Allowed

South Konkan Education Society v. Maruti S/O Appayya Kadam

Karnataka HC28 Jun 2021WP/112409/2019

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by an educational society challenging the Educational Appellate Tribunal's order. The Court held the Tribunal lacked jurisdiction to record evidence without an application under Order XLI Rule 27 of CPC, setting aside the Tribunal's order and directing issuance of time to file such application.

What did the court decide?

The Tribunal's order on I.A.No.16 set aside; applicant permitted to file application for adducing evidence under Order XLI Rule 27 CPC.

South Konkan Education Society Vs Maruti… — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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WRIT PETITION NO.112409/2019 (S.RES)

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BETWEEN :

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SOUTH KONKAN EDUCATION SOCIETY, A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE BOMBAY PUBLIC TRUST ACT, BY ITS HON. SECRETARY, RAJIV S/O BHAGAVANTRAO DESHPANDE, AGED 65 YEARS, OCC: ADVOCATE, HAVING OFFICE AT 1^ST FLOOR, GSS COLLEGE, OFFICE BUILDING, RPD COLLEGE ROAD, TILAKWADI, BELAGAVI. (BY SRI MALLIKARJUNSWAMY B.HIREMATH, ADV.)

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... PETITIONER

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AND :

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MARUTI S/O APPAYYA KADAM, AGED ABOUT 59 YEARS, R/O NO.101, B WING, GANESH PARK APARTMENTS 2^ND CROSS, BHAGYA NAGAR, BELAGAVI.

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THE COMMISSIONER OF COLLEGIATE EDUCATION, DEPARTMENT OF TECHNICAL EDUCATION, TECHNICAL EDUCATION BUILDING, PALACE ROAD, BENGALURU-560 001.

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THE REGIONAL JOINT DIRECTOR OF DHARWAD.

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GOVINDRAM SEKSARIA SCIENCE DEGREE COLLEGE,

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... RESPONDENTS

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(GSS DEGREE COLLEGE) RUN BY SOUTH KONKAN EDUCATION SOCIETY’S RPD COLLEGE ROAD, TILAKWADI, BELAGAVI, BY ITS HONORARY SECRETARY.

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(BY SRI JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR SRI K.L. PATIL AND SRI. S.A.SONDUR, ADV. FOR R.1.) (BY SRI VINAYAK S.KULKARNI, AGA FOR R.2 & 3) (NOTICE TO RESPONDENT NO.4 : DISPENSED WITH V.O.D.16.08.2019)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING THIS COURT TO ISSUE A WRIT OF CERTIORARI QUASHING THE ORDER DATED 15.07.2019 IN EAT APPEAL NO.5/2013 PASSED BY THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND THE EDUCATIONAL APPELLATE TRIBUNAL PRODUCED AT ANNEXURE-E AND CONSEQUENTLY ALLOW I.A.NO.16 AND SUCH OTHER RELIEFS.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN “B” GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is directed against the order dated 15.07.2019 passed by the Educational Appellate Tribunal (hereinafter referred to as the ‘Tribunal’, for short) on I.A.No.16 in EAT No.5/2013 dismissing the application filed by the petitioner for expunge of evidence of the respondent.

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The case of the petitioner is that the petitioner is an Educational Society running GSS degree college. Respondent No.1 is an employee in the aforesaid institution. He has been removed from the service after conducting the Departmental Inquiry. Being aggrieved by the same, the 1^st respondent has filed an appeal under Section 94 of the Karnataka Education Act, 1983 (hereinafter referred to as the ‘Act’, for short) before the Tribunal in EAT No.5/2013. After service of summons, the petitioner appeared before the Tribunal and filed objections. Respondent No.1 herein adduced evidence and marked the documents. After completion of his evidence, the petitioner has objected the same and filed an application for expunging the evidence of respondent No.1 on the ground that the Court has no suo moto power to record such a evidence in the absence of the application being filed by respondent No.1. The Tribunal, after considering the contention of the parties, has dismissed the application filed by the petitioner. Being aggrieved by the same, the petitioner is before this Court.

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Sri. Mallikarjunswamy B. Hiremath, learned

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counsel appearing for the petitioner contended that under

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Section 96 of the Act, the Tribunal has the same power as are vested in a Court of appeal under the Code of Civil Procedure, 1908. If the appellant wants to adduce any evidence, he has to file an application under Order XLI Rule 27 of the CPC. In the absence of any such application, the Tribunal has no jurisdiction to record the evidence. Without considering this aspect of the matter, the Tribunal was not justified in holding that since there is delay in objecting, the petitioner has waived of his right. This finding of the Tribunal is contrary to Order XLI Rule 27 of CPC. He further contended that even this Court in Writ Petition No.15090/2017 disposed of on 16.09.2009 has not considered Section 10(4)(c) of the old Act i.e. Karnataka Private Educational Institutions (Discipline and Control)Act, 1975 and that, the facts in that case relate to adducing of evidence in respect of the preliminary issue. The same is not applicable to the case. Hence, he sought for allowing the writ petition.

