Bombay High Court
Bahujan Vikas Mandal vs Ku. Manda Vithalrao Parsutkar on 22 December, 2010
Bench: Ravi K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5790/2007
1. Bahujan Vikas Mandal, Akola,
through its president.
2. Kranti Jyoti Marathi Prathmik Shala,
through its Head Master, Akola. PETITIONER
...VERSUS...
1. Ku. Manda Vithalrao Parsutkar,
Kranti Jyoti Marathi Prathmik Shala,
Akola.
2. The Education Officer (Primary)
Zilla Parishad, Akola. RESPONDENTS
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Mrs. Mugdha Chandurkar, Advocate, holding on behalf of Shri
Anand Parchure, Advocate, for Petitioner.
Shri A.M.Ghare, Advocate for Respondent No.1
Shri D.M.Kale, AGP, for Respondent No. 2.
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CORAM: R. K. DESHPANDE, J.
rd
JUDGMENT RESERVED ON : 3 DECEMBER, 2010.
JUDGMENT PRONOUNCED ON : 22nd DECEMBER, 2010
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JUDGMENT
1] This writ petition challenges the judgment
and order dated 20.11.2007 passed by the learned
Presiding Officer, School Tribunal, Amravati, allowing
Appeal No. 63/2002, filed by Respondent No.1 and
setting aside resolution passed by the petitioners on
29.10.2002, accepting the resignation alleged to have
tendered by the Respondent No.1, on 30.7.2002, which
is considered to be the otherwise termination of the
service. The order of reinstatement and backwages has
also been passed and this is the subject matter of
challenge in this petition preferred by the Management.
2] The facts leading to the case are as under -
The respondent no.1 was appointed as an
Assistant Teacher on 3.7.1995. She was appointed as
incharge head-mistress from 1.7.1996 to 31.7.2002. The
case of the Management was that the respondent no.1
had tendered her resignation on 30.7.2002, which was
received by the Management on 1.8.2002. The
Management by its resolution dated 29.10.2002,
accepted the said resignation and it was communicated
to the petitioner on 30.10.2002. The case of the
respondent no.1 was that she never resigned from the
post and the Management had prepared false resignation
to terminate her services. Hence, she filed an appeal No.
63/2002 before the School Tribunal under Section 9 of
the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 ( in short
"the M.E.P.S. Act") to challenge the alleged acceptance
of resignation on 29.10.2002, treating it to be an
otherwise termination from service.
3] In memo of appeal, two specific grounds
were raised, (i) that the respondent no.1 has never given
three months' calender notice in the name of the
petitioner-Management and (ii) that she never
forwarded a copy of any resignation letter by registered
post in the name of the petitioner-Management. The
stand of the Management was that the respondent no.1
had tendered her resignation out of her free will, by
giving three months' notice in advance dated 30.7.2002,
which was to take effect from 30.10.2002. During this
period of three months, the respondent no.1 never
expressed her intention to withdraw the said resignation.
The acceptance was duly communicated to the
respondent no.1 and hence the respondent no. 1 cannot
now make hue and cry of the same. The respondent
no.1 filed an affidavit before the School Tribunal stating
that the notice dated 30.7.2003 of resignation was fully
prepared by the President of the Management, who was
joined as respondent no. 4 in the memo of appeal and it
was a fraudulent imitation and also that the President
had counterfeited her signature.
4] The tribunal recorded the finding that the
respondent no.1 was a permanent employee and her
services were terminated without holding an enquiry.
The tribunal considered the question as to whether the
impugned notice of resignation dated 30.7.2002, given
by the respondent no.1, was voluntary or was a
manipulated document, prepared by the President of the
Management. The tribunal noted that the notice of
resignation is dated 30.7.2002, whereas the
Management, by letter dated 31.7.2002, discharged the
respondent no.1 from the post of incharge headmistress.
