Bombay High Court
Sunita Madhaorao Mohod vs Shriramchandra Samaj Seva Samiti ... on 17 August, 2021
Bench: A.S. Chandurkar, Govinda Ananda Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.305 OF 2010.
IN
WRIT PETITION NO. 2796 OF 2006
Sanjay Annaji Pohokar,
Aged about 45 years,
Occupation - Service,
R/o Belora, Tq: Chandur Bazar,
Dist: Amravati. ..... APPELLANT
...V E R S U S...
1. Shriramchandra Samaj Seva Samiti,
Bramhanwada [Kasba]
Post. Talegaon, Tq: Morshi,
Dist: Amravati,
Through its Secretary.
2. The Headmaster,
Dnyandeep Vidyalaya,
Bramhanwada [Kasba]
Post: Talegaon, Tq: Morshi
Dist: Amravati,
3. The Education Officer [Secondary]
Zilla Parishad, Amravati,
Tq : & Dist: Amravati
4. Shri R.L. Loharkar,
Assistant Teacher in
Dnyandeep Vidyalaya,
Bramhanwada [Kasba]
Post: Talegaon, Tq: Morshi,
Dist:Amravati ...RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri V. A. Kothale, Advocate for appellant
Shri S. Sarda, Advocate h/f. Shri R. M. Bhangde, Advocate for
respondent No.1
Shri D. P. Thakare, AGP for respondent No.3/State.
Shri P. S. Patil, Advocate for respondent No.4
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2
WITH
LETTERS PATENT APPEAL NO.418 OF 2010.
IN
WRIT PETITION NO. 5232 OF 2006
Sunita Madhavrao Mohod
Aged about 44 years,
Occupation:- Service
R/o c/o Shri. S.A. Pohokar,
R/o Belora, Tq. Chandur Bazar,
District:- Amravati ..... APPELLANT
...V E R S U S...
1. Shriramchandra Samaj Seva Samiti,
Bramhanwada [Kasba]
Post. Talegaon, Tq: Morshi,
Dist: Amravati,
Through its Secretary
2. The Headmaster,
Dnyandeep Vidyalaya,
Bramhanwada [Kasba]
Post: Talegaon, Tq: Morshi
Dist: Amravati.
3. The Education Officer [Secondary]
Zilla Parishad, Amravati,
Tq : & Dist: Amravati
4. Ku. Madhuri Dandele,
Assistant Teacher in
Dnyandeep Vidyalaya,
Bramhanwada [Kasba]
Post: Talegaon, Tq: Morshi,
Dist: Amravati ... RESPONDENTS
--------------------------------------------------------------------------------------------------
Shri V. A. Kothale, Advocate for appellant
Shri S. Sarda, Advocate h/f. Shri. R. M. Bhangde, Advocate for
respondent No.1
Shri D. P. Thakare, AGP for respondent No.3/State.
Shri P. S. Patil, Advocate for respondent No.4
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3
CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.
DATED : 17.08.2021
ORAL J U D G M E N T (Per : G. A. Sanap, J.)
The appellants have challenged the identical
judgment dated 02.03.2010, passed by the learned single Judge,
in Writ Petition No. 2796 of 2006 and Writ Petition No. 5232 of
2006. The appellant in Letters Patent Appeal No. 305 of 2010 is
the husband while the appellant in Letters Patent Appeal No. 418
of 2010 is the wife. In the writ petitions they had challenged the
judgment dated 12.04.2006 delivered by the learned Presiding
Officer of the School Tribunal, Amravati in Appeal No. 23 of 2000
and Appeal No. 22 of 2000, whereby their appeals were
dismissed. The learned single Judge dismissed both the writ
petitions and confirmed the judgment delivered on 12.04.2006,
passed by the learned Presiding Officer of the School Tribunal,
Amravati.
2] The brief facts of the case are as follows:
In the appeals before the learned Presiding Officer of
the School Tribunal, Amravati the appellants sought the
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declaration that the communication dated 22.01.2000 shown to
have been 'Resignation Letters' addressed to the respondent Nos.
1 and 2 is null and void and consequently, prayed for setting aside
the communication dated 29.04.2000 issued by the respondent
No.2 in terms of the so called acceptance of their resignations and
consequently, prayed for their reinstatement. It is the case of the
appellants that they are qualified to be appointed as an Assistant
Teacher. The appellant- Smt. Sunita Mohod was appointed as
'Assistant Teacher' in the year 1990 and Shri Sanjay Pohokar was
appointed as Assistant Teacher in the year 1992 in respondent
No.1- School. The appellant- husband was eligible to be promoted
as Headmaster. However, incharge Headmaster Shri. S. V. Tekade
pressurized them to abandon the claim against post of
Headmaster.
