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Judgment
Ravi Malimath, J.—Learned counsels submit that in both the petitions, the questions that arises for consideration are similar. Hence, at their request, both the petitions are heard and disposed off together. The respondents in each of the petitions claim to be employed by the petitioners in the year 1993-94 and 1995-96 respectively. They were working as Assistant Teachers with the petitioner Institution. That no salary was being paid to them. They were assured that within a short time they will be in a position to acquire the status of an aided Institution. Letters of appointment were issued to each one of the respondents. They were allowed to sign the attendance register of the petitioner Institution. Various acts in order to aid the management were also performed by them including contributions. They were later-on told not to enter the School. However, they continued to attend the School but were not allowed to sign in the Attendance Register. In view of the fact that the petitioner directed them not to enter the School, questioning the action of the petitioner, they approached the tribunal in EAT Nos. 5/2003 and 6/2003. By the impugned order, the oral termination of the respondents was declared as null and void and the petitioner was directed to take back the respondents to duty with 50% back wages. Aggrieved by the same, the management has filed these petitions.
The learned counsel for the petitioner School contends that the impugned orders are bad in law and liable to be set aside. That there is a delay in approaching the Tribunal. That the delay has not been properly explained. That the reasoning assigned by the tribunal in condoning the delay is erroneous and hence the appeal is liable to be rejected on the ground of delay. His further contention is that the entire claim of the respondents is based on their appointment orders vide Exs. P-1 & P-4 namely, the appointment orders issued by the petitioner which are concocted and forged. That even the documents Ex. P-2, 3 and 5 are also concocted by one Sri. Nagarajegowda. Sri. Nagaraje gowda has also been terminated from the service. Aggrieved by the same he preferred EAT 4/2003 and the matters were clubbed together and that they were being considered together. An application was filed by the petitioner under Order 26 Rule 10A of CPC seeking for appointment of a handwriting expert to examine the admitted signature of the Secretary of the petitioner Institution with that of the document evidencing the appointment. The tribunal in view of the absence of Sri. Nagarajegowda dismissed his appeal namely appeal No. 4/2013 for default and held that all the evidence and exhibits marked in the case since they are clubbed, be kept in EAT 5 and 6/2003. Thereafter, the application has not seen the light of the day. However, the tribunal has proceeded to hold that the handwriting expert is not examined and therefore the plea of the petitioner-management cannot be accepted.. He further contends that on other grounds also, the Tribunal committed an error in allowing the appeal.
On the other hand, the learned counsel for the respondents defends the impugned order. He contends that he'' is not aware of the application seeking appointment of an handwriting expert. That such an application has been filed in the appeal filed by Sri. Nagaraje Gowda. Therefore the tribunal has rightly not considered the said application. Hence, he pleads that the petition be dismissed.
On hearing counsels, I''am of the considered view that the appropriate relief requires to be granted. The contention of the respondents is based on the fact of their appointment with the petitioner''s Institution. The said appointment is sought to be evidenced by the documents Ex. P-1 and 4. The very authenticity of these documents is questioned by the management from inception. They say it is forged and concocted by one Sri. Nagarajegowda. The said Sri. Nagarajegowda has also been terminated. They have filed an application numbered as I.A. 7 in EAT 4/2003 namely in the case of Sri. Nagarajegowda under order 26 Rule 10A seeking for appointment of handwriting expert to examine the admitted signature of the Secretary and the disputed signatures found in the appointment orders. In support of the application, the affidavit of the then Secretary of the Institution wherein reference to all the three appeals namely, EAT Nos. 4, 5, and 6 of 2003 have been stated. However, this is disputed by the counsel for the respondents. He contends that the application is for EAT No. 4/2003 and not EAT No. 5 and EAT No. 6 of 2003.
I have examined the application as well as the affidavit. Even though the cause-title of the application would state as EAT 4/2003, the affidavit in support of such an application makes a reference to EAT 4,5, & 6/2.003. The reference therein is with regard to the disputed signatures found in the appointment letters and the admitted signatures. The affidavit is by the Secretary of the petitioner''s Institution. Therefore to hold that it is an application relatable only to EAT No. 4/2003 would be incorrect. The tribunal was required to construe that the application and the affidavit as an application so far as the other two appeals are concerned. By the order dated 21-6-2008 which has been produced along with W.P. No 1187/2010 is concerned, the Tribunal held that the order in appeal 4/2003 is dismissed for default. That all the evidence and the details marked in the case shall be taken out and kept with that of EAT 5/2003 and EAT 6/2003. Therefore, it pre-supposes that I.A. 7 also was kept along with EAT Nos. 5 & 6/2003. Unfortunately, the tribunal has failed to consider the proceedings dated 21-6-2008. It has proceeded on the assumption that there is no application for a handwriting expert to test the veracity of the plea of the petitioner. The reasonings are assigned in para-25 and 26 of the impugned order. Therefore only on the ground that the handwriting expert has not been examined and due to the fact that the case of Sri. Nagarajegowda has not been considered, the signatures were held to be authentic.
I''am of the considered view that the reasoning of the Tribunal cannot be sustained. It is not a case that no effort was made by the petitioner to test the signatures. An application has been filed. The application is referable not only to EAT 4/2008 but to EAT 5 & 6/2003. In view of the fact that the entire premise of the Tribunal is based on the non-examination of the hand writing expert, it is just and necessary that I.A. 7 be considered for appointment of a handwriting expert to examine the veracity of the claims. It is needless to state that the appointment of Commissioner would be just and necessary to the final disposal of the petitions.
So far as delay is concerned, I''am of the considered view that the reasoning assigned by the Tribunal are just and proper. It cannot be said that the respondents have approached the tribunal with delay that does not constitute sufficient cause. Sufficient cause has been shown. The appeal is therefore held to be within time. Under these circumstances, both the writ petitions are allowed. The impugned order dated 2-11-2009, vide Annexure-H in both the writ petitions in EAT Nos. 5/2003 & 6/2003 are set aside except on the question of delay. The finding on delay is sustained. The matter is remanded back to the Tribunal. The tribunal is directed to consider I.A. 7 with reference to EAT 5 & 6/2003 and pass appropriate orders thereon. On allowing such an application and the report being received, the Tribunal to proceed further from that stage onwards and dispose off the appeals in accordance with law.