JUDGMENT : Heard Shri A.D. Mohgaonkar, Advocate for the petitioner-employee, Shri S.Y. Deopujari, Advocate for the respondent No.1-Society, Shri V.A. Dhabe, Advocate for the respondent No.2- School and Shri K.R. Lule, Assistant Government Pleader for the respondent No.3. 2. Rule. Rule made returnable forthwith. 3. It is undisputed that the petitioner had been working in the respondent No.2-School administered by the respondent No.1-Society since 1995 as an Assistant Teacher. The appointment of the petitioner was approved by the Education Officer. The petitioner acquired the status of confirmed employee. Some memos/show cause notices were issued to the petitioner since October 2007 and then on 05-07-2010 the services of the petitioner were terminated without conducting any enquiry. The petitioner filed appeal before the School Tribunal. In the appeal, the respondent Nos.1 and 2 filed an application (Exhibit No.17) seeking permission to prove misconduct of the petitioner before the Tribunal. This application was rejected by the Tribunal by the order dated 13-09-2013. After rejection of the application (Exhibit No.17), the respondent Nos.1 and 2 filed another application (Exhibit No.20) seeking permission to conduct enquiry against the petitioner. By the impugned order dated 19-03-2014, the Tribunal has allowed this application, has set aside the termination order dated 05-07-2010 and has directed the respondent Nos.1 and 2 to reinstate the petitioner in service. The Tribunal has permitted the respondent Nos.1 and 2 to proceed with enquiry from the stage of charge, keeping the petitioner under suspension. The petitioner being aggrieved by Clause (3) of the operative part of the impugned order permitting the respondent Nos.1 and 2 to conduct enquiry placing the petitioner under suspension, has filed this petition. The petitioner has also prayed that the management be directed to pay arrears of salary to the petitioner. 4. Shri A.D. Mohgaonkar, Advocate for the petitioner has submitted that the Tribunal has overstepped its jurisdiction by issuing directions to the management to conduct an enquiry and to place the petitioner under suspension. According to the petitioner, it is the prerogative of the management to conduct enquiry and to place the employee under suspension and the Tribunal could not have directed the management in the matter. It is further submitted that the Tribunal has committed an error by not considering the claim of the petitioner for arrears of salary. According to the petitioner, it is the prerogative of the management to conduct enquiry and to place the employee under suspension and the Tribunal could not have directed the management in the matter. It is further submitted that the Tribunal has committed an error by not considering the claim of the petitioner for arrears of salary. It is contended that the termination of services of the petitioner, who was working as a confirmed and approved Teacher was without enquiry which is mandatory as per the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the “Rules of 1981”) and the Tribunal having set aside the termination order, it should have granted the consequential relief regarding arrears of salary. It is prayed that Clause (3) of the operative part of the order passed by the Tribunal be set aside and the management be directed to reinstate the petitioner and to pay the arrears of salary. 5. Shri S.Y. Deopujari, Advocate for the respondent No.1 and Shri V.A. Dhabe, Advocate for the respondent No. 2 have submitted that the directions given by the Tribunal are proper and in consonance with the law laid down in the judgment given by the Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad, etc. etc. vs. B. Karunakar, etc. etc. reported in AIR 1994 SC 1074 (1) and in the judgment given by this Court in the case of Kashiram s/o Rajaram Kathane vs. Bhartiya R.B. Damle Gram Sudhar Tatha Shikshan Prasar Society, through its Secretary and others reported in 1997 (4) Bom.CR 398 . It is submitted that there are serious charges against the petitioner and the Tribunal has set aside the termination order on technical ground that enquiry was not conducted before terminating the services of the petitioner and, in these circumstances, the directions given by the Tribunal by Clause (3) of the operative part of the order passed by it, cannot be faulted with. The claim of the petitioner for arrears of salary is opposed by the respondent Nos.1 and 2 and it is submitted that same will have to be considered by the enquiry committee. The claim of the petitioner for arrears of salary is opposed by the respondent Nos.1 and 2 and it is submitted that same will have to be considered by the enquiry committee. To support this submission, reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of State of Punjab vs. Harbhajan Singh Greasy reported in 1996 (9) SCC 322 and the judgment given by the Full Bench of Calcutta High Court in the case of Md. Harul Al Rasid vs. Union of India and others reported in AIR 2015 CL 49. It is further submitted that after the order is passed by the School Tribunal, the petitioner has not reported at the school and therefore, the communications were issued by the respondent Nos.1 and 2 calling upon the petitioner to report at the school and the petitioner, in response has sent the communication dated 17-04-2014 informing the Head Master of the school that she has challenged the order passed by the School Tribunal by filing writ petition. It is submitted that the petitioner has not reported at school till date. It is prayed that considering the facts of the case and the conduct of the petitioner, the petition be dismissed with costs. 6. To counter the submissions made on behalf of the respondent Nos.1 and 2 on the point that the petitioner is not entitled for the arrears of salary and that the question will have to be considered by the enquiry committee, the learned Advocate for the petitioner has submitted that the judgments relied upon on behalf of the respondent Nos.1 and 2 considered the issue of entitlement of the employer to keep the employee under suspension and conduct enquiry and to consider the claim of arrears of salary at the culmination of the enquiry, in the situation where the employer had conducted an enquiry at the first instance and the Court found that the enquiry conducted by the employer was defective because of some technical reasons and then permitted the employer to conduct fresh enquiry. It is submitted that in the present case though the petitioner was working as confirmed and approved Teacher and the rules required the respondent Nos.1 and 2 to conduct an enquiry if they intended to take any disciplinary action against the petitioner, the respondent Nos.1 and 2 terminated the services of the petitioner without enquiry and in these facts the judgments relied upon on behalf of the respondent Nos. 1 and 2 will not apply. The learned Advocate for the petitioner has relied on the judgment given by the Full Bench of this Court in the case of Saindranath s/o Jagannath Jawanjal vs. Pratibha Shikshan Sanstha and another reported in 2007(3) Mh.L.J. 753, to urge that the petitioner is entitled for the arrears of salary once the Tribunal has found that the termination order is unsustainable. The learned Advocate has referred to paragraph No.63 of the above judgment and has argued that freehand given to the employer under Industrial and Labour Legislations to lead evidence to prove misconduct in the case of “no enquiry or defective enquiry” cannot be recognized in toto while considering such cases arising under the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the “Act of 1977”) and the Rules of 1981. 