1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6928 of 2007 Shri Ananda Dhondiba Parde Petitioner Vs. The President, Maharashtra Seva Sangh & ors. Respondents Mr.S.G.Kudle for petitioner. Mr.G.S.Godbole with Mr.Nitin Mulye for resp.no.1. Mr.V.D.Gunale for resp.no.2. Ms.P.S.Cardoz, AGP for State. CORAM: B.H.MARLAPALLE, J. November 30, 2007. P.C. . Heard Mr.Kudle, the learned counsel for the petitioner. Mr.Godbole appears for the respondent no.1, Mr.Gunale appears for the respondent no.2 and Ms.Cardoz, the learned AGP appears for Respondent Nos.3 and 4. . Rule. 2 . Respondents waive service. . Petition is heard finally as it impugns the order passed by the School Tribunal on 24/8/2007 thereby rejecting the application for condonation of delay. . As per the petitioner he had put in about nine years of service as a peon with the Respondent no.2 - school and on 17th May 2002 he had submitted an oral application for leave and subsequently a written application was given. From 1st June 2002 he was not allowed to sign the muster roll and he was mentally disturbed. He was wandering in Mumbai and on 18/10/2002 he met with an accident. He was under treatment all along and on 30/4/2004 he was issued a fitness certificate and he was to report from 3rd May 2004 but he did not do so. He claims to have submitted a representation on 2/5/2005 to the Education Officer and finally on or about 16/5/2005 he filed Appeal No.72 of 2005 before the School Tribunal along with an application for condonation of delay. The said application for condonation of delay has been rejected by the impugned order. 3 . Mr.Kudle pointed out that the Tribunal found justification for condonation of delay for the period upto 3/5/2004 but the Tribunal was not satisfied for the delay caused in the remaining twelve months i.e. upto 15/5/2005 to approach the Management and the Court for the relief but the Tribunal also did not find any material in the petitioner’s contentions that he had in fact approached the School on 5/5/2004 and submitted a representation by way of joining report and the same was not accepted. . Mr.Godbole on the other hand, submitted that even during the earlier period from 18/10/2002 to 3/5/2004 the entire period was not properly explained by the petitioner as he was not under hospitalisation for the said entire period and even otherwise from 5/5/2004 to 15/5/2005 the petitioner did not bother to report for duty despite the fact that a number of notices were issued to him by the management from time to time. A list of such notices appears to have been placed before the School Tribunal. Mr.Godbole and Mr.Gunale, therefore, supported the order passed by the School Tribunal and submitted that the petitioner has to blame himself for the utter casual approach he showed towards his duties as well as in 4 approaching the School Tribunal belatedly. It was further pointed out that only when the petitioner came to know that the management has exercised its powers under Rule 16(3) of the MEPS Rules, 1981, he approached the School Tribunal. . As noted earlier, the only reason in rejecting the application for condonation of delay as assigned by the School Tribunal is that the petitioner failed to explain the delay caused from 5/5/2004 to 15/5/2005. The Tribunal discarded the contentions of the petitioner that on 5/5/2004 he had approached the school with a joining report and he was not allowed to report for duty. I am, therefore, required to consider whether the Tribunal was right in rejecting the application for delay condonation and whether the delay from 5/5/2004 to 15/5/2005 was required to be condoned. . There is no doubt that the Education Officer (Secondary), Zilla Parishad, Solapur addressed a letter on 16/5/2005 to the respondent no.2 and this letter was based on the representation dated 2/5/2005 submitted by the petitioner. The Education Officer stated that the petitioner had gone to the school for 5 joining duty on 30/8/2004 but he was not allowed to resume duty as stated by him. The Education Officer, therefore, called upon the management to sanction the petitioner’s leave as per the Rules and allow him to resume duty. This communication, prima facie, makes out a case that on or about 2/5/2005 a representation was submitted by the petitioner to the Education Officer raising a grievance that he was not allowed to report to duty. The grievance before the School Tribunal while considering the application for condonation of delay did not remain limited to the petitioner’s averments that he was not allowed to report for duty, but indeed the management by then had invoked its powers under Rule 16(3) of the MEPS Rules, 1981. From the documents submitted by Mr.Godbole it, prima facie, appears that this order of terminating service on account of voluntary abandonment is dated 16/5/2005 but it was posted by registered A.D. on 24/5/2005 and it was received by the petitioner on 27/5/2007. It is not known surely as to whether this order was passed before the said letter from the Education Officer was received by the school or thereafter. Nonetheless, this order gives a fresh cause of action for the petitioner to approach the School Tribunal by way of appeal under 6 Section 9 of the MEPS Act, 1977 as the management for the first time invoked its powers under Rule 16(3) of the MEPS Rules and terminated the service of the petitioner on account of voluntary abandonment. This aspect has not been considered by the School Tribunal. I, therefore, deem it appropriate and it will be in the interest of justice that the appeal filed by the petitioner and as amended is required to be decided on merits by condoning the delay. . Hence this petition succeeds and the same is hereby allowed. The impugned order passed by the School Tribunal is hereby quashed and set aside and the application for delay condonation stands allowed. The appeal to be heard on its own merits and both the parties are at liberty to adduce oral as well as documentary evidence before the Tribunal. The Education Officer (Secondary), Zilla Parishad, Solapur shall file his reply in the appeal within a period of eight weeks from today. The management to file its Written Statement and it should be filed preferably within a period of six weeks from today. The parties to appear before the School Tribunal on 17th December 2007. Needless to state the appeal will be decided without being influenced by any 7 observations made in this order. Appeal be decided preferably within a period of six months from 17th December 2007. . Rule is made absolute accordingly. (B.H.MARL