1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 255 of 2009 WITH Notice of Motion No. 274 of 2009 IN Writ Petition No. 29 of 2009 The President, Khairul Islam Education Societys Maharashtra College & anr. ...Petitioners v/s. Fateh Mohammed F.M. & 2 ors. ...Respondents Counsel Mr. Nusrat Shah a/w. Ms. Pervin D. Contractor, Mr. A.K.Gupta, Ms. Ema Almeida, Mr. Sayed Zia for the petitioner i/b. Ajit Karwande for petitioner in support of Notion of Motion No. 274/2009. A.N. Maniyar for respondent no.1 and in support of Notice of Motion 255/2009. Ms. Sindha Sridharan – AGP for respondent no.3. CORAM:- A.M.KHANWILKAR, J. DATED: June 8, 2009. P.C. This order will dispose of both these motions. 2 2. Notice of Motion No. 255/2009 is filed by the Respondent praying for direction to reinstate Respondent No.1 with full backwages w.e.f. 1/1/2009 in terms of Judgment and order passed by the College Tribunal dated 26t/8/2008 whereas Notice of Motion No. 274/2009 is filed by the management for stay of operation of the selfsame Judgment and order passed by the College Tribunal. During the course of hearing, Counsel for the writ-petitioner in all fairness submitted that prayer clause (a) of Motion No. 274/2009 is inappropriate. Hence, the same is not pressed. 3. It is not in dispute that writ-petition was originally disposed of by Learned Single Judge of this Court on 9/2/2009 against which the said matter was carried in appeal by the management. The Division Bench has allowed the said appeal on 6/4/2009 by setting aside the order dated 9/2/2009 and granted rule in writ-petition and relegated the parties to apply for interim- relief before the Learned Single Judge. The fact that writ-petition has already been admitted in terms of order passed by the Division Bench as aforesaid presupposes that prima-facie case has been made out by the writ-petitioner. 4. In the circumstances, the only other aspects that needs to be considered is whether balance of convenience and irreparable hardship is to be caused to the concerned party. On both these issues I have no hesitation in taking the view that in the facts and circumstances of the present case, the petitioner is entitled for interim-relief as prayed. In that the decision of the College Tribunal will have to be stayed lest the petition will become infructuous. This relief is however opposed by the Respondent No.1 on the argument that the order dated 9/2/2009 was passed by the Learned 3 Single Judge of this Court on the earlier occasion as the same was invited by the writ-petitioner. This argument does not commend to me. Neither the order dated 9/2/2009 records that fact nor on reading the said order it is possible to discern that it was an order invited by the writ-petitioners as such. Whereas the impression gathered from the order is that the same was passed as the matter was contested between the two parties. In any case, this argument is unavailable to Respondent No.1 having consented before the Division Bench of this Court for setting aside the order dated 9/2/2009 passed by the Learned Single Judge on the earlier occasion. The effect of order dated 6/4/2009 passed by the Division Bench is that the writ-petition will stand admitted and to be proceeded on merits in accordance with law. Counsel for Respondent No.1 would then argue that College Tribunal had passed order as back as on 26/8/2008 and had given sufficient time to the writ-petitioners to complete the fresh enquiry on or before 31st December, 2008. The writ-petitioners, however, did not avail of that opportunity and have approached this Court belatedly. The fact that the College Tribunal gave sufficient time to the writ-petitioners cannot be the basis to consider the point in issue. The writ-petitioners have not accepted the order passed by the College Tribunal and have challenged the same by way of present writ-petition. In my opinion, in the peculiar facts of the present case, writ-petitioners are entitled for stay of the operation of the impugned decision keeping in mind the serious charges faced by Respondent No.1. Accordingly, both these motions are disposed of on the following terms. 4 O R D E R 1. Stay of operation of the impugned decision of the College Tribunal dated 26/8/2008 till the disposal of the writ-petition. 2. Hearing of writ-petition is expedited. 3. Liberty to apply. (A.M.KHANWILKAR, J)