JUDGMENT
R.M.S. Khandeparkar, J.
1. Heard. Admit. By consent heard forthwith.
2. The appellant challenges the order dated 5-8-2005 passed by the learned Single Judge in W.P. No. 1090 of 2005 and the order passed by the School Tribunal, Nagpur on 30-11-2004 in Appeal STN No. 17 of 2001.
3. By the impugned order passed by the learned Single Judge, the writ petition filed by the appellant against the said order of the School Tribunal has been dismissed on the ground that the appellant had failed to disclose sufficient cause for delay in approaching the School Tribunal, The School Tribunal on its part has also dismissed the application for condonation of delay on two grounds firstly that the appellant and his counsel were absent, and secondly, that the appellant had approached the School Tribunal beyond the period of 30 days without disclosing sufficient cause for the delay.
4. The facts which are not in dispute are that the appellant, whose services were terminated by the respondents 1 to 3 on 19-8-1991, approached the Conciliation Officer and the dispute sought to be raised in the matter was referred to the Labour Court, which proceedings came to be disposed of by the said Court on 12-2-2001, whereby the claim of the appellant was dismissed on the ground of lack of jurisdiction. Thereafter on 18-4-2001 the appellant filed Appeal before the School Tribunal and as there was a delay of 36 days in filing the Appeal, the appellant prayed for condonation of said delay in filing the appeal. However, when the said application came up for hearing neither the appellant nor his advocate remained present and order came to be passed on 30-11-2004 by the School Tribunal dismissing the said application for condonation of delay.
5. Plain reading of the impugned order passed by the learned Single Judge discloses that the petition has been dismissed solely on the ground that the appellant failed to show cause as to why the appellant did not file the Appeal within the period of limitation before the School Tribunal, after the delivery of the order dated 12-2-2001 by the Labour Court. The order passed by the School Tribunal, on the other hand, discloses that the application for condonation of delay was dismissed on two grounds – firstly that the absence of the appellant and his advocate discloses lack of interest on account of lapse of long period since the termination of the services of the appellant, and secondly, that the appellant had failed to satisfy the Tribunal about the sufficient cause for not preferring the appeal within the stipulated period.
6. Undisputedly, the appeal was filed before the School Tribunal in terms of Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter called as the Act). Sub-section (2) thereof requires such appeal to be filed within thirty days from the order of dismissal. Sub-section (3), however, provides that notwithstanding anything contained in Sub-section (2) the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within that period.
7. Section 10(1) of the said Act provides that for the purposes of admission, hearing and disposal of appeals. The Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908. Bearing in mind the provisions of Order 41, Rule 11 read with Section 141 of the Code of Civil Procedure, it is therefore, apparent that jn cases, where neither the appellant nor his advocate appears before the School Tribunal when the Appeal or any proceedings therein is fixed for hearing the Tribunal is empowered to dismiss the appeal or the proceedings for default but cannot proceed to deal with the merits of the case, either in the appeal or in the application filed therein. In the case in hand, on the date of the hearing of the application for condonation of delay, neither the appellant nor his advocate was present.
8. Though the School Tribunal recorded the absence of the appellant and his advocate on the date of hearing of the application, yet it proceeded further to dispose of the application on merits on the ground that the appellant had failed to disclose sufficient cause for not filing the appeal within the stipulated period of limitation and further recorded that the absence of the appellant and the advocate disclosed lack of interest in the matter. Apparently, such an order cannot be construed to be an order dismissing the application for default. It is undoubtedly an order on merits of the case relating in the claim for condonation of delay.
9. Once it is apparent that considering the provisions of Section 10 read with the other provisions of Code of Civil Procedure, the Tribunal had no jurisdiction to deal with the matter on merits. It could not have disposed of the application on merits in spite of the fact that the appellant and his advocate were absent on the relevant day. The learned Single Judge having totally ignored this aspect and having decided the petition on merits, both the orders are liable to be set aside and the matter needs to be remanded to the School Tribunal to deal with the application for condonation of delay in accordance with the provisions of law.
10. In the result, the appeal is allowed and the impugned orders passed by the learned Single Judge and the School Tribunal are hereby quashed and set aside and the matter is remanded to the School Tribunal for deciding afresh the application for condonation of delay in accordance with the provisions of law after hearing the parties. There shall be no order as to costs. The appeal stands disposed of accordingly.