: 1 : wp.1334.2010.sxw vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1334 OF 2010 Prashant Kishor Garge ... Petitioner V/s. State of Maharashtra & Ors. ... Respondents Mr.C.K. Bhongoji i/b R.K. Mendadkar for the Petitioner Mr.R.M. Patne, AGP, for the Respondent Nos.1 & 2 Ms.A.P. Purav for Resp. No.3 CORAM: S.C.DHARMADHIKARI, J. DATE: JULY 7, 2011. P.C.: 1. The petitioner is aggrieved by an order dated 22.4.2009 which has been passed by the appellate authority and Divisional Social Welfare Officer, Mumbai Division, Mumbai. 2. By the order under challenge, the appeal filed by the petitioner on 2.12.2008 came to be rejected as barred by limitation. 3. The petitioner was appointed by Respondent No.3 as a Vocational Instructor. The appointment order dated 16.6.2005 is on record. The appointment was stated to be on probation for a period of two years. The petitioner joined duty but it is his case that because of his ill-health, he could not remain present regularly. He was given a memo for his absence for certain : 2 : wp.1334.2010.sxw period. He submitted his explanation to the said memo. Yet the management proceeded to issue the show-cause notice. The reply was given to the said notice pointing out that the petitioner was undertaking treatment for his spinal cord ailment and therefore he was advised bed rest. Because of his ill-health he could not report for duty. This explanation was rejected and order was passed terminating his services on 16.5.2007. 4. The petitioner challenged this order by filing an appeal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act before the School Tribunal, Mumbai. The Appeal was dismissed on the ground of maintainability that since the petitioner is employed by a special school, the Special School Code, 1986 would apply. Accordingly, in pursuance thereof, the petitioner approached the authority under the said Special School Code by filing the said appeal. That being barred by time he requested for condonation of delay. That request is rejected by the impugned order and that is why this writ petition. 5. After hearing the learned Counsel appearing for the petitioner and the management Respondent No.3, I am satisfied that the delay of 102 days was properly explained. The explanation therefore was sufficient and reasonable. The petitioner was advised to approach a wrong forum and on legal advice, he approached it. He is a dismissed employee. The dismissal is of 16.5.2007. The appeal was filed to the School Tribunal and the period during which it was pending could have been excluded from consideration for the purposes of : 3 : wp.1334.2010.sxw limitation as the petitioner was bonafide and in good faith pursuing the said proceedings but before a wrong forum. The delay of 45 days after dismissal of the appeal according to the presiding officer is stated to be not explained and that is the reason why the delay has not been condoned. However, a careful perusal of the memo of the appeal filed before the appellate authority would make it clear that the petitioner has annexed relevant documents. He has pointed out that after the dismissal of the appeal by the School Tribunal, he was constrained to take legal advice once again. He had to make arrangements for the said purpose. He is an employee terminated from service and was also having an ailment which has been referred to in the documents itself. This is not a case where there was a deliberate inaction or utter negligence on the part of the petitioner. The petitioner approached this appellate authority under the special statute. In such circumstances, the appellate authority should have taken a liberal and sympathetic view of the mater. He should have given an opportunity to the petitioner to argue his case on merits. In these circumstances, the further delay is also sufficiently explained and deserves to be condoned in the larger interests of justice. 6. In the light of this, the impugned order is set aside. The delay in filing the appeal before the appellate authority is condoned. The appeal shall now be heard on merits in accordance with law as expeditiously as possible by the appellate authority after giving an opportunity to both sides to argue the same. All contentions on merits of the controversy are kept open. Writ Petition is allowed in these terms. No costs. : 4 : wp.1334.2010.sxw (S.C.DHARMADHIKARI, J.)