1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4259 OF 2010 Avatar Mehar Baba Shikshan Sanstha and another. -: VERSUS :- Nalini A. Mahajan 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 : NOVEMBER 22, 2010. Heard Shri H.A. Deshpande, learned counsel for petitioners, Shri P.N. Shende, learned counsel for respondent no.1 and learned A.G.P. for respondent no.2. Rule made returnable forthwith. Heard finally by consent of parties. Shri Deshpande, learned counsel has contended that in earlier round of litigation between the parties, appointment of respondent no.1 on compassionate ground is held to be on probation, inspite of that the School Tribunal in the impugned order has found it as a permanent appointment which could not have been determined without holding departmental enquiry. His further contention is, correspondence between the parties is placed on record and petitioner management specifically disputed the alleged 2 replies sent by respondent no.1. Ignoring this affidavit, the Tribunal has found the memos issued by petitioners doubtful. The learned counsel argues that the view of management about performance of respondent no.1 has been substituted by its own view by the Tribunal. Shri Shende, learned counsel contends that the appointment on probation is against permanent post and therefore, the School Tribunal has made those observations. According to him, those observations can be ignored and rest of the judgment can be looked into. He further states that the refusal to accept the alleged memos by the School Tribunal is based upon its appreciation of facts and is not perverse. The learned Counsel states that as those memos are stigmatic, hence holding of departmental inquiry is found to be essential. The learned counsel therefore, prays for dismissal of writ petition. After hearing the respective counsel and perusal of impugned judgment, I found it difficult to sever the observations about the nature of appointment and holding of departmental inquiry from it and to restrict the consideration therein is only to performance of respondent no.1 as probationer. This Court has already held that the respondent no.1 was rightly placed on probation and that order is not stigmatic. In view of these findings reached earlier, the 3 appreciation by the School Tribunal cannot be accepted, however, then apart from producing the order of termination dated 02.05.2000, petitioner management has not produced any other material to show how the management has viewed the material with it while judging the performance of respondent no.1. During the arguments, Shri Deshpande, learned counsel offered to produce the relevant resolutions for consideration of this Court. But then, I am not inclined to look into that resolutions for the first time in writ jurisdiction. In absence of said application of mind by the management, I find it difficult to accept the contention that the School Tribunal has substituted its own view with the view of management. Thus on one hand, I find that the judgment of School Tribunal, particularly its observations in paragraph no.34 cannot be severed and on the other hand I find that the petitioner – management has not produced its application of mind qua the service of respondent no.1 before the School Tribunal. Therefore, it is necessary to give both the parties an opportunity to approach School Tribunal and to place relevant material for its consideration. Only for that purpose the impugned judgment dated 15.04.2010 is quashed and set aside. The proceedings in Appeal STC No. 81/2000 are 4 restored back to the file of Additional School Tribunal (Nagpur) Chandrapur for fresh consideration, as early as possible and in any case within a period of 6 months after the communication of this order to it. Parties are at liberty to produce the relevant material for appreciation of the School Tribunal. Parties are directed to appear before the School Tribunal on 13.12.2010 and to abide by its further instructions in the matter. Writ Petition is allowed in aforesaid terms. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.