1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2007 OF 2006. WITH CIVIL APPLICATION NO.6976 OF 2009. 1. Jijamata Shikshan Prasarak Mandal, Ausa, Dist. Latur, through its President. 2. Head Master, Jijamata Vidyalaya, Main Road, Ausa, Tq. Ausa, Dist. Latur. .... PETITIONERS. VERSUS 1. Narisng Marutirao Gurale, age 30 years, occu. Service, r/o Ausa, Tq. Ausa, Dist. Latur. 2. The Education Officer (Secondary), Zilla Parishad,Latur. .... RESPONDENTS. ... Shri Wattamwar, Advocate holding for Shri S.G. Rudrawar, Advocate for Petitioners. Shri P.K. Joshi, Advocate for R.No.1 (absent). Shri P.P. More, A.G.P. for R.No.2. ... CORAM:S.S. SHINDE,J. DATE : 08th OCTOBER, 2009. ORAL JUDGMENT: 1. This petition is filed challenging the judgment and order dated 6th December, 2005 passed 2 by the learned Presiding Officer, School Tribunal, Solapur below Exh.29 in Appeal No.150 of 2004. By the impugned order, the Presiding Officer, School Tribunal allowed the application filed by respondent no.1 for condonation of delay in filing the appeal. 2. The background facts of the case are as under: The present respondent no.1 filed Appeal No. 164 of 1998 before the School Tribunal, Aurangabad challenging his oral termination dated 17th June, 1998 by the present petitioners. It was the case of the appellant – respondent no.1 that he was appointed as Assistant Teacher on 15.6.1993 in Jijamata Vidyalaya, Ausa and he was working in the said school from 15.6.1993 continuously without any break. It is further case of the respondent no.1 that being a permanent employee since he has completed 2 years service as contemplated under Section 5 of the Maharashtra Employees of Private 3 Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the M.E.P.S. Act, 1977). His further case was that his services were orally terminated by the Head Master w.e.f. 17.8.1998. 3. The School Tribunal, Aurangabad issued summons in the said appeal. In pursuant to the notice of summons, the present petitioners filed written statement on 18.8.1999 denying therein that the date of oral termination given by the respondent no.1 as 17.8.1998 is not correct and the services of the respondent no.1 were terminated by notice dated 1st March, 1998 in which it is specifically stated that service of the respondent no.1 would come to an end automatically w.e.f. 30th April, 1998. Subsequently, the matter was transferred to the School Tribunal, Solapur. It is further case of the petitioners herein that the original appellant – respondent no.1 herein filed an application for condonation of delay caused in filing the appeal on 6.11.2004. On 30th March, 2005 the respondent no.1 filed application for 4 amendment of appeal memo and sought correction in paragraph 4, 7 and prayer clause (C) of the appeal memo and also sought correction in respect of oral termination dated 17.6.1998 instead of 17.8.1998. The petitioners herein filed reply to the application for condonation of delay and denied the contentions of the appellant – respondent no.1. 4. The School Tribunal, after hearing both sides, was pleased to allow the application for condonation of delay by his judgment and order dated 6th December, 2005. Being aggrieved by the said judgment and order dated 6th December, 2005, the present petitioners have filed this writ petition. 5. The learned Counsel for the petitioners submitted that the application for condonation of delay caused in filing appeal should have been presented or filed along with memorandum of appeal as contemplated under the provisions of Order 41, Rule 1 and 3-A of the Code of Civil Procedure. It is further submitted that the 5 filing of the application for condonation of delay after gap of about 6 years was hopelessly time barred. No reasons or sufficient cause is disclosed in the said application and the School Tribunal, without appreciating the contention of the petitioners herein that the said application does not show sufficient cause, allowed the said application, erroneously relying on the judgment of this Court which have no relevance with the present case. It is further submitted that on the plain reading of Order 41, Rule 1 of C.P.C. and other relevant provisions shows that that application for condonation of delay has to be filed along with memorandum of appeal, which is mandatory requirement and filing of an application thereafter cannot be entertained. The learned Counsel further submitted that plain reading of the contents of the said application filed by the present respondent no.1 for condonation of delay shows that there is no sufficient cause shown in the said application. By cryptic order, the Presiding Officer of the School Tribunal concluded that sufficient cause is shown in the said application and condoned the 6 delay after seven years of filing the appeal. The learned Counsel further invited my attention to the grounds in the writ petition and submitted that such an order, without assigning any cogent reasons, is not sustainable in law. The learned Counsel further invited my attention to the reported judgment of this Court in the case of Khatunbi wd/o Mohammad Sayeed & Ors. v. Smt. Aminabai wd/o Mohammad Sabh [2006(6) ALL MR 310] and submitted that compliance of Order 41, Rule 3A of the Code of Civil Procedure is mandatory. The learned Counsel invited my attention to the paragraphs 11 and 12 of the said judgment and submitted that the School Tribunal has not paid proper attention to the provisions of Rule 3-A of Order 41 of C.P.C and to the law laid down by this Court in the case of Khatunbi wd/o Mohammad Sayeed (supra) and allowed the application for condonation of delay filed by respondent no.1. According to the learned Counsel, in paragraphs 11 and 12 of the aforesaid judgment, the Division Bench of this Court has clearly held that the memorandum of appeal presented should be accompanied by the application for condonation of 7 delay and the said requirement is mandatory. The learned Counsel for the petitioners, therefore, submitted that the petition deserves to be allowed by setting aside the impugned judgment and order. 