The Sec. Rajashri Shahu Shikshan ... vs Vasant Namdeo Gore
2017 Latest Caselaw 513 Bom

Citation : 2017 Latest Caselaw 513 Bom
Judgement Date : 7 March, 2017

Bombay High Court

The Sec. Rajashri Shahu Shikshan ... vs Vasant Namdeo Gore on 7 March, 2017

Bench: R.V. Ghuge

                                         1

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                     BENCH AT AURANGABAD

                        WRIT PETITION NO.5940 OF 2012

1. The Secretary,
    Rajashri Shahu Shikshan
    Prasarak Mandal, Osmanabad,
    Tq. And Dist.Osmanabad,
    Through Shri Dhananjay S/o Uddhavrao Patil,
    Age-50 years, Occu-Agriculturist,
    R/o Osmanabad,

2. The Head-Master,
    Chhatrapati Shivaji High School,
    Osmanabad,
    Tq. And Dist.Osmanabad                                - PETITIONERS 

VERSUS

Vasant s/o Namdeo Gore,
Aged 61 years, Occu-Nil,
R/o Hingaljwadi,
Tq. and Dist.Osmanabad                                    - RESPONDENT

Mr.S.S.Choudhary, Advocate for the petitioners. Mr.S.A.Wakure, Advocate for the respondent.

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 07/03/2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioners are aggrieved by the judgment of the School

khs/MAR.2017/5940-d

Tribunal dated 08/02/2012 vide which Appeal No.68/2007 filed by

the respondent / employee has been allowed. His termination dated

07/07/2007 is quashed and set aside and he has been granted

reinstatement with continuity and full back wages till his date of

superannuation 31/10/2010.

3. I have considered the submissions of Mr.Choudhary, learned

Advocate for the petitioners and Mr.Wakure, who has strenuously

defended the impugned judgment and vehemently contends that the

petitioner was absent in the proceedings.

4. After considering the submissions of the learned Advocates, I

find that a short issue emerges from this proceeding. Appeal

No.68/2007 was dismissed in default by the School Tribunal with the

following orders :-

[a] Order dated 30/07/2008 "Appellant called absent, directed to take necessary steps." [b] Order dated 04/09/2008 "Appellant not taken steps though directed. Hence put up for orders on the next date."

[c] Order dated 18/09/2008 "Appellant called. Absent. Not taken steps, put up for orders."

[d] Order dated 28/03/2011

khs/MAR.2017/5940-d

"Appellant and counsel absent when called out. Keep for dismissal on next date."

[e] Order dated 08/08/2011 "Both the parties and counsel absent when called out. Keep for dismissal on next date."

[f] Order dated 11/10/2011 "Both the parties and counsel absent when called out. The counsel for appellant has sought number of adjournments. The appeal is old one and hence dismissed for want of prosecution." [e] Order dated 11/10/2011 "As per the order below application Exh.36, the appeal is restored to its original file."

5. The stage was for advancing oral argument on the interim relief

application Exh.5 when the appeal was dismissed in default on

11/10/2011. Thereafter, the respondent / appellant filed an

application Exh.36 for restoration. Copy is not served upon the

petitioner/Management as they were not available in the Court.

Without serving the copy of the application on the respondents and

without calling the say of the respondents (present petitioners), the

School Tribunal restored the appeal. There is no communication of

this order to the petitioners. In this backdrop, the impugned

judgment dated 08/02/2012 has been delivered by the School

Tribunal allowing the appeal in the absence of the petitioners.

khs/MAR.2017/5940-d

6. It is necessary that after the appeal was dismissed in default,

the application for restoration Exh.36 should have been served upon

the petitioners who are respondents before the Tribunal. Neither the

copy is served, nor is the say of the respondents called for by

issuance of notice by the Tribunal. There is no dispute that when

the appeal was restored, none of the original respondents were

present in the Court and the Tribunal did not issue notices to them

so as to pass an order of restoration after hearing all the sides. Since

the restoration of the appeal was not to the knowledge of the

petitioners, naturally, they did not have any reason to go before the

School Tribunal when, according to their knowledge, the appeal was

dismissed in default. It is in this backdrop that the School Tribunal

has delivered an ex-parte judgment when, in fact, the stage was to

decide the interim relief application Exh.5.

7. At this juncture, Mr.Choudhary fairly states that the

petitioners may not oppose the restoration of the appeal as the

application for restoration was filed on the same date. He rightly

submits that the only expectation of the petitioners is that they be

allowed to file their written statement and documents, the Tribunal

would hear them, peruse the record and then deliver its judgment.

khs/MAR.2017/5940-d

8. Considering the above, this petition is allowed. The impugned

judgment dated 08/02/2012 is quashed and set aside and Appeal

No.68/2007 is restored to the file of the School Tribunal, Solapur

with the following directions :-

[a] All the litigating sides would appear before the Tribunal on

29/03/2017.

[b] The application for interim relief Exh.5 be disposed off due

to passage of time.

[c] The petitioners shall file their written statement alongwith

the entire R & P of the departmental enquiry which shall be

filed before the Tribunal on the date of appearance i.e.

29/03/2017 and supply copies to the appellant and the

litigating sides.