Bombay High Court
Sanskruti Samvardhan Mandals ... vs Balaji Shankarrao Hente And ... on 14 December, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12217 OF 2016
1 Sanskruti Samvardhan Mandal's
Shardanagar, Sangroli,
Taluka and District Nanded.
Through the Secretary,
Pandharinath s/o Yadavrao Shinde,
Age : 72 years, Occupation : Secretary,
Sanskruti Samvardhan Mandal.
2 Shri Chhatrapati Shivaji High School &
Junior College, Shardanagar,
Sangroli, District Nanded.
Through the Head Master/ Principal
Vitthal s/o Gangaram Jathore,
Age : 54 years, Occupation : Service.
...PETITIONERS
-VERSUS-
1 Balaji s/o Shankarrao Hente,
Age : 32 years,
Occupation : At present Nil,
R/o Ratoli, Taluka Naigaon (Kh),
District Nanded.
2 The Deputy Director of Education,
Latur Division,
Taluka and District Latur.
...RESPONDENTS
...
Advocate for Petitioners : Shri Mandlik P.V., Senior Advocate a/w Shri
Mandlik Pratap P.
Advocate for Respondent No.1 : Shri R.K.Ashtekar.
AGP for Respondent 2 : Shri N.T.Bhagat.
...
CORAM: RAVINDRA V. GHUGE, J.
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DATE :- 14th December, 2016
Oral Judgment :
1 Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2 The Petitioner is aggrieved by the order dated 24.06.2016 by
which the application Exhibit 29 filed by Respondent No.1/ Appellant
seeking condonation of delay of 529 days, has been allowed subject to the
costs of Rs.2000/- .
3 I have heard the strenuous submissions of Shri Mandlik,
learned Senior Advocate appearing for the Petitioner, Shri Ashtekar,
learned Advocate appearing for Respondent No.1/ Appellant and the
learned AGP on behalf of Respondent No.2.
4 I find that there are peculiar facts in this case and the
impugned order passed by the School Tribunal, Latur dated 24.06.2016
being equally peculiar and astonishing.
5 There is no dispute that the Appellant has preferred his
appeal on 16.08.2014 for challenging the communication dated
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31.07.2014 issued by the Headmaster of the School informing him that
the Management has passed the resolution dated 30.07.2014 and he has
been terminated during his probation period as a Shikshan Sevak. After
the Appellant challenged the letter of discontinuance/ termination dated
31.07.2014, the Petitioner/ Management filed it's Written Statement on
21.11.2015 after receiving the notice contending that the resolution
terminating Respondent No.1/ Appellant is dated 30.07.2014 and though
he has challenged the communication of the termination dated
31.07.2014, the appeal does not deserve to be entertained as he has not
challenged the resolution dated 30.07.2014.
6 After gathering the knowledge from the Written Statement
dated 21.11.2015, the Appellant amended his appeal and assailed the
resolution dated 30.07.2014. Being apprehensive that the delay of 529
days has been caused in moving the application for amendment, the
Appellant preferred an application Exhibit-29 seeking condonation of
delay of 529 days.
7 When the Appellant has challenged the order of termination
dated 31.07.2014 under the signature of the Headmaster, if he were to
succeed, naturally the resolution which is the basis of the impugned order
of termination, would also be set aside as a "fait accompli".
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8 It appears that the Appellant, out of a sheer apprehension,
has filed the application for condonation of delay. There can be no dispute
that the appeal is filed on the 16 th day from the letter of termination dated
31.07.2014. As such, it was filed on the 17 th day after the resolution was
passed by the Management on 30.07.2014.
9 It is trite law that the amendment made in the plaint or
complaint or in the appeal memo, based on new information received
from the Respondent through the Written Statement/ Reply, relates back
to the filing of the suit or complaint or appeal, as the case may be, unless
the Court observes otherwise.
10 In my view, the Presiding Officer of the School Tribunal, Latur
has failed to apply his mind to these facts and has failed in concluding
that the amendment would relate back to the date of the filing of the
appeal and as such, there was no delay at all. This is not the first time that
such an order has been passed by the same Presiding Officer, keeping in
view the orders passed below Exhibits-28, 51, 59 and 61 in Appeal
No.20/2015 which was subject matter of adjudication of this Court in Writ
Petition Nos.11936/2016 and 12143/2016 (The President, Mahatma Phule
Education Society vs. Babu Nagappa Phulari). This Court has come across
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such observations even in those orders in the said proceedings by the
same Presiding Officer.
11 In the light of the above, this Writ Petition is disposed of by
concluding that in the peculiar facts as recorded above, there was no delay
caused. The amount of Rs.2000/- which has been deposited pursuant to
the impugned order, in fact, amounts to unnecessarily taxing the
Appellant. Respondent No.1/ original Appellant is at liberty to withdraw
the said amount of Rs.2000/- with accrued interest. Rule is discharged.
12 Shri Ashtekar fairly states that the said amount along with
accrued interest, if any, would be donated to the District Legal Aid
Services Committee at Latur. The statement is accepted.
kps (RAVINDRA V. GHUGE, J.)
