:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1318 OF 2009 WRIT PETITION NO. 1318 OF 2009 WRIT PETITION NO. 1318 OF 2009 The President, Kolhapur Zilla Vimukta Jati Bhatakya Jamati Vikas Mandal, Danwad, Kolhapur ..Petitioner versus Samgonda Namgonda Patil & Ors. ..Respondents Mr. S. S. Pakale for the Petitioner. Mr. Tejpal S. Ingale for the Respondent No. 1. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. CORAM : S. A. BOBDE, J. DATE : 9TH FEBRUARY, 2009 DATE : 9TH FEBRUARY, 2009 DATE : 9TH FEBRUARY, 2009 P.C. P.C. P.C. . Rule, returnable forthwith. Heard by consent. 2. The petitioner has challenged the order of termination declaring the termination of the respondent No. 1 as illegal, improper and unjustified. According to Mr. Pakale, the learned counsel for the petitioner the respondent No.1 had filed two Appeals in respect of the said termination dated 6.10.2001. First appeal No. 99 of 2001 which was withdrawn on 9.6.2004 and appeal No. 10 of 2002 :2: which was withdrawn on 16.6.2004. It is the contention of the learned counsel for the petitioner that both the earlier appeals including the present appeal which was allowed by the Tribunal is in respect of the same cause of action. 3. Mr. Ingale, the learned counsel for the respondent No. 1 strongly submitted that this contention is not correct because according to the learned counsel earlier appeals were in respect of oral termination in respect of reduction in rank. However, the learned counsel is not in a position to categorically point out whether the earlier appeals were allowed to be withdrawn with the specific opportunity to file this appeal. In the absence of such opportunity, the present appeal would not have been maintainable. Unfortunately, it is not possible to test the contention of either side and to give a finding as to whether Order II Rule 2 or Order XXIII of the Code of Civil Procedure applies bar to the appeal of the respondent No.1 since the Tribunal has not properly considered this issue. The Tribunal has merely observed that the cause of action in the earlier two appeals is an altogether different from the cause of action mentioned in the present appeal. According to the Tribunal one :3: earlier appeal was in respect of reduction in rank against the termination dated 6.10.2001 and the other appeal was against the termination dated 9.10.2001 and not against the termination dated 6.10.2001. There seems no dispute that there is only one event of 6.10.2001. 4. According to the learned counsel for the respondent No. 1 by that action of 6.10.2001, the respondent No. 1 who was serving as Head Master was reduced in rank to the post of Assistant Teacher and that is why he had challenged the reduction in rank by the second appeal. It is not clear how the respondent No.1 was working as an Assistant Teacher on 9.10.2001 when was allegedly orally removed on 6.10.2001. The learned counsel for the respondent No.1 submitted that this is because the respondent No. 1 was appointed as a Head Master and after he was reduced in rank on 6.10.2001 he was working as an Assistant Teacher from which he was removed on 9.10.2001. However, there is no appointment order appointing the respondent No.1 as an Assistant Teacher at any point of time, neither was the respondent No.1 promoted as Head Master from the post of Assistant Teacher. In these circumstances, it is clear that it was necessary for the Tribunal :4: to closely examine the facts and various appointment orders and various terminations to determine the cause of action of the earlier two appeals was indeed different from the cause of action of the present appeal. 5. In the result, the impugned order is set aside. The matter is remanded back to the Tribunal for a fresh decision in accordance with law, without being influenced by any observations made in this order. The Tribunal shall decide the appeal not later than six months from the date of the first appearance of the parties. The parties are directed to appear before the Tribunal on 16.2.2009. 6. Rule made absolute in the above terms. (S. A. BOBDE, J.) (S. A. BOBDE, J.) (S. A. BOBDE, J.)