1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LPA No.190/2007 in Writ Petition No.4303/2006 Pandurang s/o Vithoba Wagh Vs. The School Tribunal, Amravati and others. ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande & P.D. Kode, JJ. Order reserved on 06thMarch 2009. Order pronounced on 17.3.2009. Heard Mr. Gordey, learned counsel for the appellant, Mr. Tajne, learned counsel with Mr. P. Patil, learned counsel for respondent no.2 and Mrs. K. Joshi, learned AGP for the respondent no.3. By this appeal, the appellant takes exception to the judgment and order dated 4.6.2007 passed by the learned Single Judge in Writ Petition No.4303/12006 dismissing the Writ Petition filed against the judgment and order dated 7.7.2006 in Appeal No. 51/2002 passed by the School Tribunal by which the appeal preferred by the appellant was dismissed. 2 The appellant who was serving as Head Master in the school run by respondent no.2 challenged the termination of his service by respondent no.2 by order dated 5.10.2002 after holding due inquiry against him, by filing an appeal before the School Tribunal, Amravati. In all 14 charges were levelled against the appellant. The charge-sheet was served upon the appellant and he was asked to nominate his member of the Committee. The appellant neither nominated the member nor submitted his explanation to the charge- sheet and preferred to remain absent. Since the Committee held that the charges were proved against the appellant, the Management by order dated 5.10.2002 terminated his service. The appeal preferred to the School Tribunal was dismissed. In support of the appeal, Mr. Gordey, learned counsel for the appellant has made the following submissions:- (i) The Inquiry Committee did not follow the mandatory procedure laid down in Rules 36 and 37 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981(hereafter referred to as the Rules”). Therefore, the entire inquiry and consequent termination is vitiated. 3 (ii) There was absolutely no material produced before the Committee to establish the charges levelled against the appellant and, therefore, the termination is illegal. (iii) The appellant was not paid subsistence allowance, as required under the Rules and, therefore, the inquiry stands vitiated and consequently the termination is illegal. In support of his submissions, learned counsel relied upon the judgment of the Apex Court in Jagdamba Prasad Shukla vs. State of U.P. and others : (2000) 7 SCC 90 and Ghanshyam Das Shrivastava vs. State of Madhya Pradesh : AIR 1973 SC 1183. Per contra, Mr. Tajne, learned counsel appearing on behalf of respondent no.2 submitted that the appellant had not urged before the learned Single Judge that mandatory procedure required under Rules 36 and 37 of the Rules was not followed and, therefore, he is not entitled to urge this ground in appeal. Insofar as the material placed by the 4 management before the Inquiry Committee is concerned, learned counsel submitted that the appellant himself did not avail of the opportunity to participate in the inquiry and the material placed before the Inquiry Committee justifies the order of termination. Insofar as non-payment of subsistence allowance is concerned, learned counsel submitted that the appellant remained absent for the period from 14.6.2002 till 31.10.2002 at the headquarters and, therefore, the appellant was not entitled to subsistence allowance. Having considered the submissions made by learned counsel for the parties and having perused the orders passed by the School Tribunal and learned Single Judge, we are of the considered opinion that no case has been made out by the appellant for interference with the impugned orders. In so far as the breach of Rules 36 and 37 of the Rules are concerned, no such ground was urged before the learned Single Judge and, therefore the appellant is not entitled to urge this ground for first time in the appeal. Insofar as the findings given by the 5 Inquiry Committee are concerned, we are unable to accept the submissions of Mr. Gordey that there was no material before the Inquiry Committee to arrive at the findings given on the basis of the material before it. Moreover, the appellant himself chose not to appear before the Inquiry Committee in-spite of opportunity having been given to him. No doubt, the appellant had made grievance about non-payment of subsistence allowance, but the fact remains that, according to the Management, he remained absent at the headquarters during the period of inquiry. Moreover, the period for which the subsistence allowance was not paid to the appellant from June 2002 to October 2002. Indisputably the appellant was in service for about 25 years initially as an Assistant Teacher and thereafter as Head Master of the School and it is difficult to believe that on account of non-payment of subsistence allowance for a period of four months, the appellant was not able to take part in the inquiry or that the inquiry is vitiated. We are, therefore, unable to place reliance upon the judgments of the Apex court relied upon by Mr. Gordey in support of the appellant's case. We find that all the grounds urged by the appellant in the appeal have no merit. Consequently, 6 the appeal deserves to be rejected and is hereby rejected with no order as to costs. JUDGE JUDGE Ambulkar.