Bombay High Court
Norwegian Free Evangelical ... vs The State Of Maharashtra And ... on 7 November, 2017
Bench: Shantanu S. Kemkar
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3911 OF 2017
1. Norwegian Free Evangelical Mission
Dhanora,
Through its Chairman,
Shri Shashikant S/o Shamuvel Hiwale,
Age : 65 years, Occu.
R/o Norwegian free Evangelical
Mission House, Dhanora, Tq. Chopada,
Dist. Jalgaon
2. A.V. Mission School, Shalempur,
Dhanora, Tq. Chopda,
Dist. Jalgaon,
Through Its Head Master
Mrs Suman W/o Pramod Hiwale,
Age : 58 years, Occu. Service,
R/o As above ..PETITIONERS
VERSUS
1. The State of Maharashtra
Through its Secretary,
School Education Department
Mantralaya, Mumbai - 32
2. The Education Officer (Primary),
Z.P. Jalgaon
3. Shri Tukaram Umrao Mahajan,
Age : 52 years, Occu. Service,
R/o Krushnjai Nagar, Plot No.12,
At post Adawad, Tq. Chopada,
Dist. Jalgaon ..RESPONDENTS
Miss. Surekha Mahajan, Advocate for petitioners;
Mrs M.A. Deshpande, A.G.P. for respondent no.1;
Mr N.B. Suryawanshi, Advocate for respondent no.2;
Mr P.B. Patil, Advocate for respondent no.3
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(2)
CORAM : SHANTANU S. KEMKAR &
N. W. SAMBRE, JJ.
(Date of reserving the
order : 10th August, 2017
Date of pronouncing the
order : 7th November, 2017)
JUDGMENT (PER N. W. SAMBRE, J.)
Petitioner no.1 is a minority institution as could be seen from the
certificate dated 25th July, 2008, issued by the competent authority of the
State Government certifying it to be a minority institution. Petitioner no.2 is
a school run and managed by petitioner no.1. Respondent no.3 was
appointed as Head Master of petitioner no.2 from 1 st June, 2008, who
claimed to have tendered resignation vide letter dated 11 th January, 2017
from the post of Head Master, with effect from 20 th January, 2017.
Pursuant to the said resignation, respondent no.1 passed a resolution on
15th January, 2017 accepting the resignation of respondent no.3 from the
post of Head Master and reverting him back to the post of Assistant
Teacher and consequentially discharged him of the responsibilities of the
said post of Head Master of petitioner no.2 school.
2. In the meeting of the management on 15 th January, 2017, Smt.
Suman Pramod Hiwale came to be appointed as Head Mistress in the
place of respondent no.3 who was next in the seniority list.
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3. On 24th January, 2017, petitioner no.1 informed the Education
Officer about such appointment of Smt. Suman Hiwale as a Head Mistress
and sought approval thereto by submitting relevant documents along with
the proposal.
4. After the proposal for grant of approval was received, respondent
no.3 raised an objection to grant of approval, as according to him, while
accepting his resignation of the post of Head Master, relevant provisions
of the Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 (for short "the Rules") were not followed. Respondent no.2 -
Education Officer accordingly convened meeting and passed impugned
order dated 7th March, 2017, by observing that while processing the
resignation of respondent no.3 for the post of Head Master, the petitioners
have not followed provisions of Section 7 of the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977 (for short "the
Act") and accordingly rejected the proposal for grant of approval. It is
required to be noted that respondent no.3 has not denied tender of
resignation but what is disputed by him is non-observance of the relevant
procedure.
5. In the aforesaid background, while inviting attention of this Court to
the judgment rendered by the Division Bench of this Court in the matter of
Shriram Swami Shikshan Sanstha vs. Education Officer, Zilla
Parishad, Nagpur and another; reported in 1984 Mh.L.J. 31, the
judgments rendered by learned Single Judge of this Court in the matters of
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Neminath Jain Bramhacharya Ashram (Jain Gurukul) and others vs.
Rajendra Sitaram Nikam and others; reported in 2004 (2) Mh.L.J. 909
and Karachi Education Society, Pune and others vs. Pruthviraj R.
Merchant and another; reported in 2005 (4) Mh.L.J. 1035, Ms Mahajan,
learned Counsel appearing on behalf of petitioners submits that the act of
respondent No.2 Education Officer in going into the issue of deciding
validity of resignation of respondent No.3 is without any authority.
According to her, respondent No.3 has not come out with case of forged or
bogus resignation, but what is disputed by him is, not following the
provisions of the Act and the Rules framed thereunder. She would then
urge that if that be so, then the remedy available to respondent No.3 is to
approach the Tribunal, and the Act or the Rules, referred supra, do not
confer any power upon respondent No.2 Education Officer to reject the
approval to the appointment of Head Master/Mistress of petitioner No.2
School particularly when petitioner No.1 is a minority institution and has
every right to appoint Head Master/Mistress of its choice.
6. Per contra, while relying upon the judgment rendered by learned
Single Judge of this Court on 22nd December, 2010 in Writ Petition
No.5790 of 2007 (Bahujan Vikas Manda, Akola and another vs. Ku.
Manda Vithalrao Parsutkar and another), Mr Patil, learned Counsel
appearing on behalf of respondent No.3 would refer to provisions of
Section 7 of the Act so as to canvass that respondent No.2 Education
Officer has every authority to examine the issue of tendering of resignation
by an employee of private school and its validity. He sought dismissal of
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petition on the ground that respondent No. 3 is the senior most teacher of
petitioner No.2 School.
7. After considering the rival submissions, we find it appropriate to
refer to the provisions of Section 7 of the Act, which read thus:-
"If any employee intends to resign his post in any private
school, at any time after the appointed date, he shall draw up
a letter of resignation in duplicate and sign both the copies of
that letter and put the date thereon. He may then forward
one copy to the Management by registered post and keep
the other copy with him."