3] There was a dispute between the appellants and the
respondent Nos. 1 and 2. The husband- Sanjay Pohokar and wife-
Sunita Mohod were not allowed to join their duty with effect from
31.08.1999 and 30.07.1999 respectively. They challenged their
termination before the School Tribunal, Amravati. The School
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Tribunal set aside their termination and thereafter, they joined
their duty.
4] It is the case of the appellants that respondent Nos. 1
and 2 have obtained their signatures on blank papers to be used
for drafting their resignation letters etc. in future. The respondent
Nos.1 and 2 had also obtained the signatures of the other
employees of the school on the blank papers. The appellants were
shocked to receive the communication dated 29.04.2000
informing them that their resignation letters were received and
accepted. According to them, the respondent Nos. 1 and 2
misused the blank signed papers. They never sent any resignation
to the respondent Nos.1 and 2. The order dated 29.04.2000
relieving them from the service is illegal and bad in law. The
appellants had an apprehension that the blank papers with their
signatures would be misused and therefore, they made complaints
to the various authorities. According to them they never resigned
from the service. These blank papers with their signatures have
been misused by the Management of respondent Nos. 1 and 2 for
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typing their resignation letters. On these averments, they prayed
for declaration.
5] The respondent Nos. 1 and 2 filed their reply and
opposed the case of the appellants. The respondent Nos. 1 and 2
in some and substance denied the material facts pleaded by the
appellants. It is denied that they were terminated in the year
1999. According to the respondent Nos. 1 and 2, the appellants
on their own remained absent from duties. On receipt of the
orders from the School Tribunal, Amravati they were allowed to
join their duties. It is further contended that the appellant-
husband for some time worked as Headmaster, however, he
abandoned his claim in writing.
6] According to the respondents, the appellants
forwarded their resignation letters to the respondents by
registered post acknowledgment due. On receipt of the
resignation letters, duly signed by the appellants, the same were
placed before the Committee. In the meeting, the Committee
accepted the resignations. The intimation of acceptance of the
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resignation was duly sent to the appellants on 02.02.2000. It is
contended that the appellants voluntarily resigned from service.
They were relieved after expiry of period of three months on
29.04.2000. It is contended that in order to stake a false claim the
present dispute has been raised.
7] The appellants challenged the communication with
regard to the acceptance of resignations and relieving them from
the service. The learned Presiding Officer of the School Tribunal,
Amravati dismissed their appeals. The writ petitions filed by them
challenging the orders passed by the learned Presiding Officer of
the School Tribunal, Amravati were also dismissed holding that
they voluntarily resigned from their respective posts.
8] Being aggrieved by the common judgment passed by
the learned single Judge in Writ Petition No. 2796 of 2006 and
Writ Petition No. 5232 of 2006 dated 02.03.2010 the appellants
have come before this Court in appeal. The grounds of challenge
to the impugned order have been set out in Memo of Appeals. It
is contended that the learned single Judge has failed to appreciate
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the evidence on record and came to the wrong conclusion. It is
their case that the relevant material has not been taken into
consideration while deciding the writ petitions.
9] We have heard the learned Advocates for the parties.
Perused the record and proceedings.
10] The learned Advocate Shri V. A. Kothale for the
appellants submitted that there is cogent and concrete evidence
on record to prove that the appellants never intended to resign
from the service. The learned Advocate pointed out that the
resignation letters of the appellants relied upon by the respondent
Nos. 1 and 2 are false and fabricated. The learned Advocate
submitted that the appellants have no source of livelihood and
therefore, there was no question of their tendering the
resignations. As per the submission of learned Advocate, the so
called resignations, therefore, are the outcome of the fabrication of
resignation letters and the mischief played with the appellants.
The learned Advocate submitted that in this case there was no
compliance of the mandatory provisions of Section 7 of the
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Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (For short 'Act of 1977') and Rule 40 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Rules, 1981 (For short 'Rules of 1981'). The learned
Advocate submitted that the conduct of the Management and the
respondent No.2 is inconsistent with the documentary evidence
placed on record and based on the same a serious doubt is created
about their bonfides. The learned Advocate submitted that the
respondent Nos. 1 and 2 did not communicate the acceptance of
resignations by them vide letter dated 02.02.2000, as contended
by them. The learned Advocate submitted that this fact was not
known to the appellants and if this fact had been brought to their
notice they would have either withdrawn the so called
resignations or taken appropriate action. The learned Advocate
submitted that this fact was intentionally suppressed from them
till 27.04.2000 when they were informed for the first time about
the acceptance of their resignations. The learned Advocate
submitted that considering the history of litigation between the
appellants and the respondent Nos. 1 & 2 and various complaints,
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about the harassment, mis-management and the mis-conduct of
the respondent Nos. 1 and 2, made by the appellants, makes the
case of the appellants probable that in order to get rid of the
appellants resignation letters have been fabricated by the
respondent Nos. 1 and 2. The learned Advocate submitted that
the appellants made complaints to the Education Officer,
Amravati, the incharge of the Police Station Shirkhod and to other
authorities about taking their signatures on blank papers and
likelihood of misuse of those blank papers for drafting or creating
the resignations of the appellants. The learned Advocate
submitted that neither the School Tribunal nor the learned single
Judge has taken the entire evidence on record into consideration.