7. After considering the submissions made by the learned Advocates for the respective parties, I find that the directions given by the Tribunal to the respondent Nos.1 and 2 to proceed with the enquiry from the stage of charge by placing the petitioner under suspension, are unsustainable. It is the prerogative of the management whether to conduct enquiry or not. The Tribunal which is constituted under the Act of 1977 can neither restrain the management from exercising its right to conduct the enquiry nor can it direct the management to conduct an enquiry if the management does not intend to conduct the enquiry. The Tribunal, after considering the facts of the case and the submissions made by the respondent Nos.1 and 2 in the application on which the impugned order is passed, should have set aside the termination order and should have left it open to the management to take decision whether it wanted to conduct an enquiry against the petitioner or not. 8. 8. I further find that the submission made on behalf of the petitioner that she is entitled for the arrears of salary, is required to be accepted in part. The submissions made on behalf of the respondent Nos.1 and 2 relying on the judgments referred earlier that the petitioner is not entitled for arrears of salary and this issue will have to be considered by the enquiry committee, cannot be accepted. As recorded earlier, the judgments uphold this legal position in cases where the termination of the employee was effected after conducting enquiry and the termination order was set aside on the ground that the enquiry was defective. In the present case, there is blatant violation of the provisions of Section 4(6) of the Act of 1977 and Rule 33 of the Rules of 1981. It is admitted that the petitioner had been working as a confirmed and approved Teacher, therefore, the services of the petitioner could not have been terminated without enquiry. Though the respondent Nos.1 and 2 tried to substantiate their action contending that the continuance of the petitioner in the school was not in the interest of the school, the respondent Nos.1 and 2 have not been able to show that a conscious decision was taken by the management that the enquiry should not be conducted against the petitioner and if enquiry is conducted against the petitioner, it will cause serious prejudice to somebody connected with the school. In the above facts, the petitioner cannot be denied the arrears of salary as there is no fault on her part and the termination order was issued without complying with the mandate of law. Therefore, the petitioner will be entitled for arrears of salary from the date of termination i.e. 05-07-2010. However, the petitioner has not reported at school after the order is passed by the School Tribunal and she informed the Head Master of the school by the communication dated 17-04-2014 that she has challenged the order passed by the School Tribunal. The submission on behalf of the respondent Nos.1 and 2 is that inspite of the communications sent by them, the petitioner has not attended the school. In these facts, in my view, the petitioner is entitled for salary till the order of School Tribunal i.e. till 19-03-2014 and the petitioner is not entitled for arrears of salary since 20-03-2014. The submission on behalf of the respondent Nos.1 and 2 is that inspite of the communications sent by them, the petitioner has not attended the school. In these facts, in my view, the petitioner is entitled for salary till the order of School Tribunal i.e. till 19-03-2014 and the petitioner is not entitled for arrears of salary since 20-03-2014. The issue about the entitlement of the petitioner for the arrears of salary from 20-03-2014 till she is reinstated as per this judgment, will have to be considered by the appropriate authority in appropriate proceedings at appropriate stage and it is kept open to be considered accordingly. 9. The learned Advocate for the petitioner, on instructions, has stated that the petitioner will report at the school within a week. The petitioner will be entitled for her emoluments from the date on which she reports at the school. As the management is at liberty to conduct enquiry against the petitioner, the management can take decision whether the petitioner should be kept under suspension and the decision should be taken according to the provisions of the Rules of 1981. Looking to the nature of litigation, there is reason to believe that there may be a dispute whether the petitioner has reported or whether the respondent Nos. 1 and 2 have not permitted the petitioner to join duties even though she had reported. If such contingency arises, the complaint may be made by the concerned party to the Education Officer and he shall enquire in the matter. 10. In view of the findings; the following order is passed : (i) Clause (3) of the operative part of the order passed by the School Tribunal on 19-03-2014 is set aside. (ii) The petitioner shall report at the school within one week and the respondent Nos.1 and 2 shall reinstate the petitioner according to the order passed by the School Tribunal. (iii) The respondent Nos.1 and 2 are at liberty to take decision whether enquiry is to be conducted against the petitioner. The respondent Nos.1 and 2 are at liberty to take decision whether the petitioner should be kept under suspension if enquiry is to be conducted against her. However, such decision should be taken according to the rules. (iv) The respondent No.1 shall pay arrears of salary of the petitioner from 05-07-2010 till 19-03-2014. The amount shall be paid to the petitioner within two months. However, such decision should be taken according to the rules. (iv) The respondent No.1 shall pay arrears of salary of the petitioner from 05-07-2010 till 19-03-2014. The amount shall be paid to the petitioner within two months. If the amount is not paid to the petitioner with two months, the respondent No.1 will be liable to pay interest at 9% per annum on the amount, the interest being chargeable from 20-3-2014 till the amount is paid to the petitioner. The petition is allowed in the above terms. In the circumstances, the parties to bear their own costs.