8. This Court had an occasion to consider the very object of
incorporation of Section 7 of the Act in the Statute Book with provisions of
Rule 40 of the Rules. In the judgment of Neminath Jain (supra). In
paragraphs 4 and 5 of the said judgment, the learned Single Judge has
observed thus:-
"4. My attention has been drawn to a judgment of my Learned
Brother Mr. Justice A. M. Khanwilkar in Balaleshwar Shikshan
Mandal vs. Jaywant Bhaguji Gadekar (Writ Petition 6046 of
2002 decided on 10th June, 2003). That was a case where an
assistant Teacher who had been appointed in a private school
resigned voluntarily on 16th August, 1998 and which
resignation was placed before the Managing Committee in a
meeting held on 29th November, 1998 when it was accepted.
A communication in that regard was sent to the petitioner on
9th December, 1998. The fact that the petitioner had
submitted a resignation on 16th August, 1998 was not
disputed, nor was the fact that the resignation was handed
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over to the Chairman and that it had been accepted. In these
circumstances, Khanwilkar, J. held that once the resignation
was accepted, the matter stood finally concluded. The Tribunal
had proceeded on the basis that the resignation had not been
accepted by the Management and had been ignored which
was contrary to the record. On these facts, the learned Judge
held that merely because a copy of the letter had not been
forwarded by registered post would not render the resignation
void. The learned Court held that on a plain reading of section
7 it would appear that once an employee signs a letter
expressing his intention to resign and voluntarily submits a
copy thereof to the Management this would constitute
substantial compliance with section 7. Therefore, that was a
case where on all accounts there was no dispute about the
fact that the resignation had been voluntarily submitted by the
teacher and the only grievance of the teacher was that the
Management had in fact not accepted the resignation and had
ignored it. On the contrary, the judgment of the learned Single
Judge would seem to indicate that where as in the present
case, there is a serious dispute about the voluntary nature of
the resignation, 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. One need not go as far as
to hold that a resignation which is not forwarded by registered
post must on that ground be regarded as invalid in every case
irrespective of the surrounding circwp3911umstances. An
extreme position is not warranted on the language of section
7. What must be emphasized is that where an employee
seeks to contend that his resignation was not voluntary, the
Tribunal must decide that question on the basis of the
evidence before it. The fact that the resignation has not been
submitted by the mode of registered post is one factor to be
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considered though that in itself is not conclusive. In the
present case the Tribunal has held on the basis of the
evidence before it that the resignation was not voluntarily
submitted. That finding is not shown to be perverse.
5. The Tribunal has also held that under Rule 40 of the Rules
framed under the Act, three months notice has to be furnished.
I am however not inclined to accept the view of the Tribunal
that the failure to furnish three months' notice would invalidate
the resignation for the simple reason that this rule has been
inserted for the benefit of the Management and not the
employee. Rule 40 itself provides that if the notice of three
months is not furnished the Management would be entitled to
deduct a proportionate part of the wages payable for the
period which falls short of the notice prescribed. Hence, on
this aspect of the matter, I am not in agreement with the view
expressed by the Tribunal. "
Thus, it has to be inferred that the provisions of Section 7 of the Act
read with Rule 40 of the Rules are interpreted in favour of petitioner No.1
Management.
9. Apart from above, in the matter of Karachi Education Society
(supra), the learned Single Judge of this Court has concurred with the view
in the matter of Neminath (supra). In addition, it is required to be noted that
in the matter of Shriram Swami Shikshan Sanstha (supra), the Division
Bench of this Court has taken a view that if a case of forced resignation of
a school teacher is pleaded, the same is covered by Section 9 of the Act
and in that case it is School Tribunal which would have jurisdiction to
entertain the same.
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10. In the backdrop of above referred legal provisions, if the material
that is brought on record is analyzed, the position that would emerge is
respondent No.3 has never disputed tendering of resignation. What is
disputed or objected to by him before respondent No.2 Education Officer is
that he was forced to tender resignation. Such objection was taken by him
for the first time on 24th February, 2017 despite he had tendered
resignation almost more than 40 days before. Apart therefrom, the fact
remains that his posting as an Assistant Teacher with petitioner No.2
School, after accepting his resignation, is not challenged by him under
Section 9 of the Act before the Tribunal since the effect of acceptance of
his resignation (which is claimed by respondent No.3 to be a forced
resignation) is reduction in the rank that he was holding.
11. Whether the resignation of respondent No.3 was rightly accepted,
particularly when he admits tendering of the same cannot be an issue
which could be resolved by a stroke of an unreasoned order which is
passed by respondent No.2 Education Officer when the Statute itself
provides for an appropriate remedy of challenging such order before the
competent authority i.e. School Tribunal.
12. In the aforesaid backdrop, in our opinion, the reliance placed by
respondent No.3 on the judgment in the case of Bahujan Vikas Mandal
(supra) will hardly be of any assistance to him, particularly when the factual
matrix thereof differs from the one in the present case as respondent No.3
herein has not disputed the tendering of resignation.
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13. In view thereof, the order dated 7 th March, 2017, passed by
respondent No.2 refusing to accord approval to the appointment of new
Head Mistress of petitioner no.2 school is not sustainable. Accordingly, the
same is hereby quashed and set aside. Respondent No.2 is directed to
accord approval to the appointment of Smt. Suman Pramod Hiwale as
Head Mistress of petitioner No.2 School, pursuant to the proposal
forwarded by petitioner No.1 on 24th January, 2017.
14. Writ Petition stands allowed in above terms. In the circumstances,
there shall be no order as to costs.
(N. W. SAMBRE, J.) (SHANTANU S. KEMKAR, J.)
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