1 wp811.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 811 OF 2008
1) Hindi Prasarak Mandal,
Yavatmal, Godhni Road, Yavatmal,
Tahsil and District Yavatmal,
through its Secretary Kirti s/o
Dhanraj Gandhi.
2) The Head Master,
Anglo Hindi High School and
Junior College, Yavatmal. .... PETITIONERS
VERSUS
1) Ambikaprasad s/o Bindeshwariprasad
Shukla, Aged about 69 years,
R/o Tarpura Weekly Market, Yavatmal,
Tahsil and District Yavatmal.
2) The Education Officer (Secondary),
Zilla Parishad, Yavatmal, Tahsil and
District Yavatmal.
3) The School Tribunal,
Amravati Division, Amravati. .... RESPONDENTS
______________________________________________________________
Shri R.M. Bhangde, Advocate for the petitioners,
Shri P.P. Thakre, Advocate h/f. Shri Anand Parchure, Advocate for the
respondent No.1,
Ms. S.Z. Haider, A.G.P. for the respondent Nos.2 and 3.
______________________________________________________________
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2 wp811.08
CORAM : Z.A. HAQ, J.
DATED : 6 APRIL, 2017.
th ORAL JUDGMENT :
Heard Shri R.M. Bhangde, Advocate for the petitioners, Shri P.P. Thakre, Advocate holding for Shri Anand Parchure, Advocate for the respondent No.1 and Ms. S.Z. Haider, Assistant Government Pleader for the respondent Nos.2 and 3.
2. The petitioners/management have challenged the order passed by the School Tribunal by which the appeal filed by the respondent No.1/employee is allowed, otherwise termination of the respondent No.1 from the post of Head Master is set aside and the management is directed to reinstate the employee with consequential benefits including back wages.
3. According to the management, the respondent No.1 who was working as Head Master of the school had given a notice of voluntary retirement on 25-05-1995, the retirement was to be effective from 25-08-1995, that the request of the respondent No.1 for voluntary retirement was considered in the meeting of the executive body of the Trust on 16-07-1995 and was accepted, that the ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 3 wp811.08 respondent No.1 handed over the charge of the post of Head Master to Shri R.M. Khare on 25-08-1995 and the respondent No.1 was relieved. According to the management, the respondent No.1 was member of the executive body of the public Trust and attended the meeting of the executive body held on 16-07-1995 in which the application of the respondent No.1 for voluntary retirement was accepted. According to the petitioners, the minutes of the meeting of 16-07-1995 were approved in the meeting of the executive body held on 16-09-1995 and in this meeting also the respondent No.1 was present and was a seconder to the proposal regarding acceptance/approval of the minutes of meeting dated 16-07-1995. The Advocate for the petitioners has submitted that overlooking all these facts the Tribunal has allowed the appeal filed by the respondent No.1 on the erroneous consideration that the provisions of Section 7 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the "Act of 1977") and Rule 40 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as the "Rules of 1981") were not complied.
It is further submitted on behalf of the petitioners that the respondent No.1 was not in employment since 26-08-1995, however, ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 4 wp811.08 the appeal was filed on 18-10-1995 and there is no proper explanation for the delay in filing the appeal. The petitioners contend that the respondent No.1 made a false claim before the Tribunal that he was in employment till 31-08-1995 and was not permitted to sign the attendance register from 01-09-1995. It is argued that even if the contention of the respondent No.1 that he is not in employment from 01-09-1995 is to be considered, there is no explanation for not filing the appeal within thirty days and the explanation given in the application seeking condonation of delay is not substantiated. It is prayed that the petition be allowed, the impugned order passed by the Tribunal be set aside and the appeal filed by the respondent No.1 be dismissed.
4. According to the respondent No.1, the claim of the management regarding the submission of notice of voluntary retirement by the respondent No.1, is false. It is the case of the respondent No.1 that all the documents pertaining to the voluntary retirement were prepared in the office of an Advocate on 24-08-1995 and this has been proved by the respondent No.1 by producing sufficient evidence on record. According to the respondent No.1, as the notice of voluntary retirement is not given as per the mandatory ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 5 wp811.08 provisions of Section 7 of the Act of 1977 and Rule 40 of the Rules of 1981, the same cannot be relied upon to remove the respondent No.1 from service. It is submitted that the Tribunal has rightly appreciated the evidence on record and the findings recorded by the Tribunal are proper and do not require any interference by this Court in the extra- ordinary jurisdiction. It is prayed that the petition be dismissed.
