Santosh Baban Kamble vs The Chairman - Kini Shikshan ...
2017 Latest Caselaw 7187 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO. 3271 OF 2007


      Santosh Baban Kamble
      res. of Bhadole, 
      Tal : Hatkanangale,
      District Kolhapur                                          ..Petitioner

                     v/s.

      1. The Chairman,
      Kini Shikshan Prasarak Mandal,
      Kini, Taluka Hatkanangale,
      District Kolhapur.

      2. The Head Master,
      Kini Shikshan Prasarak Mandal,
      Kini, Taluka Hatkanangale,
      District Kolhapur.

      3. The Education Officer (Secondary)
      Zilla Parishad, 
      Kolhapur.

      4.  The Ld. Presiding Officer,
      School Tribunal, 
      Kolhapur.                             ..Respondents

      Mr. N.V. Bandiwadekar for the Petitioner.

      Mr.S.S.Patwardhan with Bhushan Mandlik for the Respondent Nos.1 
      and 2
      Mr. Rohan Sawant AAGP a/w. K.R.Kulkarni AGP  for the Respondent 



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      no.3.
        
                                         CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED : 14th September, 2017.

JUDGMENT.

1. The petitioner herein has challenged the judgment and order

dated 22nd January, 2007 whereby the learned Presiding Officer of

the School Tribunal , Kolhapur has dismissed the appeal No. 119 of

2000 challenging his termination from service on the basis of

resignation letter dated 14.6.2002.

2. The brief facts necessary to decide this petition are as under:

The petitioner was appointed in Kini High School as a drawing

teacher w.e.f. 1st August, 1996. The petitioner claims that on 14 th

June, 2000 when he had attended the school, the respondent no.2

called him to the Cultural Hall. The Chairman and the members of

the society who were present in the said hall leveled various

accusations against him and compelled him to write and sign a

resignation letter which was dictated by the respondent no.2. The

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petitioner claims that he had no intention of resigning from the post

and that he has signed the respondents letter under force, duress and

coercion. The respondent had compelled him to sign the resignation

as they wanted to appoint another teacher of their choice. The

petitioner claims that he had not paid Rs.14625/- as notice pay and

that his signature was also obtained on the receipt by force and

duress. He further claimed that the head master had no authority to

accept the resignation and that the resignation was in contravention

of the provisions of MEPS Act and Rules.

3. On 12th July, 2000, the petitioner complained to the respondent

no.3 that he was forced to sign the said resignation letter and that

the same should be treated as withdrawn or canceled. The

petitioner claims that on 19th August, 2000 the Deputy Director of

Education directed the respondent no.3 to submit the report with

reference to the said complaint, but the respondent no.3 did not take

any action. The petitioner, therefore, filed an appeal before the

School Tribunal at Kolhapur, wherein he sought quashing of the said

resignation letter with consequential relief of reinstatement with

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continuity in service and full backwages.

4. The respondent nos.1 and 2 denied that the resignation was not

voluntary and that the same was obtained by force, coercion or

duress. These respondents claim that the petitioner had sent the

said resignation letter by registered post and that the same was

received by the headmaster. The headmaster submitted the same

before the School Committee for consideration. The Committee

approved the resignation and after completing the requisite

procedure, the resignation letter was submitted before the

respondent no.1 who approved and accepted the resignation. These

respondents claimed that the petitioner had paid Rs.14625/- on 13 th

July, 2000 and signed the receipt in respect of the said payment.

Since the said amount was given after closure of the cash transaction

hours, the said amount was credited in the account of the school

maintained by Kolhapur District Central Co-operative Bank Ltd.,

branch at Wathar Tarf Vadgaon on the next date.

5. These respondents further claimed that after tendering the

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resignation, the petitioner had handed over charge of the material in

his custody to the headmaster on 13th July, 2000 in presence of the

representative of the teacher. The said charge form dated 13 th July,

2000 was signed by the petitioner , the Headmaster as well as the

representative of the teacher. These respondents further claim that

the letter dated 12th July 2000 which was addressed by the petitioner

to the respondent was in fact posted on 25 th July, 2000 and received

by the respondents on 26th July, 2000.

6. These respondents have claimed that the petitioner had not

attended school on 14th June 2000. He was not called to the Cultural

hall and was not compelled to sign any resignation letter. It is

further stated that the Chairman and the other persons named by the

petitioner were not present in the cultural hall and as such there was

no question of these persons compelling or forcing the petitioner in

writing or signing the resignation letter.

