Bombay High Court
Jagannath Lbhivsen Mistry vs Satpuda Shikshan Kprasarak ... on 5 July, 2016
Bench: P.R. Bora
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WRIT PETITION.4806.1997.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 4806 OF 1997
Shri. Jagannath s/o Bhivsan Mistry,
Age : Major, Occu: Service,
R/o. Gajanan housing Society,
Plot No.12, Deopur, Dhule.
Dist : Dhule. ... PETITIONER
V E R S U S
10 Satpuda Shikshan Prasarak Mandal,
Vidyawadi, Dhule, through its
President (Founder).
2) Secretary, Satpuda Shikshan
Prasarak Mandal, Vidyawadi,
Deopur, Dhule.
3) Head Master,
Ashram Shala, Nagaon Hill,
Vidya wadi, Dhule.
4) District Social Wlfare Officer,
'Sahyyadri' Anandnagar, Deopur,
Dhule. ... RESPONDENTS
...
Mr. R. J. Godbole, Advocate for Petitioner.
Mr. S. P. Brahme, Advocate for Respondent No.1 to 3.
Mr. P. G. Borude, AGP for Respondent / State.
...
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WRIT PETITION.4806.1997.odt
CORAM : P. R. BORA, J.
Reserved on : 09th June, 2016.
Pronounced on : 5th July, 2016.
JUDGMENT:
. The Petitioner has filed the present writ petition against
the judgment and order dated 19th February, 1997, passed by the
School Tribunal, Nasik in Appeal No.51 of 1995. The Petitioner had
preferred the aforesaid appeal under Section 9 of the Maharashtra
Employees of Private Schools Act, 1997 (hereinafter referred to as
"MEPS Act") challenging the order passed by the Respondent No.3
whereby the School Management had relieved the Petitioner from
services on the ground that the Petitioner had resigned his post
voluntarily.
2 It is the case of the Petitioner that an undated resignation
letter was obtained by the Management from him under coercion. It is
the further contention of the Petitioner that the said undated
resignation letter was misused by the Management by putting the date
on the said resignation letter as 1st March, 1995 and accepting the
said resignation in the meeting alleged to be held on 29th May, 1995.
WRIT PETITION.4806.1997.odt
It is the further contention of the Petitioner that on 31st May, 1995, he
became aware of the fact that his undated resignation letter obtained
by the Management, has been misused by the Management and that
on the basis of the said resignation letter, his services have been put
to an end with effect from 31st May, 1995. It is the further contention
of the Petitioner that the moment he became aware that he has been
wrongfully relieved from the services by misusing the undated
resignation letter obtained from him by the Management, on the same
day he lodged protest with the Management and also with the
authorities in the Education Office. It is the further contention of the
Petitioner that since the Management did not consider his request, he
was constrained to approach the School Tribunal challenging his
removal from services on the basis of alleged letter of resignation. It
is the further contention of the Petitioner that the learned School
Tribunal without considering the objections raised by him and though
he had not admitted the fact that the resignation letter was obtained
by the Management on 1st March, 1995, incorrectly recorded that the
Petitioner had accepted said fact and proceeded to hold that the
resignation was voluntarily submitted by the Petitioner. The Petitioner
has, therefore, prayed for setting aside the order passed by the
WRIT PETITION.4806.1997.odt
School Tribunal and consequently to direct the Respondents to
reinstatement him with continuity of service and back-wages.
3 Shri R. J. Godbole, learned counsel for the Petitioner
submitted that the Tribunal has failed in properly appreciating the
facts involved in the instant case as well as the relevant legal
provisions contained in the MEPS Act and Rules. The learned
counsel submitted that throughout it was the contention of the
Petitioner that the undated resignation letter was obtained by the
Management from him some time in the year 1988-89 and that the
date appearing on the alleged letter of resignation as 1st March, 1995,
was not put by the Petitioner and was not in his handwriting, but was
written by somebody else at the instance of the Management. The
learned counsel further submitted that the School Tribunal has
wrongly recorded that the Appellant had admitted that the alleged
letter of resignation was obtained from the Petitioner on 1 st March,
1995 and that since he did not raise any dispute till the said
resignation was accepted and as a result of which the Petitioner was
relieved from the services, the Petitioner has no right to claim that the
resignation so tendered was not voluntary.