5. After hearing the learned Advocates appearing for the respective parties and examining the documents placed on the record of the petition, I find that the respondent No.1 is not disputing that he signed the notice of voluntary retirement. Though the respondent No.1 disputes that the notice of voluntary retirement is not given on 25-05-1995, but was prepared in the office of the Advocate on 24-08-1995, as it is admitted by the respondent No.1 that he signed the notice of voluntary retirement on 24-08-1995, in my view, the contention of the respondent No.1 regarding compliance of Rule 40 of the Rules of 1981 loses its significance. The respondent No.1 is not disputing that he voluntarily handed over the charge of the post of Head Master of the school to Shri R.M. Khare on 25-08-1995. The respondent No.1 is not disputing that he was present in the meeting of the executive body held on 16-07-1995 and in which meeting notice of ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 6 wp811.08 voluntary retirement given by the respondent No.1 came to accepted. The respondent No.1 is not disputing that he was seconder to the proposal regarding acceptance of minutes of meeting of 16-07-1995 in the meeting of the executive body held on 16-09-1995. There is nothing on record to show that immediately after 24-08-1995 or 25-08-1995 the respondent No.1 requested the management to permit him to resume/perform the duties.
6. According to the respondent No.1, there was a dispute with the management regarding collection of donation by the management and the management had asked the respondent No.1 to opt for voluntary retirement and the management had assured to pay the salary of the respondent No.1 for the period from the date of voluntary retirement till he attained the age of superannuation. The facts on record show that the respondent No.1 started agitating only because according to the respondent No.1, the management retracted from its assurance of paying the amount of salary till the date of his superannuation.
7. In the above facts, in my view, the Tribunal has committed an error in concluding that the notice of retirement given by the ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 7 wp811.08 respondent No.1 is illegal. Rule 40 of the Rules of 1981 does not make the notice of voluntary retirement illegal or invalid only because the management has not insisted for payment of three months salary as argued on behalf of the respondent No.1. Sub-rule (2) of Rule 40 of the Rules of 1981 lays down that if any management allows an employee to leave service earlier either without due notice or without making payment in lieu of notice specified in Sub-rule (1) of Rule 40 of the Rules of 1981, a proportionate amount of pay in lieu of notice has to be deducted from the grant due to the school concerned. Similarly, in the facts of the case, it cannot be said that the notice of voluntary retirement is illegal or invalid for non-compliance of Section 7 of the Act of 1977. The respondent No.1 has not disputed his signature on the notice of voluntary retirement. The case of the respondent No.1 is that he wanted to withdraw the notice of voluntary retirement as the management failed to comply with the assurance of paying the amount of salary of the respondent No.1 from the date of voluntary retirement till the respondent No.1 attained the age of superannuation.
It is undisputed that the respondent No.1 is receiving the pension regularly.
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8 wp811.08 In my view, the findings recorded by the Tribunal are not sustainable.
8. Hence, the following order :
(i) The impugned order is set aside.
(ii) The appeal filed by the respondent No.1 is dismissed.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs. Civil Application No.934/2011.
The respondent No.1 has sought directions against the petitioners/management to forward the claim of the respondent No.1 regarding leave encashment in respect of 240 days to the competent authority/Education Officer. The petitioner No.2/Head Master is directed to forward the case of the respondent No.1 regarding leave encashment, with all the necessary compliances to the respondent No.2-Education Officer till 05-06-2017. The petitioner No.2 shall send the papers after due verification and scrutiny, without any defect.
The respondent No.2-Education Officer shall take decision in the matter within one month from the date of receipt of the papers. If required the Education Officer shall issue notice to the Head Master ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 ::: 9 wp811.08 and the respondent No.1 before taking decision in the matter.
The civil application is allowed in the above terms.
JUDGE adgokar ::: Uploaded on - 18/04/2017 ::: Downloaded on - 27/08/2017 22:15:45 :::