7. The learned Presiding Officer of the School Tribunal rejected

the contention of the petitioner that the said resignation was

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obtained by force, duress and coercion. The School Tribunal held

that the resignation was voluntary. The School Tribunal did not find

valid reasons to interfere with the resolution whereby the resignation

of the petitioner was accepted. The learned Presiding Officer of the

School Tribunal therefore dismissed the said appeal by the impugned

judgment dated 22nd January, 2007.

8. Shri Bandiwadekar, the learned Counsel for the petitioner has

submitted that the petitioner was a permanent employee of the

respondent no.2 school and he had no reason to tender his

resignation. He has submitted that the Chairman and the other

members had compelled the petitioner to write the said resignation

letter. He has urged that the resignation letter states that the

petitioner had deposited notice pay of Rs.14,625/- in lieu of three

months notice, when in fact, the said amount was admittedly not

paid on the said date. This fact therefore fortifies the fact that the

said resignation letter was obtained under duress. He further claims

that even otherwise, the so called resignation letter is in breach of the

mandatory provisions under Section 7 of the MEPS Act as well as

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Rule 40 of the MEPS Rules, 1981, and on this ground alone the

Tribunal ought to have rejected the contention of the management

that the resignation was voluntary.

9. Mr. Patwardhan, the learned Counsel for the respondent Nos.1

and 2 has submitted that the petitioner has submitted his resignation

on 14th June, 2000. Though the petitioner has claimed that he was

compelled to sign the said resignation letter, he was not prompt

enough to lodge a complaint before the appropriate authority. The

learned Counsel has submitted that the resignation was voluntary

and subsequent challenge was by way of an after thought. He

contends that the learned Presiding Officer of the school Tribunal has

considered all the material aspects and has rightly concluded that the

resignation was voluntary.

10. I have perused the records and considered the submission

advanced by the learned Counsel for the petitioner and the learned

Counsel for the respondent.

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11. At the outset, it may be mentioned that Section 7 and Rule 40

of the Maharashtra Employees of Private School (Conditions of

Service) Rules 1988, prescribe procedure for tendering the

resignation by the employees of the private school. The scope of

Section 7 and Rule 40 was considered in detail by the learned Single

Judge of this Court in Sayyed Maksood Ali Sayyed Roshid vs. Uruj-

E-Urdu Education Society, in Writ Petition No.1469 of 2009

(Nagpur Bench), wherein it is stated as under:-

11. ... Section 7- Procedure for resignation by employees of private schools: If any employee intends to resign his post in any private school, at any time and 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.

The provision is in two parts. The first part contains three-fold requirements, viz (I) drawing up a letter of resignation in duplicate, (ii) signing both the copies of that letter, and (iii) putting the date thereon. The second part deals with the forwarding of one copy of resignation to the Management by registered post and keeping the other copy by an employee with him. The first part deals with the execution and authenticity of the resignation, and the second part deals with the mode of delivery of the resignation. Then requirement of drawing up of a letter of resignation has been held to be in the handwriting of an employee in the

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decision, which I have delivered in Bahujan Vikas Mandal's case, cited supra. The three-fold requirements of first part have also been held to be mandatory. If the resignation produced by the employer is found to be in violation or breach of three- fold requirements of the first part, then the resignation will be rendered illegal and involuntary.

12. The provision of Section 7 of the MEPS Act is incorporated for the benefit of an employee. It deals with the procedure to be followed in tendering resignation. It is intended to provide protection or safeguard to an employee against an unscrupulous act of the Management calling an employee, exerting pressure or force on him or to give him any kind of inducement or incentive to obtain the signatures on blank papers, which may be used for preparing resignation of a suitable date subsequently, to get rid of an employee by adopting circuitous way. Hence an employee has to scrupulously follow it in tendering resignation. If an employee fails to follow the procedure or admits to have executed a typewritten or printed letter of resignation and further admits to have tendered or delivered such resignation personally or through someone to the Management, the employee loses the protection provided therein. In such a situation, Section 7 of the MEPS Act is not at all attracted and the employee cannot claim protection of Section 7, to declare the resignation in breach of the provision to be illegal and involuntary.

13. In Ballaleshwar Shikshan Mandal and another v. Jaywant Bhaguji Gadekar and others, reported in 2004(1) Bom C.R. 421, this Court has held that merely because a copy of the letter of

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resignation has not been forwarded by registered post, cannot make the resignation void. It was in the background of the fact that the employee neither disputed the execution of the document, nor the delivery thereof to the Management. It was held that the mode of despatch would be relevant in cases where the employee disputes the execution of the document.

