Bombay High Court Dismisses Petition Challenging School Tribunal's Dismissal of Appeal as Barred by Order XXIII Rule 1 CPC — Termination of Headmaster Upheld Due to Withdrawal of Earlier Appeals Without Liberty to File Fresh Appeal. The court held that the third appeal on the same cause of action was barred under Order XXIII Rule 1 of the Code of Civil Procedure, 1908, despite the termination being illegal under the MEPS Act.

Writ petition challenging the dismissal of an appeal by the School Tribunal under Section 9 of the MEPS Act, which was dismissed as barred under Order XXIII Rule 1 CPC.

The petitioner sought to quash the School Tribunal's order dated 24th March 2009 dismissing his appeal and to direct reinstatement as headmaster with full back wages and continuity of service.

The petitioner's third appeal challenging his termination was dismissed by the School Tribunal on the ground that it was barred under Order XXIII Rule 1 CPC, as he had withdrawn two earlier appeals on the same cause of action without liberty to file a fresh appeal.

The School Tribunal initially allowed the appeal on 29th November 2008, but the High Court remanded the matter on 9th February 2009 for fresh consideration. After remand, the Tribunal dismissed the appeal on 24th March 2009.

Whether the third appeal filed by the petitioner was barred under Order XXIII Rule 1 CPC. Whether the petitioner was a permanent employee and his termination was illegal. Whether the petitioner was entitled to reinstatement despite the bar under Order XXIII Rule 1 CPC.

Petitioner argued that the subject matters of the earlier two appeals were different, and the third appeal was on a different cause of action, thus not barred. Petitioner contended that the Tribunal had earlier held the termination illegal and that the bar under Order XXIII Rule 1 CPC should not apply. Management argued that the petitioner had withdrawn the earlier appeals without liberty to file a fresh appeal, and the third appeal was on the same cause of action, hence barred.

A third appeal on the same cause of action is barred under Order XXIII Rule 1 CPC if the earlier appeals were withdrawn without permission to file a fresh appeal. The cause of action in all three appeals was the termination order dated 6th October 2001, and the petitioner did not obtain liberty to file a fresh appeal upon withdrawal.

The School Tribunal held that though the petitioner had filed two earlier appeals, only because he had withdrawn the same, it cannot be said that the third appeal against the order of termination dated 6th October 2001 was on the same cause of action. This court, by order dated 9th February 2009, set aside the said order by holding that there was no clarity as to whether the petitioner was working as an assistant teacher on 9th October 2001 when he was allegedly orally removed w.e.f. 6th October 2001. The points for determination framed after remand are as under; ... 1. Whether the appeal is barred under order 23 Rule 1 of the Code of Civil Procedure? ... Yes

The petitioner was terminated on 6th October 2001. He filed Appeal No. 99 of 2001 challenging reduction in rank, and later Appeal No. 10 of 2002 challenging oral termination. He withdrew both and filed a third appeal on 22nd June 2004 with a delay condonation application. The delay was condoned on 6th February 2006, and the appeal was numbered as Appeal No. 4 of 2006. The Tribunal allowed the appeal on 29th November 2008. The management filed Writ Petition No. 1318 of 2009, which was partly allowed on 9th February 2009, remanding the matter. After remand, the Tribunal dismissed the appeal on 24th March 2009. The petitioner then filed the present writ petition.

• The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977: Section 9
• Code of Civil Procedure, 1908: Order XXIII Rule 1
• Limitation Act, 1963: Section 5