1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5175/2009. Ku. Manda Ramkrushna Kagdelwar -: VERSUS :- The Badrawati Shikshan Sanstha and others. With WRIT PETITION No. 1978/2010. The Bhadrawati Shikshan Sanstha and another. -: VERSUS :- Ku. Manda Ramkrushna Kagdelwar and another. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 21, 2010. This Court has issued notice for final disposal on 30.11.2009. Heard Shri M.P. Khajanchi, learned counsel for petitioner – employee, learned A.G.P. for respondent Education Officer and Shri A.S. Chandurkar, learned Counsel for respondent Management finally by making Rule, returnable forthwith. 2009 Writ Petition is filed by the employee challenging the judgment of the School Tribunal dated 4.11.2009, partly allowing her appeal and ordering fresh enquiry. It is further directed that till then the employee shall be deemed under suspension and her entitlement to 2 consequential benefits would depend upon the result of the enquiry. The very same judgment is questioned by the Management in Writ Petition No. 1978/2010, on the ground that the enquiry could not have been held to be vitiated and in any case the direction at the most could have been to proceed further with the inquiry from the stage at which the defect crept in. By placing reliance upon the Full Bench judgment of this Court reported at 2007 [3] Mh.L.J. 207 (National Education Society, Nagpur .vrs. Mahendra Baburao Jamkar), Shri Khajanchi, learned counsel argues that when very initiation of the departmental enquiry was found to be bad, the direction to hold fresh inquiry is without jurisdiction. His argument in the alternative is whether to place the employee under suspension or not, is the discretion of Management to be exercised in accordance with the settled law and the School Tribunal could not have encroached upon it in any way. His contention is, in present matter nature of misconduct alleged does not warrant any suspension pending inquiry and the employee was never under suspension. He has relied upon the Division bench judgment reported at 1997 [3] Mh.L.J. 279 (Dilip Venkatrao Patil .vrs. State of Maharashtra and others) in this respect. The judgment delivered by the learned Single Judge following the above mentioned Full Bench judgment reported at 2008 [1] All 3 M.R. 68 (Bhagwantrao Vishwanath Vyawahare and another .vrs. Sau., Sunita Gopinath Palve and another), is relied upon to contend that as no extra ordinary case or special reasons are made out, the direction to hold inquiry again is vitiated. Shri Chandurkar, learned counsel on the other hand argues that the School Tribunal has found that the enquiry has not been completed within the specified time limit of 4 months and therefore, it is vitiated. He further states that though statement of allegations under Rule 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 served by the President, there was a reply to it by the employee and hence, that cannot be the ground to hold departmental enquiry, as vitiated. The witnesses examined by the Management were available for cross-examination, the employee was also present and her representative was absent. She did not cross examine the said witnesses. According to him, in this situation the finding of holding enquiry to be visited is perverse. In any case, according to him, the matter could have been permitted to proceed further from the stage of cross examination of those witnesses. Perusal of the judgment delivered by the School Tribunal clearly shows that the employee was Assistant Teacher and hence as per Rule 36[1] of the Rules, the 4 statement of allegations needs to be served by the Chief Executive Officer. Here the statement is served by the President and not by the Chief Executive Officer. The employee has no doubt replied to it, but then, the requirement of law has not been fulfilled. The Rule further permits the Chief Executive Officer to apply his mind to the explanation received and thereafter, if he is not satisfied with that explanation, he is supposed to place it before the Management for taking further decision in the matter. The facts here show that, that opportunity is lost to present employee. The School Tribunal has found that records of departmental enquiry do not disclose that opportunity to cross examine the witness was extended to the employee. With the assistance of Shri Chandurkar, learned counsel those records are also seen. After examination-in-chief is over, absence of representative of employee is recorded and the records do not show that the employee was then called upon to cross examine the witness or she declined. I, therefore, do not find anything wrong with the findings of the School Tribunal. The Hon'ble Full bench of this Court has found that only in exceptional cases additional evidence can be led before the School Tribunal by the Management. The said judgment is followed in Bhagwantrao Vishwanath 5 Vyawahare .vrs. Sau., Sunita Gopinath Palve (supra), and this Court has found that it was not legally possible to permit the Management to hold denova enquiry in the matter. Here as initiation itself is found bad and the Management did not make any request to the School Tribunal to lead any additional evidence, I, find that the leave granted to management to rehold that enquiry is not in accordance with the law. No exceptional case warranting such grant is made out. On the contrary, it appears that employee was deliberately not permitted to cross-examine management witnesses. I find that management cannot be permitted to take advantage of its own wrong. In 2008 the Management proposed to enquire into alleged misconducts in 2004-2005 also. Its approach therefore, does not appear bonafide and does not inspire confidence. The records show that the employee has not placed before the School Tribunal any material to show absence of gainful employment from the date of her termination. Hence, she is not entitled to full back wages and in the instant case, I find that interest of justice will be met with by directing the Management to pay her 30% back wages. In view of these findings, Writ Petition No. 1978/2010 filed by the Management is dismissed. Writ Petition No. 4175/2009 filed by the 6 employee is allowed. The judgment of School Tribunal dated 04.11.2009 is modified and the appeal filed by her vide Appeal No. STC 31/2008 is allowed. The management is directed to reinstate her with continuity and 30% back wages. However, in the circumstances of the case, there shall be no order as to costs. JUDGE Rgd.