Shri Guru Buddhiswami ... vs Naresh Vishnu Kotarwar And Others
2016 Latest Caselaw 4730 Bom

                                         1




                                                                          
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                  
                           WRIT PETITION NO.10149 OF 2013

    1.     Shri Guru Buddhiswami Mahavidyalaya,
           Purna (Jn.) Tq.Purna, Dist.Parbhani,




                                                 
           Through its Secretary,
           Amarutraj Bhujangrao Kadam,
           Age-24 years, Occu-Secretary,
           R/o Shivaji Nagar, Near Mahadev




                                       
           Temple, Purna, Dist.Parbhani,

    2.     Shri Guru Buddhiswami Mahavidyalaya,
                              
           Purna (Jn.) Tq.Purna, Dist.Parbhani,
           Through its Principla,
           Dr.Ramrao Nagoba Gangasagare,
                             
           Age-57 years, Occu-Service,
           R/o Shri Guru Buddhiswami
           Mahavidyalaya, Purna, Tq. Purna,
           Dist.Parbhani                             - PETITIONERS
      


           VERSUS
   



    1.     Naresh S/o Vishnu Kotarwar,
           Age-51 years, Occu-Teacher,
           R/o Baba Nagar, Nanded,
           Tq. And Dist. Nanded,





    2.     District Vocational Education and
           Training Centre, Parbhani,
           Dist.Parbhani,





    3.     Deputy Director of Vocational
           Education and Training Regional Office,
           Aurangabad, Dist.Aurangabad,

    4.     Rajesh S/o Gangabhishan Baheti,
           Age-45 years, Occu-Service,
           R/o Mahavir Nagar, Purna, 
           Tq.Purna, Dist.Parbhani                         -  RESPONDENTS 

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Mr.U.B.Bilolikar, Advocate for the petitioners. Mr.P.N.Kutti, AGP for the respondent/State.

Mr.S.S.Bora, Advocate for respondent No.4. Mr.R.B.Narwade, Advocate for respondent No.1.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 19/08/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioner/Management is aggrieved by the judgment and

order dated 06/12/2013 delivered by the School Tribunal, Latur by

which Appeal No.1/2013 filed by respondent No.1 herein has been

partly allowed and the acceptance of his voluntary retirement

application dated 07/07/2005 by the petitioner/Management has

been held to be illegal and therefore set aside.

3. For the sake of brevity, the petitioner employer is referred to as

the Management, respondent No.1 original appellant is referred to as

the employee and respondent No.4 who is the newly appointed

person is referred to as respondent No.4 in this judgment

4. Respondent No.1 / employee has been granted reinstatement

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with continuity of service without back wages. A further direction is

given by the Tribunal that if its judgment is not complied with, non

salary grants of the Management would be withheld by respondent

Nos. 2 and 3 herein.

4. Learned Advocate for the petitioners submits as under :-

[a] Respondent No.1/employee had joined services with the

petitioner/Management as an "Instructor" on 24/08/1993 in the Marketing and Salesmanship subject.

[b] He was confirmed in employment on 15/06/1996 [c] On 16/02/2005, the Principal of the College received a communication from the Branch Manager of the State Bank of India, Purna Branch, stating therein that the employee has

obtained a personal loan on the undertaking given by the

Management and that the monthly installments are not being regularly deposited with the Bank.

[d] The Management, therefore, issued a letter dated 03/03/2005

to the employee calling upon him to explain about his conduct of affixing the signature of the Principal on the concerned form and as to why disciplinary action should not be initiated against him.

[e] On 07/03/2005, the employee submitted his explanation contending that his father was suffering from a heart ailment and as such, since he could not get the signature of the Principal on his loan application form, he affixed the signature of the Principal so as to rescue his father from the heart ailment and provide for his medical assistance.

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[f] The Management decided to conduct a preliminary enquiry and as such a Committee was formed so as to conduct a

preliminary investigation.

[g] The meeting of such Committee was posted on 01/05/2005 and the employee was present in the said meeting.

