Ku. Nazma Begum D/O Jameel Ahmed vs Kamthee Yuvak Shikshan Prasarak ...
2017 Latest Caselaw 8817 Bom

                                                                                                                         LPA.(S)74.10
                                                                       1


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

                                    LETTERS PATENT APPEAL NO. 74/ 2010
                                                    IN
                                        WRIT PETITION NO. 1010/2009


            Ku.Nazma Begum D/o Jameel Ahmed
            Ro Gujari Bazar, Kamthee, Dist.Nagpur.                                    ..           APPELLANT

                        versus

1)          Kamthee Yuvak Shikshan Prasarak Mandal
            Kamthee : Through its Secretary
            Shri Ramesh Dube,
            C/o Headmaster, Rashtriya Urdu Prathmik Shala,
            Ward No. 46, Shiv Panchayat Nagar,
            Kamthee, Dist. Nagpur.

2)          Headmaster,
            Rashtriya Urdu Prathmik Shala,
            Ward no. 46, Shiv Panchayat Nagar, Kamthee
            Dist. Nagpur.

3)          Education Officer (Sec)
            Zilla Parishad, Nagpur.

4)          The Presiding Officer
            School Tribunal, Nagpur.                                                               ..         RESPONDENTS


...............................................................................................................................................
            Mr. P.N. Shende, Advocate for the appellant
            Mr. R.S. Parsodkar, Advocate for respondent nos.1 and 2
            Respondents 3 and 4 served.
................................................................................................................................................

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

DATE OF RESERVING : 05.10.2017 DATE OF PRONOUNCEMENT: 17.11.2017

LPA.(S)74.10

ORAL JUDGMENT: (PER MRS.SWAPNA JOSHI, J.)

1. By this Appeal, the appellant has impugned the judgment and order

dated 27.11.2009 in Writ Petition No.1010/2009 whereby the learned single Judge of

this Court allowed the Writ Petition filed by respondent nos.1 and 2 and set aside the

judgment and order passed by learned Presiding Officer, School Tribunal, Nagpur

whereby the termination of the appellant was quashed and set aside and the appellant

was directed to be reinstated with back wages.

2. The case of the appellant, in a nutshell, is that the appellant was

appointed as a trained Primary Teacher in the school run by respondent no.1-Mandal,

in the academic session 2000-01 on a clear and vacant post. She worked there for

more than eight years continuously that too without break in her service. It is the case

of the appellant that she was on medical leave from 11.11.2006 which was extended

from time to time till 25.6.2007. When she joined her duty on 26.6.2007, she was

allowed to join her service but was denied to sign the muster roll. On 11.07.2007,

the respondent nos.1 and 2 restrained the appellant from working in the School which

amounted to oral termination. The appellant challenged the action on the part of

respondent nos.1 and 2 in the School Tribunal, on the ground that the termination

was without following the procedure laid down under the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act,1977 and Maharashtra

Employees of Private Schools (Conditions of Service) Rules,1981 (henceforth

abbreviated to " the Act of 1977" and "the Rules of 1981" respectively).

LPA.(S)74.10

3. The respondent nos. 1 and 2 denied the case of the appellant and

contended that she had resigned from her services on 15.11.2006 and her voluntary

resignation was accepted by the management vide Resolution dated 24.11.2007 i.e.

above one year thereafter. Hence, there is no question of allowing the appellant to

work in the School and terminate her services, orally.

4. The learned Presiding Officer, School Tribunal, Nagpur allowed the

Appeal preferred by the appellant, on the ground that the resignation of the appellant

was invalid as the provisions under the Act of 1977 and Rules of 1981 were not

followed and as such, the termination was illegal.

5. The respondent nos. 1 and 2 preferred Writ Petition bearing No.

1010/2009 in this Court challenging the judgment and order passed by the learned

Presiding Officer of School Tribunal. The learned single Judge held that the resignation

of the appellant herein was a valid and voluntary resignation which was accepted by

the management. The said judgment and order passed by the learned single Judge is

impugned in the present Appeal.

6. Heard Shri P.N. Shende, learned counsel for appellant and Shri R.S.

Parsodkar, learned counsel for respondent nos.1 and 2. Nobody appears on behalf of

the respondent nos. 3 and 4.