14. In Barshi Education Society v. Ashok Ganesh Kulkarni and others, reported in 2004(3) Mh.L.J. 587, it has been held that the requirement is intended to ensure that the employee is not subjected to any kind of coercion or duress, which may operate if an employee is called in person, required to sign a letter of resignation and hand it over to the Management in person. It has been held that when the question as to whether the resignation was or was not voluntary is raised, all the relevant circumstances must be considered by giving due importance to the fact that sending of resignation by registered post shows that it is truly voluntary.

15. In Shri Sant Sawtamali Shikshan Prasarak Mandal, Tembhurni v. State of Maharashtra and others, reported in 2008(6) Mh.L.J. 529, it has been held that the requirement of sending resignation by registered post is a safeguard provided to an employee against the Management taking undue advantage of compelling a teacher to give resignation either by force or by giving any type of inducement. It was held that the requirement of Section 7 of the MEPS Act will have to be seen in its totality to find out whether the resignation tendered is voluntary or not.

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16. The judgment in the case of Bahujan Vikas Mandal, cited supra, which I have delivered, lays down that the requirements of drawing up of a resignation in duplicate by an employee in his own handwriting (not typed or printed), signing both the copies, and putting the date thereon, as contemplated under Section 7 of the MEPS Act, is mandatory. It has been held that the noncompliance or breach of the requirements of Section 7 renders the resignation involuntary and void ab initio. This view was taken in the background of the facts that the employee had disputed the execution of the letter of resignation and also the despatch of it by post. While taking the said view, reference has also been made to all the judgments, cited supra, in paras 13, 14 and 15.

17. Keeping in mind the law, as aforesaid, laid down by this Court, it will have to be held that the twin requirements of execution and mode of despatch or delivery contained in Section 7 of the MEPS Act are interlinked or interconnected and its compliance has to be seen in its totality and not in isolation to find out the real nature of resignation. When the mode of delivery by registered post is disputed by an employee, the proof of execution of resignation becomes significant and mandatory. When the execution of resignation is disputed by an employee, the mode of despatch or delivery by registered post becomes significant and mandatory. The noncompliance or breach in both the cases, would result in rendering resignation as illegal and involuntary.

18. ...

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19. Reliance is also placed on Rule 40 of the MEPS Rules, which is reproduced below :

"40. Resignation.(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." ....

Rule 40 prescribes the manner of tendering the resignation at the discretion of an employee, which is apparent from the use of the word "may" at different places in sub rule (1) of the said Rule. The employee may or may not follow such procedure and failure to follow such procedure would not

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render the resignation tendered in breach of the said Rule as invalid or involuntary. Similarly, it is also left to the discretion of the Management whether to accept the resignation tendered in breach of sub rule (1) and this is apparent from the provision of sub rule (2) of Rule 40. The said Rule is obviously for the benefit of the Management. The Management may waive compliance of sub rules (1) and (2) of Rule 40, but that would not render the resignation as invalid or involuntary. But if the Management insists for compliance of sub rules (1) and (2) of Rule 40, then it is open for it to reject the resignation, which is not in compliance of the said sub rules."

12. In the present case, it is not in dispute that the resignation

letter is in the handwriting of the petitioner. The petitioner had also

signed the said resignation letter and had put the date thereon. The

said resignation letter was admittedly addressed to the Headmaster

of the respondent no.2 and was sent by registered post. Copies of the

said resignation letter were also forwarded to the Education Officer,

Zilla Parishad, Kolhapur and to the Chairman of the Respondent no.2

School. The resignation is not in breach of Section 7 of the MEPS

Act.

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13. It is true that the resignation was tendered within one month of

the beginning of the first terms. This is not in consonance with sub

rule (3) of Rule 40. However, considering the fact that the

procedure prescribed under Rule 40, particularly Rule 40 (3), is for

the benefit of the management, tendering of the resignation within a

month after beginning of the first term of the year, in contravention

of sub-rule (3) of Rule 40, would not per se render the resignation

invalid.

14. Be that as it may, the records indicate that on 13 th July, 2000

the petitioner had tendered sum of Rs.14,625/- towards notice

period and had signed the receipt. An entry of the said payment was

made in the books of account of the respondent no.2 school and on

the next day the said amount was credited in the bank account of the

school maintained in Kolhapur District Central Co-operative Bank

Ltd., Branch at Wathar Tarf Vadgaon. The said amount was not paid

on the date the resignation letter was despatched. Nevertheless, the

same was paid before acceptance of the resignation. The said fact

would not invalidate resignation as the three months notice,

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contemplated under Sub-rule 7 of Rule 40 is to ensure that the

management has reasonable time to make alternative arrangement

occasioned due to resignation of an employee. Sub Rule 2 of Rule

40 spells out the consequences that would ensure when the

management allows the employees to resign from service without the

stipulated period of notice or pays in lieu of notice. These

stipulations under the Rule are to the benefits of the management

and the management has option to give up these benefits and accept

the resignation either with or without pay. Exercising an option of

accepting resignation either without notice or pay would not render

the resignation invalid. In such case, the only case that would ensue

is that the management would lose a proportionate amount from

grants due to the school. Hence delayed payment or acceptance of

the notice pay would not lead to an inference that the resignation is

invalid or involuntary.

