Dismissed

Siddharth College of Arts, Science and Commerce and 3 Ors. v. Nandkishore S. Chandan and 2 Ors.

Bombay HC29 Sept 2010WP/1838/2010

Case brief

AI extract

What is this about?

This Writ Petition sought to quash an order by the Mumbai University and College Tribunal that condoned a 60-day delay in filing an appeal regarding employment termination. The bench dismissed the petition, upholding the Tribunal's well-reasoned decision that sufficient cause for the delay was established.

What did the court decide?

The Writ Petition is dismissed with no order as to costs.

Siddharth College of Arts, Science and Commerce and 3… — Service and Employment | Bombay HC (2010)

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I N THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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jmi

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WRIT PETITION NO. 1838 OF 2010.

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Siddharth College of Arts & Ors. ..Petitioners. v/s. Nandkishore S. Chandan & Ors. ..Respondents.

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Mr. R.V. Govilkar, a/w. Ms. Ujwala Sawant, for Petitioners. Mr. Abhijeet Desai, for Respondent No.1. Ms. S.M. Dandekar, AGP, for Respondent No.4.

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CORAM : S.J. KATHAWALLA, J. DATE : 29TH SEPTEMBER 2010.

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P.C.

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By this Writ Petition, the Petitioners Siddharth College of

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Arts, Science and Commerce have impugned the order passed by the Learned Presiding Officer, Mumbai University and College Tribunal dated 28th April 2010, allowing the Application of the Respondent No.1 seeking condonation of delay of 60 days in filing the Appeal, before the Tribunal against the order passed by the Petitioner No.1College dated 15th September 2009.

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The Respondent No.1 was admittedly a Lecturer in Petitioner No.1-College. The Respondent No.1 had requested for leave without pay for the period 15th September 2007 to 14th September 2009 to enable him to pursue his further studies at Oxford University, U.K. According to the Petitioner No.1-College, the

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leave of the Respondent No.1 was sanctioned for two years and he was required to resume by 15th September 2010. However, he failed to do so because of which the Petitioner No.1-College by its order dated 15^th September 2009 terminated the services of the Respondent No. 1 which was received by the Respondent No.1 on 21^st September 2009 at U.K.

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On 22nd December 2009, an Appeal was filed by the Respondent No.1 before the Mumbai University and College Tribunal at Mumbai challenging the said order of termination dated 15th September 2010. The said Appeal was, therefore, filed beyond the prescribed period of 30 days. In view thereof, an Application for condonation of delay of 60 days was filed. Initially, an affidavit in support of the above Application was filed by the Constituted Attorney of the Respondent No.1 setting out the reasons for the delay in filing the Appeal. The said Application was opposed by the Petitioners inter-alia on the ground that the Power of Attorney holder of the Respondent No.1 cannot depose on behalf of the Respondent No.1. The Petitioners in support of their argument relied upon the decision of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani v/s. Indusind Bank Limited, reported in 2005(2) SCC 217. In view thereof, the Tribunal granted liberty to the Respondent No.1 to file his personal affidavit in support of the Application for

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condonation of delay, which the Respondent No.1 did by filing his affidavit dated 1st April 2010. In the said Affidavit, the Respondent No.1 has stated that the delay of 60 days in filing the Appeal is caused inadvertently. He has stated that he was absolutely shocked and surprised to receive the termination letter dated 15th September 2009 on 21^st September 2009. Thereupon, he immediately addressed a letter dated 28th September 2009 to the Principal of the Petitioner No.1- College to inform him the reason why his services as a permanent Lecturer had been terminated summarily without according him an opportunity of being heard. He also mentioned in the letter that the said termination is in contravention of the Rules and Regulations of UGC and MCS Rules and the said termination ought to be cancelled. Since the Petitioner No.1-College failed to respond to the said letter, the Respondent No.1 once again addressed a letter dated 3rd November 2009 reiterating his earlier request. However, the Petitioner No.1-College again failed to respond to the second letter dated 3rd November 2009 addressed by the Respondent No.1. The Respondent No.1 has further stated in his Affidavit that he was very disturbed and stressed and had to be rushed to a Doctor on 28th September 2009. He was examined by Dr. Evelyn Sanderson, Bartelmas Surgery who advised him bed-rest and not to take work related stress. He has produced a medical