WRIT PETITION.4806.1997.odt
4 The learned counsel further submitted that the
instantaneous complaints so lodged by the Petitioner with the
Management as well as with the Social Welfare Officer and the
Education Officer, sufficiently indicate that the resignation alleged to
have been tendered by the Petitioner was not voluntary. The learned
counsel submitted that when the Petitioner had raised objection that
the alleged letter of resignation was not tendered by him, it was
incumbent on the part of the School Tribunal to examine whether the
requirement of Section 7 of the MEPS Act has been complied with or
not. The learned counsel submitted that without properly considering
the import of the provisions of Section 7 of the MEPS Act and Rule 40
of the MEPS Rules, the School Tribunal has recorded a finding that
the Petitioner had voluntarily resigned from the services of the
Respondents.
5 Relying on the judgment of this Court in the case of
Bahujan Vikas Mandal, Akola and another Vs. Nanda Vithalrao
Parsutkar and another, reported in, [ 2011 (2) Mh.L.J. 203 ], the
learned counsel submitted that if the notice of resignation is given in
breach of prohibition under sub-rule (3) of Rule 40 and if it is not as
per the requirement of Section 7 of the MEPS Act, the resignation
WRIT PETITION.4806.1997.odt
cannot be said to be valid. The learned counsel, therefore, prayed for
setting aside the order passed by the School Tribunal and
consequently prayed for direction of reinstatement of the Petitioner
with continuity of services with full back-wages.
6 The learned counsel brought to my notice that on 13 th
May, 2016, the Petitioner has tendered an affidavit in the present
matter wherein the Petitioner had made it clear that he does not claim
any back-wages from the date of his termination till the date of his
superannuation and that he is only claiming continuity of service and
retiral benefits, which would include provident fund, gratuity and
pension. The learned counsel submitted that since in the meanwhile
the Petitioner had attained the age of superannuation, he has
submitted the aforesaid proposal and he still stand with the proposal.
7 Shri Brahme, learned counsel for Respondent Nos.1 to 3
opposed the submission advanced on behalf of the Petitioner. The
learned counsel submitted that the School Tribunal has considered
each and every aspect of the matter and all the objections raised by
the Petitioner and has turned down the said objections with reasons.
The learned counsel submitted that no interference is required in the
WRIT PETITION.4806.1997.odt
impugned judgment. Relying upon the judgment of this Court in the
case of Atul Nathuram Naiknawade Vs. Secretary Bhagiratibai
Late High School, Obad and others, reported in [ 2015 (6) Mh.L.J.
258 ], submitted that once an employee signs the letter expressing his
intention to resign and voluntarily submits a copy thereof to the
Management, that would be substantial compliance of Section 7 of the
MEPS Act. The learned counsel submitted that the School Tribunal
after having assessed the evidence before it has rightly rejected the
appeal filed by the Petitioner and no interference is required in the
judgment and order so passed. The learned counsel, therefore,
prayed for dismissal of the petition.