15. It is also pertinent to note that on 13 th July, 2000 the petitioner

had handed over the charge to Shri D.H. Patil, the representative of

the teachers. The said charge form was signed by the petitioner, the

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Headmaster, as well as by said D.H.Patil. The petitioner had not

disclosed this fact in the appeal memo. The petitioner has also not

disclosed the reasons or the circumstances that had compelled him to

hand over the charge or sign the charge form. The appeal memo is

also silent on the fact that the petitioner had despatched copies of the

resignation letter by post to the Chairman as well as to the Education

Officer. The petitioner had not alleged that the respondent no.2 had

obtained his signatures on the receipt, the charge form or the copies

of the resignation letter including envelope addressed to the

Education Officer and Chairman by coercion of force. Handing over

of the charge on 13th July, 2000, signing the charge form and

despatching the resignation letters as well as the copies thereof by

registered post are the attending circumstances which rules out the

possibility of the petitioner being coerced or pressurized the

resignation letter.

16. It is also pertinent to note that in the appeal memo the

petitioner had alleged that on 14 th June, 2000 at about 11 a.m. the

respondent no.2 had called him to the Cultural Hall. He claimed that

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the respondent no.1-Suhas Mane, Namgonda Patil, Raosaheb Patil

and Shabbir Shaikh were already present in the Cultural Hall. He

had alleged that the Chairman leveled false and frivolous charges

against him, abused and threatened him and thereafter directed the

headmaster to obtain his resignation, whereas in the letter addressed

to the Education Officer the petitioner had merely stated that the

headmaster of the respondent no.2 school had forcibly obtained the

signature from him. The said letter is silent about the presence of

the Chairman and the other members whose names are disclosed in

the appeal memo. This letter also does not state that the Chairman

had abused and threatened him and further directed the headmaster

to obtain a resignation letter from him.

17. It is further to be noted that in the appeal memo the petitioner

had alleged that he was forced to sign the resignation letter as the

respondent no.2 wanted to appoint some other person of their

choice. Such allegation do not find place in the letter addressed to

the Education Officer. The said letter merely states that he was

compelled to give resignation letter as he belonged to the backward

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class. There does not seem to be consistency in the case set up by

the petitioner.

18. The petitioner has alleged that by letter dated 12th July, 2000 he

had brought to the notice of the Education Officer that the said

resignation was obtained by force and coercion. The Education

Officer has not disclosed in his affidavit the date of receipt of the said

letter. This was relevant as the copy of the said letter which was

marked to the Headmaster of the respondent no.2 school, reveals

that though the said letter is dated 12th July, 2000 it was posted on

25th July, 2000 i.e. after acceptance of the resignation. The petitioner

has not offered any explanation as to why he had not withdrawn the

resignation prior to its acceptance. Furthermore, the petitioner had

also not attended the school after 14.6.2000 and had not complained

to any authority that he was prevented from joining or performing

his duties or that he was compelled and pressurized to tender his

resignation. All the aforesaid facts and circumstances clearly negate

the contention of the petitioner that he was compelled to give

resignation under force, coercion and duress. The School Tribunal

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has considered all these aspects and has rightly held that the

resignation was voluntary.

19. The petitioner had also alleged that the Headmaster was not

competent to accept the resignation. In the affidavit filed in this

petition, the respondent no.3 has supported the case of the petitioner.

It is pertinent to note that the impugned judgment reveals that the

respondent no.3 had not filed any reply before the School Tribunal.

The respondent no.3 has not offered any explanation for this delayed

reaction or wisdom. Be that as it may, the resignation letter was

addressed to the Headmaster. The same was placed before the

school Committee for approval in view of resolution no.6 dated 12 th

March, 2000. The Committee had approved the resignation and

thereafter the Chairman of the school accepted the resignation.

There is thus no material irregularity or illegality in acceptance of the

resignation.

20. In my considered view, the School Tribunal has taken a possible

view on the basis of the material placed and contentions raised. The

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findings recorded by the School Tribunal are neither arbitrary nor

there is any patent error which warrants interference. Under the

circumstances, and in view of the discussion supra, the petition has

no merits and is accordingly dismissed.

                                                (ANUJA PRABHUDESSAI, J.)  




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