Bombay High Court
Sawanji S/O. Motiramji Wagh vs Honourable Presiding Officer, ... on 4 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT PETITION NO. 5557 OF 2015
Sawanji Motiramji Wagh,
aged 74 yrs. Occu. Retired
Head Master, Maharashtra
Vidyalaya, Lanjud R/o
Lanjud, Tah. Shegaon
Distt. Buldhana.
PETITIONER.
ig VERSUS
1] Hon'ble Presiding Officer
School Tribunal, Amravati.
2] Maharashtra Vidya Prasarak
Mandal, Khamgaon through
General Secretary, Distt.
Buldhana.
3] Prakash Shriram Shelke,
aged 73 yrs. Occu. Agriculturist
& Businessman, R/o Khamgaon
Distt. Buldhana.
4] Head Master Maharashtra
Vidyalaya Lanjud, Tah. Shegaon
Distt. Buldhana.
5] The Education Officer
(Secondary) Zilla Parishad, Buldhana. RESPONDENTS.
Shri H. R. Gadhia, Advocate for the petitioner.
Ms. T. Khan, Assistant Government Pleader for respondent nos. 1 & 5.
Ms. S. A. Tiwari, Advocate h/f Shri A. S. Tiwari Advocate for the respondent
no. 2.
Ms. Kirti Satpute, Advocate for the respondent no. 3.
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CORAM: A. S. CHANDURKAR J.
Dated : JULY 04, 2016.
ORAL JUDGMENT:
On the motion made by the learned counsel for the petitioner the name
of respondent no. 3 is permitted to be deleted. Amendment be carried out
forthwith.
2] Rule. Rule made returnable forthwith and heard finally with consent
of learned counsel for the parties.
3] The petitioner is aggrieved by the judgment of the School Tribunal
dated 16.11.2013 whereby the appeal filed by the petitioner under Section 9 of the
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (for short, the said Act) has been dismissed on the ground that the same was
not filed within limitation.
4] It is the case of the petitioner that his services as Head Master came to
be otherwise terminated on 05.07.1996. He, therefore, challenged this order of
otherwise termination by filing an appeal under Section 9 of the said Act. The
appeal was initially allowed by the judgment dated 14.02.2002. However, the same
was challenged by the Management by filing Writ Petition No. 1241 of 2002. This
Court set aside the aforesaid judgment and remanded the proceedings for fresh
adjudication. By the impugned judgment the School Tribunal held in favour of the
petitioner by observing that the order of termination was contrary to law. The
appeal however was dismissed on the ground that the same was filed beyond a
period of limitation.
5] Shri H. R. Gadhia, the learned counsel for the petitioner submitted that
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the School Tribunal was not justified in dismissing the appeal on the ground that it
was barred by limitation. According to him the School Tribunal instead of
dismissing the appeal ought to have granted an opportunity to the petitioner to
apply for the delay to the condoned. He placed reliance upon the judgment of
learned Single Judge in Madhao Somaji Sarode Vs. Jotiba Dhyam Upasak
Shikshan Sanstha Dudhala & Ors. 2004(3) Maharashtra Law Journal 1078 in
that regard. He then submitted that a separate application for condonation of delay
was moved by the petitioner but the same was not entertained on the ground that it
was filed after the appeal was dismissed. According to him the petitioner was
aggrieved only by the order passed by the School Tribunal to the extent that the
appeal has been dismissed on the ground that it was barred by limitation.
6] The learned counsel appearing for respondent no.2 submitted that the
Management was supporting the case of the petitioner. Ms. T. Khan, the learned
Assistant Government Pleader for the respondent no. 5 relied upon the affidavit
filed on record and stated that though the petitioner was getting pension the same
was discontinued in view of dismissal of the appeal.
7] Perusal of the impugned order passed by the School Tribunal indicates
that it has recorded a categorical finding that the order of termination on the basis
of which the petitioner's services were discontinued was not preceded by any
enquiry as contemplated by the said Act and the Rules framed thereunder. It was
held that the order of termination was bad in law. The appeal however was
dismissed on the ground that it was filed beyond the period of limitation. In the
judgment in the case of Madhao Sarode (supra) relied upon by the learned counsel
for the petitioner this Court had held that while entertaining an appeal under the
said Act if it is found that the appeal is not filed within limitation then an
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opportunity should be given to the appellant to apply for condonation of delay. It
has been further observed that without giving such an opportunity the appeal
cannot be dismissed on the ground of the delay. The ratio of the aforesaid
judgment can be applied to the facts of the present case.
8] In the present case however the petitioner moved an application for
condonation of delay which according to School Tribunal was moved after the
appeal was decided. Be that as it may, considering the law laid down in the
aforesaid judgment an opportunity deserves to be granted to the petitioner to apply
9]
for the delay in filing said appeal to be condoned.
In view of aforesaid the following order is passed:
The order dated 16.11.2013 passed in Appeal No. 81 of 1996 is set
aside. The appeal is restored to file. The learned Presiding Officer shall grant an
opportunity to the petitioner to apply for condonation of delay and if the delay is so
condoned proceed with the adjudication of the appeal on merits. Considering the
fact that the appeal pertains to the year 1996 and the petitioner is aged about 75
years, the appeal shall be decided expeditiously and within a period of three months
from the date of appearance of the parties before the School Tribunal.
The parties shall appear before the School Tribunal on 18.07.2016.
Rule is made absolute in aforesaid terms. No costs.
JUDGE
svk
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