110lpa66.10.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 66 of 2010 in Writ Petition No.4347 of 2002 (Yavatmal Islamiya Anglo Urdu Edu. So., Yavatmal and anr. vs. Mujib Ahmed Abbas Ali and anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: S. A. Bobde and Mrs. Mridula Bhatkar, JJ. Date : 01/10/2010. Heard Mr. P. B. Patil, Adv. for the appellants and Mr.M.R.Joharapurkar, Adv. for respondent no.1. The appellants have preferred this appeal against the judgment of the learned Single Judge delivered in Writ Petition No.4347 of 2002, dt. 16.10.2009 declining to set aside the judgment of the School Tribunal and holding that the services of respondent/teacher were wrongly terminated on holding an enquiry where no proper opportunity was given to cross-examine the witnesses and in fact, there was collusion between the members of the Enquiry Committee and the Management. The main contention of Mr.P.B.Patil, Adv. for the appellants is that the learned Single Judge ought to have seen that, the School Tribunal, having noticed a defect in the manner in which the enquiry was conducted, was duty bound to send the matter back to the Disciplinary Committee constituted by the appellants for a fresh decision on the enquiry and the School Tribunal could not have set aside the termination order. We find that this aspect 110lpa66.10.odt 2 . of the matter has been properly considered by the learned Single Judge who has noticed that almost every aspect of the enquiry was illegal viz. constitution of the Enquiry Committee was illegal; list of witnesses were not supplied; there was a deliberate attempt to violate the principles of natural justice with an oblique motive; when time was sought for cross-examining all the witnesses, it was declined and the Management examined four witnesses and closed its side; the application for adjournment was rejected and such other defects. The learned Single Judge further noticed that, in the Written Statement before the Tribunal, the appellants did not make a plea that they would re-examine the witnesses and give fair opportunity to the respondent/employee to defend himself. In these circumstances, though it is a practice of the Tribunals and the Courts to send the matter back to the Disciplinary Authority if there are defects noticed in the conduct of enquiry, it is not invariable practice which needs to be followed at the cost of condoning the mala fide conduct of an enquiry. The learned Single Judge has, in our view, rightly relied on the observations of the Full Bench of this Court in the case of Saindranath s/o. Jagannath Jawanjal vs. Pratibha Shikshan Sanstha and anr. reported in 2007(3) Mh.L.J. 753, where the Full Bench has observed as follows : “65. But this should not be understood as placing fetters on the powers of the Tribunal. It is always open to the Tribunal to exercise its powers on the peculiar facts and circumstances of each case as it deems just and necessary in the interest of justice. 110lpa66.10.odt 3 . Take a case where the management is not in a position to hold enquiry because of the situation brought about by the employee himself making it impossible for the management to hold enquiry before taking punitive action against him, in such contingency, the School Tribunal is not powerless to permit the School management to lead evidence to prove the act of misconduct before it to support its action. This legal sanction in law is implicit in sub-rule (b) of Rule 27 of Order 41 of Civil Procedure Code which reads as, “...... for any other substantial cause”. This clause gives wide discretion to the Tribunal, which, no doubt, is required to be exercised judiciously for the reasons to be recorded. But, exercise of such powers in every case; in a routine manner would take away the very object of the legislation meant to provide the employees security and stability of service to enable them to discharge their duties effectively and efficiently. Therefore, such power is available for being exercised only in the extremely exceptional cases and in compelling circumstances and not in a routine manner in every case. “ We, thus, find no reason to interfere with the judgment of the learned Single Judge in this regard. Mr.P.B.Patil, learned Counsel for the appellants, however, submitted that the appellants had made a plea before the learned Single Judge that they are not in a position to pay the entire amount of backwages as ordered by 110lpa66.10.odt 4 . the Tribunal because of weak financial position of the appellants/ Society. This plea has been rejected by the learned Single Judge on the ground that there is no material to come to this conclusion. However, Mr.P.B.Patil, Adv. points out to an affidavit of one Mohd. Ehsan filed before this Court dt. 4.8.2009 where the Society had stated that their financial position is very weak and allegedly there are only Rs.7267/- in balance in the Society. In the circumstances, we consider it appropriate and hence, we direct the appellants to pay the backwages in twelve monthly instalments. No other contention is raised in the instant appeal. Hence, the Letters Patent Appeal is disposed of. JUDGE JUDGE jais