The learned Advocate pointed out that when the respondent Nos.
1 and 2 specifically contended in the reply that the decision of the
Management accepting the resignations of the appellants was duly
communicated to them by letter dated 02.02.2000, in the appeals
before the School Tribunal the appellants' advocate made
application at Exh. 13 in the Appeal No. 23 of 2000 and Exh. 15 in
Appeal No. 22 of 2000 seeking directions to the respondents for
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production of the acknowledgment receipt of the appellants
regarding the communication dated 02.02.2000 referred in reply.
The learned Advocate for the appellants pointed out from the
record that the respondent Nos. 1 and 2 filed reply to this
application dated 25.09.2000 and in para No. 8 categorically
stated that it is not necessary to call the said documents, in as
much as, the respondents would prove that there was a valid
resignations by the appellants. The learned Advocate submitted
that this documentary evidence has not been taken into
consideration either by the learned Presiding Officer of the School
Tribunal, Amravati or by the learned Single Judge. The learned
Advocate submitted that, therefore, the finding of fact recorded by
the learned Presiding Officer of the School Tribunal, Nagpur and
up held by the learned Single Judge cannot be sustained.
11] The learned Advocate for the appellants in support of
his submissions placed reliance on following decisions:
a) Bahujan Vikas Mandal, Akola and Another .v/s.
Manda Vithalrao Parsutkar and another reported in
2011 (2) Mh.L.J. 203
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b) Shri Sant Sawatamali Shikshan Prasarak Mandal,
Tembhurni .v/s. State of Maharashtra and Oths.
reported in 2008 (6) Mh.L.J. 529
c) Sayyed Maksood Ali Sayyed Roshid Ali .v/s. Uruj-E-
Urdu Education Society, Kalamb and Anr. r eported in
2011(4) Mh.L.J.952
12] The learned Advocate for the respondent Nos. 1 and 2
submitted that the resignations tendered by the appellants were
voluntary. The learned Advocate submitted that there is no iota of
evidence to accept the case of the appellants that either the
Management of the respondent No.1 or the respondent No.2
obtained the signatures of appellants on blank papers and those
blank papers were used for fabricating the resignation of the
appellants. The learned Advocate further submitted that the
appellants voluntarily resigned from the service. The learned
Advocate submitted that the committee accepted the resignations
tendered by the appellants and the decision of the committee was
communicated to the appellants vide letter dated 02.02.2000.
The learned Advocate submitted that the appellants kept mum till
29.04.2000 from the date of the receipt of the communication
dated 02.02.2000. The learned Advocate submitted that
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resignations tendered by the appellants were voluntary and
therefore, strictly in consonance with the provisions of the Section
7 of the Act of 1977 and the Rules of 1981. The learned Advocate
further submitted that the learned Presiding Officer of the School
Tribunal, Amravati and the learned Single Judge of this Court
recorded a concurrent finding of fact that the resignations
tendered by the appellants were voluntary. The learned Advocate
submitted that there is no iota of evidence to accept the case of
the appellants. The learned Advocate submitted that initial
burden was on the appellants to prove that they did not
voluntarily resign from the service. The learned Advocate
submitted that they have not adduced the evidence to discharge
this onus. The learned Advocate in short submitted that the well
reasoned judgment of the learned single Judge does not warrant
interference. The learned Advocate for the respondent No.1 in
support of his submissions placed reliance on a decision in the
case of Gyanendra Sahay .v/s. Tata Iron & Steel Co. Ltd. reported
in (2006) 5 SCC 759 .
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13] In order to appreciate the rival submissions we have
minutely perused the record and proceedings. We have also gone
through the order passed by the learned Single Judge as well as
the Presiding Officer of the School Tribunal, Amravati. The
appellants had in the writ petitions filed by them prayed for
issuance of writ of certiorari while challenging the judgment of the
School Tribunal. Articles 226 and 227 of the Constitution of India
were invoked. It is well settled that findings of fact recorded by
the Tribunal cannot be re-opened nor can the evidence on record
be re-appreciated. The limited scope available, while considering
as to whether the writ of certiorari can be issued, is that if the
judgment under challenge suffers from an error of law which is
apparent on the face of the record, the same would be open for
correction. Where the conclusion recorded by the Tribunal is
without considering relevant material on record & as a result of
which a wrong conclusion in law has been arrived at, the same
would be open to correction by a writ of certiorari. Further if the
impugned order results in causing manifest injustice the same can
also be interfered with. As held in Syed Yakoob .v/s. K. S.