7. The arguments of Shri Shende are two-fold. He vehemently argued that

the learned single Judge has ignored the fact that the appellant was a permanent

employee in the school run by respondent no.1, who has worked for about 6-years

and she could not have been orally terminated by respondent nos.1 and 2. The

LPA.(S)74.10

appellant was on medical leave from 11.11.2006 which was extended from time to

time, till 25.6.2007. However the services of the appellant are terminated orally on

26.6.2007 and 11.7.2007, without conducting an enquiry in the matter under the

provisions of the Act of 1977 and Rules framed thereunder. Secondly, he contended

that the resignation allegedly tendered by the appellant is not a valid resignation in the

eyes of law as the provisions under 7 of the Act of 1977 and Rule 40 of the Rules of

1981 are not followed by the respondent nos.1 and 2. According to him, the duration of

resignation ought to have been of three months as the appellant was a permanent

employee. There was nothing on record before the School Tribunal to suggest that the

respondent nos.1 and 2 accepted the resignation after demanding a proportionate

amount for shortfall from appellant or deducted the amount from the dues of the

appellant. He submitted that the signatures of the appellant were obtained on the

blank papers at the time of her appointment and the same were used in the

resignation letter.

8. In support of his contentions, Shri Shende placed reliance upon the

Division Bench judgment of this Court, in the case of Chandrakant Lone vs.

Chhatrapati Shivaji Education Society and others, reported in 1988 Vol.1 CLR P.175

wherein it is held that though the provisions are not mandatory they are relevant for

deciding the controversy whether the resignation was tendered or not.

9. Per contra, Shri Parsodkar, learned counsel for respondent nos. 1 and

2 canvassed that the resignation tendered by the appellant was a valid resignation

hence there is no question of terminating the services of the appellant, orally. It is

LPA.(S)74.10

further stated that various judgments of this Court which comment upon scheme of

Rule 40 of the Rules of 1981 and Sec.7 of the Act of 1977 have been looked into and

thereafter a possible view has been taken by the School Tribunal. According to him,

there is no jurisdictional error or perversity in the judgment passed by the School

Tribunal. Hence this Appeal needs to be dismissed.

10. It is well-settled by now that the scope and ambit of the jurisdiction of

this Court under the Letters Patent is very limited. It is equally well-settled that if two

views are possible and the learned single Judge has taken a plausible view, in Letters

Patent Appeal, this Court is not expected to re-appreciate the evidence on record and

substitute the view taken by the learned single Judge, by its own view.

11. Upon hearing both sides and on a careful scrutiny of the order passed

by learned single Judge and the material placed on record, it is noticed that the

learned single Judge has opined that the School Tribunal was not justified in allowing

the Appeal filed by the appellant herein, and was not further justified in holding that

the management had failed to prove that the appellant had voluntarily submitted her

resignation on 15.11.2006. It was held that the Tribunal was not justified in holding that

the resignation letter was invalid merely because some of the provisions under

Section 7 of the Act of 1977 Rule 40 of the Rules of 1981 were not complied with. It

was further observed that the appellant has failed to prove that her leave for seven-

and-a-half months was a sanctioned leave and, thus, the petition filed by the

respondents was allowed by the learned single Judge.

12. In this regard, significantly, the Appeal-memo filed by the appellant

LPA.(S)74.10

before School Tribunal transpires that the appellant had applied for medical leave from

11.11.2006 to 26.06.2007, to respondent nos. 1 and 2 from time to time and the same

were granted by respondent nos.1 and 2. Thereafter on 26.06.2007, the appellant

submitted her joining report and she was permitted to join her services but she was

not allowed to sign the Muster roll. The appellant claims that she was continuously

working with respondent nos. 1 and 2 and obtained the signatures of respondent no.

2 on daily notes. The appellant was not allowed to work in the School on 11.7.2007. All

these aspects could have been looked into by the learned single Judge as well as the

School Tribunal.

13. It is pertinent to note that the learned single Judge has come to the

conclusion that since the case regarding the leave has not been proved by the

appellant, she must have resigned from her services from 15.11.2006, which does not

appear to be convincing. It appears that the case of resignation of appellant with the

case of respondent nos. 1 and 2 that the appellant has not proved that she was on

leave during the period between 11.11.2006 and 25.06.2007 and, therefore, she must

have resigned from her services has been corelated. Significantly, the respondent

nos.1 and 2 failed to produce any record before the School Tribunal to show that the

resignation was accepted by the management vide resolution dated 24.11.2007. For

the first time, the resolution appears to have been placed before the School Tribunal

at the time of hearing arguments. There is no whisper of the resolution dated

24.11.2007 in the written statement filed by the respondents, in the School Tribunal.

Moreover, there is nothing on record to show that the Chief Executive Officer who is

LPA.(S)74.10

empowered to execute the decision of the management as per the Rules of 1981,

has executed the decision of the management with regard to the acceptance of

resignation and, accordingly, the services of the appellant were discontinued. In

writing, there was no communication to the appellant about acceptance of the so

called resolution dated 24.11.2007. Interestingly, the resolution dated 24.11.2007 is

passed by the School Committee. There is no evidence on record to show that the said

resolution was confirmed by the Management and the appellant was relieved from

services.

