Bombay High Court
Mohd. Mushirulhaq Mohd. ... vs The Presiding Officer, School ... on 21 September, 2017
Bench: B.P. Dharmadhikari
1 LPA540.09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
LETTERS PATENT APPEAL NO. 540 OF 2009
IN
WRIT PETITION NO. 04 OF 2002
APPELLANT : Mohd. Mushirulhaq Mohd. Mohilbulhaq,
Aged about 47 years, Occupation - Nil,
R/o Ward No.17, Talabpura,
Jalgaon (Jamod)
VERSUS
RESPONDENTS : 1] The Presiding Officer,
School Tribunal,
Amravati Division, Amravati.
2] Head Master,
Jawahar Urdu High School,
Motala, Tauka : Motala,
District Buldhana, Pin : 443103
3] Secretary,
Jawahar Urdu High School, Motala,
District Buldhana.
4] Education Officer (Sec.),
Zilla Parishad, Buldhana.
5] Akhtar Vaseem W/o A.G. Shaikh,
Teacher, R/o Motala,
Taluka Motala, District Buldhana.
6] Mujeeburhman Abdul Muttalib,
Aged about 36 years, Occupation : Service,
R/o Motala, District Buldhaan,
7] Syed Siraj Sayed Noor Mohd.,
Aged about 34 years, Occupation : Service
R/o Motala, Tal. Motala, Dist. Buldhana.
::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:01:54 :::
2 LPA540.09.odt
8] Mohd. Musheer Ahmad Muquam Ahamad,
Aged about 40 years, Occupation : Service,
R/o Motala, Taluka Motaoa,
District Buldhana.
----------------------------------------------------------------------------------------------
Shri G.G. Mishra, Advocate for the appellant
Ms. N. P. Mehta, A.G.P. for respondent nos.1 and 4
Shri B. M. Kharkate, Advocate for respondent nos.2 and 3
Shri D. J. Deshpande, Advocate h/f Shri Anand Parchure,
Advocate for respondent nos.5 and 6.
----------------------------------------------------------------------------------------------
CORAM : B. P. DHARMADHIKARI and
ARUN D. UPADHYE, JJ.
DATE : SEPTEMBER 21, 2017.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
1] Heard Shri G.G. Mishra, learned counsel for the
appellant, Shri B.M.Kharkate, learned counsel for respondent nos.2
and 3, Shri Deshpande, learned counsel for respondent nos.5 and 6
and Ms. Mehta, learned Assistant Government Pleader for
respondent nos.1 and 4.
2] Shri Mishra, learned counsel contends that story of the
appellant that undated resignations were procured from appellant
while recruiting him, has not been properly appreciated. According
to him, even if story of respondent nos.2 and 3 - management is
3 LPA540.09.odt
presumed to be correct, after the School Committee accepted the
alleged resignations and it was communicated to the appellant
Under Certificate of Posting (UCP) on 18.5.1991, there was no
reason for respondent nos.2 and 3 to allow the appellant to continue
till 22.6.1991. He submits that in that situation, the appellant could
not have been paid salary up to 22.6.1991.
3] Shri Mishra, learned counsel states that the School
Tribunal was approached with a specific grievance that there was
oral termination on 22.6.1991 and in defence thereto, two written
statements have been filed. In the written statement filed by the
Headmaster, defence of resignation has come. The management has
not come up with any such specific defence, though Headmaster
himself was secretary of the management and has filed written
statement on behalf of the management. He contends that the story
of resignation, therefore, is false and unacceptable. A certificate of
posting was produced before School Tribunal and it has been
accepted though, there is nothing to connect it with the alleged letter
of acceptance of resignation. He submits that the appellant has
never received any such communication informing him that his
4 LPA540.09.odt
resignation was accepted. No office copy of such communication has
been filed on record.
4] Shri Kharkate, learned counsel for respondent nos.2 and
3 read out the written statement filed by the Headmaster. He
submits that there are two resignations and both are admittedly in
the handwriting of the appellant only. The dates thereupon are also
put by the appellant and in the wake of these documents, the School
Tribunal has rightly appreciated the controversy. He submits that
resignations were addressed to the Headmaster, but then the
Headmaster in his capacity as Secretary, placed it before the
management and the management has, on 10.5.1991, accepted the
same. This acceptance has been intimated under certificate of
posting (UCP) on 18.5.1991. According to him, an assertion in
written statement that the appellant has received salary for the
period up to 22.6.1991 cannot be construed to mean that he was in
employment up to that date.
5] Shri Deshpande, learned counsel submits that
respondent nos.5 and 6 have been recruited after termination of the
appellant and hence, have got no role to play in the matter.
5 LPA540.09.odt
However, they cannot be removed from employment even if appeal
of the present appellant is to be allowed.
6] The learned Assistant Government Pleader supports the
arguments of Shri Kharkate, learned counsel for respondent nos.2
and 3.
7] In brief reply, Shri Mishra, learned counsel invites our
attention to 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. According to him, the provisions therein
should have been at least shown to have been followed in the present
matter.
8] After hearing the respective counsel, we find that the
School Tribunal and the learned Single Judge both have held against
the present appellant. They have accepted that the appellant did
tender resignation and had resigned. However, we are not in a
position to accept these findings.