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Radhakrishnan and other reported in AIR 1964 SC 477 whether or
not an impugned error is an error of law would depend upon the
facts and circumstances of each case and upon the nature and
scope of the legal provisions, which are alleged to have been
misconstrued or contravened. The limited reference to the
material on record is for assessing the contention that relevant
material/aspects have been excluded in the decision making
process. With the aforesaid aspects in mind we propose to
consider the challenges raised in these appeals.
14] In these appeals grievance has been made about the
non compliance of provisions of Section 7 of the Act of 1977 and
Rule 40 of the Rules of 1981. The learned Single Judge in the
case of Bahujan Vikas Mandal, Akola and Another .v/s. Manda
Vithalrao Parsutkar and another reported in 2011 (2) Mh.L.J. 203
has considered the provisions of Section 7 of the Act of 1977. In
this case, it is held that an intention to tender resignation has to
be made clear by, (i) drawing up a letter of resignation in
duplicate; (ii) signing both the copies of that letter; and (iii)
putting the date thereon. It is further held that the first step in the
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process is, to draw up a letter of resignation in duplicate. The
phrased verb "draw up" used in Section 7 connotes the process of
handwriting as against the process of typing or printing. The next
requirement in the process of resignation, is to sign both the
copies of letter of resignation. The requirement of putting
signature and the date on the letter of resignation by an employee
in his own handwriting, has to be held as mandatory requirement.
15] In the case of Sayyed Maksood Ali Sayyed Roshid
Ali .v/s. Uruj-E-Urdu Education Society, Kalamb and Anr. reported
in 2011(4) Mh.L.J.952, the learned single Judge has considered
the mandate of Section 7. It is held that the section 7 is in two
parts namely execution and mode of dispatch or delivery. It is
held that the first part contains 3 requirements namely (i) drawing
up a letter of resignation in duplicate; (ii) signing both the copies
of that letter; and (iii) putting the date thereon. It is held that
these requirements of Section 7 are mandatory and its non
compliance would render the resignation illegal and involuntary.
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16] In the case of Shri Sant Sawatamali Shikshan Prasarak
Mandal, Tembhurni .v/s. State of Maharashtra and Oths. reported
in 2008 (6) Mh.L.J. 529, it is held that unless and until it is proved
that the resignation is voluntary the same cannot be acted upon.
17] In the case of Gyanendra Sahay .v/s. Tata Iron & Steel
Co. Ltd. reported in (2006) 5 SCC 759 relied upon by the learned
Advocate for the respondent, the question was whether the
resignation was voluntary or as a result of the exercise of undue or
excessive pressure to sign the letter. In this case the Hon'ble
Supreme Court in the backdrop of the evidence found that the
resignation was voluntary and therefore, there was no need to
interfere in the decision of the High Court which upheld the
voluntary nature of the resignation.
18] It is pertinent to note at the outset that the parties
have not adduced oral evidence before the School Tribunal,
Amravati. The parties have placed on record the documentary
evidence and therefore, the vital question raised in these two
appeals are required to be decided keeping in mind the attending
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circumstances, the documentary evidence placed on record by the
parties and conduct of the parties throughout. The main question
that needs to be addressed at the outset is whether the
resignations tendered by the appellant were voluntary or not. The
appellants have stated that they never resigned from the service.
It is their case that the blank signed papers obtained from them by
the respondent Nos. 1 and 2 were misused for fabricating their
resignation letters. The respondents have categorically stated that
the appellants voluntarily tendered their resignations and on
acceptance of resignations they were duly communicated about
the same vide letter dated 02.02.2000. In our view, the entire
controversy revolves around this important aspect. If it is found
that the decision taken by the Management accepting the
resignations of the appellants was not duly communicated to the
appellants as stated by the respondents then it would reflect upon
the conduct and bonafides of the respondents. In order to
substantiate the contention on this point the respondent Nos. 1
and 2 have stated that in the reply they have specifically pleaded
that this decision was duly communicated to the appellants. The
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learned Presiding Officer of the School Tribunal, Amravati as well
as the learned Single Judge held that the appellants had an
opportunity to rebut this contention either by filing an affidavit or
by bringing on record some material, but they did not do it.
Therefore, adverse inference was drawn against the appellants. In
our view, this inference was not at all justified in the facts,
circumstances and evidence on record.