[h] In the preliminary enquiry, the employee was asked whether he had affixed the signature of the Principal and obtained loan of Rs.1,00,000/-. He answered in the affirmative.

[i] He also admitted that he had prepared a stamp of the Principal

and the College by getting it manufactured at Nanded and had used the said stamp.

[j] In the proceedings held on 04/05/2005, the Enquiry

Committee concluded that it appeared prima facie that the employee had committed a serious misconduct. [k] On 07/07/2005, the employee tendered his resignation in his

own handwriting and mentioned that his resignation may be

accepted as being effective from 07/07/2005 itself. [l] The employee was served with a letter dated 07/07/2005 informing him that his request for accepting the resignation

from the same date, has been accepted and he stands relieved. [m] The Management applied to the appropriate authority for filling in the said post from the Open Category as per the roaster. [n] By communication dated 01/12/2006, respondent No.3

permitted the Management to fill in the post from the Open Category after considering the reservation roaster. [o] Respondent No.4 herein has been therefore appointed in place of the respondent No.1/employee.

[p] By communication dated 06/05/2007, the employee paid his one month wages for an amount of Rs.10,613/- so as to

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complete the formality.

[q] By communication dated 11/07/2007, respondent No.3

authority sanctioned the interim payment of Rs.1,09,152/- towards the Provident Fund benefits for being paid to the employee.

[r] The said amount has been handed over to respondent No.1/ employee and he has received the same.

[s] The employee preferred WP No.2249/2009 before the learned

Division Bench of this Court.

[t] By order dated 11/07/2011, the petition was dismissed as withdrawn as the employee preferred to approach the appropriate forum.

[u] In 2013, the employee preferred Appeal No.1/2013. [v] The School Tribunal condoned the delay.

[w] The petitioner preferred WP No.807/2013 for challenging the

condonation of delay.

[x] By order dated 20/01/2014, the petition was disposed of by this Court considering that the School Tribunal had already delivered the impugned judgment on 06/12/2013 thereby

partly allowing the appeal of the employee.

[y] Respondent No.4 herein has preferred CA No.7912/2015 in WP No.807/2013 praying for recalling of the order dated 20/01/2014 and for hearing WP No.807/2013 on its merits.

[z] The impugned judgment of the School Tribunal is perverse and erroneous as it has concluded that because Rule 66 of the Maharashtra Civil Services (Pension) Rules has not been complied with and since the employee had not completed 20 years of service so as to be entitled for voluntary retirement, his resignation cannot be accepted.

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5. Mr.Narwade, learned Advocate appearing on behalf of

respondent No.1/employee, who is the original appellant before the

School Tribunal, submits as under :-

[a] He has not voluntarily submitted his resignation dated

07/07/2005.

[b] He had lodged a police complaint on 03/08/2005 seeking police protection and contending that the Management was

likely to register a false case against him.

[c]

He has put in only 12 years in service and has no reason to resign since he could continue in service till his superannuation.

[d] All the signatures appearing on the documents relied upon by the Management were obtained on blank papers. [e] The Tribunal has rightly concluded that his application cannot

be treated as a voluntary retirement application.

[f] It is rightly concluded that Rule 66 entitles an employee to resign after completing 20 years of qualifying service and therefore his resignation was not legal and was illegally

accepted.

[g] The notice period of 3 months was not waived by the employee and his resignation could not be accepted immediately. [h] The employee has tendered the voluntary retirement

application under pressure and therefore has lodged a complaint on 06/01/2006 with the Management making a request for reporting for duties.

[i] The employee belongs to ST category and the post occupied by him was reserved for ST category and hence respondent No.4 could not have been appointed in his place.

khs/AUGUST 2016/10149-d

[j] He again made an application on 10/09/2008 praying for reinstatement since he would not get any retiral benefits as he

had not completed 20 years of qualifying service. [k] The delay in the matter was rightly explained before the Tribunal and hence the delay was condoned.

