The High Court amended the Tribunal's order allowing the petitioners four weeks to substitute the infirm Secretary (RW-1) as RW-2, while denying liberty to raise a preliminary issue on the validity of the dismissal enquiry.
Quashed the Tribunal order; granted liberty to examine a replacement witness as RW-2 within four weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP No. 2549 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 2549 OF 2023 (S-RES)
BETWEEN:
Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA
(BY SRI. SAGAR. G NAHAR.,ADVOCATE)
…PETITIONERS
AND:
18TH CROSS, MALLESWARAM
WP No. 2549 of 2023
BENGALURU – 560003.
…RESPONDENTS
(BY SRI.M.S. NAGARAJA, AGA FOR R1 TO R3; SRI.S.N. BHAT, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DATED 13.01.23 PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE, (EDUCATIONAL APPELLATE TRIBUNAL) TUMAKURU IN MA (EAT) NO. 2/19 PRODUCED AT ANNEXURE-E; DIRECT THE TRAIL COURT TO PERMIT THE PETITIONER TO EXAMINE THE PRESENT SECRETARY ON ITS BEHALF AS RW-2 IN THE PLACE OF RW-1 IN THE PENDING APPEAL MA (EAT) NO. 2/19 PENDING ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS
JUDGE (EDUCATIONAL APPELLATE TRIBUNAL), TUMAKURU.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have called in question the order dated 13.01.2023 [ Annexure-E ] in MA (EAT) No.2/2019 by the Principal District and Sessions Judge and Educational Appellate Tribunal, Tumkur [for short, ‘ the Tribunal’ ]. The Tribunal by the impugned order has rejected the petitioners’ application under Order XVII Rule 1 of Code of Civil Procedure 1908 observing that though in the memorandum of facts filed in support of the application it is stated that the petitioners’ witness [RW.1] is not feeling well, nothing is brought on record to substantiate the same; the crossexamination of this witness is pending for a long time and the appeal is pending for over three years. The Tribunal, for these reasons, has taken the evidence of
WP No. 2549 of 2023
this witness as closed and the appeal is listed for arguments.
for the petitioners, submits on instructions that the memorandum of facts is filed in support of the application specifically stating that RW.1 is aged 84 years and he is not in a position to attend the Court. Sri Sagar G. Nahar submits that this witness has undergone surgery on 7.2.2023; because the witness is the Secretary of the Institution [first petitioner], another Secretary will have to be appointed, and such Secretary will be examined as a fresh witness. These vital circumstances should be considered, and this Court must intervene and provide due opportunity to the petitioners.
WP No. 2549 of 2023
whether enquiry is validly held according to the relevant regulations. However, this issue is not framed and as such, this Court must also grant liberty to the petitioners to file an application with the Tribunal for raising preliminary issue on the validity of the enquiry. Sri Sagar G. Nahar does not dispute that the petitioners have commenced evidence without requesting for raising preliminary issue, but he submits that this should not deter this Court from granting necessary liberty.
WP No. 2549 of 2023
an application raising preliminary issue, Sri S.N.Bhat submits that in the peculiarities of the case, the fact that the petitioners have commenced evidence without requesting for preliminary issue, must be construed as waiver of the contention that the enquiry is duly held. In which event, the Tribunal will have to decide on the merits of the charges against the fourth respondent.
and this Court is of the considered view, as canvassed by Sri S.N.Bhat, that there cannot be liberty at this length of time to the petitioners to raise the question of validity of the enquiry held and they must justify the charges against the fourth respondent. The Tribunal will have to decide on the merits of the charges against the fourth respondent based on the evidence that is brought on record.
WP No. 2549 of 2023
Insofar as the opportunity to examine the witness, the petitioners must have a reasonable opportunity in the circumstances that they have pleaded in support of the application and now submitted. In view of the fact that the witness, who is the incumbent Secretary, will have to be replaced because of his ill-health, there must be reasonable time, and when queried, Sri.Sagar G. Nahar submits that the petitioners would require minimum four weeks to complete the process. If this request is to be considered, this Court must also consider the fact that the appeal is pending before the Tribunal, as observed by it, for over a period of three years.
WP No. 2549 of 2023
the petitioners and the respondents are called upon
to assist and co-operate with the Tribunal in disposal
of the appeal before 30.06.2023.
SD/JUDGE
SA
3 issues framed by the court
Whether the High Court can grant liberty to raise a preliminary issue regarding the validity of an enquiry after commencement of evidence.
Whether the petitioners are entitled to a reasonable opportunity to replace an infirm witness as RW-2 in a pending appeal.
Whether the impugned order of the Tribunal quashing an application for substitution of witnesses should be modified.
3 provisions across 2 enactments
The MGM Education Society
The Principal MGM PU College
The Director PU Board
The Joint Director Department of Pre-University Education
The Deputy Director PU Board Tumakuru
Basavaraj S S
B M Shyam Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