19] The appellants joined the service in 1992. There is
ample documentary evidence on record to show that the dispute
started between them in the year 1997. The husband was
promoted as Headmaster. He worked as Headmaster for two
years. After two years he abandoned that post. It is the
contention of the appellants that he was forced to abandon the
post of Headmaster because the Management wanted to
accommodate the respondent No.2. The wife abandoned her
claim to the post of Headmaster. Till 1997 appellants had put in
six years service. It seems that thereafter, the dispute between the
appellants on one hand and the respondent Nos. 1 and 2 on the
other hand got escalated. The appellants were not allowed to join
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their duty in July-August 1999. They filed the proceedings before
the School Tribunal, Amravati for setting aside their termination.
They also made representation to the Education Officer. It is a
matter of record that in September 1999, they resumed their
duties. It is therefore apparent on the face of record that the
appellants and the Management and the respondent No.2 were
literally at loggerheads. The appellants till the year 2000 had put
in eight years of service. The service was the sole source of their
livelihood. While appreciating the contention of the parties on the
point of voluntary nature of the resignation, all the above facts
cannot be brushed aside. The facts, considered in totality would
show that the appellants and the respondents were at
loggerheads. While deciding the probability of the case of the
parties this circumstance would assume great significance.
20] Before proceeding to deal with other circumstances
at this stage, it would be necessary to find out whether the
appellants were communicated the decision of the Management
accepting their resignations. It is pertinent to note that in the
appeals filed before the School Tribunal the material facts have
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been pleaded. The reference has been made to the complaints
made by the appellants to the authorities. In the complaints the
appellants have made allegation of obtaining their signatures on
the blank papers. There is no pleading in the appeal memo about
the receipt of communication of acceptance of the resignations
vide letter dated 02.02.2000. In our view, this would clearly
indicate that they were not at all aware of this fact and therefore,
this fact was not pleaded. This finding can get support from other
material on record. The respondents in para No.2 of the reply
categorically stated that the decision of acceptance of their
resignation was communicated to them vide letter dated
02.02.2000. But despite receipt of the same they have not made
any grievance till 29.04.2000. It is pertinent to note that in this
paragraph the mode of communication has not been mentioned.
It is not mentioned whether the decision was communicated by
registered post acknowledgment due or under certificate of
posting or by personal service. It is true that in the backdrop of
this pleading the appellants were required to deal with the same.
They could have filed the affidavit denying the same. They did
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not file the affidavit. However, in order to justify their bonafides
their Advocate made an application at Exh. 13 in Appeal No. 23 of
2000 and Exh. 15 in Appeal No. 22 of 2000 on 10.07.2002 and
prayed before the learned Presiding Officer of the School Tribunal,
Amravati to issue directions to the respondent Nos. 1 and 2 to
produce the resolution of the School Committee and the
acknowledgment of the appellants regarding service of the
communication dated 02.02.2000. This fact would clearly indicate
that the appellants did not accept the case pleaded in the written
statement with regard to the communication of the decision by the
Management to them. The respondents in view of this prayer
were supposed either to produce the documents or offer justifiable
explanation for non production. They filed reply to this application
and in para No. 8 raised a specific contention about these two
documents. It is stated that as far as these documents are
concerned the respondent Nos. 1 and 2 would prove their case
that there was valid resignation and therefore, it is not necessary
to call the same documents. It is seen that this reply is vague and
evasive and as such creates doubt about the bonafides of the
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respondents. It can indicate the skilful attempt to suppress the
material fact from the Court. The respondents took the burden on
their shoulder to prove that the resignations were valid. In our
view, this is the crux of the matter. The learned Single Judge has
observed that the appellants have not denied the fact pleaded in
the written statement about this communication. In our opinion
this observation seems to be without adverting to these documents
and facts pleaded in reply to deny production of vital documents.
21] One can gather that, at the stage of reply, the
respondents were not serious about the production of documents.
The question is whether the documents in this regard have been
produced on record by them or not. We have minutely perused
the record and proceedings and particularly the documents
produced by the respondents. It is seen that except these
documents which they were called upon to produce by the
appellants, remaining all documents have been produced. It is
pertinent to note that vide communication dated 27.04.2000
appellants were informed that they would be relieved from the
service with effect from 29.04.2000. This communication was
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sent to respondents by under certificate of posting as well as by
registered post acknowledgment due. The under certificate of
posting receipt is produced on record. The acknowledgment of the
receipt of this Communication on 17.05.2000 is also on record. It
is therefore seen that one or two days prior to 29.04.2000
appellants were communicated about this decision and the
documents of service of this communication have been placed on
record. But the documents with regard to the acknowledgment or
service of the decision vide letter dated 02.02.2000 have not been
placed on record. The explanation has been placed on record in
the reply filed to the application for production of documents.