[l] The Management has specifically stated in its written statement that his application was for voluntary retirement and after it was accepted, there was no reason to respond to his

further applications praying for reinstatement.

[m] He had also filed an application dated 05/10/2005 under U.C.P. to the Management contending that he should be reinstated in service.

[n] An affidavit in reply has been filed by the employee and the contentions set out herein have been reiterated. The employee relies upon the said affidavit in reply in support of his case and

submits that the impugned judgment delivered by the School

Tribunal is fair and proper and calls for no interferance.

6. The learned AGP appearing on behalf of respondent Nos. 2 and

3 submits that the dispute is between the Management and

respondent No.1/employee.

7. Mr.Bora, learned Advocate appearing on behalf of respondent

No.4 has adopted the submissions of the petitioner and submits that

he was legally appointed as an "Instructor" in the said Institution.

After respondent No.1 initiated the litigation belatedly, the petitioner/

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management has asked for the undertaking from respondent No.4

that his continuance would be subject to the result of the litigation

between the Management and the respondent No.1/employee.

8. I have considered the submissions of the learned Advocates

and have gone through the record available and the petition paper

book with their assistance.

9. The entire issue turns upon the purported act of forgery

committed by the employee and the subsequent resignation said to

have been submitted by him.

10. The employee has stated that his signatures appearing on all

documents on which the Management has placed reliance, were

obtained on blank papers and were misused so as to cause prejudice

to the employee. There is no contention that there was animosity or

strained relations or enmity in between the Management and the

employee.

11. In order to test this bold statement made by the employee, I

have considered the memo of the appeal preferred by the employee

before the School Tribunal. Though the memo of the appeal runs

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into 7 pages, I did not find a single statement made by the employee

that several documents have been created by the Management or that

his signatures have been obtained on blank papers so as to be

misused. The employee is unable to state as to when did the

Management obtain his signatures on blank papers. It is noteworthy

that the employee has been peacefully working from 24/08/1993

with the Management and was confirmed in service on 15/06/1996.

12. In this backdrop, I am of the view that the employee has taken

the stand of signatures purportedly obtained on blank papers only to

mislead this Court. Had that been the case, it was expected that the

employee would have promptly lodged some complaint either with the

Management or respondent Nos. 2 and 3 making his grievance that

his signatures were obtained on blank papers. Even in the memo of

the appeal, this has not been the case of the employee and hence, it

appears that for the first time, the employee has created this story in

paragraph No.7 in the affidavit in reply filed in this court apparently

to mislead the Court. Judicial note of this conduct of the employee

deserves to be taken keeping in view the judgment of the Hon'ble

Supreme Court in the matter of Dalip Singh Vs. State of U.P. (2010) 2

SCC 114 and in the matter of Kishore Samrite Vs. State of UP and

others, (2013) 2 SCC 398.

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13. Notwithstanding the above, the employee has not disputed that

he had obtained loan from the State Bank of India by submitting a

declaration form bearing the signature of the Principal. Though

Mr.Narwade has tried to canvass that he had only submitted the

form to the office of the Principal and is not aware as to who signed

on the same, this contention can be rejected outright owing to the

fact that he submitted an explanation on 07/03/2005 to the

Principal admitting that he had affixed the signature of the Principal

since he wanted to obtain loan desperately in order to be utilized for

the medical treatment of his father.

14. So also, the employee has not disputed in his memo of the

appeal that a preliminary enquiry was conducted and his statement

was recorded on 01/05/2005 wherein he has given certain

admissions and has signed on the said questions and answers

recorded. It is tried to be canvassed that he was not in a proper

frame of mind when he faced the preliminary enquiry and the same

suffers from non-observance of the principles of natural justice. I am

not convinced by the said submissions for the reason that it was

purely a preliminary enquiry and cannot be said to be a regular

enquiry as is understood in law and especially under Rule 36 and 37

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of the MEPS Rules, 1981.

15. In the backdrop of the above facts, the issue of resignation of

the employee needs to be considered. It cannot be ruled out that the

employee may have decided to resign from his service so as to avoid

an unceremonious removal from service since the Management had

decided that they would initiate disciplinary action against the

employee for the act of forgery said to have been committed by him.

