRI.K.V.SEKHAR RAJU 2. SRI. KRISHNADEVARAYA EDUCATIONAL TRUST NO.16, BELLARY ROAD, SADASHIVANAGAR, BANGALORE-560080 REPRESENTED BY ITS SECRETARY, SRI.K.SYAMA RAJU 3. SRI. KRISHNADEVARAYA COLLEGE OF DENTAL SCIENCES KRISHNADEVARAYA NAGAR, HUNSAMARANAHALLI, (VIA YALAHANKA) BANGALORE-562157 REPRESENTED BY ITS PRINCIPAL, SRI.A.A.PONNANNA ... APPELLANTS (BY SRI SOMASHEKAR, ADVOCATE) AND DR. SIDDAPUR MATHADA SHARATH CHANDRA S/O SRI. LT. COL.S.M.SREEKANTA, AGED 55 YEARS, SHARABHA, NO.1002, 12TH A MAIN ROAD, A SECTOR, YELAHANKA NEW TOWN, BANGALORE-560064 (BY SRI N G PHADKE, ADVOCATE) ... RESPONDENT THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 17/10/2017 IN I.A. NO.1/2017 IN DISALLOWING INSERTION OF PARA-14B BY WAY OF PROPOSED AMENDMENT AND ORDER DATED 17/10/2017 ON I.A. NO.2/2017 IN WP NO. 5934/2017 AND ETC.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, DEVDAS J, DELIVERED THE FOLLOWING:
JUDGMENT The appellants are before this Court calling in question the order passed by the learned Single Judge on I.A.No.1/2017 and I.A.No.2/2017 in W.P.No.5934/2017.
2. Learned counsel for the appellants submits that the impugned order in so far as I.A.No.1/2017 has been partly allowed while permitting the appellants herein to amend the writ petition and insert paragraph No.14A while rejecting the addition or insertion of paragraph No.14B, which was proposed along with application seeking amendment. Learned counsel submits that paragraph No.14B would only seek to insert factual aspects while in paragraph No.14A the appellant sought to raise certain legal contentions. The learned Single Judge has allowed the application permitting the appellant to insert paragraph No.14A as regards legal contentions are concerned. However the learned Single Judge rejected the plea with regard to insertion of paragraph No.14B, which are factual aspects. Learned counsel for the appellants further submits that the factual aspects sought to be brought in paragraph No.14B have already been brought on record by way of oral evidence and the same is required to be brought in by way of pleadings.
3. Learned counsel for the appellants would place reliance on a judgment of the Apex Court in the case of J.K.Synthetics Ltd., /vs./ K.P.Agrawal reported in (2007) 2 SCC 433 while referring to paragraph No.18.
4. Learned counsel for the respondent submits that the appellants have removed the respondent from services by only stating that the services of the respondent is not required and he is relieved from the service. He therefore submits that the appellants never stated in the order of termination that he has been removed for violation of the conditions imposed in the letter of appointment that he shall not engage himself in any other gainful employment. The learned counsel therefore submits that since the appellants never brought to the notice of the respondent that his services have been terminated for violation of the conditions, at the appellate stage, the appellants should not be permitted to insert factual aspects which would go contrary to settled position of law. The learned counsel for the respondent further submits that merely because the appellants have stated in oral evidence regarding the establishment of a Dental Clinic by the respondent, it cannot be accepted that the appellants have taken up a plea in the pleadings and therefore submits that the contention of the appellants that they have already taken such a plea should be negatived.
5. Having heard the learned counsels on both sides and perusing the appeal papers, this Court finds that the learned Single Judge has considered the submissions of both the sides and has rightly held that as regards the question of law which is sought to be brought out in paragraph No.14A, the same could be allowed since the question of law could be raised at any stage. Similarly, the learned Single Judge has also considered the aspect on a question of fact, which was never pleaded before the Trial Court or raised at the trial stage, sought to brought up at the appellate stage and therefore rightly rejected the application in so far as inserting paragraph No.14B is concerned. As rightly pointed out by the learned counsel for the respondent, the learned Single Judge has reserved the consideration of I.A.No.2/2017 to be taken up at the final stage and therefore the appellants are not aggrieved to that extent.
6. In the light of the above, this Court finds that there is no infirmity in the impugned order of the learned Single Judge and therefore appeal is rejected.
SD/- JUDGE SD/- JUDGE KLY/