The respondent no.1 was removed from the post of
incharge headmistress w.e.f. 1.8.2002. The finding of
the Tribunal is that, when the Management was knowing
that the resignation was given on 30.7.2002, there was
no question of Management passing an order on the next
date i.e. on 31.7.2002 removing the respondent no.1,
from the post of incharge headmistress w.e.f. 1.8.2002.
This is the one circumstance taken into consideration by
the tribunal.
5] The second circumstance taken into
consideration by the tribunal is that the respondent no.1
had given letter dated 31.7.2002 to the Deputy Director
of Education, alleging that though she was working as
incharge headmistress from 1.7.1996, she was not given
regular appointment of headmistress by the
Management. It was alleged in the said letter that the
President had put all the orders of approval of the
employees in the school with him and therefore, it was
impossible for the respondent no.1 to prepare the pay
bills and hence the employees did not receive the salary
from the period from 1.7.1998 to 31.7.2002. If it was
the intention of the respondent no.1 to resign from the
post on 30.7.2002, then she would not have written
such letter on 31.7.2002 to the Deputy Director of
Education.
6]
The third instance taken into consideration
by the tribunal was that the respondent no.1 had given
letter dated 24.8.2002 to the Education Department
making various allegations against the Management and
particularly against the President Shri B.D.Jadhav and
this is not disputed by the management. If the
respondent no.1 had an intention to resign from the post
on 30.7.2002, then the question of making any such
complaint on 24.8.2002, did not arise.
7] The fourth circumstance taken into
consideration by the tribunal is that on the complaint of
the respondent no. 1 dated 17.8.2002, the Education
Officer issued a letter dated 11.10.2002 to the President
of the Management asking him to decide the complaint
made in the application and to submit the proposal for
promotion to the respondent no.1 on the post of regular
headmistress. The Management did not deny that such
communication was received from the Education
Department. According to the tribunal, admittedly the
President of the Management has neither responded to
such communication nor complied with the direction. If
the respondent no.1 had to resign from the service as per
notice dated 30.7.2002, then, according to the tribunal,
the President would have communicated or responded to
the communication dated 11.10.2002, issued by the
Education Department. However, no such reply was
given and hence the resignation dated 30.7.2002 cannot
be believed.
8] In the background of the aforesaid facts and
circumstances taken into consideration by the School
Tribunal, the questions which are required to be
considered are, (i) whether the respondent no. 1-
employee tendered the resignation on 30.7.2002 and (ii)
whether the said resignation was voluntary, complying
with the provisions of Section 7 of the M.E.P.S. Act. The
parties have relied upon the following judgments.
(i) 2004 (1) Bom C.R. 421; Ballaleshwar Shikshan
Mandal and another vrs. Jaywant Bhaguji
Gadekar and others
(ii) 2004 (5) Bom. C.R. 772; Barshi Education
Society vrs. Ashok Ganesh Kulkarni and others;
(iii) 2008 (6) Mh.L.J. 529, Shri Sant Sawtamali
Shikshan Prasarak Mandal, Tembhurni vrs.
State of Maharashtra and others.
9] In the first judgment in case of Jaywant
Bhaguji Gadekar (cited supra), the provision of Section 7
of the M.E.P.S. Act is considered. It has been held that
once an employee signs a letter expressing his intention
to resign and voluntary submits a copy thereof to the
Management, such an act would be substantially in
compliance of Section 7 of the said Act. It was further
held that merely because a copy of letter has not been
forwarded by registered post, cannot make the
resignation void. It has further been held that the mode
of dispatch would be relevant in cases where the
employee disputes the execution of document. On facts,
it was found that the letter of resignation submitted
expressing an intention to resign, the date was put
thereon and it was duly signed by an employee. The
letter was made over directly to the Management. The
employee was held to be non-permanent and neither the
execution nor the delivery of the said letter was
disputed. The appeal filed by the employee was
dismissed by setting aside the judgment and order
passed by the tribunal granting reinstatement and
backwages.
