Bombay High Court
Shaikh Mukthar Shaikh Ismail vs Sardar Shikshan Sanstha Through ... on 13 December, 2016
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11723 OF 2016
Shaikh Mukthar Shaikh Ismail,
Age-51 years, Occu-Service,
At present - NIL,
R/o Badshaha Nagar, Korit Road,
Nandurbar, Tq. and Dist.Nandurbar -- PETITIONER
VERSUS
1. Sardar Shikshan Sanstha,ig
Deopur, Dhule, Tq. and Dist. Dhule,
Through its President,
2. The Incharge Head Master,
Anglo Urdu High School,
Pimpalner, Tq.Sakri,
Dist. Dhule,
3. The Education Officer (Secondary),
Zilla Parishad, Dhule,
4. The Presiding Officer,
School Tribunal, Opp. S.S.C. Board,
Nashik, Tq. and Dist. Nashik -- RESPONDENTS
Mr.Syed Masood Chand, Advocate for the petitioner.
Mr.Raj Devdhe h/f Mr.S.P.Brahme, Advocate for respondent Nos. 1 and 2.
Mr.N.T.Bhagat, AGP for respondent No.3.
Respondent No.4 is deleted.
( CORAM : RAVINDRA V. GHUGE, J.)
DATE : 13/12/2016
ORAL JUDGMENT :
1. Respondent No.4 being the Presiding Officer of the School
khs/DEC.2016/11723-d
Tribunal stands deleted from this proceeding.
2. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
3. The petitioner / original appellant before the School Tribunal is
aggrieved by the order dated 20/08/2016 by which his application for
seeking production of the record and proceedings of the departmental
enquiry in his Appeal No.52/2015 has been rejected.
4. I have considered the submissions of the learned Advocates for the
respective sides.
5. In my view, in order to test the legality of an enquiry and the
findings of the Enquiry Officer/Committee, it is always preferable and
appropriate that the original R & P of the enquiry is produced before the
Court dealing with the matter. The petitioner has produced the
impugned order of dismissal and the findings of the Enquiry Committee
before the Tribunal and some documents. By the application which led to
the passing of the impugned order, he has prayed for a direction to the
respondent/Management to produce the R & P. Same has been rejected
on the ground that the petitioner has the custody of the copies of the
various documents which are a part of the R & P and hence by following
khs/DEC.2016/11723-d
Rule 39, the burden lies on the appellant to produce all those documents.
6. I have considered the import of Rule 39 which requires that the
appellant should produce documents on which he is placing reliance.
Though Mr.Brahme has strenuously defended the impugned order, I am
unable to accept his submissions that Rule 39 needs to be interpreted to
be a mandatory provision and not directory nature.
7.
In my view, the original R & P, if placed before the Tribunal, would
in fact satisfy the requirements of the Evidence Act and the Tribunal
could then rely upon those documents without any hesitation since they
are in original form.
8. In the light of the above, this petition is allowed. The impugned
order dated 20/08/2016 is quashed and set aside. The respondent/
Management shall produce the original R & P before the School Tribunal
within a period of 4 (four) weeks from today. Needless to state, as the
order of dismissal and the findings of the Enquiry Committee have
already been placed on record, the respondent/Management may not file
the said 2 documents.
9. Rule is made absolute in the above terms.
( RAVINDRA V. GHUGE, J.)
khs/DEC.2016/11723-d
