: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9414 OF 2009 Sai Jyot Shikshan Mandal & Anr. .. Petitioners V/s. Lalita Avasu Bendale & Ors. .. Respondents Mr. N.V. Bandiwadekar for the Petitioners. Mr. P.N. Patil i/b. Mr. L.S. Deshmukh for Respondent No.1. Mr. A.S. Rao for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 9 TH JULY, 2010. P.C.: 1. The Writ Petition challenges the Judgment and Order dated 16th October, 2009, passed by the School Tribunal, Navi Mumbai, in Appeal No.34 of 2008, on the ground that the School Tribunal had no jurisdiction to entertain the Appeal as the petitioner No.2 is a primary school. 2. Reliance is placed on the judgment of the Division Bench of this Court in the case of Rita T. Verghese v/s. Headmistress, Vidya Mandir English Primary School, Bombay and Ors., reported in 2002 (3) Mh.L.J. 57, to contend that unless the school : 2 : is a private school recognized by an authority, as provided in the Act, it is not covered by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act (for short “the MEPS Act). The submission of the learned Advocate for the petitioners is that the School has not been recognized by any of the authorities mentioned in Section 2(21) of the MEPS Act and, therefore, the MEPS Act does not apply to the petitioner-School. It is, therefore, submitted on behalf of the petitioners that the order of the School Tribunal is without jurisdiction. 3. On the other hand, the learned Advocate appearing for respondent No.1 submitted that the enquiry has been conducted as per the rules framed under the MEPS Act and approval for conducting such an enquiry has also been obtained, as provided under the MEPS Act and Rules. It is, therefore, submitted that the petitioners cannot now contend that the School Tribunal has no jurisdiction specially since this issue has not been raised before the School Tribunal. It is also contended : 3 : that assuming the School Tribunal has no jurisdiction to pass the impugned order or to entertain the Appeal, the enquiry held as per the provisions of the MEPS Act cannot be upheld as the Act itself is not applicable. It is, therefore, submitted that the enquiry held against the respondent No.1 must be set aside in these circumstances. 4. There can be no doubt that the MEPS Act cannot govern the petitioner No.2-School since it is a primary school, not recognized by any of the local authorities mentioned in Section 2(21) of the MEPS Act. This fact has not been disputed by the learned Advocate appearing for the respondent No.1. In view of the Judgment of the Division Bench of this Court in the case of Rita T. Verghese v/s. Headmistress, Vidya Mandir English Primary School (supra), the impugned order of the School Tribunal must be set aside. 5. The issue is whether consequently the enquiry held against the employee must be set aside. It is : 4 : submitted on behalf of the petitioners that for setting aside the enquiry, the respondent No.1 would have to initiate proceedings before an appropriate Court and this Court cannot set aside the enquiry. On the other hand, the learned Advocate for the respondent No.1 submits that the petitioners cannot approbate and reprobate. Once they contend that the provisions of the MEPS Act are not applicable to their School, then any actions taken by them in consequence of and pursuant to the provisions of the MEPS Act must be set aside. It is submitted that this Court being a Court of Equity, the enquiry can be set aside. 6. After considering the submissions of the learned Advocates in this behalf, in my opinion, if the MEPS Act does not apply, then the enquiry instituted under that Act or in accordance with the provisions of that Act cannot be sustained. In my opinion, it would not be proper to direct the respondent No.1 to initiate further proceedings before the enquiry is set aside, as that would amount to an another round of litigation. The Writ : 5 : Petition is, therefore, disposed of in the following manner :- “O R D E R” i. The impugned Judgment and Order dated 16th October, 2009, passed by the School Tribunal, Navi Mumbai, in Appeal No.34 of 2008, is set aside. ii. The enquiry held against the respondent No.1 in accordance with the MEPS Act & Rules is also set aside. iii. The petitioners may, if they so desire, hold an enquiry in accordance with law and the principles of natural justice to substantiate their action against the respondent No.1. : 6 : 7. On the application made by Mr. Bandiwadekar, the learned Advocate for the petitioners, clause ii of this order is stayed for a period of four weeks from today.