10] In the second judgment delivered in Barshi
Education Society's case, cited supra, it was held that
under Section 7 of the M.E.P.S. Act, the resignation has
to be a written resignation, duly signed and dated by the
employee. The oral resignation was held to be
impermissible. The requirement of forwarding of
resignation by registered post though was not held to be
mandatory, it was held that it is intended to ensure that
the employee is not subjected to the action of coercion or
duress, which may operate if an employee is called in
person, required to sign a letter of resignation and hand
it over to the Management in person. It was held that
where an employee has submitted the resignation not by
registered post but otherwise, a greater degree of
circumspection is required on the part of the Tribunal.
When it is alleged that the resignation was not voluntary,
all the relevant circumstances must be taken into
consideration, to find out whether the resignation was
voluntary. It was held that the mode of service may in a
conceivable case have a bearing on the question as to
whether the resignation is truly voluntary. On facts, it
was held that the tribunal had not decided on merits as
to whether the first respondent therein has been able to
establish his case that the resignation which he tendered
from the post of headmaster was not voluntary. The
matter was settled before the Court.
11] In the third judgment delivered by this Court
in Sant Sawtamali Shikshan Prasarak Mandal's case (cited
supra), it was held after quoting Section 7 of the said
Act that the statute provides that the Management
cannot take undue advantage by compelling a teacher to
give resignation either by force or by giving any type of
inducement. There is safeguard provided in the Act and
with an object to see that in a given case, the
Management may not pressurize the teacher to give
resignation and as to whether in a given case, the so
called resignation is misused by the Management. It was
further held that in a given case, Court on considering
the evidence on record may come to the conclusion that
if the resignation is not sent by registered post, that itself
may not be treated as a conclusive proof, for coming to
the conclusion that such resignation is not valid. It was
held in the light of the facts of that case and in the light
of the evidence on record that the employee had never
tendered resignation on his own volition and that it was
not voluntary resignation at all.
12] In none of the aforesaid judgments, the
question whether, the process of drawing up of
resignation in duplicate, signing both the copies and
putting of date therein, contemplated by Section 7 of the
M.E.P.S. Act, should mandatorily be in the handwriting
of an employee intending to resign from his post, has
been considered. In order to consider this question
Section 7 of the said Act will have to be seen and the
same is, therefore, reproduced below.
7. Procedure for resignation by employees
of private schools.
If any employee intends to resign his
post in any private school, at any time after the
appointed ate, he shall draw up a letter of
resignation in duplicate and sign both the
copies of that letter and put the date thereon.
He may then forward one copy to the
Management by registered post and keep the
other copy with him.
In terms of Section 7 reproduced above, an intention to
tender resignation has to be made clear by,
(i) drawing up a letter of resignation in duplicate;
(ii) signing both the copies of that letter; and
(iii) putting the date thereon.
The further requirement is of forwarding one copy of it
to the Management by registered post and keeping the
other copy by an employee, intending to tender his
resignation.
13] "To resign" means an act by which an
employee voluntarily gives up his job. It is the voluntary
cessation of relationship of employer and employee or
master and servant, by an employee. Section 7,
reproduced above, prescribes the process by which an
employee should express his intention to resign from the
post and therefore, the expression of such intention has
to be in the manner prescribed. The first step in the
process is, "to draw up a letter of resignation in
duplicate". "To draw up" is a phrasal verb and it means
"to prepare", "to compose", "to write out paper", as
given in Oxford Thesaurus. The Advanced Law of
Lexicon, by Shri Justice Y.V.Chandrachud, defines it as,
"to write in due form". It defines "drawing up" means
"drafting in due form", "writing out". The Oxford
Dictionary defines, "drawing", as a "picture or diagram
made with pencil or pen". Black's Law Dictionary
defines the verb "draw" as "to create and sign" (a draft).
Thus, the phrasal verb "draw up" used in Section 7
above, connotes the process of handwriting as against
the process of typing or printing. The object of Section 7
is to express an intention to voluntarily resign from the
post, and such an intention can be made clear by
preparing, composing, creating or writing out such
letter of resignation by an employee in his own
handwriting. To hold that such a letter of resignation
can be typed written or printed, would defeat or
frustrate the very object of Section 7 of the said Act.
