Mangesh Ashok Vaidya vs The Secretary Rotary Medical And ...
2021 Latest Caselaw 11415 Bom

                                                                                  WP.15573.19.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.15573 OF 2019

Mangesh s/o Ashok Vaidya,
Age : 30 years, Occu: presently Nil,
R/o Kokamthan, Taluka Kopargaon,
District Ahmednagar                                                ... PETITIONER


         VERSUS

1)       The Secretary,
         Rotary Medical and Community Trust,
         Sau. Nandini Purushottam Mule
         R/o Thatte Ground, Shrirampur,
         District Ahmednagar.

2)       Head Mistress,
         Kal. Anil Digambar Mule Primary School,
         Sanjay Nagar, Taluka Shrirampur,
         District Ahmednagar.

3)       The Education Officer (Primary)
         Zilla Parishad, Ahmednagar.                            ... RESPONDENTS

                                          ...
                 Advocate for Petitioner : Mr. Sachin S. Deshmukh
                Advocate for Respondent Nos. 1 and 2 : Mr. S.V. Dixit
                  Advocate for respondent No.3 : Mr. V.M. Vibhute
                                         ...

                                    CORAM           :   MANGESH S. PATIL, J.
                                    Reserved on     : 09.08.2021
                                    Pronounced on   : 20.08.2021

JUDGMENT :

Heard. Rule. The learned advocates for the respondents waive

service. At their request and with the consent the matter is heard finally at

the stage of admission.

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2. The petitioner is an employee of the School of which the

respondent No.1 is a Secretary and the respondent No.2 is the Headmistress.

The respondent No. 3 is the Education Officer, (Primary) Zilla Parishad. The

petitioner is impugning the judgment and order dated 27.08.2019 passed by

the School Tribunal thereby dismissing his Appeal No.2/2017 filed under

Section 9 of the Maharashtra Employees of Private Schools (Conditions of

Service) Regulation Act, 1977 (herein after the M.E.P.S. Act).

3. The brief history necessary to appreciate the matter in

controversy is to the following effect:

i) the petitioner was appointed as an Assistant Teacher on 02.02.2012.

The respondent No. 3 had granted approval to his appointment on

13.12.2013. On 18.11.2016 and 05.12.2016 the respondent No.2

served him show cause notices complaining about absenteeism. He

raised the issue with the respondent No.3 and also submitted his

explanation/representation to the respondent No.2 on 27.12.2016

alleging that an illegal notice for recovery of amount of Rs.24,24,878/-

was served to his paternal uncle by a credit society of which President

of the Management was the Secretary, on 28.12.2016. He filed a police

complaint on 24.01.2017 stating that he was being compelled to pay

huge money to continue serving as a teacher. He was threatened of

physical harm and was also threatened that he would not be allowed to

discharge his duties.

ii) Putting up a grievance that since 27.12.2016 he was not allowed to

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discharge his duties which constituted otherwise termination, he

presented the Appeal before the School Tribunal on 25.12.2017.

iii) The respondent Nos.1 and 2 opposed the Appeal denying all the

contentions. In addition they contended that pursuant to a compromise

arrived at the Police Station, in order to settle the dispute, the petitioner

volunteered to tender resignation by accepting a sum of Rs.2,60,000/-

towards the full and final settlement. Accordingly he tendered a

resignation on 02.02.2017 and the Management has accepted it in its

meeting on 22.02.2017. In this manner, there was no question of any

otherwise termination.

iv) The Tribunal by the judgment and order dated 22.04.2019 allowed the

Appeal and declared that petitioner's termination was illegal and

directed reinstatement and consequential relief of back wages.

v) The respondent Nos. 1 and 2 challenged the order of the School

Tribunal by filing Writ Petition No.7970/2019. It was noticed that the

two sides were coming with contradictory stands in as much as the

petitioner was complaining about otherwise termination with effect

from 27.12.2016 whereas the Management was coming with a case of

tendering of resignation with effect from 02.02.2017, however, no

specific issue touching the aspect of resignation was framed and

decided. Therefore, this Court partly allowed the Writ Petition and

issued inter alia following directions :

"09. Considering the above and for the reasons recorded, the petition is partly allowed and the impugned Judgment dated

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22.4.2019 is set aside only for the reason that a decisive issue was not framed by the Tribunal. The appeal No. 2/2017 is remitted to the School Tribunal, Solapur with the following directions :

a) The litigating sides would appear before the School Tribunal on 15.7.2019.

b) The appellant would amend the appeal by adding the contentions with regard to the issue of resignation and would add a prayer accordingly. A freshly typed copy of the amended appeal would be tendered on the same date.

c) If felt necessary, the respondent management before the Tribunal would submit an additional reply to meet the contentions of the appellant in the amended appeal, on or before 19.7.2019 and shall not seek extension of time."

vi) Pursuant to such directions the parties again went before the

School Tribunal. The petitioner added paragraph No.7 by way of

amendment in the Appeal Memo which is in vernacular but can be

translated as under :

"A complaint was filed with the Shrirampur Police Station against the respondents for illegal demand of money, its acceptance and having removed from the employment by extending threats. He does not admit the resignation obtained by the respondent Nos. 1 and 2 before the Police Inspector, Shrirampur Police Station which was obtained by duress."

vii) Conspicuously he merely added the aforementioned paragraph

but did not alter the prayer seeking any declaration in respect of the

resignation having been obtained under duress.

viii) The respondents submitted additional reply and repeated the

averments including the one regarding voluntary submission of the

resignation. It was also specifically contended that there were no clear

pleadings in respect of tendering of resignation under duress.