6. Though the respondent no.1 is served, none appears for respondent no.1. The learned A.G.P. appears for respondent no.2 Education Officer (Secondary), Zilla Parishad, Latur. 7. After hearing the learned Counsel for the petitioner at great length and upon perusal of the impugned order passed by the School Tribunal, it appears that the School Tribunal has accepted date of oral termination as 17.6.1998 as contended by the original appellant – respondent no.1. In paragraph 5, the Presiding Officer, after perusal of the Muster Roll has come to the conclusion that the date of termination is 17.6.1998 and not 1st March, 1998 as contended by the present petitioners. The School Tribunal has also observed in paragraph 4 that “.... employee while in service succumbs to its employers and 8 every demand and the probability of appellant’s obtaining signatures on blank papers by the management cannot be ruled out.” The Tribunal, relying on the judgments of this Court in case of Ashok s/o Balaji Ratan vs. Nagpur Improvement Trust, Nagpur [2004(3) Mh.L.J.659] and in case of Madhav s/o Somaji Sarode vs. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and others [ 2004(3) Mh.L.J. 1078], allowed the application filed by respondent no.1 for condonation of delay caused in filing the appeal. In paragraph 6, the School Tribunal has observed that sufficient cause has been shown by respondent no.1 in the application for condonation of delay. 8. On careful perusal of the judgments relied upon by the Presiding Officer, School Tribunal, more particularly, judgment in case of Madhav s/o Somaji Sarode (supra), it clearly appears that the said judgment is directly on the point interpreting the provisions of Section 9 of the M.E.P.S. Act, 1977, wherein this Court held thus: “The provisions of the Maharashtra Employees 9 of Private Schools (Conditions of Service) Regulation Act, 1977 do not prescribe for rejection of memorandum of appeal in the case where the appeal is not accompanied by the application for condoning the delay. On the contrary, it can be seen from sub- section (3) of section 9 that the power is given to the Tribunal and that the Tribunal may entertain an appeal made to it after the expiry of period if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the period. It can thus be seen that a formal application for condonation of delay is also not necessary. The School Tribunal, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period may condone the delay and entertain the appeal. If the Tribunal comes to a conclusion that the appeal was not filed within limitation then it should given an opportunity to the party to make an application for condonation of delay.” 10 What follows from the aforesaid pronouncement of this Court is that Section 9 of the M.E.P.S. Act, 1977 does not mandate filing of the application for condonation of delay and even in absence of any application for condonation of delay, the School Tribunal, if satisfied, can condone the delay. That apart, this Court has further held that the School Tribunal, if satisfied, can allow the appellant to file an application for condonation of delay. This Court has further observed that the formal application for condonation of delay is also not necessary. It cannot be lost sight of that right to appeal is substantive right of a party and it should not be defeated merely on technicalities. 9. Though the learned Counsel submitted that paragraphs 11 and 12 of the judgment in case of Khatunbi wd/o Mohammad Sayeed (supra) can be made applicable to the case in hand. It appears to me that the judgment in the case of Ashok s/o Balaji Ratan (supra) is direct authority on the interpretation of provisions of Section 9 of the M.E.P.S. Act, 1977. Therefore, when there is 11 direct judgment on the interpretation of the Section involved in the present case, I feel that the School Tribunal has rightly placed reliance on the said judgment and allowed the application for condonation of delay. Even the judgment in the case of Khatunbi wd/o Mohammad Sayeed (supra), in paragraph 11 does not necessarily say that the appellant cannot file an application after the appeal is already filed. In paragraph 11 it is only observed that the application for condonation of delay in filing the appeal cannot be filed as a matter of right after filing of appeal. That necessarily does not mean that no application can be filed by the party after filing of appeal. It is for the concerned Court to use its discretion to allow or reject the application on the basis of the contents therein. Therefore, in my considered view, the controversy in this case is more akin to the controversy involved in the case of Ashok s/o Balaji Ratan (supra). 10. In view of the above, I do not fine any 12 merit in the writ petition. Hence, the writ petition is dismissed. Interim relief stands vacated. Rule is discharged with no order as to costs. Civil Application also stands disposed of. Since the appeal is pending before the School Tribunal, Latur for a considerable period, the concerned School Tribunal is directed to commence hearing of the appeal forthwith and decide the same as early as possible. [ S.S. SHINDE, J ] ..... Kadam/* 13 WRIT PETITION NO.2007 OF 2006. WITH CIVIL APPLICATION NO.6976 OF 2009. Date of decision :08.10.2009 For approval and signature. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } Yes/No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.