1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.1965 OF 2010 (SUSHIL D. BARSINGE...VS.. LOK SHIKSHAN SANSTHA & OTH.) WITH WRIT PETITION NO.1659 OF 2010 (LOK SHIKSHAN SANSTHA, CHANDRAPUR...VS.. SUSHIL D. BARSINGE & OTH.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. P.N. Shende, Advocate for Petitioner in WP No.1965/10. Mr. R.D. Dharmadhikari, Advocate for Petitioner in WP No.1659/10. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 17, 2011. Heard the learned counsel for the parties. 2. Since common question of facts arise for determination in these petitions and since they arise out of the judgment passed by the Presiding Officer, School Tribunal, Nagpur on 29th January, 2010 they are heard together and are decided by this common order. 3. The petitioner in Writ Petition No.1659/2010 is the management and the petitioner in Writ Petition No.1965/2010 is the employee who had alleged that he was appointed as a Headmaster by the management and was dismissed from service in pursuance of the enquiry which was patently illegal. The petitioner in Writ Petition No.1965/2010 is referred to as the 'employee' for the sake of convenience. 2 4. It was the case of the employee in an appeal filed by him before the School Tribunal that he was initially appointed as Physical Training Instructor (PTI) and was promoted as Headmaster. It was stated in the appeal that the termination of the services of the employee was illegal as the enquiry conducted against the employee was vitiated for non- compliance of the provisions of the Maharashtra Employees of Private School (Condition of Service) Regulation Act, 1977 and the Rules of the year 1981 framed thereunder. The School Tribunal, on an appreciation of the documents produced on record, held that the procedure laid down in Rules 36 and 37 of the Rules of 1981 was not followed by the management while holding an enquiry against the employee. It was observed by the Tribunal that the enquiry was not conducted by a committee which was properly constituted in accordance with the provisions of the Rules. 5. The learned counsel for the management submitted that it is not considered by the Tribunal in the impugned order dated 29.01.2010 whether the employee was an Assistant Teacher or Headmaster and in the absence of the finding in that regard it would not be possible for the management to conduct a fresh enquiry against the employee as the committees constituted for holding enquiry against a Headmaster and Assistant Teacher are different. 6. Mr. Shende, the learned counsel for the employee challenged the order of the Tribunal on the ground that there were absence of extraordinary or exceptional circumstances for remanding the matter to the management for holding a fresh enquiry. The learned counsel for the employee relied on the full bench decision of this Court, reported in 2007(3) 3 Mh.L.J. 753 to substantiate his submission that the matter could be remitted back to the stage of enquiry only in an exceptional case. 7. Mr. Patel, the learned Assistant Government Pleader appearing on behalf of the Education Officer supported the order passed by the School Tribunal and sought for the dismissal of both the petitions. 8. On hearing the learned counsel for the parties and on perusal of the impugned order dated 29.01.2010, it appears that the submission made on behalf of the management that it was not possible for the management to hold enquiry against the employee as it was not decided by the Tribunal whether the employee was a Headmaster or Assistant Teacher is not well founded as it is clearly observed by the Tribunal in paragraph 27 of the impugned judgment that the enquiry was to be conducted against the Headmaster and hence, it was necessary for the management to constitute a committee in accordance with the provisions of Rules 36 and 37 of the Rules of 1981. Hence, it is clear from the impugned judgment that the management was directed to conduct an enquiry against the employee by considering that the employee was Headmaster at the relevant time. 9. The submission made on behalf of the employee that the Tribunal did not have jurisdiction to permit the management to hold a fresh enquiry against the employee is also not well founded as the Tribunal had noticed in this case that the management had not constituted a proper Enquiry Committee as required by the provisions of Rules of 1981 and since the enquiry was vitiated in the absence of a properly 4 constituted enquiry committee it was necessary to order a fresh enquiry in the matter. The judgment reported in 2007 (3) Mh.L.J. 753 cannot be helpful for advancing the case of the employee that the Tribunal could not have directed a fresh enquiry in the matter. 10. It is clear that the order passed by the Presiding Officer, School Tribunal, Nagpur on 29.01.2010 is just and proper and does not suffer from any error so as to interfere with the same in exercise of the writ jurisdiction. Since the writ petitions were pending before this Court for quite some, the management is directed to complete fresh enquiry, in accordance with law, against the employee within a period of six months from the date of this order. Both the writ petitions are, accordingly, dismissed with no order as to costs. JUDGE RR..