Perusal of the explanation would show that it is nothing but an
attempt to hide and suppress the material facts. In the backdrop
of this, the other documentary evidence placed on record by the
appellants and the attending circumstances need appreciation.
22] In the appeals filed before School Tribunal, Amravati
the appellants have specifically mentioned that they have made
various complaints to the authorities about the likely misuse of the
blank papers with their signatures. Reliance has been placed on
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various complaints/letters produced on record as per the list.
They made a representation dated 17.05.2000 to the Education
Officer and placed on record the grievance about the misuse of the
blank signed papers by the respondents. This complaint was
made after relieving them from service. It would be necessary to
see whether complaints were made before 27 th or 29th of April
2000. The first complaint made to the respondent No.2 is dated
01.01.2000. In this complaint, the appellants and two more
teachers Shri Kankale and Shri Raut made a grievance that the
respondent Nos. 1 and 2 have obtained their signatures on blank
papers and the same are likely to be misused. By this
communication they informed the respondent No.2 that copy of
this letter/complaint was forwarded to the Education Officer and
therefore, unless and until they submit any resignation or
documents relating to the School through Education Officer they
would not agree to any resignation purported to have been
attributed to them. Perusal of this document would show that this
complaint was made 22 days before the so called resignation of
the appellants dated 22.01.2000. The appellants made complaint
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to the incharge of the Shirkhod Police Station on the 22.03.2000.
In the said complaint they reiterated the allegations made in the
complaint dated 01.01.2000. In this complaint, they categorically
stated that the complaint/letter dated 01.01.2000 was sent to
Education Officer, Amravati. It is pertinent to note that this
complaint was signed by the appellants as well as Shri Raut and
Shri Kankade. One more complaint made to the Education Officer
is dated 24.02.2000. In this complaint, the appellants and the
remaining two teachers made multiple grievances and stated that
they would undertake fast unto death due to harassment by
respondents. This complaint is after 22.01.2000. The appellants,
as can be seen from this complaint, were fighting for their rights.
If they had resigned and received the communication of
acceptance of same, then they would not have made such a
grievance.
23] The next complaint is dated 02.04.2000 made against
the respondent Nos. 1 and 2 to the Education Officer. In this
complaint also the appellants and the remaining two teachers have
reiterated the allegations with regard to the obtaining their
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signatures on blank papers and hand written envelopes. It is seen
that the copies of all the complaints were forwarded to the
President of respondent No. 1. The respondents have not
specifically denied the receipt of the complaints/letters sent to the
respondent Nos.1 and 2. The learned Single Judge has considered
these complaints in para 9 of the Judgment. The learned Single
Judge on going through these documents and particularly the
complaint dated 01.01.2000 observed that in this connection the
appellants did not make a complaint against the Management
about obtaining their signatures on blank papers. In the
complaint/representation dated 01.01.2000 there has been
categorical statement that the respondents have obtained their
signatures on blank papers. It is therefore seen that till the date of
actual communication of the acceptance of their resignation on
27.04.2000 and thereafter, in the month of May 2000, they
consistently made the allegations against the respondents about
obtaining their signatures on blank papers and the likely misuse of
the same for drafting their resignation letters. In our view, if this
documentary evidence is appreciated in the context of the
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chronology of events, it would show that before the date of the
resignation and after the date of resignation till 27.04.2000 the
appellants consistently made a grievance that their signatures
were obtained on blank papers by the respondent Nos.1 & 2 and
those papers can be used for forging their resignation letters. This
fact corroborates the contention of the appellants that they were
not at all communicated the decision of the committee of
acceptance of their resignations vide letter dated 02.02.2000. If
the appellants had voluntarily resigned, as stated by the
respondents, then in the ordinary course of nature they would not
have complained to the authorities about obtaining their
signatures on the blank papers and likely misuse of the same at
the hands of the respondents.
24] It is pertinent to note that considering the dispute
between the appellants and the Management, the Management
would have taken care, provided their intention was not malafide.
The respondent Nos. 1 and 2 were expected to act in a
transparent manner. The respondent Nos. 1 and 2 in the factual
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situation ought to have insisted the appellants to submit their
handwritten resignation. It was necessary because serious
allegations had been made against them by the appellants and
two more employees. The respondent Nos. 1 and 2 ought to have
displayed the transparency and insisted them to tender their
resignations in writing. The respondents ought to have acted in
reasonable and fair manner. The decision to resign obviously
would have been of the appellants. The respondent Nos. 1 and 2
were not supposed to have any apprehension about the change of
the mind or decision by the appellants to resign from the service.