Neither in the memo of the appeal nor in any earlier

communications, does the employee state that the resignation is not

in his own handwriting. It appears from the said resignation dated

07/07/2005 that the employee has declared that he does not desire

to continue in service and his resignation be accepted from

07/07/2005. He has in fact stated that it should be presumed that

he has quit his job from 07/07/2005.

16. Rule 66 which has been relied upon by the employee and the

School Tribunal which reads as under :-

"66. Retirement of completion of 20 years qualifying service. (1) At any time after a Government servant completed twenty years qualifying service, he may, by giving notice of [ .........] three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retirement given under sub-rule (1) shall

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require acceptance by the appointing authority : Provided that where the appointing authority does not refuse to

grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.

[(3)..................] (4) (a) [A Government servant referred to in sub-rule (1) may make a] request in writing to the appointing authority to

accept notice of voluntary retirement of less than three

months giving reasons therefor;

(b) On receipt of a request under clause (a), the appointing

authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that

the curtailment of the period of notice will no cause any

administrative inconvenience, the appointing authority, with the concurrence of the Finance Department, may relax the requirement of notice of three months on the

condition that the Government Servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.

(5) A Government servant, who has elected to retire under this rule

and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority : Provided that the request for withdrawal shall be made before the intended date of his retirement.

(6) The pension and [retirement gratuity] of the Government servant

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retiring under this rule shall be based on the pay as defined under rules 60 and 61 and the increase not exceeding five years

in his qualifying service shall not entitle him to any notional fixation of pay for purpose of calculating pension and gratuity. (7) This rule shall not apply to a Government servant who -

           (a)      retires when he is declared surplus,
           (b)      retires from Government service for being absorbed 

permanently in an Autonomous Body or a Public Sector

Undertaking to which he is on deputation at the time of

seeking voluntary retirement.

17. It is apparent that Rule 66 pertains to retirement of an

employee on completion of 20 years qualifying service. The rule is

self explanatory that a Government employee, who has completed 20

years of qualifying service, may give a 3 months notice seeking

voluntary retirement.

18. I find from the record available that the confusion has been

created by the use of the term voluntary retirement. This confusion

has percolated upto the School Tribunal as is evident from the

impugned judgment. The School Tribunal has concluded that since

the Management has stated in the written statement that the

application of the employee was for voluntary retirement and since he

had not completed 20 years of qualifying service and as 3 months

notice period was not given, the retirement was unsustainable.

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19. I find the said conclusion to be perverse and erroneous for

reasons more than one. Firstly, because the resignation of the

employee could have been entertained under Rule 66, had he

completed 20 years of qualifying service. If the said period of service

was not completed, notwithstanding whether it was a voluntary

retirement application or was not, the said application would not

fetch the employee the retiral benefits since he had not completed 20

years of service.

20. In the above backdrop, the said voluntary resignation will have

to be construed to be a simple resignation since it is not the case of

the employee in that application that if he is not entitled for

voluntary retirement, his resignation would stand withdrawn.

21. Secondly, the contention of the employee can be rejected since

the resignation indicates that he wanted to quit his service forthwith.

It is the employee who has to give a notice period to the employer for

resigning or else agree to pay the amount equivalent to the salary for

3 months period. If the employee has given the notice for resigning,

the employer could not have accepted the resignation forthwith

unless the employee agreed for waiving of the notice period. In the

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instant case, considering the backdrop of the alleged misconduct

committed by the employee, it appears that he desired to quit his job

forthwith before the Management could initiate disciplinary

proceedings against him since the Management could not initiate

such proceedings after he had quit his employment. It appears that

this element of urgency may have prompted the employee to resign

forthwith so as to avoid a stigmatic and unceremonious removal from

service.

22. It is settled law that in case of forceful resignation, attending

circumstances are of paramount importance since they would be

indicators of factors like duress or force or coercion.

