1 WP 8175.2010 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8175 OF 2010 Shaikh Mustafa Kadar Age : 38 Yrs., Occ. Service, R/o : Nalwandi-Koregaon, Tq. Patoda, Dist. Beed. ..... PETITIONER V E R S U S 1. Smt Phundabee Shikshan Prasarak Kmandal Nalwandi, Koregaon Tq. Patoda, Dist. Beed. Through its Secretary 2. The Head Master/Mistress, Janpeer Secondary & Higher Secondary School, Nalwandi – Koregaon, Tq. Patoda Dist Beed 3. The Education Officer (Secondary) Zilla Parishad, Beed District : Beed. ..... RESPONDENTS Mr. K.D.Bade Patil, Advocate for the Petitioner. Mr. V.H.Dighe, Asstt. Govt. Pleader for the State. Mr. S.S.Halkude, Advocate for Resp.nos. 1 & 2. 2 WP 8175.2010 - ( J ) CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 14/06/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present petitioner had filed Appeal before the School Tribunal against his termination. There was delay in filing the Appeal. As such, the petitioner has filed an application for condonation of delay. The said application came to be rejected. Aggrieved thereby, the present Writ Petition has been filed. 3. Mr. Badepatil, the learned counsel for the petitioner submits that in fact the termination order was not served upon him and as such he was prevented from filing Appeal earlier. There was no reason for the petitioner not to file Appeal earlier if the termination order would have been served upon the petitioner. The Tribunal has taken a hyper technical approach in rejecting the application for condonation of delay. 4. Mr. Halkude, the learned counsel for respondent nos. 1 and 2 3 WP 8175.2010 - ( J ) vehemently opposes the contentions of the petitioner and submits that the conduct of the petitioner does not entitle him in exercise of discretion in his favour. An enquiry is initialed against him. The Charge sheet was served upon him by speed post and the same was accepted by his wife. Even the order of termination was issued under posting of certificate [For short, ‘ U.P.C. ’ ]. The presumption is attached that the same is served. Even the caveat was filed and the notice of the caveat was sent by R.P.A.D. But, still the petitioner did not take any steps and after long slumber of 22 months, filed the Appeal. According to the learned counsel, the Tribunal has rightly passed the order. 5. Mr. Dighe, the learned Assistant Govt. Pleader for the State supports the arguments of Mr. Halkude, the learned counsel for respondent nos. 1 and 2. 6. It is a trite law that when technical considerations and cause of substantial justice are pitted against each other, the cause for substantial justice should be sub-served. The order of termination is sought to have been sent by U.P.C. The presumption of service is weak in such a case. The petitioner has come with the positive statement that he has not been served with the termination order. Even there is no acknowledgment of the notice 4 WP 8175.2010 - ( J ) of caveat. In such circumstances, it would be inappropriate to presume the knowledge of termination. The service rights of the petitioner are involved. The liberal approach deserves to be taken. 7. In view of the fact that there is no proof of the service of order of termination on the petitioner, nor there appears acknowledgment of the notice of caveat sent by the respondent, in such circumstances, I do not see any impediment to condone the delay. 8. In the result, the impugned order is quashed and set aside. The application for condonation of delay is allowed subject to payment of costs of Rs. 5,000/- ( Rupees Five Thousand only) within the period of four ( 4 ) weeks from today by the petitioner to the respondent nos. 1 and 2. The Tribunal shall register the Appeal if it otherwise complies with all other legal requirements. 9. Rule is accordingly made absolute in above terms. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 8175.2010 - ( J ) 5 WP 8175.2010 - ( J )