Tukaram S/O Tulshiram Nakhate vs Presiding Officer,School ...
2017 Latest Caselaw 8340 Bom

LPA.169.10
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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT NAGPUR, NAGPUR.
                                         ...

                         LETTERS PATENT APPEAL NO.169/2010
                                         IN
                             WRIT PETITION NO. 3887/2001


        Tukaram s/o Tulsiram Nakhate
        Aged about 32 years, occu: service
        R/o village Mokhara, Tah. Paoni
        Dist.Bhandara.                                  ..       APPELLANT

                versus

1)      Presiding Officer
        School Tribunal, Nagpur (Chandrapur).

2)      Pragatishil Shikshan Sanstha
        Through its President :
        Shri Vilas Deorao Raghute
        Aged about 30 years, R/o Raghute Bhawan
        Dighori Naka, Nagpur.

        (Amendment carried out as per Court's order
        dated 15.12.2010)


3)      The Head Mistress
        Raghute High School, Palora (Chouras)
        Tah.Paoni, Dist. Bhandara.

4)      Education Officer (Secondary)
        Zilla Parishad, Bhandara
        Dist. Bhanrada.

5)      Shri V.U. Gadwe,
        Clerk
        Raghute High School, Palora, (Chouras)
        Tah.Paoni ,Dist. Bhanadra.                       ..      RESPONDENTs




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 LPA.169.10
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...............................................................................................................................................
                         Dr. A.H. Jamal, Advocate for the appellant
                         Mrs. M.A. Barabde, AGP for respondents 1 & 4
                         Nobody for respondents 2,3 and 5
................................................................................................................................................

                                                                           CORAM: B.P. DHARMADHIKARI &
                                                                                  MRS. SWAPNA JOSHI, JJ.

DATED: 2nd November, 2017

ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)

1. Heard Dr. Jamal, for the appellant and learned AGP for respondents 1

and 4. Nobody appears for respondent nos.2,3 and 5.

2. The judgment delivered by School Tribunal on 11.4.2001 dismissing

Appeal No. STC 1/1997 preferred by present appellant-Tukaram, was questioned by

him before the learned single Judge in Writ Petition No.3887/2001. The learned single

Judge has dismissed that petition on 7th December, 2009. These concurrent judgments

are questioned in present Letters Patent Appeal.

3. Dr. Jamal contends that provisions contained in Section 7 of the

Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act,

1977 and Rule 40 of the Maharashtra Employees of Private Schools (Conditions of

Service) Rules,1981 (henceforth abbreviated to " the Act of 1977" and "the Rules of

1981" respectively) have been totally lost sight of. He relies upon the Division Bench

judgment, in the case of Chandrakant Lone vs. Chhatrapati Shivaji Education Society

LPA.169.10

and others, reported at 1988 Vol.I CLR page 175, particularly paragraph 6 to submit

that though provisions may be held to be directory, a substantial compliance therewith

must be demonstrated. He submits that appellant-Tukaram was working in a granted

school since 1991 and he has been orally terminated on 6.12.1996. This fact and legal

implications flowing therefrom are totally ignored by School Tribunal as also by

learned single Judge. He further submits that as appellant had put in about 6 years

of service and was a permanent employee, resignation submitted by him (if any)

ought to have been of duration of three months. Resignation of a shorter duration

could have been accepted by management after demanding a proportionate amount

for shortfall from appellant or then after deducting that amount from his dues, that is

not the defence anywhere before School Tribunal. He further states that acceptance

of alleged resignation by management on 7.12.1996 is not even pleaded in written

statement before School Tribunal and hence finding, in that respect, is perverse.

4. He invites attention to police complaint lodged by Tukaram on

8.12.1996 and sequence of events disclosed therein, to show that from 5 th December

1996 pressure was brought on Tukaram to complete registers/musters in a particular

way and, for that purpose, he was even required to visit the residence of President

of educational society. He submits that when he pointed out that information filled in

was true and as per law, the President did not like it and he was threatened.

