Bombay High Court

Hindi Prasarak Mandal Thru. Its ... vs Ambikaprasad Bindeshwariprasad ... on 6 April, 2017

Bench: Z.A. Haq

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                 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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                               CORAM : Z.A. HAQ, J.

DATED : 6 APRIL, 2017.

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

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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,

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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

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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

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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

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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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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.