At the most, the appellants would have expressed their
unwillingness to resign. However, dispensing with this
fundamental requirement, in factual situation the respondents
have chosen not to do it. In our opinion, this would reflect upon
the malafides of the respondents. Similarly, this would reflect
upon the voluntary nature of the resignations. If the above facts
are considered in a juxta-position with the case of the appellants,
the documents relied upon by the appellants and the fact that
there is no concrete evidence about the service of the
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communication dated 02.02.2000, it would show that the action
of the respondent Nos. 1 and 2 smacks of malafides.
25] It would be necessary to peruse the so called
resignation letters. These resignation letters are typed. The
manner of typing the resignation letters itself creates a doubt. The
resignation letters contain so many un-necessary details which
would not have been mentioned by the employee who has been
fed up with the Management and took the decision to resign.
There are number of paragraphs in the letters. The spacing left
between the lines, paragraphs and at the end of the letters clearly
indicate that in order to cover the entire paper upto signature this
matter was typed. The learned Advocate for the appellants on
inquiry made by us submitted that till date the appellants have
not joined service elsewhere. The learned Advocate for the
respondent Nos. 1 and 2 has not controverted this statement made
across the bar. It would be necessary in this context to see the
reasons for resignation. It is undisputed that the appellants joined
the service in 1992 and till 2000 they had put in about eight and
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half years of service. Whether they were eligible by that time to
get the employment elsewhere would also be a million dollar
question.
26] Coming back to the contents of resignation letters it
appears that, this is a creation of the draftsman of the letters. It is
stated that at a larger city they would get an employment as well
as more facilities and benefits. In the ordinary course of nature a
person of ordinary prudence, placed in the position of appellants,
would not leave the secured job before joining the service at new
place. There was no problem as such for the appellants while
doing the service with the respondent Nos. 1 and 2. A person of
ordinary prudence would not resign the secured job without first
getting the new job and joining there. It is further pertinent to
note that considering the continuous dispute between the
appellants and the respondent Nos. 1 and 2 for years together, if
the appellants had been fed up with them then in the resignation
letters they would have simply stated that they do not want to do
the service with the respondent Nos. 1 and 2 and would have
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tendered their resignations. The narration of un-necessary and
improbable matter in the resignation letters could not be said to
be the requirement and as such clearly pointed a needle of
suspicion towards the respondent Nos. 1 and 2. This also creates
a doubt about it. The perusal of the resignation letters prima facie
indicates that to adjust the typed matter upto the signature,
number of paragraphs were typed and un-neccessary spaces was
left. This in our opinion creates a doubt about the actual author of
the letters. This doubt is further fortified because immediately
after acceptance of the resignation letters, the appellants were not
informed about it. They were kept in dark till 27.04.000. The
reasonable judicial inference, therefore, can be drawn that if the
respondent Nos.1 and 2 had communicated the decision taken on
the basis of these resignations, the appellants would have made a
grievance and initiated the proceedings against the respondent
Nos. 1 and 2. Similarly, they would have withdrawn the so called
resignations. It is therefore apparent that the respondent Nos. 1
and 2 took abundant care and caution and ensured that their
purpose does not get frustrated by early communication of
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decision of the acceptance of the resignations. In the ordinary
course of nature considering the fact that the appellants and the
respondent Nos. 1 and 2 were literally at loggerheads and fought
the litigation in the Court of law, the respondent Nos. 1 and 2
were expected to communicate this decision to them. It is
pertinent to note that the resignations were to became effective
from 29.04.2000. The appellants, therefore, must be attending
the school. This communication could have been made personally
when they attended the school. In our opinion, this aspect creates
a doubt about the intention of the respondents.
27] It is further pertinent to note that when the
complaints were made against the respondents by the appellants
to the authorities in the month of February-March 2000, the
respondents ought to have informed the authorities in writing
about this development. The secrecy maintained by the
respondent Nos. 1 and 2 was with the purpose to get rid of the
appellants and therefore, one or two days before 29.04.2000 this
fact was communicated to them. In our opinion, this is not
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consistent with the conduct of the man of ordinary prudence and
facts and circumstances placed on record.
28] At this stage, it is necessary to mention that alongwith
the appellants two more teachers had also made similar complaint
against the respondent Nos. 1 and 2. The parties have not
adduced the oral evidence. In the backdrop of the above stated
evidence, facts and circumstances the respondents ought to have
filed the affidavit of those teachers who had joined the appellants
in making the complaint. It is not the case of the respondents that
those teachers are not serving with the respondents. In the facts
and circumstances, the respondents ought to have filed the
affidavit of these two employees in support of their contentions.