6 LPA540.09.odt
9] The appellant has approached with specific contention
that he worked up to 22.6.1991 and has been discontinued thereafter
orally. The management has not filed any separate written
statement. It has also not stated that it is adopting the written
statement filed by the Headmaster. According to Shri Mishra,
learned counsel, the Headmaster and Secretary for management,
who has filed separate written statement, is one and the same
person. Shri Kharkate, learned counsel disputes this. We are not
required to look into this controversy at this stage.
10] In the written statement filed by the Headmaster, it is
specifically pleaded that the appellant used to receive his salary
through bank. From 02.7.1990 till 22.6.1991, an amount of
Rs.22,567/- in all towards entire salary for said period has been
withdrawn from time to time by him. This assertion in the written
statement filed by Headmaster, therefore, shows that the appellant
has been paid salary up to 22.6.1991. In next paragraph of the
written statement, Headmaster has stated that on 04.4.1991, the
appellant gave advance notice/intimation to the institution and then
on 04.5.1991, he tendered his resignation. In pursuance of said
7 LPA540.09.odt
resignation, on 06.5.1991, the Headmaster forwarded the same to
the Chairman of School Committee with a forwarding letter
recommending its acceptance. The School Committee in its meeting
on 10.5.1991 gave sanction to said resignation letter. This decision
of the School Committee was conveyed to the appellant by letter
dated 18.5.1991.
11] These pleadings in the written statement, therefore, do
not show that the intimation sent on 18.5.1991 was under certificate
of posting. Office copy of any such intimation has not been produced
before the School Tribunal or then before this Court. Perusal of
resignation allegedly dated 04.4.1991 shows that it is on subject of
prior notice of resignation. In that prior notice, the appellant has
expressed his inability to continue on duty because of the domestic
problems. He has requested the Headmaster to accept his
resignation after completion of notice period. In this resignation,
date 04.4.1991 has been mentioned. In absence of original of this
document, we cannot comment more at this stage about change in
ink or change in handwriting etc. On left hand side at bottom, there
is an endorsement by the Headmaster and he has directed that the
same should be placed before the School Committee.
8 LPA540.09.odt
12] Another document is on subject of resignation and date
04.5.1991 appears on it. The reason given therein is of domestic
affairs and the appellant has stated that he resigns from service.
Again there is an endorsement on same lines of the Headmaster. It
does not give any advance intimation. If it is read as sequel to earlier
intimation dated 04.4.1991, it is more in the shape of releasing
letter.
13] The aforesaid two documents, therefore, show that the
management wanted to point out prior intimation of one month by
notice dated 04.4.1991 and then actual resignation after expiry of
period of one month i.e. 04.5.1991. It must become effective
immediately. As original of both these documents are not available,
we find that the School Tribunal must look into the same and then
arrive at proper finding. The appellant has contended that these
documents were undated and obtained from him while giving him
employment. The School Tribunal has to answer it.
14] The Headmaster in his written statement points out that
after 04.5.1991, the papers were placed before the School Committee
9 LPA540.09.odt
on 10.5.1991. The proceedings or agenda of the meeting of School
Committee dated 10.5.1991, if any, are not produced. As copy of
intimation allegedly sent to the appellant accepting his resignation is
not available, again other details of action taken by the management
on resignation, are not available on record.
15] The language of documents dated 04.4.1991 read with
document dated 04.5.1991 shows that had it been true, the appellant
would not have continued and would not have reported for duty up
to 22.6.1991. It needs to be noted that in May, 1991 and up to third
week of June, 1991 (normally), there must have been holidays to
school because of summer vacation.
16] Considering all these facts, acceptance by the
management that the appellant worked up to 22.6.1991 in the
written statement filed by the Headmaster becomes material. Failure
of respondent nos.2 and 3 to produce relevant documents before the
School Tribunal also assumes importance.
17] We, therefore, find that the School Tribunal or the
learned Single Judge ought to have commented upon the object of
10 LPA540.09.odt
arrangement in Rule 40 of the Rules of 1981 in the backdrop of these
facts on record.
18] In this situation, we are not able to sustain the judgment
of the School Tribunal dated 06.8.2001 in Appeal No. 3/93-A.
Accordingly, the said judgment is quashed and set aside. Appeal
No.3/93-A is restored back to file.
19] The contentions of learned counsel Shri Deshpande
appearing on behalf of respondent nos.5 and 6 are kept open and can
be looked into at appropriate juncture, if occasion therefor arises.
We direct the parties to appear before the School Tribunal at
Amravati on 13.11.2017. The School Tribunal shall thereafter
attempt to take fresh decision in the matter as per law within next
six months.
20] Needless to mention that because of the orders above,
the judgment delivered by the learned Single Judge on 20/21.8.2008
in Writ Petition No. 4/2002 also does not hold good.
21] The School Tribunal at Amravati shall decide the
11 LPA540.09.odt
question of resignation after recording finding on the story of the
appellant before it as also respondent-employer before it. The letters
patent appeal is thus partly allowed and disposed of. No costs.
JUDGE JUDGE
