Bombay High Court
Sou. Usha W/O Yashwantrao Pundlik vs The President, Lokmata Shikshan ... on 15 June, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.76 OF 2007
IN
WRIT PETITION NO. 1741 OF 1998
Sou. Usha w/o. Yashwantrao Pundlik,
R/o. Mahadeo Nagar,
Wadgaon Road, Yavatmal,
Tah. Dist. Yavatmal ... APPELLANT
// VERSUS //
1 The President,
Lokmata Shikshan Prasarak Sanstha,
Mahadeo Nagar, Wadgaon Road,
Yavatmal, Dist. Yavatmal,
2 Shri Devidas Shamrao Gaikwad,
Secretary,
Lokmata Shikshan Prasarak Sanstha,
Mahadeo Nagar, Wadgaon Road,
Yavatmal.
3 The Education Officer (Primary),
Zilla Parishad, Yavatmal ...RESPONDENT
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Mr.N.R. Saboo, AGP for Appellants
Mr. H.A.Deshpande, Advocate for the Respondent Nos.1&2
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CORAM : B.P.DHARMADHIKARI, J.
R.B.DEO, J.
DATE : 15.06.2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J) :
1 Appellant has reached age of superannuation on
30.6.2010. She claims relief of declaration that refusal of
management to permit her to join and perform her duties
constituted otherwise termination and she had never
resigned from employment. Judgment delivered by School
Tribunal on 30.4.1998 holding that she had resigned from
service and there was no challenge to that resignation as
also, the judgment delivered by learned Single Judge of this
Court on 10.02.2006 in Writ Petition No 1741 of 1998 are
assailed with contention that it is perverse.
2 Matter was heard for some time on 8.6.2017 and then
came to be adjourned today to enable respective counsel to
assist the Court in the matter.
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3 Nobody appeared for respondent no. 3 - Education
Officer on that day. There is no appearance even today.
4 The School Tribunal has found appeal barred by
limitation and also suffering from vice of non-joinder of
necessary parties. It has also held that appellants' services
were not terminated by management vide notice dated
12.7.2013. The School Tribunal, therefore, finds that
petitioner had resigned from services vide resignation dated
10.4.1993 and there was no challenge to it in appeal before
it.
5 With the assistance of respective counsel, we have
perused papers. Submission of resignation letter by
petitioner on 10.4.1997 is not in dispute. However, the
same was not accepted by management and as per notice
dated 28.4.1993 served by it upon petitioner, it has
specifically mentioned that said letter was placed before
committee in Annual General Meeting and after
deliberations over the same, it was temporarily rejected.
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This resignation letter has been referred to as letter No.1.
There is reference to letter No. 2 also whereby the appellant
has expressed inability to work as Headmistress on account
of ill health. Letter No. 2 is of a later date i.e. after
10.4.1993. Impliedly it dilutes stand that on 10.4.1993, the
petitioner wanted to resign from her service.
6 On 29.4.1993, she had approached Education
Officer, Primary (respondent no. 3) and in it pointed out
that she was in service since 7.7.1988. It appears that she
gave her explanation in relation to complaint dated
15.4.1993 filed by her employer with Education Officer.
She has pointed out her harassment and then also
explained that because of previous experience, she had
decided not to work under pressure, not to place any
signature under pressure and not to accept promotion of
Headmistress, even if it is offered. She has also stated that
accordingly, she communicated her desire to Management
and requested them to make alternate arrangement. She
has pointed out that on 29.4.1993, she was on medical
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leave and would join as and when doctor declared her fit.
In this reply, she has also pointed out that, her refusal to
discharge duties of post of Headmistress has been
communicated by her on 22.4.1993. She therefore, claimed
that charge of remaining absent unauthorizedly without
proper intimation was false.
7 Thus, this communication brings on record the latter
request made by her on 22.4.1993 refusing to work as
Headmistress and impliedly militates with story of her
alleged resignation dated 10.4.1993. The fact that
Secretary of Management complained to Education Officer
on 15.4.1993 and pointed out that she was remaining
absent unauthorizedly also reveals that it rules out
resignation dated 10.4.1993. That resignation otherwise
would have been reflected in this communication.
8 We have already noted Supra that the said
resignation was temporarily rejected by the Executive
Committee in its meeting.
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9 In this background, when the Appeal Memo as
filed is perused, it shows that her medical leave expired on
30.4.1993 and she attended school on that day alongwith
her Joining Report and Medical Fitness Certificate.
Secretary retained the same but did not permit her to join
and sign Muster Roll, therefore, she forwarded Joining
Report to Education Officer. From next day i.e. from
1.5.1993 to 30.6.1993, there was summer vacation. On
next working day i.e. on 2.7.1993 she again attended
school with Joining Report. She requested Secretary to give
attendance Register for signing but he asked her to sign a
document already prepared, she refused to sign that
document. The two persons named by her then explained
that document was compromise between her and the
Secretary but she refused to sign it. Muster Roll was not
made available for her signature and then, she again
submitted letter to Education Officer. On 17.7.1993, she
received Secretary's letter dated 12.7.1993 prohibiting her
from attending the school and from entering the school
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premises. This communication has been termed by her as
constituting otherwise termination and on that basis appeal
under Section 9(1) of Maharashtra Employees of Private
School (Condition of Service) Regulation Act (MEPS),
1977, has been filed.
10 In its judgment, School Tribunal refers to written
statement filed by management on 25.10.1993.