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Sri. Jayakumar S. Patil, Senior Counsel, appearing for respondent No.1 has contended that the appeal is continuation of the original proceedings. The Appellate Court has all powers as of the Original Court to conduct any

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evidence of the parties. The appellate Court has the power to modify or reverse the order of the Disciplinary Authority and he further contended that a similar issue had been raised in Writ Petition No.15090/2007 disposed of on 16^th September 2009, this Court has considered the old Act, 1975 and new Act 1983 has held that the Tribunal has power to record the additional evidence. He further contended that after the petitioner appeared before the Court, filed his objection to the petition. He has not objected when respondent No.1 herein has marked the documents and adduced the evidence. After completion of the respondent No.1’s evidence, he has filed this application. Therefore, the Tribunal has rightly held that since the petitioner has not objected the recording of the evidence, he has waived off his rights. Hence, he sought for dismissal of the writ petition.

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Heard the learned counsel for the parties and perused the writ papers.

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Respondent No.1 was working as a lecturer in the petitioner Educational Institution. The petitioner has initiated Departmental Inquiry against the 1^st respondent. After conducting inquiry, they have passed an order

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dismissing him from service. Being aggrieved by the same, respondent No.1 has filed an appeal before the Educational Appellate Tribunal under Section 96 of the Act which has been numbered as EAT No.5/2013. After service of summons the petitioner/respondent before the Tribunal has filed its objections. Thereafter, respondent No.1 herein has adduced evidence and marked the documents. Thereafter, the petitioner has filed an application for expunge of the evidence of the petitioner.

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7. For better understanding, Section 96 of the

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Education Act is exracted as below:

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96. Tribunal.- (1) The State Government shall, by notification in the official gazette constitute one or more Educational Appellate Tribunals for the adjudication of appeals preferred under this Act and where more than one Tribunal is constituted, the State Government shall specify the territorial jurisdiction of each such Tribunal.

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(2) The Educational Appellate Tribunal shall consist of one person who is or has been a Judicial Officer not below the rank of a District Judge:

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Provided that pending constitution of the Educational Appellate Tribunal under sub-section (1), the District Judge of each District shall function as the Educational Appellate Tribunal of the District. 1995: KAR. ACT 1] Education 65

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(3) The Educational Appellate Tribunal,-

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(a) may, if satisfied from the material on record that the order is arbitrary, perverse, malafide, violative of the rules of natural justice or not sustainable on any other ground, pass such orders including one for the reinstatement of the employee, as it deems fit on

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such terms and conditions, if any, including payment of salary allowances and costs;

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(b) shall for the purposes of the disposal of the appeals referred under this Act have the same powers as are vested in a court of appeal under the Code of Civil Procedure, 1908 (Central Act 5 of 1908);

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(c) shall have the power to stay the operation of the order appealed against on such terms as it may think fit;

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(d) shall for the purpose of executing its own orders have the same powers as are vested in a court executing a decree of a civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) as if such orders were decrees of a civil court.

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(4) All expenses incurred in connection with the Tribunal shall be borne from out of the Consolidated Fund of the State.

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(5) No Civil Court shall have jurisdiction in respect of matters over which the Tribunal exercises any power under this Act .

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A reading of the above provision states that for

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the purpose of disposal of the appeal referred under this Act have the same powers as are vested in the Court of appeal under CPC. The Tribunal has the same power of an appellate Court under CPC. Any party wants to adduce evidence before the Appellate Court, he has to file an application under Order XLI Rule 27 of CPC. After giving an opportunity to both the parties, the Tribunal has to pass an order permitting the parties to adduce the evidence. In the case on hand, there is no such application filed by respondent No.1. The Tribunal

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only on the ground that the petitioner has not objected for marking the documents and adducing evidence and since there is delay in filing objections, the Court held that filing of application is been waived off.

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By combine reading of Section 96 of the Act and the appellate power under the CPC, the appellant required to file an application under Order XLI Rule 27 pf CPC for adducing additional evidence. Since no such application is filed, the evidence recorded by the Tribunal is without jurisdiction. The appellant was required to file an application under Order XLI Rue 27 of CPC for adducing evidence. The Tribunal has failed to consider this aspect of the matter. Therefore, the impugned order passed by the Tribunal is an error apparent the face of the record.

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Accordingly, the writ petition is allowed. The order passed by the Tribunal on I.A.No.16 is set aside. I.A.16 filed by the petitioner under Section 151 of CPC is allowed The respondent No.1, who is appellant before the Tribunal, is permitted to file an application under Order XLI Rule 27 of CPC for adducing additional evidence and the Tribunal is

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directed to consider the same and pass orders in accordance

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with law.

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Sd/JUDGE

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kmv

South Konkan Education Society v. Maruti S/O Appayya Kadam

Case brief

What is this about?

What did the court decide?

South Konkan Education Society v. Maruti S/O Appayya Kadam

Case brief

What is this about?

What did the court decide?

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