1 wp301.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 301 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. Pradeep Deshmukh holding for Mr. S.S. Kulthe, Advocate for the petitioner. Mr. A.N. Kakade, Advocate for respondent nos. 1 and 2. Mr. K.M. Babhulgaonkar, Advocate for respondent no.3. 1. Heard Advocates Mr. Deshmukh for petitioner, Mr.Kakade for the respondent nos.1 and 2 and Mr. Babhulgaonkar for respondent no.3. 2. Short contention of Advocate Mr. Deshmukh is that the services of the petitioner have been terminated day before prior to completion of period of three years on the ground that her performance during probation was not found satisfactory by the management. He points out that the said appreciation of her service by Management has been produced before this Court for the first time along with reply affidavit by the respondent nos.1 and 2. According to him, the said resolution dated 01.04.2008 2 wp301.11 was never produced before the School Tribunal. He has invited attention to language of that resolution. According to him before the School Tribunal there are only six documents produced by the respondent nos. 1 and 2 to show to the School tribunal the performance of petitioner. Out of those, four documents were internal correspondence of which the petitioner was not aware. Only two documents were within her knowledge. By one document her explanation was called for and that explanation was satisfactorily furnished. He has further stated that other documents in fact called upon the petitioner to give no objection for promoting her junior as Headmaster. He therefore states that both these documents can not be used as indication of unsatisfactory performance. According to him, learned School Tribunal has failed to exercise jurisdiction available to it. 3. Advocate Mr. Kakade on the other hand has urged that these documents along with other documents have been specifically produced before the School Tribunal by the President of the Institution. The School Tribunal has accepted that written statement and concluded that the performance of the petitioner was not satisfactory. According to him, in the situation this Court should not interfere in the matter as the termination is strictly in accordance with the scheme regulating the appointment and service conditions of the Shikshan Sevak. 3 wp301.11 4. After hearing the respective Counsel, I find that the conclusion of the management about the standard of performance of the petitioner is decisive in proceedings before the School Tribunal. The said conclusion is to be reached by the management and management can do so only after passing the resolution. That resolution was passed on 01.04.2008. Though the termination order dated 06.05.2008 specifically makes reference to said resolution dated 01.04.2008, the copy of that resolution was not supplied to petitioner along with termination order and its copy is also not produced before the School Tribunal. It is therefore, apparent that the said decision of the management about unsatisfactory nature of performance of the petitioner, was not before the School Tribunal. 5. The respondent nos. 1 and 2 have by producing certain material attempted to show to School Tribunal fact that performance of petitioner was unsatisfactory. Neither the School Tribunal nor this Court can reach such finding and its finding can not be a substitute for obligation, which provisions of M.E.P.S. Act cast upon the management. The management ought to have produced the resolution dated 01.04.2008 before the school tribunal. School tribunal has to then appreciate finding of management keeping in mind the relevant statutory provisions. 4 wp301.11 6. As I find that material document which has got vital impact on the nature of the performance of the duties of the petitioner was not produced before the School Tribunal by the respondent nos.1 and 2, I am not inclined to further delve into said controversy. The contentions of Advocate Deshmukh about two documents namely show- cause notice and reply of the petitioner thereto or then about the alleged consent sought for by the management, needs to be evaluated in the light of relevant material and those documents and any comment thereupon by this Court shall influence the School Tribunal while dealing with it. 7. In the situation, the interest of justice will be met by directing the School Tribunal to apply its mind to those documents and also to resolution dated 01.04.2008 and thereafter to deliver a fresh judgment. 8. The judgment dated 20.12.2010 delivered by the School Tribunal, Aurangabad in appeal no. 22/2010 is accordingly quashed and set aside. The proceedings in the said appeal are restored to the file of School Tribunal for taking fresh decision as indicated above. School Tribunal shall reach its findings in accordance with law as also uninfluenced by any observations made by this Court above. The School Tribunal shall attempt to decide the said appeal as early as possible and in any case by 31st July, 2011. 5 wp301.11 9. At this stage, Shri. Deshmukh point out that the petitioner was in service till the delivery of judgment by School Tribunal. He further states that the Management has not made any alternate arrangement. Mr.Kakade is not in a position to state whether any arrangement is made by the management or not. In this situation, interest of justice will be met with by directing the respondent nos. 1 and 2 to continue the petitioner in service as before till 31.07.2011 if the respondent management has not made any alternate arrangement so far. 10. The parties to appear before the School Tribunal on 3rd March, 2011 and to communicate this order to it. 11. The Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. (B.P. DHARMADHIKARI) JUDGE. 10.02.2011 gas/wp301.11