29] On consideration of the documentary evidence on
record we are fully convinced that the resignation sought to be
relied upon by the respondent Nos. 1 and 2 being the voluntary
resignation of the appellants cannot be accepted. The
documentary evidence discussed above does not permit us to
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accept the case of the respondent Nos. 1 and 2 and reject the case
of the appellants. The learned Presiding Officer of the School
Tribunal, Amravati as well as the learned Single Judge failed to
take note of relevant material which has vital bearing on the core
issue and crux of the case of the appellants. We are conscious that
the concurrent finding of fact should not normally be interfered
with. Before setting aside concurrent findings by two forums it
must be demonstrated that such findings have been arrived at by
ignoring vital evidence or improper application of the provisions
of law and which is not possible based on such material. In this
case we have come across that the material relevant circumstances
and documents were not considered in the proper prospective. In
our humble opinion if the orders are allowed to stand then the
same would result in manifest injustice and irreparable loss to the
appellants. We are satisfied that the impugned orders suffer from
an error apparent on the face of record on account of non-
consideration of the requirements of Section 7 of the Act of 1977
as laid down by this Court in the decisions referred to herein
above. As a result of non-consideration of relevant material and
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mis-interpretation of the provisions of Section 7 of the Act of 1977
the impugned orders were liable to be set aside in exercise of
certiorari jurisdiction. In our view, the law laid down in the
above cited judgments is consistent with the mandate of Section 7
of the Act of 1977 and Rule 40 of the Rules of 1981. On
consideration of the evidence and circumstances brought on
record, we have no semblance of doubt to conclude that the
resignation letters relied upon by the respondents were not
voluntary resignation letters of the appellants. The facts and
evidence make it clear beyond doubt that the case of the
appellants is probable and as such acceptable. We have no reason
to take a view different from the one taken in the judgments
(cited supra) on the point of the mandate of mandatory
requirements of Section 7 of the Act of 1977. We reiterate that
any act proved to have been done contrary to the mandate of
Section 7 of Act of 1977 needs to be declared as void-ab-initio and
illegal. We are therefore, inclined to set aside both the orders.
Once the order passed by the learned single Judge in Writ
Petitions is set aside consequently, the order passed by the learned
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Presiding Officer of the School Tribunal, Amravati would have to
be set aside. In view of setting aside both the orders, the appeals
filed by the appellants namely Appeal No. 22 of 2000 and Appeal
No. 23 of 2000 would have to be allowed. In the event of granting
the relief as prayed for by the appellants before the School
Tribunal they would be entitled to reinstatement. Perusal of the
title of the appeals filed by the husband and wife before the School
Tribunal, Amravati would show that in the year 2000 the husband
was 36 years old and the wife was 34 years old. It is therefore,
crystal clear that they have not attained the age of
superannuation.
30] Since the appellants are found entitled for
reinstatement, the question of back wages from the date of
reinstatement will have to be considered. The learned Advocate
for the appellants, to a pointed query from this Court stated that
after 29.04.2000, namely the date of the retirement, they have
not joined service anywhere. The learned advocate for the
respondent Nos. 1 and 2 did not counter this submission. It is
therefore crystal clear that due to the high handed and malafide
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action on the part of the respondent Nos. 1 and 2 the appellants
have been made to face this situation. They have led their life
without service for 20 years. In the facts and circumstances one
can imagine and visualize the plight and sufferings of the
appellants. Considering the period when the appellants were out
of employment, in our view the appellants are entitled to be
granted 50 % back wages from the date of their otherwise
termination namely with effect from 30.04.2000 and the same
would meet the ends of justice. The Management of the
respondent No.1 will be required to pay the back wages and
consequential benefits in view of their reinstatement. Therefore,
we proceed to pass the following order:
ORDER
i] The Letters Patent Appeal Nos. 305 of 2010 and
418 of 2010 are allowed.
ii] The orders passed in Appeal No. 22 of 2000
and Appeal No. 23 of 2000 passed by the
learned Presiding Officer of School Tribunal,
Amravati and the order passed by the learned
Single Judge in Writ Petition Nos.2796 of 2006
and 5232 of 2006 is hereby set aside.
iii] The Appeal No. 22 of 2000 and Appeal No.23
of 2000 filed by the appellants are allowed in
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terms of prayer clause (i) only. It is declared
that their resignations were not voluntary and
as such null and void. The appellants shall be
reinstated with effect from 30.04.2000.
iv] The appellants shall be entitled to get the 50 %
of back wages from 30.04.2000 till their
reinstatement alongwith other consequential
benefits as well as continuity of service. The
back wages be paid within a period of three
months from today, failing which that amount
would carry interest @ 5 % p.a. from the date
of judgment till realisation.
v] The prayer clause i (a) of the Appeal No. 23 of
2000 is rejected.
Both Letters Patent Appeal No. 305 of 2010 and
418 of 2010 are allowed in aforesaid terms
with no order as to costs.
JUDGE JUDGE
Namrata
