1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7948 OF 2009 Padmakar s/o Ramrao Aainale age 26 years, occ. service as Assistant Teacher in Lal Bahadur Shastri Prathamik Vidyalaya Sharda Nagar, Latur, Dist. Latur. .. PETITIONER VERSUS 1 Lal Bahadur Shastri Shikshan Prasarak Mandal Renuka Nagar, Latur, Tq. & Dist. Latur. Through its Secretary. 2 The Head Master Lal Bahadur Shastri Prathamik Vidyalaya Sharda Nagar, Latur. Tq.& Dist. Latur. 3 The Education Officer (Primary) Zilla Parishad, Latur. Tq. & Dist. Latur. .. RESPONDENTS Mr. A.V. Patil, Advocate holding for Mr. V.D. Gunale, Advocate for the petitioner. Mr. Mohekar, Advocate for respondent nos. 1 and 2. Mr. V.D.Hon, Advocate for respondent no.3. ===== CORAM : R. M. BORDE, J. DATE : 27 th APRIL, 2010. ORAL JUDGMENT : 2 1 Heard. 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 Application tendered by the petitioner seeking condonation of delay occurred in presenting the appeal before the school tribunal has been turned down by the tribunal in view of order passed on 4-11-2009 and said order is subjected to challenge in this petition at the instance of the petitioner / teacher. 4 Petitioner contends that initially, the respondent / management issued letter of appointment as Shikshan Sewak in his favour on 9-6-2004. Petitioner continued to serve as Shikshan Sewak for a period of about three years. However, the management abruptly prohibited the petitioner from continuing his duties and also did not submit the proposal to the Education Officer for regularisation of the services of the petitioner as Assistant Teacher on completion of three years service as Shikshan Sewak. Petitioner as such was constrained to approach the tribunal by filing appeal bearing no. 56/2007. During continuance of the appeal, parties settled their dispute 3 amicably. An undertaking signed by the Headmaster as well as the secretary of the institution was submitted. The institution agreed for continuation of the petitioner as Assistant Teacher and also further undertook to submit the proposal for approval to the education department within one month from the date of the undertaking. Appeal was as such disposed of in view of the compromise on 22-2-2008. It is further contended by the petitioner that he was permitted to resume duties in accordance with the settlement reached between the parties. However, again he was prohibited from continuing his duties as Assistant Teacher. The order in respect of oral termination was therefore challenged by the petitioner by filing appeal. There occurred certain delay in presenting the appeal, as such, application was presented by him seeking condonation of delay. In the meantime, as the management did not comply with the understanding arrived at between the parties, petitioner approached the tribunal by presenting application under section 13 of the Act. It is contended by the petitioner that the management did not pursue the proposal with the education department for approval of the services of the petitioner as Assistant Teacher. During pendency of the application tendered by the petitioner under section 13 of the Act, he was prohibited from continuing his duties and as such, he presented appeal to the school tribunal making 4 grievance in respect of oral termination. According to the petitioner, he persuaded the management to comply with the terms of settlement. However, the management did not adhere to the terms and committed breach thereof. Petitioner also contended in his application seeking condonation of delay that the matter in respect of violation of the order passed by the tribunal presented by him under section 13 of the act was pending before the tribunal and the petitioner waited for the outcome thereof. These are the reasons, according to the petitioner, compelling him to approach the tribunal late. 5 Application tendered by the petitioner seeking condonation of delay was opposed by the respondent on various grounds. It is contended by the management that the petitioner did not attend the school after entering into settlement. It is contended that the management did not issue any order of termination and there is therefore no reason for the teacher to make any grievance in respect of the oral termination. It is contended that the appeal itself is not entertainable as the petitioner on his own has remained absent. Considering the contentions raised by the respective parties, the tribunal found that the reasons stated by the petitioner seeking condonation of delay in approaching the tribunal are not convincing. As such, the 5 tribunal was pleased to reject the application in view of order passed on 4-11-2009. 6 I have perused the application as well as heard arguments advanced by learned counsel for the respective parties. It is not disputed that the petitioner was serving as Shikshan Sewak since 2004 and he rendered services for about 3 years. It is also not disputed that the petitioner was constrained to approach the tribunal on the first occasion by presenting appeal bearing no. 56/2007 making grievance in respect of termination of his services. It is also not disputed that there was settlement reached between the parties and an undertaking was tendered on behalf of the management in pursuance to which the appeal was disposed of on 22-2-2008. On perusal of the undertaking furnished on behalf of the management, it transpires that the management has clearly admitted that the services of the petitioner are confirmed and it is also admitted further that he is deemed to be continued in service till the date of submission of the undertaking. Thus, the fact remains that the petitioner is in permanent employment of the institution. Although it is contended by the management in the instant appeal that the petitioner on his own has remained absent and did not turn to render the services, nonetheless, the 6 fact remains that he was not permitted to resume duties. The management has not expressed willingness to permit the petitioner to resume duties in terms of the solemn undertaking placed on record in appeal bearing no. 56/2007 before the tribunal. Contention raised by the respondent / management that there are no orders in respect of termination of services issued by the management, also cannot be accepted for the reason that without issuing specific orders dispensing with the services of the petitioner, he appears to have been prohibited from resuming duties. However, the facts alleged in the appeal are required to be dealt with by the tribunal and no final opinion in that regard can be recorded in this writ petition. It is also to be taken note of that the services of the permanent employee cannot be dispensed with without adhering to the procedure prescribed under M.E.P.S. Act. Admittedly, the procedure prescribed for terminating services of the permanent employee has not been followed. There was no enquiry as contemplated by the Act and rules , prior to dispensing with services of the petitioner. Therefore, the contention raised by the management that the petitioner’s services have not been terminated and that he remained absent on his own cannot be accepted to throw the appeal presented by the petitioner before the tribunal out of consideration. Even if, contention raised by the management that the petitioner remained absent on his own is to be 7 accepted, the services of the permanent teacher can be dispensed with only after holding enquiry as contemplated by provisions of the M.E.P.S. Act and the rules and, unless the procedure as contemplated by the Act and rules is not followed and appropriate orders are not issued, the contentions raised by the petitioner in respect of oral termination will have to be accepted at least prima facie, for consideration of the appeal presented by him before the tribunal. In these facts and circumstances, I am of the opinion that the tribunal has erred in turning down the appeal presented by the petitioner on the ground that there is unexplained delay in approaching the tribunal. Unexplained delay as stated in the judgment is not of more than three months. The fact that the management has entered into compromise during earlier round of litigation and further that the petitioner has come with the allegation that the settlement reached between the parties has not been respected by the management, ought to have persuaded the tribunal to take up the appeal for consideration by condoning delay. In my opinion, the order passed by the tribunal is not sustainable and is liable to be quashed and set aside. Petition is therefore allowed. Order passed by the tribunal on 4-11-2009 in Misc. Application no. 16/2009 is quashed and set aside. Application tendered by the petitioner seeking condonation of delay in approaching the tribunal in presenting 8 appeal shall be deemed to have been allowed. Tribunal shall proceed to decide the appeal on its own merit and in accordance with law. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp7948.09.odt