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ix) The respondent Nos. 1 and 2 by filing application (Exhibit - 43)

sought to produce the disputed resignation, copy of the resolution, copy of

the complaint filed by the petitioner before the police dated 13.02.2017 and

the information received from the police about the Police Station having not

received the complaint dated 13.02.2017 of the petitioner.

x) By the impugned judgment and order the Appeal has been

dismissed.

4. The main thrust of the argument of the learned advocate Mr.

Deshmukh for the petitioner is on the point that till the fag end the

resignation and a copy of the resolution were not produced. No steps were

taken by the respondent Nos. 1 and 2 to prove their contention regarding

legal termination of employment by tendering of the resignation voluntarily.

In spite of a specific objection having been raised by the petitioner the

Tribunal allowed the documents to be brought on record and has accepted it

to be true and correct. The burden was on the respondents to prove their

contention but they miserably failed to do that in spite of an opportunity

having been extended by this Court in the earlier round of litigation and the

Tribunal has grossly erred in accepting it to be a genuine resignation.

5. The learned advocate Mr. Deshmukh then referred to the

various decisions of this Court to point out the purport and scope of Section

7 of the M.E.P.S. Act and Rule 40 of the Rules framed thereunder which

provide for procedure for resignation by employees of private schools and

the manner in which it is to be put up and accepted. He would submit that

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the whole purpose of providing this procedure is to obviate any opportunity

for the Management which is in a dominant position to procure resignation

from the employee under duress.

6. He would therefore submit that ignoring all these principles, the

contention of the respondents regarding tendering of the resignation has

been accepted illegally. He would refer to the decisions of this Court in the

case of J.B. Shaikh Vs. N.Z. Kulange and Ors.; 1992 I CLR 414, Shri Sant

Sawtamali Shikshan Prasarak Mandal, Tembhurni Vs. State of Maharashtra

and Ors.; 2008 (6) Mh.L.J. 529, Bahujan Vikas Mandal, Akola and Anr. Vs.

Manda Vithalrao Parsutkar and Anr.; 2011 (2) Mh.L.J. 203, Sayyed Maksood

Ali Sayyed Roshid Ali Vs. Uruj-E-Urdu Education Society, Kalamb ; 2011(4)

Mh.L.J. 952 and Sachin S/o Shripat Pawar Vs. President, Universal

Education Academy and Ors.; WP No.3154/2012 dated 27.04.2020.

7. The learned advocate would therefore submit that ignoring the

law and overlooking the facts the Tribunal has dismissed the Appeal. The

judgment and order is perverse and arbitrary and this Court should

intervene in exercise of the Writ Jurisdiction.

8. Per contra the learned advocate Mr. Dixit for the respondent

Nos. 1 and 2 submitted that not only the respondents but even the appellant

was given an opportunity to put up his case by way of amendment to the

Appeal memo when this Court had permitted him to do so in the earlier

round. In spite of such opportunity he failed to come out with necessary

pleadings touching the aspect of tendering of the resignation and even failed

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to amend the prayer clause in spite of the liberty granted to him. This was a

specific contention raised in the additional reply filed by them after such

amendment of the Appeal Memo. In spite of it he never bothered to rectify

the error and continued with the hearing of the Appeal with such inherent

defect. On this ground alone his Appeal was liable to be dismissed, even

though the Tribunal has not entered into and discussed this vital aspect.

9. The learned advocate Mr. Dixit would also submit that the

petitioner has been aware about the fact of tendering of the resignation and

his specific stand that it was obtained under duress. In spite of that he never

tried to establish it and to discharge the burden. The act of tendering of the

resignation was preceded by a writing/statement recorded before the

concerned Police Inspector of Shrirampur Police Station. However, he did

not immediately raise any grievance and for the first time agitated about it

by approaching police again and the respondent No.3 Education Officer with

a complaint dated 13.02.2017. It is because of such state of affairs no

exception can be taken to the conclusion drawn by the Tribunal that there

was no question of exercising any influence or coercion in presence of a

Police Officer. The conclusion has been drawn by correct appreciation of the

facts and circumstances and the material on the record and should not be

disturbed while exercising a Writ Jurisdiction.