The use of word "shall" preceding the phrasal verb
"draw up" in Section 7, indicates the process of
preparing a letter of resignation in his own handwriting,
to be mandatory.
14] There is one more reason as to why the
requirement to draw a letter of resignation should be
construed to be in the handwriting of the employee
concerned intending to resign from the post. A judicial
notice can be taken of several cases coming before this
Court, complaining that at the time of appointment
itself, the Management got a blank paper signed by an
employee, which is used to type out or print out a letter
of resignation, which the employee never intended to
give. Such a typed or printed letter of resignation is
posted from the place of address of the employee
concerned, by registered post or by ordinary post to the
place of address of the Management and this is the
circuitous way adopted to get rid of the services of
employees, who have rendered service for several years.
There is, normally, no reason for an employee who is
confirmed in the service to tender any such resignation
unless he has secured better employment elsewhere or
has engaged himself in any other business or occupation
or has become physically or mentally unfit to carry out
such duties. There may be several such reasons. Be that
as it may, such an eventuality can be avoided, if it is
shown that the letter of resignation is handwritten, it
bears the signature of an employee and the employee
has consciously given it to the employer, knowing full
well its consequences. Normally, it would not be
believable that an employee preparing letter of
resignation in his own handwriting, would tender it to
any person of Management to dispatch it, either by
ordinary post or by registered post. The possibility would
be that the employee concern has himself posted it or
has himself tendered it personally, to the Management. If
the letter of resignation is in the handwriting of the
concerned employee, then unless the employee pleads
and proves that he has written and signed the letter of
resignation under coercion, duress or pressure from any
of the member of the Management, it will not be possible
to believe that the resignation tendered was not
voluntary.
15] The next requirement of Section 7 in the
process of resignation, is to sign both the copies of letter
of resignation. Obviously, the signature has to be of an
employee intending to resign the post. Hence, the
employee has to put signature on the letter of
resignation in his own handwriting. Consequently,
putting the date on the letter of resignation has also to
be in the handwriting by an employee intending to
resign the post. Both these requirements of signing the
letter of resignation and putting the date thereon, are
the part of one sentence and preceded by a phrase "draw
up a letter of resignation in duplicate", which is held to
be mandatory. Hence, the requirement of putting
signature and the date on the letter of resignation by an
employee in his own handwriting, has also to be held as
mandatory. In the circumstances, no one would imagine
that the date to be put on the resignation, which is in the
handwriting of an employee, would be typed or printed.
16] Coming to the last requirement of forwarding
one copy of letter of resignation to the Management by
registered post and keeping the other copy with him by
an employee, it has been held, as pointed out earlier, in
Balaleshwar Shikshan Mandal's case, that merely because
a copy of the letter of resignation has not been
forwarded by registered post, cannot make the
resignation void. It was in the background of the fact
that the employee neither disputed the execution of the
document nor the delivery thereof to the Management.
It was held that the mode of dispatch would be relevant
in cases where the employee disputes the execution of
document. In another judgment delivered in Barshi
Education Society's case, though it has been held that
Section 7 uses the expression that the employee may
forward one copy of the letter of resignation to the
Management by registered post, it is held that the
requirement is intended to ensure that the employee is
not subjected to any kind of coercion or duress which
may operate, if an employee is called in person, required
to sign a letter of resignation and hand it over the
Management in person. It has been held that when the
question as to whether the resignation was or was not
voluntary is raised, all relevant circumstances must be
considered by giving due importance to the fact that
sending of resignation by registered post shows that it is
truly voluntary. In the third judgment in Sant Sawtamali
Shikshan Prasarak Mandal's case, it has been held that
requirement of sending resignation by registered post, is
a safeguard provided to an employee, against the
management taking undue advantage of compelling a
teacher to give resignation either by force or by giving
any type of inducement. In view of this, it has to be held
that the requirements of Section 7 of the said Act will
have to be seen in its totality, to find out whether
resignation tendered is voluntary or not.
