Karnataka High Court
Sri K Shankara Mada vs Balakrishna Shetty on 22 February, 2024
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
W.A. No.424/2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
WRIT APPEAL NO.424 OF 2023 (GM-R/C)
BETWEEN:
SRI. K. SHANKARA MADA
AGED ABOUT 75 YEARS
SECRETARY
SHREE KSHETHRA PERARA
SEVA SAMITHI REGD.
PERARA MAHASAMSTHANA
PERARA, MANGALURU
D.K. DISTRICT-574 151 ...APPELLANT
(BY SHRI. K. SANATHKUMAR SHETTY, ADVOCATE)
AND:
1. BALAKRISHNA SHETTY
S/O LATE BHOJA SHETTY
AGED ABOUT 51 YEARS
R/AT 3-3, ALAKE GUTTHU
MUDUPERARA VILLAGE AND POST
D.K. DISTRICT-574 151
2. THE COMMISSIONER
FOR RELIGIOUS AND CHARITABLE
ENDOWMENTS IN THE STATE OF KARNATAKA
MALAI MAHADESHWARA
VARTHA BHAVAN
TIPPU SULTAN PALACE ROAD
W.A. No.424/2023
2
CHAMARAJPET
BENGALURU-560 018
3. THE DEPUTY COMMISSIONER
HINDU RELIGIOUS INSTITUTIONS
AND CHARITABLE ENDOWMENTS
DAKSHINA KANNADA
MANGALURU-575 001
4. THE ASSISTANT COMMISSIONER
HINDU RELIGIOUS INSTITUTIONS
AND CHARITABLE ENDOWMENTS
DAKSHINA KANNADA
MANGALURU-575 001
5. PERARA SHRI BRAHMADEVARU
ISHTADEVATHA BALAVANDI
VYAGRA CHAMUNDI
DEVA DAIVASTHANA
MANGALURU TALUK
D.K.DISTRICT-574 142 ...RESPONDENTS
(BY SHRI. D.R. RAVISHANKAR, SENIOR ADVOCATE FOR
SHRI. KETHAN KUMAR, ADVOCATE FOR C/R1;
SMT. NILOUFER AKBAR, AGA FOR R2 TO R4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 03.03.2023
PASSED IN WP No.12011/2022 (GM-RC) BY THE LEARNED SINGLE
JUDGE AND ALLOW THIS WRIT APPEAL WITH COSTS THROUGHOUT.
THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.02.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, CHIEF JUSTICE, PRONOUNCED THE
FOLLOWING:-
W.A. No.424/2023
3
JUDGMENT
This intra-court appeal is directed against the order
dated March 03, 2023 in W.P.No.12011/2022 passed by
the learned Single Judge.
2. Heard Shri. Sanathkumar Shetty K., learned
Advocate for the appellant/respondent No.5, Shri. D.R.
Ravishankar, learned Senior Advocate for Respondent
No.1/petitioner, and Smt. Nilourfer Akbar, learned
Additional Government Advocate for the Respondents No.
2 to 4/respondents No. 1 to 4.
3. For the sake of convenience, parties shall be
referred as per their status in the writ petition.
4. Briefly stated facts of the case are, petitioner was
appointed as Darshana Pathri in Shri. Brahmadevru
Ishtadevatha Balavandi Vyagra Chamundi Deva
Daivasthana, Mangaluru1. Certain allegations were levelled
against petitioner in the year 2013 and an enquiry was
Hereinafter referred to as 'the Temple'
ordered. Though, several notices were issued, petitioner
he did not participate in the proceedings. Vide enquiry
report dated 14.11.2016, petitioner was held guilty and he
was dismissed from service with effect from 20.11.2016.
After a lapse of five years, petitioner has preferred an
appeal in 2021 before the Appellate Authority and it was
rejected. Aggrieved, petitioner has filed the instant writ
petition. The learned Single Judge allowed the petition and
remitted the matter to the respondent No.4. Feeling
aggrived, petitioner is before this Court.
5. Assailing the impugned order, Shri. Shetty, for
the respondent No.5, mainly submitted that:
several notices were issued to petitioner
intimating the dates and stage of the
proceedings, however, he did not choose to
participate;
petitioner dismissal order for five years;
petitioner has averred that he has
challenged the dismissal order because he
was forced by the devotees and villagers.
This conduct of the petitioner makes it clear
that, he is not aggrieved by the dismissal
order but questioning the same at the
instance of the third parties;
the learned Single Judge has failed to
consider the question of limitation. As per
Section 16(2) of the Karnataka Hindu
Religious Institutions and Charitable
Endowments Act, 1997 an appeal against
the order of dismissal or other penalties
against the servants of the Temple shall be
made within thirty days from the date of the
order imposing penalty.
6. Shri. Ravishankar, for the petitioner, arguing in
support of the impugned order, submitted that respondent
No. 5 is only an Adhyaksha in the Temple and he could
not have passed the order dated 20.11.2016. The
Managing Committee has not preferred to challenge the
impugned order.
7. Smt. Nilourfer, learned GA submitted that
respondents No. 2 to 4 do not support the action taken by
respondent No.5.
8. We have carefully heard the rival contentions and
perused the material on record.
9. The undisputed facts of the case are, petitioner was
appointed as Darshana Pathri in the Temple. Based on
certain allegations, an enquiry was instituted. He has been
held guilty. The Committee of Management has dismissed
the petitioner with effect from 20.11.2016. Petitioner has
challenged order of dismissal after five years.
10. Appellant is the member of Management
Committee. He has challnged the remand order passed by th
learned Sungle Judge, contending that petitioner was given
sufficient opportunity to defend his case. It was urged by
Shri. Shetty that the learned Single Judge erred in not
considering the fact that petitioner had accepted the order
and challenged it after five years.
11. Shri. Ravishankar's main arugment is that the
report of the enquiry officer and dismissal order was not
served upon the petitioner as recorded in para 9 of the
impugned order.
12. We may record that the learned Single Judge has
noted in para 9 of the impugned judgment that the order of
dismissal were not served on the petititoner. This finding of
fact is not in dispute. The only aspect that remains for
consideration is delay.
13. The learned Single Judge has rightly followed the
ratio laid down in Managing Director ECIL Hyderabad &Ors.
v. B. Karunakar & Ors2, wherein it is held thus:
" (iii) Since it is the right of the employee to have the
report to defend himself effectively, and he would not
known in advance whether the report is in his favour or
against him, it will not be proper to construe his failure to
ask for the report, as the waiver of his right. Whether,
(1993) 4 SCC 727
therefore, the employee asks for the report or not, the
report has to be furnished to him."
(Emphasis Supplied)
14. In our considered view, the learned Single Judge
has exercised his discretionary power remitted the matter to
the Enquriy Officer for fresh consdieration. Keeping in view,
that petitioner was working as Darshana Pathri and that the
Enquiry report and the order dismissal order was not served
upon him. We find no ground to entertain this appeal to
interfere with the discretionary power exercise by the
learned Single Judge and it is accordingly, dismissed.
No costs.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
SPS
