JUDGMENT :

Heard.

2. Rule. The Rule is made returnable forthwith. Learned Advocate Mr. P.S. Shendurnikar waives for respondent Nos.1 to 3 and learned A.G.P. Mr. K.B. Jadhavar waives service for respondent Nos.4 and 5. At the request of the parties, the matter is heard finally at the stage of admission.

3. The petitioner is taking exception to the order passed by the School Tribunal thereby rejecting his application for condonation of delay in preferring an appeal under Section 9(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (‘MEPS Act’, for short), challenging the order of his termination passed by respondent No.1 Education Society dated 04.08.2016.

4. Mr. L.V. Sangeet, learned Advocate for the petitioner, on the line of his stand in the application for condonation of delay, submits that the Management issued a notice to him on 17.08.2015, calling upon him to show cause as to why a disciplinary proceeding be not initiated against him. He chose to challenge such action by filing Regular Civil Suit No.104 of 2016 in the civil court. In the meantime, the Management proceeded to conduct the disciplinary enquiry and simultaneously raised an objection in the suit regarding its maintainability on the ground of jurisdiction. By the order dated 04.08.2016, pursuant to the disciplinary enquiry, the Management terminated his service. Simultaneously, the civil court rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure by the order dated 02.08.2017. The petitioner was bona fide pursuing a remedy in the form of the civil suit and therefore, did not challenge the order of termination promptly and waited for the civil court to decide the issue regarding maintainability of the suit. This had resulted in his failing to prefer the appeal under Section 9 of the MEPS Act within the statutory period of 30 days. Soon after the plaint was rejected, he chose to prefer the appeal on 31.08.2017. Though the limitation started running from the date order of termination was passed i.e. 04.08.2016 and there was a delay of almost a year, there were no mala fides on his part and the delay ought to have been condoned considering the provisions of Section 14 of the Limitation Act, 1963. The learned Advocate would submit that there were no circumstances to indicate any mala fides on his part. He was not to gain anything by not preferring the appeal. He is an employee, who has been illegally terminated and the justice could have been met by granting him an opportunity to file the appeal. No prejudice was likely to be caused to the Management if the appeal was allowed to be decided on its merits.

5. Per contra, Mr. P.S. Shendurnikar, learned Advocate for the contesting respondents, referring to the affidavit-in-reply, would submit that there is no question of invoking the provision of Section 14 of the Limitation Act. All the while, the petitioner was alive to the fact that the disciplinary enquiry was going on and even had the knowledge of his termination. Still, he had chosen not to file the appeal in time and pursued a wrong remedy even while objection to the jurisdiction of the civil court was alive. He would submit that in order to invoke the provision of Section 14 of the Limitation Act, it is necessary that the remedy that is resorted to incorrectly and the remedy that is available to a party should be the same. Before the civil court the petitioner was challenging the vires of the show cause notice whereas he is expected to pursue a remedy of an appeal under Section 9 of the MEPS Act for challenging his termination. The two remedies were not identical and therefore, he is not entitled to invoke the provision of Section 14 of the Limitation Act.

6. On facts, Mr. Shendurnikar would submit that during his cross-examination in the suit, the petitioner specifically admitted that he had participated in the disciplinary enquiry and was even having the knowledge about having been terminated pursuant