17] Keeping in view the aforesaid position of law,
the facts of the present case will have to be looked into.
It is not in dispute that the original notice of resignation
was produced on record of the tribunal and the same is
produced here also. It is typed written. It was a three
months' notice of resignation. The date of 30.7.2002 put
thereon, is also typed written. The Management claims
that it bears the signature of the respondent no.1 -
employee, whereas the respondent-employee disputes it.
Below the signature, the rubber stamp of the
Headmistress of Kranti Jyoti Marathi Prathmik Shala,
Akola, where the respondent-employee was working, is
affixed. The letter is addressed to the President, Bahujan
Vikas Mandal, Akola (Management) and it has to take
effect from 30.10.2002. It states that because of some
domestic problems, it is not possible for the respondent
no.1 - employee to work on the post of an Assistant
Teacher and hence three months' notice of resignation
was given. It is further stated in the letter of resignation
that respondent no.1 - employee should be discharged
from the post. It further states that the resignation is not
being given under pressure from any one, but it is on her
free will and it should be accepted. The petitioners have
produced on record the envelop which bears postal
stamp dated 30.7.2002 and according to the
Management, the resignation was received in this
envelop by ordinary post on 1.8.2002. The respondent
no.1 - employee has, however, denied to have sent any
such resignation either by ordinary post or by registered
post.
18] It is thus clear from the aforesaid factual
position that the letter of resignation dated 30.7.2002 is
not in the handwriting of the respondent no.1 -
employee. The date put thereon is also not handwritten.
The respondent no.1 - employee has disputed the
signature appearing thereon. Thus, execution of such
letter is disputed. The letter of resignation has not been
received by the registered post, but the Management
claims to have received it by an ordinary post. The
respondent no.1 - employee has disputed to have
forwarded such a letter of resignation to the
Management. Thus, there is no assurance that the
respondent No.1-employee has drawn a letter of
resignation and that the resignation produced was
voluntary in the sense that the Management hs not used
the blank paper signed by the employee, to type out a
letter of resignation. There is no assurance that the
employee was subjected to any kind of pressure or
coercion or that the management has not taken undue
advantage of compelling teacher to give resignation.
Thus, there is total non compliance of requirements of
Section 7 of the said Act, which makes the resignation
involuntary and void-ab-initio.
19] Sub-rule 3 of Rule 40 states that an employee
entitled to vacation shall not give notice of resignation
during the vacation or so as to cover any part of the
vacation. It further states that the notice of resignation
shall not be given within one month after the beginning
of the first time of the order. The tribunal has recorded a
finding that there was Diwali vacation in the school upto
18.11.2002 and the services of the respondent were
brought to an end w.e.f. 30.10.2002 i.e. during the
period of vacation. The respondent no.1 has lodged the
police complaint on 18.11.2002 to the Police Station and
on 25.11.2002 to the Education Officer and the Director
and Deputy Director of Education. If the respondent
no1. really intended to resign from the post, she would
not have sent the resignation during the period of
vacation, which is the prohibition contemplated by sub-
rule 3 of Rule 40. If the notice of resignation is given in
breach of prohibition under sub-rule 3 of Rule 40, then
that would make resignation as invalid.
20]
The tribunal has, after taking into
consideration several circumstances, as pointed out
earlier, recorded a finding of fact that the resignation
dated 30.7.2002 was not voluntary and its acceptance by
resolution dated 29.10.2002 was invalid. In view of the
facts that there is total non-compliance of Section 7 of
the said Act coupled with the circumstances taken into
consideration by the tribunal, it has to be held that the
acceptance of resignation by the Management amounted
to otherwise termination from services, the same has,
therefore, been rightly quashed and set aside by the
tribunal.
21] In view of above, there is no substance in this
petition. The same is, therefore, dismissed with no
orders as to costs.
JUDGE
Rvjalit