23. Though the employee has relied upon his police complaint

dated 03/08/2005, the said police complaint is with regard to a

possibility of the Management filing false police cases against the

employee on the basis of false allegations. The said complaint is

signed by the employee as well as his wife. However, the first

application seeking reemployment and declaring that he is not

aggreable for resigning from employment, is dated 06/01/2006. By

the said application, the employee approached the Management for

the first time stating that he is without any earnings and he is willing

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to report for duties and his application for reinstatement may be

considered sympathetically.

24. Though he submits that the resignation was accepted forcibly,

it cannot be ignored that the employee did not approach the School

Tribunal u/s 9 of the MEPS Act, 1977 for alleging forceful resignation

amounting to illegal termination from service. He has approached

this Court by filing a writ petition in 2009 after 4 years and which

was heard on 11/07/2011. Same was dismissed as being withdrawn

by giving the employee the liberty to approach the School Tribunal.

Despite the same, the employee has approached the School Tribunal

in December 2012 when the appeal was lodged after one year and 5

months from the date of the dismissal of his writ petition.

25. It also cannot be ignored that on 06/05/2007, the employee

submitted an application to the Management seeking liberty to

deposit one month's wages of Rs.10,613/- so as to pay for the notice

period. The amount has also been deposited. As an after thought,

the employee now contends that every document cited by the

Management bearing his signature, is a document created on a blank

paper on which his signatures were obtained. Considering the above,

I do not find that the said contention can be said to be truthful. So

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also, an amount of Rs.1,09,152/- was paid as an advance amount

towards the Provident Fund accumulations of the employee which he

has accepted. This is reflected from the statutory document of

respondent No.3 dated 11/07/2011. There is no denial that this

amount was not delivered to the employee.

26. In the above backdrop, it is apparent that the employee has

been taking shifting stands. Once he complains on 06/01/2006 that

the resignation is accepted forcefully. Thereafter he deposits one

month's wages on 06/05/2007. Thereafter, he receives his PF

accumulations and it is only in 2009 that he lodges his writ petition

with this Court. These attending factors, therefore, disprove the

theory of forceful resignation. These factors have been totally ignored

by the School Tribunal while delivering the impugned judgment.

27. The Hon'ble Supreme court in the matter of Gyanendra Sahay

Vs. Tata Iron and Steel Co. Ltd., [(2006) 5 SCC 759], while dealing

with suspicion and exertion of pressure for obtaining a resignation,

has concluded in paragraph No.14 as under :-

"14. We have also perused the memo of appeal and other representation made by the appellant. The appellant has made a vague allegation that he was forced to take retirement. Neither has he made it specific nor had given the name of any officer who compelled

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him to write the letter dated 1-4-1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary

retirement. Though the Labour Court has come to the conclusion that the appellant was compelled to submit the letter of resignation, the same is not supported by any acceptable evidence. It is settled law

that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written a letter of

voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was

compelled to submit his premature/voluntary retirement. The appeal has absolutely no merits and we, therefore, have no hesitation to

dismiss the same and to affirm the order passed by the learned Judges of the Division Bench of the High Court. No order as to costs."

28. Similarly, it cannot be ignored that the employee was informed

about the acceptance of his resignation. Had he really not resigned

from employment, he would have taken urgent steps for raising a

grievance about his being relieved from service and would have

litigated for his reinstatement.

29. In the light of the above, the impugned judgment delivered by

the School Tribunal, which has completely lost sight of the above

factors, is rendered perverse. This petition is, therefore, allowed. The

impugned judgment is quashed and set aside and Appeal No.1/2013

stands dismissed. Rule is made absolute in the above terms.

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30. Since this petition itself has been decided, I find no reason to

entertain the Civil Application No.7912/2015 filed by respondent No.4

herein seeking recalling of the order dated 20/01/2014, by which WP

No.807/2013 was disposed of by this Court. Civil application,

therefore, is disposed of.

                                  ig                      ( RAVINDRA V. GHUGE, J.)
                                
      
   






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