According to him, in such atmosphere under coercion and putting Tukaram under

fear of assault, resignation was obtained in a back date. He submits that complaint

LPA.169.10

lodged to police officers on 8.12.1996 narrates all these facts but its cognizance has

not been taken by School Tribunal. Learned counsel submits that mere non-mention

of date "05.11.1996" as the date on which resignation was shown to have been

obtained in police complaint, cannot be held to be fatal in present circumstances. He

contends that thus there is total non-application of mind, not only by School Tribunal

but also by learned single Judge to the relevant facts and hence the impugned

judgments need to be quashed and set aside.

5. Learned AGP submits that Rule 40 of the Rules of 1981 also envisages

a resignation with prior notice of one month. Material on record does not show that

Tukaram was a permanent employee duly approved, regularly recruited and,

therefore, he ought to have submitted the resignation three months in advance. She

submits that learned single Judge has looked into the police complaint and found that

grievance of asking an ante-dated resignation does not figure in. He further states

that, in this situation, various judgments of this Court which comment upon scheme of

Rule 40 and Section 7 have been looked into and thereafter a possible view has been

reached. According to her, there is no jurisdictional error or perversity and hence

Letters Patent Appeal needs to be dismissed.

6. Perusal of challenge as presented to School Tribunal through Appeal

under section 9 reveals narration of story which commences in December, 1996. It is

pleaded that President of society devised a plan and obtained resignation under

LPA.169.10

duress by confining him in house of one Deorao Raghute on 6.12.1996. The fact that

it was ante-dated also appears therein. The filing of police complaint on 8.12.1996

has also been pleaded. Earlier, he has stated that he joined employment from

3.9.1991 and at that time the school was not receiving grant-in-aid. By order dated

15.7.1993 he was continued as Junior Clerk until further orders. The oral termination

on 6.12.1996 is also pleaded. Appellant-Tukaram has then pointed out that on

9.12.1996 he was not allowed by Headmaster to sign the muster roll though he was

present in the School for the whole day. He has also alleged that he was not

permitted to perform his legitimate duties.

7. In reply, respondents have denied all these facts.

8. The judgment delivered by School Tribunal on 11th April, 2001 takes

note of ante-dated resignation, of the police complaint or plea of not permitting the

appellant to sign the muster on 9.12.1996 or not allowing to perform his duties with

effect from 10.12.1996. It also records that from 1995 the School was receiving 25 per

cent grants. The School Tribunal has found that Tukaram was initially appointed as

Laboratory Attendant and later on as Junior Clerk with effect from 15.7.1993. However

while framing points for adjudication first point framed by School Tribunal is, whether

alleged oral termination order dated 6.12.1996 issued by respondent is legal and

valid. It has been answered in affirmative. The School Tribunal has found that there

was resignation letter dated 5.11.1996 signed by Tukaram and a resolution dated

LPA.169.10

7.12.1996 passed by the Sanstha accepting the same. It has also observed that

Tukaram was informed about acceptance on 9.12.1996 under registered post. In

paragraph 27, the School Tribunal has found that respondent no.4 before it, namely,

Shri Bhure was validly appointed after termination of Tukaram and appeal filed by

Tukaram was time-barred. In paragraph 27 itself, it mentions that resignation tendered

on 5.11.1996 was accepted on 7.11.1996 and Tukaram could have filed report to

Police Station on the next day, but he filed the complaint on 8.12.1996. It is also

observed that during said period, he could have withdrawn said resignation but he did

not do so. The period of limitation therefore started from 5.11.1996 and Appeal before

School Tribunal was filed on 4.1.1997. Therefore, resignation letter was not obtained

under threat but it was a voluntary act of appellant. In paragraph 28 while summing

up, the School Tribunal observes that the resignation letter dated 5.11.1996 was

accepted by management vide resolution dated 7.12.1996 hence plea of oral

termination was not sustainable. After acceptance of resignation on 7.12.1996 the

appellant filed the Appeal on 4.1.1997 and, therefore, the Appeal was within limitation.