Management claims that it lodged police complaint against
the present respondent on 12.7.1993 and case was
registered against her in Court at Yavatmal. There was
defalcation of Rs. 35,000/-, because of which respondent
did not join on 30.4.1993 and proceeded on leave without
handing over charge. On 2.7.1993, she arrived alongwith
her son and unknown person, and created terror in school
premises, therefore, communication dated 12.7.1993 was
given to her and she was asked not to enter school premises
without permission of management. That she had sent
resignation on 10.4.1993 which was earlier rejected by
School Management but subsequently, the Executive
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Committee accepted it. The acceptance was on 14.5.1993
and she was accordingly communicated the acceptance on
15.5.1993. Appeal against it could have been filed within
30 days from the date of receipt of that communication.
11 Judgment of School Tribunal also shows that
Education Officer (Primary) filed written statement on
24.11.1993 and stated that alleged letter of recogniton was
not as per Rule 40 of MEPS Rules, 1981.
12 It is, in this background, that appeal was taken up by
School Tribunal. Consideration in para No.20 of its
judgment by School Tribunal shows that appeal should
have been filed within 30 days of 30.4.1993, when she was
not permitted to sign on Muster Roll. She filed appeal on
28.7.1993 i.e. beyond period of limitation. School Tribunal
found that she did not explain delay from 1.5.1993 to
30.6.1993. School Tribunal also appears to have accepted
the story that on 2.7.1993, she visited the school to create
atmosphere of terror therein.
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13 These findings show that a date not pleaded as date
of termination either by employee or then by employer has
been used by the School Tribunal to hold that appeal is
barred by limitation. It is nobodys' case that there was any
termination on 30.4.1993 or any cause of action accrued on
that day.
14 The discussion in paragraph 21 of judgment is
regarding alleged resignation dated 10.4.1993 and its
acceptance on 15.5.1993. The original resignation letter is
not available for perusal of this Court. Its typed copy forms
part of record. That resignation was not accepted by
management initially as communicated by it on 28.4.1993.
At this stage, learned counsel for management has made
available original resignation letter for our perusal. It is
typed on a piece of paper admeasuring 5 inch x 5 inch and
entire text appears on upper half portion of the document.
Even endorsement forwarding copy to Education Officer is
in that part. Below it, in lower half and on right hand side,
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there is a seal with some words. On left hand side word
"yours" is typed in vernacular and at some distance from it,
there is signature in Marathi. Immediately below signature,
there is a seal of Headmistress with name of school.
15 In the situation, we find it necessary to seize said
original Resignation Letter. Accordingly, it is retained on
record of this L.P.A.
16 Further perusal of the judgment reveals that after
receipt of notice of Secretary dated 28.4.1993, present
respondent replied to the allegation therein by registered
A/d letter dated 5.5.1993 through her advocate. School
Tribunal has found that this appellant was aware on that
day that her services were already terminated. Thereafter,
School Tribunal shifts to consideration of story of otherwise
termination pleaded by respondent and about the notice
served by Secretary upon her on 12.7.1993.
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17 The facts noted and even findings of School Tribunal
clearly show that resignation allegedly dated 10.4.1993 was
all the while in dispute before School Tribunal. The
findings that said resignation was not in dispute as reached
by learned Single Judge of this Court in judgment dated
10.2.2006, is therefore, unsustainable.
18 The management claims that it had accepted
resignation on 15.5.1993. The Resolution of Executive
Committee accepting the resignation has not been
produced. There is no express communication sent by
management to respondent informing her that her
resignation has been accepted, and therefore, she need not
report at her school. No such communication is produced
by management at any point of time either before School
Tribunal or then even before this Court. Conduct of
respondent employee shows that after her medical leave,
when she reported on 30.4.1993 with joining report and
medical certificate, documents were retained but she was
not permitted to join, she therefore, approached Education
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Officer. Thereafter, school closed for summer vacation and
reopened on 2.7.1993. On 2.7.1993, again she has
reported back in the school and was not allowed to perform
her duties. Thereafter, the Secretary of the management
has asked her not to report on 12.7.1993. In this scenario,
treating that communication as otherwise termination, can
not be said to be misconceived. Within 30 days from that
date, she has filed the appeal before School Tribunal,
Appeal therefore, can not be said to be time barred.
19 We therefore, find consideration of controversy by
School Tribunal as also by learned Single Judge of this
Court, erroneous and unsustainable.
20 Today parties have produced before this Court a
Compromise Petition. It is signed by appellant, her counsel
as also counsel for respondent nos. 1 & 2 - Management
and by respondent no. 2 - Secretary. It is supported by
affidavit of the appellant. As per this compromise,
appellant has agreed not to claim arrears of salary for the
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period for which she was out of employment i.e. for period
upto date of her termination. The management and
appellant have agreed to submission of pension case of
appellant to respondent no. 3 - Education Officer. It is for
the respondent no. 3 - Education Officer to process it
thereafter as per law.
21 In view of these developments and the fact that
appellant has already crossed the age of superannuation
about 7 years back, we find nothing wrong in the
compromise as reached between parties. We accordingly,
accept the compromise.
22 The otherwise termination of appellant on 12.7.1993,
is therefore, quashed and set aside. As she can not be
reinstated, it is declared that her absence from 30.4.1993
till her superannuation shall be treated as continuous
employment for all purposes. However, appellant will not
be paid any back wages / salary for said period.
Respondent nos. 1 and 2 shall prepare her pension case
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within four weeks from today and forward the same to
respondent no. 3. Education Officer shall process it
further as per law within next eight weeks.
Accordingly, we partly allow L.P.A. and make Rule
absolute. No cost.
JUDGE JUDGE
belkhede, PA