8 I have carefully considered the submissions advanced by
the learned counsel for the respective parties. I have perused the
impugned judgment and other material placed on record by the
Petitioner as well as the Respondents. The entire controversy in the
present matter revolves around the letter dated 1st March, 1995
alleged to be a letter of resignation allegedly submitted on the said
date by the present Petitioner with the Management. As has been
noted hereinabove, it is the specific contention of the Petitioner that
an undated resignation letter was obtained from him by the
WRIT PETITION.4806.1997.odt
Management some time in the year 1988-89 and that the date
appearing in the so-called resignation letter as 1st March, 1995 was
not written by him, but by somebody else at the instance of the
Management. The contention so raised by the Petitioner instance has
not been accepted by the School Tribunal. According to the
observations made by the Tribunal in para 8 of its judgment, no much
weightage can be attached to the fact that the resignation letter was
not forwarded by the Petitioner to the Management by registered post
in view of the fact that receipt of said letter has not been disputed by
the Management. The observations so made by the Tribunal are
apparently unacceptable. It shows that the import of the provisions so
made under Section 7 of the MEPS Act is either not properly
understood by the learned Tribunal or the Tribunal has misconstrued
the said provisions. The learned Single Judge of this Court in the
case of Bahujan Vikas Mandal, Akola and another Vs. Nanda
Vithalrao Parsutkar and another (supra) has observed that the
requirement of forwarding the resignation by registered post is
intended to ensure that the employee is not subjected to the action of
coercion or duress, which may operate if an employee is required to
sign a letter of resignation and hand it over to the Management in
WRIT PETITION.4806.1997.odt
person.
9 Though it was sought to be canvassed by Shri Brahme,
learned counsel for the Respondent that this Court in the case of Atul
Nathuram Naiknawade Vs. Secretary Bhagiratibai Late High School,
Obad and others (supra) held that merely because a copy of the
resignation has not been forwarded by registered post cannot make
the resignation void or invalid, the said judgment read as a whole, lays
down that if a serious dispute about the voluntary nature of
resignation is raised, as has been raised in the present matter, the
surrounding circumstances would assume significance and the fact
that the resignation was not submitted in the mode, which has been
statutorily prescribed, would be a material consideration.
10 In the instant case, the material on record shows that the
day on which i.e. 31st May, 1995, a communication-cum-order was
received to the Petitioner that he has been relieved from the services
of the Respondent by accepting the letter of resignation submitted by
him on 1st March, 1995, instantaneously he lodged the protest in
writing with the Management and disputed the fact of submitting any
resignation by him on 1st March, 1995. The record further shows that
WRIT PETITION.4806.1997.odt
the Petitioner had also forwarded a copy of the said letter to the
District Social Welfare Officer, Dhule. The material on record further
shows that on 7th June, 1995, the Petitioner again forwarded a letter to
the Management contending therein that he has not submitted any
resignation and that he shall be reinstated in the services. The letter
sent by the Petitioner to the President of the Management on 23rd
June, 1995, copies of which were sent to the Deputy Director of
Education, District Education Officer etc., is also the part of record
wherein also he has candidly denied the fact of his submitting the
resignation on 1st March, 1995. There are some more letters, which
are also filed on record, which show that the Petitioner was
consistently and earnestly fighting with the Management contending
that he has not submitted any resignation and that he shall be
reinstated in the services. From the material on record, the only
inference, which emerges is that the Petitioner had not voluntarily
submitted the resignation with the Management.
11 The School Tribunal did not accept the contention of the
Petitioner that the alleged resignation was not submitted by him on 1st
March, 1995 and that the Petitioner was never intending to submit any
resignation on the ground that the Petitioner did not raise his voice till
WRIT PETITION.4806.1997.odt
he was served with the order of relieving him from the services.
According to the School Tribunal, had it been the fact that the
Petitioner was not intending to voluntarily resign, he must have raised
objection and lodged his protest/complaint with the supervisory
authority immediately after obtaining a resignation letter by the
Management from the Petitioner on 1st March, 1995 and would not
have waited till 31st May, 1995. The reasoning so recorded by the
Tribunal is absurd. It can be gathered from the material on record that
it was the specific case made out by the Petitioner since beginning
that, for the first time, on 31st May, 1995 when he received the letter
from the Management communicating to him that he has been
relieved from the services as he had submitted a letter of resignation
on 1st March, 1995, he came to know that his undated resignation
letter has been misused by the Management. There was no reason
for the Petitioner to lodge any protest or make any complaint before
the said date. There is no material on record on the basis of which an
inference can be drawn that the Petitioner had accepted the fact that
the letter of resignation was obtained from him by the Management on
1st March, 1995. The observations made and the conclusion recorded
by the Tribunal is contrary to the evidence on record and hence
WRIT PETITION.4806.1997.odt
cannot be sustained.
