A. P. DESHPANDE, J.

( 1 ) THE learned Single Judge of this Court, justice A B Naik, disagreeing with the view expressed by another learned single Judge of this Court in the case of Bal Shikshan Mandal, Sangamner and another vs Poonam Rameshwar Joshi and another reported in 2002 (4) Mh L J 848, has made a reference and hence, the matter is placed before this Division bench.

( 2 ) IN the case of bal Shikshan Mandal, the school management had dismissed the employee and aggrieved thereby, he had filed an appeal before the school Tribunal, Solapur under section 9 of the Maharashtra Employees of private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the n. E. P. S. Act for the sake of brevity ). The School Tribunal allowed the appeal on the ground that the employee was not granted reasonable opportunity of being heard in the inquiry proceedings and further recorded a finding that the inquiry stood vitiated having not been conducted in conformity with the procedure laid down under Rules 36 and 37 of the Maharashtra employees Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the m. E. P. S. Rules for the sake of brevity, ).

( 3 ) IN a writ petition filed before the learned Single Judge, the school management had contended that the Tribunal failed to afford an opportunity to the management to lead further evidence despite the fact that the Tribunal had found that the inquiry was vitiated. The learned Single Judge placing reliance on a judgment rendered by a learned single Judge in Pralhadrai, Dalmia Lions college of Commerce and Economics, Bombay and others vs. A. M. Rangaparia and others reported in 1988 Mh. LJ. 530 allowed the writ petition and remanded the matter to the School Tribunal with a direction to afford proper opportunity to the school management to produce further evidence in the matter. The learned single Judge held that:-"once enquiry is held to have been vitiated, obviously, the management should get further opportunity to produce evidence to prove the charges levelled against the delinquent. This is the broad principle of law which has been followed by the learned Single Judge of this Court in A. M. Rangapariyas case (supra ). "from the observations made in para. 6 of the judgment, it is revealed that no such alternative plea was taken by the school management in its written statement reserving a right to lead further evidence in the matter, in case the inquiry was to be held as vitiated for non-compliance of principles of natural justice. Despite the failure on the part of the school management to take an alternative plea reserving the right to lead further evidence in case the inquiry is held to be in violation of principles of natural justice, the learned single Judge also recorded a finding that such a failure cannot be a justification to deny fair opportunity to the management to prove its case. Justice A. B. Naik disagreeing with the said view has, in his reference order, held that having regard to the provisions of section 10 and 11 of the m. E. P. S. Act, no such right to lead evidence/additional evidence before the school tribunal can be read in favour of the management/employer. The learned judge has further proceeded to conclude that in view of the specific provisions contained in the M. E. P. S. Act, the ratio laid down in the judgment reported in 1988 Mh. LJ. 530, (Rangaparias case cited supra) which is followed by the learned single Judge in 2002 (4) Mh. LJ. 848 (Bal Shikshan Mandals case cited supra) cannot be applied to the proceedings under the M. E. P. S. Act.

( 4 ) RIGHT to lead evidence/additional evidence by the employer before the labour Court or the Industrial Tribunal in proceedings under section 10 or in proceedings under section 33 of the Industrial Disputes Act, when approval to an action is sought by the employer, has been evolved by a catena of judgments of the Apex Court. The learned counsel for the management tried to