1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4540 OF 2009. (Shri Suresh Bakaramji Gahane .vrs. Lumbini Bahu-uddeshiya Shikshan and others.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 08, 2010. Heard Shri P.N. Shende, learned counsel for petitioner /employee, Shri S. Borkar, learned counsel for respondent nos. 1 and 2/ Management and Shri Sonare, learned A.G.P. for respondent no.3. Services of petitioner were initially allegedly terminated on 18.05.2001, which petitioner challenged by filing an appeal before the School Tribunal. The appeal was within limitation. During the pendency of that Appeal, the management initiated departmental enquiry and with contention that as relationship of employer and employee is already severed the management does not possess such jurisdiction, Writ Petition was therefore filed by employee 2 before this Court. In that Writ Petition, management filed a Pursis and informed that after departmental enquiry services of petitioner were terminated on 11.06.2003. In view of that Pursis on 8.10.2003, petitioner sought leave of this Court to withdraw Writ Petition with liberty to challenge that termination and such leave was granted. Petitioner then sought leave to amend his earlier pending appeal to incorporate the challenge. Rejection of that amendment was questioned by him in Writ Petition No.1652/2005 and this Court after hearing the parties on 27.07.2005 directed the School Tribunal to decide his earlier appeal i.e. STC No.54/2001 on merits. That appeal was then decided on 13.11.2006 and the School Tribunal dismissed it. Dismissal of appeal was questioned by the petitioner in Writ Petition No. 1888/2007. This Court on 30.11.2007 after hearing the petitioner granted him opportunity to file appeal with application for condonation of delay before the School Tribunal and directed that if such appeal and application for condonation of delay is filed, the same will be decided independently on its own merits. The petitioner accordingly filed appeal no. STC 58/2007 along with a prayer for condonation of delay, assailing the termination dated 11.06.2003 and by the 3 impugned order dated 06.03.2009 his prayer for condonation of delay therein has been rejected. Shri Shende, learned counsel for petitioner contends that impact of opportunity given by this Court has been overlooked and facts have been not properly appreciated by the School Tribunal. Shri Borkar, learned counsel on the other hand states that the petitioner was aware of his termination dated 11.06.2003 on 08.10.2003 itself and hence could have filed appeal within the statutory period of one month thereafter. His contention is, having not filed appeal deliberately within said time, the petitioner cannot be permitted to take advantage of his own wrong to the prejudice of respondent nos. 1 and 2 and also the State Government. Having heard the parties and perused the various orders passed by this Court, it is clear that had the appeal filed by the petitioner vide Appeal No. 54/2001 been allowed by the School Tribunal, the subsequent termination passed on 11.06.2003 could not have survived. The petitioner had made effort to point out that holding of departmental enquiry against him was itself without jurisdiction. When as a result of that enquiry the termination dated 11.06.2003 was communicated to him, he sought leave to withdraw the Writ 4 Petition No. 1646/2003 to incorporate challenge to that termination. The effort to incorporate that challenge by amendment in appeal no. STC 54/2001 failed and this Court did not interfere in that order in Writ Petition No. 1652/2005, but, then this Court permitted appeal No. 54/2001 to be decided on its own merits. Thus, had petitioner succeeded in proving that even his services were otherwise terminated on 18.05.2001, the challenge to subsequent termination would not have been necessary. That challenged failed on 13.11.2006 and it was then questioned in Writ Petition No. 1888/2007. The order granting opportunity passed therein by this Court on 30.11.2007 needs to be viewed in this background. It is therefore, apparent that the petitioner was bonafide prosecuting remedies available to him in the matter and there are no malafides. He has always tried to challenge otherwise termination dated 18.05.2001 and then the dismissal after departmental enquiry on 11.06.2003. When this Court on 30.11.2007 gave him time of one month to file appeal along with prayer for condonation of delay, it is apparent that because of previous history the said opportunity was given. I find that the school Tribunal has overlooked all these facts and has refused to condone the 5 delay. The order is therefore, unsustainable. However, though the petitioner was bonafidely prosecuting his remedy, for his fault or delay, respondent nos. 1 and 2 or than public revenue cannot be made to suffer. In question put to him, Shri Shende, learned counsel has stated that the petitioner infact wanted to apply for voluntary retirement. In the above facts the delay in filing the appeal is condoned and the School Tribunal is directed to register the appeal and try it on merits. The entitlement of petitioner to back wages shall be considered independently after hearing the parties. Writ Petition is allowed, the application for condonation of delay filed by the petitioner before the School Tribunal is granted. School Tribunal shall register the appeal and proceed further in accordance with law. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE Rgd.