Rule. Rule returnable forthwith. Heard finally with the consent of learned counsel for rival parties.

2. In the instant petition, there is a challenge to the judgment and order dated 28.9.2011 passed in Appeal No.STN/44/2010 by the Presiding Officer, School Tribunal, Nagpur, by which the Tribunal set aside the order dated 9.8.2010 terminating the services of respondent no.1. It further directed to reinstate the petitioner with continuity of service and back wages.

3. In support of writ petition, assailing the judgment and order rendered by the Tribunal, Mr.Pardhi, learned counsel for the petitioner, argued that termination of services of petitioner had taken place after holding a regular enquiry, as contemplated by Maharashtra Employees of Private Schools (conditions of service) Rules 1981. The appellant/ management had filed written statement/reply to the memo of appeal filed by respondent no.1 before the School Tribunal and had taken a specific stand at the end of the said reply that in case the Tribunal finds the enquiry held to be not fair and proper, the management be permitted to hold de novo trial for proving the charges levelled against respondent no.1. However, according to Mr.Pardhi, said request was turned down by the Tribunal, which is wholly unsustainable and when the Tribunal itself found that the enquiry was not fair and proper, the only way left open was to hold enquiry de novo. The reason for asking such permission was that the Tribunal held that the member of the Inquiry Committee, Shri Varhade, who was the State Awardee teacher, was found to have acted in contravention of principles of natural justice, by putting leading questions to the witnesses and bringing answers hostile to respondent no.1 deliberately on record. But there is no finding recorded by the Tribunal that it was at the behest of the petitioner/management. Thus, according to Mr.Pardhi, there was justification for permitting de novo trial. The Tribunal went on recording finding on merits of the charges in contravention of its own findings that the entire recording of evidence was vitiated because of the conduct of the State Awardee teacher and, therefore, the Tribunal committed fallacy of thought in answering on the merits of the enquiry rather than ordering de novo enquiry. He, therefore, prayed for permission to hold enquiry. Mr. Pardhi has shown readiness on behalf of his client to pay subsistence allowance during the period of enquiry but he submits that subsistence allowance cannot be paid from the date of termination, i.e. 9.8.2010 and is ready to pay the same from the date of order of School Tribunal, i.e. 28.9.2011.

4. Per contra, Mr.Jibhkate, learned counsel for respondent no.1/employee justified the impugned order and argued that the employee had hardly been on duty at the place of transfer for 15 days and she was victimized. The victimization was in order to get rid of her services from the college. According to him, it cannot be believed that within a period of 15 days a lecturer upon transfer would start committing misconduct after misconduct, as alleged, and for which her services were terminated. According to Mr.Jibhkate, the Tribunal has gone through the materials available on record in the enquiry. Looking to the nature of charges levelled against the employee and considering service of 15 days, the Tribunal found the action of the management to be mala fide. Thus on merits also the Tribunal found in favour of employee and that is a finding of fact which cannot be interfered with in the extra ordinary writ jurisdiction by this Court. Mr.Jibhkate then argued that there is no fallacy of thought, as argued by Mr.Pardhi, because the Tribunal is entitled to find whether the charges were really proved in the enquiry or not, and whether or not the enquiry was fair and proper. In the alternative, Mr.Jibhkate submitted if this Court allows the management to hold de novo enquiry then the same should not be relegated to the manag