It therefore, answered the point No.1 framed by it in affirmative and dismissed the

Appeal. Thus, there is some inconsistency and vagueness in observations contained

in paragraph 27 and paragraph 28 as Appeal needed to be filed within 30 days of

the cause of action.

9. The judgment delivered by learned single Judge looks into these facts

and finds nothing wrong with consideration of controversy by School Tribunal. Learned

LPA.169.10

Single Judge noticed that in police complaint lodged on 8.12.1996, the fact that

resignation was required to be ante-dated is not pleaded. Resignation letter is found

to be written by Tukaram in his own handwriting and taking overall view of the matter,

the learned single Judge has dismissed the Writ Petition.

10. Perusal of police complaint filed by Tukaram on 8.12.1996 specifically

points out all events taking place after 5.12.1996. He has submitted that under duress

and threat resignation was obtained from him by President and these events have

taken place on next date i.e. 6.12.1996. Thus, he has specifically pleaded that

resignation was obtained from him on 6.12.1996 and that resignation carries the date

5.11.1996. In this situation, mere fact that it was required to ante-dated by itself cannot

be held to be fatal as contention that resignation was obtained under duress and threat

very much exists in police complaint.

11. Perusal of Rule 40 of Rules of 1981 reveals that a permanent

employee can leave service after giving three calender months' notice and non-

permanent employee may leave service after giving one calender month's notice. The

resignation letter in this matter is dated 5.11.1996 and it states that Tukaram has

resigned on 5.11.1996. It is therefore no notice, either of one month duration or then

notice of three months.

12. It may be pointed out here that as per judgment of this Court in the

LPA.169.10

case of Anna Manikrao Pethe vs. Presiding officer School Tribunal and others,

reported in 1997 (3) Mh.L.J. 697, the Tribunal is supposed to frame preliminary issue

regarding the nature of employment. The said Division Bench judgment also expected

the School Tribunal to frame preliminary issue about the grant of approval by

Education Department. The full Bench judgment of this Court in the case of St.Ulai

High School and another vs. Devendra Jagannath Singh reported in 2007(1)Mh.L.J.

597 has deleted requirement of framing the last issue. However, had the School

Tribunal framed two earlier issues, the nature of employment of Tukaram could have

very well come on record. In that case, whether he was a permanent employee and

therefore he should have given notice of three months' duration or not, could have

been anwered. As that issue has not been framed, nothing can be said with certainty

about it.

13. The issue framed by School Tribunal itself presupposes oral termination

on 6.12.1996. The resignation given by Tukaram is on 5.11.1996 and he has requested

the management to accept it. It is not the case of Management that on 6.12.1996

Tukaram was informed that his resignation was accepted and, therefore, he was

relieved. Though the School Tribunal observes that resignation was accepted by

Management on 7.12.1996, said date is not pleaded anywhere in written statement

by the Management. If there is any intimation to Tukaram that his resignation was

accepted and therefore he was relived, that letter also does not find any consideration

in the judgment of School Tribunal. If story of Management that it accepted resignation

LPA.169.10

on 7.12.1996 is correct, there could not have been any oral termination, even on

6.12.1996.

14. We, therefore, find that the facts at hand needed an in-depth

consideration in the light of the records and police complaint lodged by appellant-

Tukaram. The School Tribunal ought to have framed preliminary issues as directed by

this Court in its two judgments mentioned supra and, after answering those

preliminary issues only scrutiny on merits of controversy should have been

undertaken. Admittedly that has not been done.

15. In this situation, we quash and set aside the judgment dated 11th

April, 2001 delivered by School Tribunal in Appeal STC No. 1/1997 and restore the

Appeal back to the file of School Tribunal. Parties are directed to appear before School

Tribunal on 15.12.2017 and to abide by its further instructions in the matter. The

School Tribunal shall decide the preliminary issues as mentioned supra first, within

next two months and thereafter, if necessary, consider merits of controversy and

pass final judgment in next three months.

16. With these directions, we partly allow the Letters Patent Appeal and

dispose it of. No costs.

                           JUDGE                            JUDGE

sahare