NIRALA EDUCATION SOCIETY Vs. JUGALKISHORE BHAGWATIPRASAD SHUKLA

JUDGEMENT

(1.) BY this writ petition, the petitioner-employer has challenged the judgment dated 18-12-1995 passed by the School Tribunal and the subsequent orders dated 15-4-1995 and 22-4-1996 passed after decision of appeal by the very same Tribunal. On 18-12-1995, the School Tribunal has allowed the appeal of present respondent No. 1 and has directed the management to reinstate him with continuity and full backwages. The order of termination dated 1-5-1992 issued by the petitioners was set aside. It appears that thereafter the management moved application for setting aside order on fee ground that it was an ex parte judgment and said application was rejected on 15-4-1996. It further appears that management had also moved an application seeking time to comply with the directions issued by the School Tribunal and that application has been rejected on 22-4-1996. Thereafter the management approached this Court and this Court initially on 4-10-1996 directed the parties to maintain status and ultimately on 7-5-1997 granted stay of the impugned judgment of School Tribunal. With the result, respondent No. 1 is not in employment.

(2.) I have heard Shri Bhangde, learned counsel for the petitioners, Shri jibhkate, learned counsel for respondent N'o. 1 and Shri Kothari, learned assistant Government Pleader for respondents [no. 2 and 3.

(3.) SHRI Bhangde, learned counsel has contended that the post on which respondent No. 1 was appointed was reserved post and the employee was terminated by order dated 1-4-1992 with effect from 1-5-1992. The said order was not challenged by employee till 15-11-1994. In 1993-94, respondent No. 1 worked with the Kela Hindi Madhyamik Vidyalaya and Junior College, khamgaon, from 12-7-1993 to 30-4-1994. He filed the appeal after 2 years from the date of order of termination on 15-11-1994. Though the petitioners were served with summons and they engaged advocate, the advocate did not appear before the School Tribunal and the appeal was proceeded ex parte. On 18-12-1995, the School Tribunal condoned the delay and simultaneously also allowed the appeal on merits. Thereafter on 8-1-1996, the petitioners applied for setting aside the ex parte judgment but that request was rejected on 15-4-1996. Similarly, the request of the petitioner for extension of time to comply with the directions was also rejected on 22-4-1996. In this background, Shri Bhangde, learned counsel has raised the following contentions. His first contention is that when the employee accepted another job without challenging the termination order, it reveals that he was not interested in service of present petitioner-employer. He, therefore, waived his right to challenge the termination before the school Tribunal by his conduct of accepting such another employment. The reliance has been placed upon the judgment of the Hon'ble Apex Court in katikara Chintamani Dora vs. Guntreddi Annamanaidu, reported at (1974)1 scc 567 and in Krishna Bahadur vs. Puma Theatre, reported at (2004)8 SCC 229. It is further contended that the employment at Khamgaon which respondent no. 1 had secured is totally suppressed from the School Tribunal and therefore, the School Tribunal was not aware that he had in fact joined other service and was challenging the terminaticm order after he gave up such other service. He further contends that thus the fact which was relevant for deciding the maintainability of appeal and considering question of condonation of delay was not placed before the School Tribunal by respondent No. 1. He has invited attention to the affidavit of the office bearer of the petitioner-institution in this respect. He further states that this was also taken as a ground for setting aside ex parte judgment before the School Tribunal and he states that in reply affidavit filed before the School Tribunal, respondent No. 1 has accepted that he has served at Khamgaon for some period. According to him, in these circumstances, there was no sufficient cause for School Tribunal to condone delay and in any case when the School Tribunal noticed that a relevant circumstances was suppressed from it, it ought to have reopened the entire matter. He also argues that the explanation given by respondent No. 1 for condoning delay is that he was making representations to the Deputy Director of Education on the issue of back-log. He argues that law does not permit or recognize such representations as sufficient for condonation of delay. He further argues that the School Tribunal was exercising appellate powers in view of section 10 of the Maharashtra employees of Private Schools ('conditions of Service) Regulation Act, 1977, and hence in terms of Order 41, Rule 10a of Civil Procedure Code, it could not have decided the application of condonation of delay along with appeal on merits. He states that when the School Tribunal decided to condone delay, it ought to have ordered its office to register the appeal and thereafter a notice should have been given to the petitioners about the registration of such appeal and for appearance therein. According to him, because of simultaneously consideration of both issues, the right of the petitioner to challenge the order condoning delay has been lost. It is further argued by him that when the School Tribunal has decided appeal without hearing the petitioner, it must be treated as an ex parte decision and refusal of the School Tribunal rot to treat it so is, therefore, not correct.