:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1147 OF 2004 Shri Dilip Vishnu Swami ..Petitioner Vs. 1. Manager, Sacred Heart High School and ors. ..Respondents Mr. N.R. Bubna with Mr. M.S. Lagu for petitioner. Mr. P.I. Poulos with Ms. Pallavi Dedhia i/by M/s. Sanjay Udeshi and Co. for respondent nos.1 and 2. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 11, 2008. Date : January 11, 2008. Date : January 11, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Bubna with Mr. Lagu the learned counsel for the petitioner. 2. Rule. Mr. Poulos waives service for respondent nos.1 and 2. 3. The petition is taken up for final hearing forthwith, more so when the impugned order has rejected the application for condonation of delay on 10/10/2002 and petition is waiting for admission for the last more than four years. :2: 4. The petitioner claims to possess the qualifications of B.A. MP.Ed and, therefore, qualified to be appointed as a Physical Training Teacher. The petitioner also claims that he comes from OBC. As per the petitioner, for the first time, he came to be appointed in the academic year 1999-2000 with effect from 6/7/1999 and in the same fashion continued in three academic years i.e. 1999-2000, 2000-01 and 2001-02. He further claimed that he was appointed against a permanent vacancy and the management was appointing him only on temporary basis. In the academic year 2002-03 he was not reappointed after the May vacation. He, therefore, filed Appeal No. 36 of 2002 on or about 6/6/2002. As per him the appeal was beyond time by seven days and, therefore, he made a separate application for condonation of delay which has been rejected by the impugned order passed by the School Tribunal at Navi Mumbai. 5. It was the case of the petitioner that the notice of termination was received by him on 27/4/2002 and his tenure was to expire as per the said notice on :3: 30/4/2002. Consequently, on 1/5/2002 he could not be on the rolls of the school and, therefore, when he filed the appeal on 6/6/2002 it was beyond time by seven days as under Section 9 of the M.E.P.S. Act, 1977 the prescribed period to file appeal is of 30 days. Whereas the management contended that the termination notice was dated 22/2/2002 and it was received by the teacher on 8/3/2002 and thus the cause of action arose to file the appeal on 8/3/2002 itself. The School Tribunal has accepted the contentions of the management and has further noted that the appellant did not place before him good and sufficient reason to condone the delay. The School Tribunal referred to the decisions of this court in the case of the Executive President, Pune Vidyarthi Griha and ors. vs. Bhaskar Bhagwant Yadav and ors. [2001 (2) Mh.L.J. 226] and Shri Victor Albuquerque vs. Saraswat Co-opeartive Bank Ltd. and ors. [1998 (3) ALL MR 393] and held that the appellant could not show that there was sufficient cause which was beyond his control to condone the delay. 6. To say the least, the approach of the School :4: Tribunal is hyper-technical and it fell in gross error in counting the delay from 8/3/2002. As per Section 9 a teacher in the Private School has a right to file an appeal against the order of dismissal/removal and the said appeal is required to be filed within 30 days from the date of receipt by him the order of dismissal/removal. As per subsection 3 of Section 9, notwithstanding anything contained in subsection 2, the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. In the instant case the teacher went with a case that the notice of termination was received by him on 24/7/2002 and he was in service till 30/4/2002. Even if the delay is counted from 24/4/2002 the appeal was beyond time only by about eight days and this delay of eight days has been refused to be condoned by the School Tribunal on the ground that sufficient cause was not made out to condone the same. Having regards to the reasoning set out in the impugned order, I am satisfied that the delay caused in filing the appeal deserves to be :5: condoned and the Tribunal committed manifest error on the face of the record in rejecting the application for condonation of delay. The appeal filed by the employee deserves to be considered on merits and the impugned order has resulted into miscarriage of justice. Refuse to condone the delay of about eight days is nothing short of a hyper-technical approach by the Tribunal and for some reasons or the other, which may be called as law’s delay, the petitioner has been waiting before this court for last more than 4 years even for admission of this petition. Undoubtedly the Bar and the Bench need to introspect if the confidence in the judicial system has to be maintained. Be that as it may, the petition deserves to be allowed. 7. Hence the petition is hereby allowed. The impugned order is quashed and set aside and the delay caused in filing Appeal No. 36 of 2002 is hereby condoned. It is further directed that the said appeal shall be heard and decided on its own merits as expeditiously as possible and in any case before 31/3/2008. Rule is made absolute accordingly with no order as to costs. Writ to go the the School Tribunal :6: forthwith. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)