2.wp.3766-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3766 OF 2009 Shri Vedprakash Parashnath Pandey. ..Petitioner. Versus The Secretary/President, Uttarbharti Education Society, Borivli (W), Mumbai and 4 others. ..Respondents. ... Ms.Kumud A. Bhatia, Advocate for the petitioner. Mr.Anil C. Singh, Advocate a/w. Mr.Anil D. Yadav, Advocate a/w. Mr.Ashwin R. Singh, Advocate i/b. D.R. Shah, for respondent Nos.1 & 2. Ms.S.S. Bhende, A.G.P., for the State. ... CORAM : SMT.V.K.TAHILRAMANI,JJ DATED : 23rd JULY, 2009. P.C. :- 1. Heard learned Counsel for the petitioner and the learned Counsel for the respondent – Management. 2. The petitioner was working as a Assistant Teacher in the respondent Management. He came to be terminated on 12.1.2008. Being aggrieved thereby, he preferred an Appeal before the School Tribunal. The School Tribunal by order dated 20.2.2009 disposed of the appeal. The School Tribunal set-aside the termination on the ground that the procedure for inquiry as envisaged under Rule 37(6) of the M.E.P.S. Rules, 1981 was not followed. The Tribunal followed the decision in the case of Vidya Vikas Mandal Vs. Education Officer reported in 2007(3) Mh.L.J. 801, wherein one Member of Enquiry Committee submitted its report within time prescribed and other two after expiry of period prescribed. The Hon’ble Apex Court observed ; 2.wp.3766-09 2 “When three members are appointed on the Committee, all the three Members should submit their combine report within stipulated time, whether consenting or otherwise.” 3. The Tribunal observed that in the present case though the reports were submitted within the stipulated time, separate reports were submitted instead of joint report and as the report was not in accordance with the statutory provisions, the said report should not be acted upon and hence termination came to be set-aside. 4. Thus, by the said order, the termination order dated 12.1.2008 was set-aside and the Respondent Management was directed to restart enquiry against the petitioner from the stage of submission of joint report from Members of Enquiry Committee and then take proper action within reasonable time.This is order dated 20.2.2009. The said order has been challenged in the present petition. 5. The contention of the learned counsel for the petitioner is that the inquiry be conducted de novo and not from the stage of submission of Joint report from members of Enquiry Committee. As far as this aspect is concerned it is seen that the specific contention of the petitioner before the Tribunal was that the provisions of Rule 37 (6) was not followed in as much as members of the committee did not submit a combined report. The Tribunal on finding merit in this submission passed the Order dated 12.01.2008. It is seen that the illegality has crept in at the stage of submission of report by the Committee. In this view of the matter the Tribunal has rightly directed to restart enquiry from that stage. 2.wp.3766-09 3 In U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another reported in (2005) 8 Supreme Court Cases 264 and Managing Director ECIL Vs. V.B. Karunakar reported in (1993) 4 Supreme Court Cases 729, the Supreme Court has observed that in case of defective enquiry the proper course is to set aside the dismissal with direction to the management to hold enquiry from the stage the illegality has crept in. In view of the above no interference is called for in the order directing to restart enquiry from that stage. 6. Respondent No.2 has filed a affidavit-in-reply and it is stated that pursuant to the order of the Tribunal, the inquiry came to be conducted and the members of the inquiry committee submitted a joint report dated 25.3.2009 which was received by the Management Trust on 30.3.2009. The Managing Committee considered the same in the meeting dated 5.4.2009 and accepted the report and passed a resolution to that effect terminating the services of the petitioner with immediate effect. In view of this affidavit, it is seen that the inquiry has already been conducted and the petitioner has already been terminated. 7. However, looking to the fact that the petitioner has now been terminated by order dated 9.4.2009, the petitioner is at liberty to file a fresh appeal against the said termination. 8. It is made clear that this Court has not touched the issue of backwages. In the appeal, if any filed by the petitioner, the issue of backwages would be left open. The Full Bench of this Court in the case of Saindranath Jagannath Jawanjal Vs. Pratibha Shikshan Sanstha & Anr. reported in 2007(3) Bom.C.R. 527 has observed that as far as the backwages are concerned, in a case where fresh 2.wp.3766-09 4 inquiry is held, the entitlement of the backwages be made depending on the final outcome of the fresh inquiry. In view of these observations, the issue of backwages is left open. 9. The learned Counsel for the petitioner states that the appeal would be filed before the School Tribunal within a period of four weeks from today. The learned Counsel for the respondent – Management fairly states that they will not raise any objection in respect of delay in filing of the appeal before the School Tribunal. In view of this statement, on the appeal being filed within a period of four weeks from today, the School Tribunal shall condone the delay, if any, in preferring appeal and dispose of the matter on merits. 10. With the above observations, Writ Petition is disposed of. [SMT.V.K.TAHILRAMANI,J.]