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certificate wherein it is stated that the Respondent No.1 was examined on 28th September 2009 in relation to some episodes of unconsciousness and in addition, he has also been suffering from work related stress. The said certificate is signed by one Marie Mollay for Dr. Evelyn Sanderson, Registrar to A P Fleischman. The letter head on which the medical certificate is issued, shows that Dr. A P Fleischman is connected to Bartlemas Surgery, East Oxford Health Centre, Oxford. The Respondent No.1 has further explained in his affidavit that he thereafter tried to seek legal help in India and assign his case to an Advocate to contest the same. He sent all the necessary documents to India which took considerable time due to the distance. He has further submitted that the said delay in filing the Appeal is inadvertently caused and be condoned by the Tribunal in the interest of justice. He has submitted that he has a very good case on merits and there are fair chances of his succeeding in the Appeal if the same is heard on merits.

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The learned Presiding Officer has after considering the case made out by the Respondent No.1 and the objections raised by the Petitioner, condoned the delay on the part of the Respondent No. 1 in filing the Appeal on the ground that the Respondent No.1 has explained the delay. The Tribunal also directed the Respondent No.1 to pay costs of Rs.2,000/- to the Petitioner Nos. 1 to 4.

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Mr. Govilkar, learned Advocate appearing for the Petitioners has vehemently contended that the order passed by the Presiding Officer is erroneous. He submits that the learned Presiding Officer has not taken cognizance of the fact that the Constituted Attorney of the Respondent No.1 in his affidavit dated 24^th September 2010 has not mentioned the sickness of the Respondent No.1 and that the Respondent No.1 has for the first time, mentioned the same in his Affidavit dated 1^st April 2010. He has submitted that the learned Presiding Officer has, therefore, not considered the fact that the Respondent No.1 has made a false statement on oath qua his sickness. He submits that the Presiding Officer ought not to have taken cognizance of the medical certificate produced by the Respondent No.1 which is signed by one Marie Mollay, whose name is not appearing on the letter head on which the medical certificate is issued and who has admittedly not examined the Respondent No.1.

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I see no substance in the contentions raised by Mr. Govilkar, learned Advocate appearing for the Petitioners. On the one hand, it is argued on behalf of the Petitioners that in view of the decision of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani v/s. Indusind Bank Limited (supra), no cognizance can be taken by a Court of Law to the deposition of a Constituted Attorney which are not within his personal knowledge. This in fact

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made the Tribunal to grant liberty to the Respondent No.1 to file his personal affidavit. On the other hand, when the personal affidavit is filed by the Respondent No.1 based on his personal knowledge and facts, it is argued on behalf of the Petitioners that the same should be compared with the affidavit filed by the Constituted Attorney of the Petitioners and the Respondent No.1 be disbelieved. This submission only goes to show that the Petitioners are determined to oppose the Application for condonation of delay on any ground, even if the same contradicts their earlier submission. So far as the medical certificate is concerned, the same shows that it is signed by Marie Mollay on behalf of Dr. Evelyn Sanderson (Registrar to A P Fleischman), who has examined the Respondent No.1. The Petitioners have not come forward with any evidence to show that the medical certificates are not issued by the Doctors in U.K. in the format produced by the Respondent No.1. In any event, even if we ignore the submissions of the Respondent No.1 qua his sickness, the Respondent No.1 has made out a sufficient case for condonation of the said delay by explaining in his affidavit that initially he tried to correspond with the Petitioners, which any reasonable person on loosing his job would do, before rushing to Court. Also upon deciding to pursue the course of litigation some time was taken up in contacting his lawyers and pursuing the Appeal, more particularly, in

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view of the distance involved.

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Under the circumstances, the order passed by the Tribunal is a well-reasoned order and by no stretch of imagination the same can be termed as erroneous. No case for interference under Article 226 of the Constitution of India is made out on behalf of the

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Petitioner. The Writ Petition is therefore, dismissed, with no order as to costs.

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[ S.J. KATHAWALLA, J. ]

Siddharth College of Arts, Science and Commerce and 3 Ors. v. Nandkishore S. Chandan and 2 Ors.

Case brief

What is this about?

What did the court decide?

Siddharth College of Arts, Science and Commerce and 3 Ors. v. Nandkishore S. Chandan and 2 Ors.

Case brief

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What did the court decide?

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