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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 5924 OF 2015
1] Public Education Society,
Murtizapur, through President
N. N. Shaikh, R/o Station Area,
Chiukhali Road, Murtizapur,
Distt. Akola.
2] National Urdu High School,
through its Head Mistress,
R/o Sonari, Distt. Akola. PETITIONERS.
VERSUS
1] Irshad Ali Waris Ali,
aged 40 yrs. Occu. Nil,
R/o Killa Masjid, Old
City, Murtizapur, Distt.
Akola.
2] The Education Officer
(Secondary), Zilla Parishad
Akola, Distt. Akola. RESPONDENTS.
Shri S. M. Vaishnav, Advocate for the petitioners. Shri P. A. Kadu, Advocate for the respondent no. 1. Shri S. B. Ahirkar, Assistant Government Pleader for respondent no. 1.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 24, 2016.
ORAL JUDGMENT:
Heard. The petitioner-Management is aggrieved by the order
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passed below Ex. 23 by the School Tribunal Amravati by which the application filed by the petitioner seeking permission to conduct denovo inquiry against the respondent no.1 has been rejected.
2] The respondent no.1 has filed an appeal under Section 9 of the Maharashtra Employees of Private School (Condition of Services) Regulation Act, 1977, challenging the order of termination dated 21.10.2013. This order of termination is said to be preceded by an enquiry held by the Management.
According to the the respondent no.1 this enquiry was not held in accordance with law. During pendency of said appeal the petitioner moved an application seeking permission to conduct denovo enquiry. This application was opposed by the respondent no.1 and the learned Presiding Officer after holding that such application could not be considered before going into the merits of the appeal proceeded to reject the same.
3] Shri S. M. Vaishnav, the learned counsel for the petitioners submitted that as the management was willing to conduct a denovo enquiry no prejudice would be caused to the respondent no.1 if the application in question was allowed. He submitted that even while passing the final order if it was found that the enquiry was vitiated, the direction for holding afresh enquiry by keeping the respondent no.1 under suspension could be passed.
In support of his submission he relied upon the following judgments:
1] Bhartiya Seva Acharya Education Society & Ano. Vs. School Tribunal nagpur & Ors. 2014(4) ALL MR 622;
2] Abdul Salam Advul Khalique Vs. Shah Babu Education Society & Ors.
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3]Chairman LIC of India & Ors. Vs. A. Masilamani 2013 ALL SCR 157;
4] Union of India Vs. Y. S. Sandhu, Ex-Inspector AIR 2009 Supreme Court 161;
4] Dhirendra Pandua Vs. State of Orissa & Ors. AIR 2009 Supreme Court 163;
5]Manohar Pandit Marathe Vs. President, Sharda Vidya Prasarak Mandal & Ors. 2014(5) ALL MR 116.
4] Shri P. A. Kadu, the learned counsel for the respondent no.1 supported the impugned order. According to him it was the case of the petitioner in its written statement that the enquiry was conducted by following all the Rules. He submitted that the Management intended to avoid an adverse finding in that regard and therefore had moved the present application. Shri S. B. Ahirkar, learned Assistant Government Pleader appeared for the respondent no.2.
5] Having heard the respective counsel for the parties I do not find that the School Tribunal erred in rejecting the application below Ex. 23.
The learned Presiding Officer has observed that it was necessary to find out whether the enquiry was vitiated only on technical grounds or whether there were other reasons to hold so. It was further held that the entire appeal ought to be considered on merits and without hearing the appeal such permission to conduct de novo enquiry could not be granted. This approach of the School Tribunal cannot be faulted. The judgments relied upon by the ::: Uploaded on - 01/07/2016 ::: Downloaded on - 30/07/2016 06:32:12 ::: wp5924.15 4 learned counsel for the petitioner consider the situation after final adjudication of the appeal by the School Tribunal. The ratio therein is therefore clearly distinguishable on facts. In view of aforesaid there is no case made out to interfere in writ jurisdiction. By observing that the petitioner can raise the plea regarding grant of liberty to hold denovo enquiry when the appeal is heard, the writ petition is dismissed. No costs.
ig JUDGE
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