1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1078 OF 2009 The Chairman, Shri Bhavani Education Officer, Sangli ..... Petitioner. V/s The State of Maharashtra & Ors. ..... Respondents. Mr. G.N. Salunkhe with Mrs Savita Jadhav with Mr. H.G. Wakshe for the petitioner. Mr. A.I. Patil, AGP for respondent Nos. 1 and 2. Mr. Amit Borkar i/b A. Vadgaonkar for respondent No.3. CORAM: V.M. KANADE, J. DATE : 8TH JULY, 2009 P.C:­ 1. Heard the leaned Counsel for the petitioner, the learned Counsel for respondent Nos. 1 and 2 and the learned Counsel for respondent No.3. 2. Petitioner – Society is challenging the judgment and 2 order passed by the School Tribunal who was pleased to allow the appeal filed by respondent No.3 herein and was pleased to declare that the order passed by the Inquiry Committee is illegal, void and biased. It was also pleased to set aside the order of termination dated 12/6/2002 with a direction to respondent No.1 to send pension papers to Education Department. 3. Brief facts which are relevant for the purpose of deciding this petition are as under:­ 4. Respondent No.3 was working as Head Master in the School run by the petitioner herein. Sometime in the year 2001, an application was made by the petitioner herein to the Deputy Director of Education, Kolhapur Region, Kolhapur, seeking permission to initiate inquiry proceedings against respondent No.3. Thereafter, Deputy Director of Education directed the 3 petitioner that it was the responsibility of the Management to take necessary action against their employee and, accordingly, a show cause notice was issued by the petitioner herein to respondent No.3 dated 10/5/2001, asking respondent No.3 to show cause why action should not be taken against him. A reply was given by respondent No.3. However, the said reply was not accepted and, consequently, Inquiry Committee was appointed and charge­sheet was issued on 10/8/2001. In the meantime, respondent No.3 also made an application to the Education Officer, stating therein that the order of suspension passed by the petitioner – School was illegal. Education Officer, therefore, by his order dated 6/6/2001 declared that the said order of suspension was illegal since prior permission of the Education Officer was not obtained. Respondent No.3 also filed a suit in the civil court, challenging the order of suspension. Interim relief, however, was not granted by the civil court. In the meantime, respondent No.3 retired on 4 30/6/2001. The inquiry, however, which was instituted by the petitioner continued even after the retirement of respondent No. 3 and a report was submitted, holding respondent No.3 guilty and accordingly petitioner herein passed an order of dismissal dated 12/6/2002. Respondent No.3, therefore, preferred an appeal before the Presiding Officer, School Tribunal, Kolhapur Region, Kolhapur. In appeal memo, a specific ground was raised by respondent No.3 herein that the inquiry which was initiated by the petitioner after his retirement by issuing charge­ sheet on 10/8/2001 was illegal and void. It was also urged in appeal memo by respondent No.3 that since the order of suspension was declared to be illegal by Education Officer, inquiry against respondent No.3 could not be continued after his retirement. Petitioner in its reply denied the allegations made by respondent No.3. Tribunal came to the conclusion that the entire proceedings against respondent No.3 were vitiated since it had continued after the retirement of respondent No.3 and, 5 therefore, it had held that the said inquiry was illegal and the order of dismissal with retrospective effect also was liable to be set aside on that ground. 5. The learned Counsel appearing on behalf of the petitioner submitted that in view of provisions of Rule 34 (3) of the Maharashtra Employees of Private Schools Rules, 1981, it was open for the Inquiry Committee to continue the inquiry in the event the employee was suspended prior to his retirement. He submitted that the School Tribunal, therefore, had clearly committed an error of law which is apparent on the face of record in not referring to the said provision. He submitted that only on this ground and in view of the observations made in para 20 of the said order, the Tribunal had set aside the findings of the Inquiry Committee. 6. Mr. Borkar, the learned Counsel appearing on behalf 6 of respondent No.3, on the other hand, submitted that the order of suspension had, in fact, been set aside by the Education Officer by his order dated 6/6/2001 and, therefore, on the date of retirement of respondent No.3, there was no order of suspension in existence. He submitted that the charge­sheet was served on respondent No.3 on 10/8/2001 and, as such, the inquiry therefore was commenced after service of charge­sheet on 10/8/2001 i.e. after his retirement. He submitted that mere issuance of show­cause notice, therefore, could not be construed to mean that the inquiry had been initiated prior to his retirement. He submitted that no specific ground was raised by the petitioner herein in his reply to the appeal memo as is argued before this Court. 7. After having heard the learned Counsel for the petitioner and the respondent No.3 for quite some time, in my view, it does appear that Tribunal has not applied its mind to the 7 effect of the provisions of Rule 34(3) of the Maharashtra Employees of Private Schools Rules, 1981 and effect of order passed by the Education Officer declaring the order of suspension to be illegal by his order dated 6/6/2001. In my view, this aspect has vital bearing on the facts of the present case and, though, apparently, this point was not raised before the Tribunal, since it is neat question of law which has been raised by the learned Counsel for the petitioner, it would be appropriate if the Tribunal considers this aspect afresh. 8. Accordingly, the impugned judgment and order of the Tribunal is set aside. The matter is remanded back to the Tribunal. Petitioner herein may amend his Written Statement and incorporate the necessary averment in the Written Statement. Rejoinder may also be given by respondent No.3. All contentions raised by the petitioner and respondents are kept open. Respondent No.3 retired admittedly on 30/6/2001. 8 More than 8 years have passed after the date of his retirement. As of today, his pension papers have not been processed by the Education Officer and the Deputy Director of Education in view of the pendency of appeal before the Tribunal. In my view, since long time has elapsed after retirement of respondent No.3, it would be appropriate to direct the Education Officer to calculate the provisional pension of respondent No.3 as provided under Rule 34(3) of the Maharashtra Employees of Private Schools Rules, 1981. The provisional pension shall be paid to respondent No.3 subject to respondent No.3 offering a solvent surety and furnishing such security to the satisfaction of the Education Officer. School Tribunal shall decide the appeal as expeditiously as possible and, in any case, within a period of six months from today. Both, petitioner and respondent No.3 shall appear before the School Tribunal on 3/8/2009. Education Officer shall determine the provisional pension within two months from today and make the payment after due compliance 9 of the directions given by this Court within one month thereafter. 9. Petition is accordingly disposed of. (V.M. KANADE, J)