Mr. Siddhartha Singh vs State Of Karnatak And Others
2023 Latest Caselaw 2828 UK

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                                  WPMS No. 2650 of 2023
                                  Hon'ble Sharad Kumar Sharma, J.

Mr. Siddhartha Singh, Advocate, for the petitioner.

The Constitution Bench of the Hon'ble Apex Court in the matter of T.M.A. Pai Foundation and others Vs. State of Karnatak and others, as reported in (2002) 8 SCC 481, in its para 64 has provided as under :-

"64... Till a specialized tribunal is set up, the right of filing the appeal would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service."

In fact, in nutshell, the powers which are required to be conferred as per T.M.A. Pai judgment (Supra) is to the authorities to act as a Tribunal, in the cases in relation to the private institutions, the said power could be vested with the District Judge "or" the Additional District Judge, as the case may be, subject to the conditions, that it is accordingly notified by the Government.

The argument of the learned counsel for the petitioner is, that since the judgment of T.M.A. Pai Foundation (Supra), provides for notifying an authority to deal with the cases in relation to the private institutions, and when it classifies Additional District Judge or the District Judge, as the case may be, the authority to deal with such cases would be conferred to an officer in persona subject to the notification to be issued by the State Government.

In the State of Uttarakhand, the notification has been issued by the State being No. 240 dated 05.07.2005, by virtue of which the State has specifically vested with an authority to deal with the aforesaid cases as provided in para 64 to "District Judge".

In that eventuality, where under para 64, the District Judge, is a notified authority in persona in pursuance to the notification issued by the State, the delay condonation application could not have been considered to be decided by the Additional District Judge, as it has been allowed by the impugned order dated 21st July, 2023.

It has been argued by the learned counsel for the petitioner, that the order passed by the 1st Addl. District Judge, condoning the delay, is without competence, because if at all, the delay application was to be considered, it would have been considered by the District Judge, who has been notified as an authority under para 64 of the Constitution Bench judgment.

In view of the aforesaid, the effect and operation of the order dated 21st July, 2023, would be kept in abeyance till the next date of listing. But it will be open for the respondent, that at the stage when the proceedings are drawn before the District Judge, as notified under the Government Order, he may seek his appropriate remedies by seeking condonation of delay to the Appeal preferred by respondents.

(Sharad Kumar Sharma, J.) Dated 22.09.2023 Shiv