12 In the aforesaid peculiar circumstances, the fact that the
resignation was not submitted in the mode, which has been statutorily
prescribed is a material consideration. Having regard to the evidence
on record and more particularly, instantaneous protest made by the
Petitioner the moment he received the letter dated 31st May, 1995 and
the consistent follow up made by the Petitioner thereafter, by making
correspondence with the Management as well as the Government
Officers clearly indicates that the Petitioner was never intending to
resign from the services of the Respondent. The allegation made by
the Petitioner that his undated resignation was obtained by the
Management some times in the year 1988-89 and that the same was
misused by the Management by putting a date as 1st March, 1995 is
difficult to be ruled out.
13 The Tribunal has further failed in appreciating the
provision incorporated in sub-rule (3) of Rule 40 of the MEPS Rules.
Said provision reads thus:
"40. Resignation :
(1) ...
(2) ...
WRIT PETITION.4806.1997.odt
(3) An employee entitled to vacation shall not
give notice of resignation during the vacation or so as to
cover any part of the vacation. The notice of
resignation shall not be given within a month after the
beginning of the first term of the year."
14 In the instant case, it is quite evident that the notice
allegedly given on 1st March, 1995 was covering the part of summer
vacation. It is, thus, clear that if the Petitioner was really intending to
resign from the post he would not have given the notice of resignation
during the period, covering part of summer vacation, which is the
express prohibition contemplated in sub-rule (3) of Rule 40 of MEPS
Rules. As held by the learned Single Judge of this Court in the case
of Bahujan Vikas Mandal, Akola and another Vs. Nanda Vithalrao
Parsutkar and another (supra) if the notice of resignation is given in
breach of the prohibition under sub-rule (3) of Rule 40 of the MEPS
Rules, then that would make the resignation invalid. For the reasons
stated above, the impugned judgment cannot be sustained and
deserves to be quashed and set aside. As has been elaborately
discussed hereinabove, the evidence on record clearly establishes
that the Petitioner did not submit any resignation and was never
intending to resign from the post, on which he was working with the
WRIT PETITION.4806.1997.odt
Respondent.
15 For the reasons recorded as above, the order passed by
the School Tribunal impugned in the present petition as well as the
order passed by the Management on 29th May, 1995 thereby relieving
the Petitioner from their services deserves to be quashed and set
aside.
Now the further question arises as to what sort of relief
can be awarded to the present Petitioner in view of the fact that in the
meanwhile period the Petitioner had attained the age of
superannuation. As noted earlier, the Petitioner has filed on record an
affidavit on 13th May, 2016 contending therein that he does not claim
any back-wages from the date of his termination till the date of his
superannuation and that he is only claiming continuity of service and
retiral benefits, which would include provident fund, gratuity and
pension. It appears to me that a very reasonable proposal is given by
the Petitioner. In the result, the following order -
O R D E R
I. The order dated 19th February, 1997, passed by the
School Tribunal, Nasik in Appeal No.51 of 1995 and
WRIT PETITION.4806.1997.odt
the order passed by Respondent No.1 on 29 th May,
1995 relieving the Petitioner from services of the
Respondents are quashed and set aside.
II. Respondent Nos.1 to 3 are directed to notionally
reinstate the Petitioner to the post, which he was
holding on the date of his termination and shall also
grant him continuity of service. The Petitioner will
not be entitled for any back-wages.
III. Respondent Nos.1 to 3 are further directed to
process and forward the pension papers of the
Petitioner to the appropriate authority as
expeditiously as possible preferably within a period
of three months from the date of this order.
IV. Rule made absolute in above terms.
[ P. R. BORA, J. ]
ndm