10. The learned advocate for the respondent No.3 by referring to

his affidavit-in-reply submitted that he had received the resignation along

with copy of resolution and since according to the Management it was in the

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handwriting of the petitioner it was a sufficient compliance with the

provision of Section 7 and Rule 40. The condition of sending the resignation

by R.P.A.D. is directory and not mandatory. He would submit that since such

settlement was arrived at in the Police Station pursuant to a complaint filed

by the petitioner himself, it was improbable and impossible that any

resignation could have been obtained by use of force.

11. I have carefully considered the rival submissions, the decisions

cited at the bar and the record. As can be appreciated, the whole dispute

revolves around tendering of the resignation on 02.02.2017. There are

number of decisions, apart from the decisions cited on behalf of the

petitioner (supra) interpreting the scope and ambit of the wordings of

Section 7 of the M.E.P.S. Act and the Rule 40. After taking a stock of the

earlier decisions in the case of Ballaleshwar Shikshan Mandal and Anr. Vs.

Jaywant Bhaguji Gadekar and Ors; 2004(1) Bom.C.R 421, Barshi Education

Society Vs. Ashok Ganesh Kulkarni and Ors.; 2004(5) Bom.C.R. 772 and

Shri Sant Sawtamali Shikshan Prasarak Mandal, Tembhurni (supra), in the

case of Bahujan Vikas Mandal, Akola (supra) the learned Judge has made

following observations in paragraph No.12 :

"12. In none of the aforesaid judgments, the question whether, the process of drawing up of resignation in duplicate, signing both the copies and putting of date therein, contemplated by Section 7 of the M.E.P.S. Act, should mandatorily be in the handwriting of an employee intending to resign from his post, has been considered. In order to consider this question section 7 of the said Act will have to be seen and the same is, therefore, reproduced below." ...

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It was concluded that going by the provisions of Section 7 and

Rule 40 it was imperative that the resignation should be in the handwriting

of the employee and should bear the date and his signature. It was thus

concluded that taking a stock of all these decisions, compliance with the

requirements of the Section 7 will have to be seen in totality, to find out

whether a resignation was tendered voluntarily or otherwise and would

depend upon all relevant facts and circumstances.

12. It is in the light of such succinct analysis of the law if one

examines the matter in hand, true it is that the respondent Nos. 1 and 2

were remiss in bringing on record the resignation and the resolution

accepting it and had waited till the fag end. However, going by the

sequence of events mentioned at the inception, even the petitioner is equally

remiss and has not even bothered to come out with specific pleadings

attributing duress to the respondent Nos.1 and 2 and tendering of the

resignation involuntarily. If they were not ready to produce it on the record,

since it was pursuant to a direction of this Court in the earlier round that the

matter was remanded and the parties were put to notice that the issue

touching tendering of the resignation was to be framed and decided, it was

equally important for the petitioner to have been more active. Since he was

reluctant to come out with specific pleadings albeit the issue was framed

and had not bothered to first call upon the respondents to produce the

resignation and also failed to bring on record all the attending circumstances

to create a doubt about its genuineness, he cannot be allowed to take benefit

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the fact that the respondent Nos.1 and 2 were late in producing the

documents.

13. Bearing in mind the scope and ambit of the powers being

exercised by this Court, as laid down in the case of Surya Dev Rai Vs. Ram

Chander Rai; (2003) 6 SCC 675, even if one undertakes some scrutiny of

facts it is quite apparent that there are number of loopholes in the case of

the petitioner. Admittedly, asserting that it was an otherwise termination, he

had filed the present Appeal on 25.01.2017. Even before filing such Appeal

he had put up a grievance with police, City Police Station, Shrirampur on

24.01.2017 regarding unlawful demand of money and extending of threats

by the Management. If such was the state of affairs, it seems highly

improbable, as has been even otherwise pointed out by the Tribunal that

there could not have been any occasion for the Management to extend

threats in presence of the Police Inspector that too in the Police Station.

Pertinently it is not the case of the petitioner that even the concerned Police

Inspector had played any role in exerting the pressure.

14. Besides when the petitioner had already filed the Appeal, one

cannot comprehend as to why and how he chose to go to Police Station

when the Management were not coming with any grievance against him

having been raised with Police, which is nobodies case.

15. Again if at all the resignation was obtained under duress there

is no explanation as to why the petitioner immediately did not raise any

dispute and waited for 10 to 11 days. These facts and circumstances in my

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considered view are clinching to refute the stand of the petitioner that the

resignation was obtained under duress.

16. The resignation is in petitioner's handwriting, bears a date and

his signature which is in confirmity with the provision of Section 7 and Rule

40. Apparently, it is after he accepted Rs.2,60,000/- that the settlement was

apparently arrived at the Police Station. If such is the state of affairs, no

exception can be taken to the observations and conclusions by the Tribunal

in the impugned judgment and order holding that the resignation was

tendered voluntarily.

17. As can be noticed, such were not the facts before this Court in

none of the aforementioned decisions cited on behalf of the petitioner.

18. In the result, there is no merit in the petition which is liable to

be dismissed and is accordingly dismissed. The Rule is discharged.

(MANGESH S. PATIL, J.)

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