Allowed

Shri. Sambhaji Ananda Walke v. the President, Datta Shelke Education Society, Donoli and Ors.

Bombay HC14 Aug 2012WP/1016/2012

Case brief

AI extract

What is this about?

The High Court, in writ petitions filed by petitioner employees, allowed the petitions and granted condonation of delay. The Court held that errors in termination dates did not bar the appeal, as the petitions challenged the termination of service, and liberty to file fresh appeals had previously been granted.

What did the court decide?

Condonation of delay was granted. The writ petitions were allowed. The hearing of the underlying appeal was expedited. The order was made absolute.

Shri. Sambhaji Ananda Walke Vs the President… — Pension and Retirement Benefits | Bombay HC (2012)

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rpa

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1015 OF 2012

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Mahadev Kedari Shelke .. Petitioner V/s. The President, Datta Shelke Education Society Donoli & Ors. .. Respondents

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ALONGWITH

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WRIT PETITION NO. 1016 OF 2012

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Sambhaji Ananda Walke .. Petitioner V/s. The President, Datta Shelke Education Society Donoli & Ors. .. Respondents

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Mr. Satyajeet A. Rajeshirke for the Petitioner.

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Mr. C. G. Gavnekar with Mr. Gautam Hiranandani for Respondent Nos. 1 and 2.

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Mr. S. D. Rayrikar, AGP for Respondent No.3. Mr. M. S. Topkar for Respondent No.4.

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CORAM : ANOOP V. MOHTA, J. DATE : 14^th AUGUST, 2012.

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P.C.

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Heard finally, by consent of the parties.

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The Petitioner has challenged the impugned order dated 1^st

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November, 2011, passed by the learned School Tribunal, Kolhapur in respect of Misc. Application whereby his Application for condonation of delay in filing the Appeal before the School Tribunal, Kolhapur has

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been rejected. Admittedly, the Petitioner has filed Appeal immediately within limitation against the action of termination in the year 2002. It appears that there was mistake in the dates, in so far as the termination order is concerned. The Application so filed, was dismissed. However, the Petitioner moved an Application in the said Appeal on 17^th April, 2009. The reason mentioned was about correction in the cause of action of date and also the reason that the earlier Advocate expired. The submission was made that the Petitioner would suffer because of these dates mistake, affecting his right. The fact remained that the Petitioner was terminated and the challenge was of the termination.

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By order dated 17^th April, 2009, considering the Application made by the parties, as request was to permit the Petitioner to withdraw the Appeal with liberty to file fresh (Exhibits 29 and 30), the Court permitted those Applications and thereby the Appeals stood withdrawn with liberty to file fresh.

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Admittedly, the Petitioner filed the Appeal after impugned order on 20^th April, 2009 within limitation. An Application was also filed for condonation of delay in view of the above background. The

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request for condonation of delay was not accepted and delay of 7 years and 23 days was not condoned.

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Admittedly, the present Appeal has been filed within limitation from the date of permission granted by the Court to file fresh Appeal. The mistake even if any, referring to the date of termination, in my view, no way changes the fact that the Applicant has filed First Appeal in question basically challenging the order of termination. Admittedly, the Court permitted him to file fresh Appeal with liberty. The Appeal so filed by the Petitioner, therefore, is within limitation. After making out corrections even, if any, in no way can be stated to be the defect and/or change of cause of action to file fresh Appeal in question. The rejection of Application of correction of dates of termination order, in no way, sufficient reason to deny the right of the Petitioner to challenge the order of action of termination of service. It is always subject to adjudication or discussion, if any, There is no denial of the fact that the management has terminated the service of the Petitioner. If this is the position, the disputed dates and/or corrections, if any, in no way changes this aspect that the Petitioner through out has been challenging/raising the objection to the action of management of termination of service. Having once

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granted permission to file Appeal fresh, there is no question of denying the formal application of condonation of delay as filed in the present Petition as, admittedly, the action of management was of February 2002. This is not the question of filing an Appeal before wrong forum. This is a case where admittedly, as, Petitioner has filed Appeal before appropriate forum initially within limitation but to avoid further prejudice for want of alleged defect, as instructed, preferred to withdraw. The Court also granted permission to withdraw the Appeal with liberty, now, cannot reject and/or deny the right of statutory Appeal as available against the action of management of termination of his service. It is not question of wrong forum, but it is question of granting the Application because admittedly liberty was granted in both the matters. The fact remained and challenge is the order of termination. The mistake in dates even, if any, just cannot change the cause of action so alleged. If opportunity is given, subject to the reply and/or hearing, the issue of dates can be crystallized and if this is done, in my view, there is no reason at this stage to deny the right of Appeal as in the present case by rejecting the Application in the present facts and circumstances.

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In my view, there is sufficient and bonafide reason to consider

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the case of Petitioner on the ground of delay. In view of the fact that now Appeal itself was of 2002, I am inclined to grant these condonation of delay Applications. Delay is condoned. Applications are allowed so also the Petitions. By common order Petitions are disposed of.

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Applications are allowed.

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The hearing of the Appeal is expedited.

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All points are kept open.

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Writ Petitions are allowed accordingly in the above terms. Rule is made absolute.

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No costs.

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(ANOOP V. MOHTA, J.)

Shri. Sambhaji Ananda Walke v. the President, Datta Shelke Education Society, Donoli and Ors.

Case brief

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Shri. Sambhaji Ananda Walke v. the President, Datta Shelke Education Society, Donoli and Ors.

Case brief

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