1 W.P.No.8172.09 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8172 OF 2009 Kailashwasi Aaee Saheb Rajebahadur Bhagini Mandal, Malgaon. ... Petitioner v/s Vithabai Panditrao Bacchav & ors. ... Respondents Mr.K.S.Patil i/by Mr.P.N.Joshi for the petitioner. Mr.S.K.Shinde i/by Mr.M.M.Sandhyanshiv & N.N.Pagar for respondent No.1. Mr.P.I.Khemani, A.G.P. for respondent No.4. CORAM: SMT.NISHITA MHATRE, J. DATED: 6TH AUGUST, 2010 P.C.: 1. The petitioner has approached this Court against the order of the School Tribunal in Appeal No.NSK/09/2004. By the impugned order, the School Tribunal has allowed the appeal filed by respondent No.1 and held that the order dated 20.1.2004 reducing her rank from the post of headmistress to the post of assistant teacher was invalid. 2 W.P.No.8172.09 The petitioners have been directed to reinstate respondent No.1 on the post of headmistress with continuity of service and back wages. 2. The learned advocate for the petitioners contend that the Tribunal has erred in its decision which is passed essentially on two grounds, namely, (i) that the enquiry was conducted by the management in a predetermined manner since respondent No.5 was permitted to participate in the enquiry; and (ii) that the management had not issued the statement of allegations to the 1st respondent. 3. In respect of the first ground on which the appeal has been allowed, the learned advocate submits that respondent No.5 was permitted to participate in the enquiry only as a representative of the management. He, therefore, submits that such participation by respondent No.1, even though she may be an interested person, would not vitiate the enquiry. As regards the second ground on which the enquiry has been set aside, the learned advocate points out that the charge- sheet was served on respondent No.1 and in fact she had replied to the same by her letter dated 27.11.2003. He points out that both the charge-sheet as well as the reply are part of the record before the School Tribunal. 3 W.P.No.8172.09 4. In my opinion, the mere fact that respondent No.5 represented the management of the school at the enquiry, although she may have had an interest in the post held by respondent No.1, would not vitiate the enquiry. The bias which must be examined by the Tribunal is not on the part of the management representative but on the part of those who constitute the enquiry committee. The Tribunal has not found that the members of the enquiry committee were biased. In these circumstances, in my opinion, the finding of the Tribunal on this issue must be set aside. 5. Similarly, on the second issue, as to whether the charge-sheet was served on respondent No.1 along with the statement of allegations, the documents disclose that the charge-sheet was received by respondent No.1. It was replied by a letter dated 22.11.2003 in which she has referred to the receipt of the charge-sheet dated 8.10.2003. The Tribunal has obviously not considered the documents which are on record before it while drawing its conclusion. Therefore, this finding also is set aside. 6. A perusal of the order impugned in this petition indicates that these are the only grounds on which it has been held that the enquiry has been vitiated and, therefore, the appeal has been allowed. 4 W.P.No.8172.09 7. The Tribunal is expected to consider whether, even assuming the enquiry is held to be vitiated, the management has proved the charge by leading evidence, as held by the Full Bench in the case of Saindranath s/o Jagannath Jawanjal, Bhandara v/s Pratibha Shikshan Sanstha, Bhandara & anr., reported in 2007 II C.L.R. 330. This has not been done by the Trial Court. 8. Accordingly, the impugned order is set aside. 9. The matter is remanded to the Tribunal to decide the appeal afresh. The Tribunal will complete the hearing and pass orders within six months from today. ..... 5 W.P.No.8172.09