14. In the facts and circumstances of the case, it would be advantageous

to go through the provisions of Section 7 of the Act of 1977, which is couched in the

following terms :-

"7. Procedure for resignation by employees of private schools:

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."

15. In the instant case,the above-said provision is apparently not followed

by respondent nos.1 and 2. The onus is on the respondents to prove that the

resignation tendered by the appellant was as per the provisions laid down under the

Act of 1977 and Rules framed thereunder.

16. By introducing the provisions of Section 7 of the Act of 1977, the

intention of the legislature was to abide by the law in its letter and spirit, in order to

LPA.(S)74.10

avoid misuse of the signature of the employee as a weapon to remove him/her from

services whenever required which is normally obtained while engaging him/her in

the service, by the employer. Admittedly, the resignation is not in conformity with the

requirement of Section 7. It is clear from the preamble of the Act that it is a piece of

legislation which was enacted with a view to provide safety, stability and security of

services of the employees to enable them to discharge their duties as teachers, to

impart education effectively and efficiently. The provisions of Section 7 are certainly

germane to decide the controversy whether the resignation tendered was voluntary or

otherwise.

17. The respondent nos.1 and 2 have not complied with the Rule 40 of the

Rules of 1981, which is reproduced below :

"(1) A permanent employee may leave service after giving three calendar months notice and a non-permanent employee may leave service after giving one calendar month's notice. The management may, however, allow an employee to leave service earlier on payment of pay (excluding allowance) for three months, or as the case may be, one month in lieu of notice by the employee. The amount in lieu of notice shall be restricted to the pay or the period by which the notice period falls short. (2) If any Management allows an employee to leave service earlier either without due notice or without making payment of pay in lieu of notice as specified in sub-rule (1), a proportionate amount of pay in lieu of notice shall be deducted from the grant due to the school concerned. (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."

LPA.(S)74.10

18. There is absolutely no evidence on record to show that the appellant

has issued three months prior notice to the respondent nos.1 and 2, prior to the

acceptance of her resignation. Thus, the provisions of Rule 40 of the Rules of 1981

have not been complied with and, therefore, the resignation cannot be termed as a

valid resignation and the same cannot be acted upon.

19. In this circumstances, it is difficult to believe that the appellant would

have tendered a voluntary resignation which is not in her own handwriting and date is

not put in her handwriting, which is the contrary to the provisions of Section 7 of the

Act of 1977 and Rule 40 of the Rules of 1981. There was no reason for the appellant

to resign from the service. The stand taken by the respondent nos.1 and 2 that the

resignation tendered by the appellant was accepted by them on 24.11.2007 by

passing a resolution is not justifiable as there was no resignation in existence. Thus,

the resignation allegedly tendered by the appellant does not appear to be a valid

resignation.

20. Pertinently, it is not the case of respondent nos.1 and 2 that after

resignation and acceptance of the same, immediately some other teacher was

appointed in place of the appellant, on a clear vacancy. Thus, the case put up by the

respondent nos.1 and 2 about the appellant's resignation and its acceptance is not

digestable.

21. A perusal of judgment of School Tribunal depicts that the School

Tribunal although came to the conclusion that the resignation tendered by the

LPA.(S)74.10

appellant is not a valid resignation, however, it is not clear from its judgment and

order whether the resignation was in the handwriting of the appellant. Whether the

dues were cleared from the appellant by the respondent nos.1 and 2 on its

acceptance after an year from tendering it as the resignation was dated 15.11.2006,

whereas the resolution was passed on 24.11.2007, i.e., almost one year after the

alleged tendering of resignation. There is no mention of acceptance of the resignation

from respondent nos.1 and 2. So also, there is no communication to appellant on

record regarding its acceptance. Thus, the resignation appears to be a suspicious

document.

22. Pertinently, there is no discussion in the judgment of the School Tribunal

about the notes prepared by appellant and obtaining the signatures of Headmaster

on her notes after her resuming the services in July,2007. If this assertion is correct,

the resignation may be an afterthought case put up by the respondent nos.1 and 2.

All these facets are to be looked into by the School Tribunal and it needs appropriate

consideration.

23. There appear to be three stages in the case put forth by the appellant,

namely, (i) resignation (ii) leave (iii) resuming the duties in July, 2007. All these

aspects and their mutual impact need to be considered in detail, by the School

Tribunal.

24. In this situation, we quash and set aside the judgment and order dated

21st January,2009 delivered by School Tribunal in Appeal No.STN: 33/2007 and

LPA.(S)74.10

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

before School Tribunal on 28.11.2017 and to abide by its further instructions in the

matter. The School Tribunal shall decide the matter as mentioned supra, within next

three months.

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

dispose it of. No costs.

                           JUDGE                            JUDGE

sahare