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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4712 OF 2008
Shri Sant Sawtamali Shikshan
Prasarak Mandal, Tembhurni ... Petitioner
versus
State of Maharashtra and others ...Respondents
Mr. A.M. Joshi for the petitioner.
Mr. A.P. Vanarase, Assistant Government Pleader, for respondent No.1.
Mr. Dinesh W. Bhosale for respondent No.3.
CORAM: P.B. MAJMUDAR, J.
DATE: JULY 24, 2008.
ORAL JUDGMENT:
1. Rule. Mr. Bhosale, learned counsel appearing for the respondent-
teacher, waives service of rule. Mr Vanarase, learned Assistant Government
Pleader, waives service of Rule on behalf of the State of Maharashtra. With
the consent of advocates, matter is heard today finally.
2. By filing this petition, the petitioner-management has challenged
an order passed by School Tribunal, Pune Region at Sholapur, dated 25th
March, 2008 in Appeal No. 98 of 2006 by which the School Tribunal allowed
the appeal of the respondent-teacher and set aside the order of termination
dated 14th November, 2005.
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3. The respondent-teacher (hereinafter “the respondent”) had
preferred an appeal before the School tribunal under Section 9 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977, hereinafter referred to as “the Act”. The case of the
respondent is that he was appointed as an Assistant Physical Teacher in the
school on 11th June, 2001 as he possessed qualification of B.A. B.P.Ed. It is
his case that he had served for four years and five months till 13th November,
2005. It is also the case of the of the respondent that he had completed the
probation period satisfactorily and he was having unblemished tenure and
that he was a permanent employee of the school It is also his case that his
services were terminated on 14th November, 2005 without following the due
process of law even though he was a permanent employee of the School.
4. The said appeal was resisted by the school management on the
ground that the respondent was not having a permanent status in the
employment and that he has suo motu gave resignation from the post with
effect from 31st May, 2005 and since then he is not in service. The
resignation was forwarded to the Education Officer and another Assistant
Physical Teacher Mr. Narayan Bhosale was appointed on the said vacant
post. It is the case of the management that since the appellant had resigned,
his appeal before the Tribunal was not competent. The Tribunal, after
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considering the rival submissions and after considering the evidence on
record came to the conclusion that the theory of so-called resignation is not
believable. The Tribunal has found that the respondent had put in more than
four years service continuously and he had acquired the status of a
permanent employee. It has been found that the resignation was not sent as
per the prescribed procedure as contemplated under Section 7 of the Act
read with Rule 40 of the Maharashtra Employees of Private Schools Rules,
1981 (hereinafter referred to as “the Rules”). Considering the aforesaid
aspect, the Tribunal held that it cannot be said that the concerned employee
had tendered his resignation on his own volition but his services were
terminated orally. It has been found that even he had signed the muster roll
thereafter which muster roll has been considered by the Court which is at
Exhibit-31 on record. On this it was found that the stand of the management
is falsified by the evidence on record and it is also found that it cannot be said
that the respondent had resigned on his own accord from the post in
question.
5. Mr. Joshi, learned counsel appearing for the petitioners,
vehemently submitted that once a teacher has tendered his resignation, he
cannot approach the Tribunal by way of appeal under Section 9 of the Act.
Mr. Joshi has further submitted that it is not mandatory that a teacher must
sent resignation by registered post. He further submitted that simply because
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the teacher has not sent his resignation by registered post itself is not
sufficient to hold that such resignation is not legal. Mr. Joshi further
submitted that the procedure, therefore, is merely directory and not
mandatory. In order to substantiate his argument, Mr. Joshi has placed
reliance on the decision of this Court in the case of Hon. Secretary, Talini
Imadadiah committee Mistry High School, Ratnagiri and another vs. Wasif
Pasha Tajoddin Jagirdar, 2004 (4) MLJ 1065. Mr. Joshi also further submitted
that during the pendency of appeal, the respondent was also reinstated in
service in view of the interim order passed by the Tribunal. He, however,
submitted that the tribunal has erred in coming to the conclusion that the
teacher cannot be said to have resigned from the services as he was
subjected to oral termination.
6. Mr. Bhosale, learned counsel appearing for the respondent, on
the other hand submitted that the finding of fact arrived at by the Tribunal
should not be disturbed by this Court in its extraordinary jurisdiction under
Articles 226 and 227 of the constitution of India. Mr. Bhosale has further
submitted that whether a teacher has voluntarily given resignation or not or
whether such resignation can be said to be valid or not all disputed questions
of fact and since the Tribunal after considering the evidence on record has
given a finding. Such a finding is not required to be disturbed by this Court.
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He submitted that the Tribunal after appreciating the evidence on record has
found that after tendering the socalled resignation the concerned teacher
has even signed the muster roll and under the circumstances the Tribunal
has found that the management took advantage of some signatures of the
teacher taken on blank papers. It is submitted that the resignation was not
even in the handwriting of the petitioner as it was on a typed paper. He
submitted that there is no substance in the petition and the order of Tribunal
is required to be confirmed.
6. I have heard Mr. Vanarase, the learned Assistant Government
Pleader, who has supported the order of the Tribunal.
7. I have heard the learned advocates at length. I have also gone
through the judgment of the Tribunal and supporting documents annexed
with the petition. In this connection, it is required to be noted that the
respondent teacher was appointed on the post in question as Assistant
Physical Teacher. It is not in dispute that he was holding the requisite
qualifications for such appointment. His appointment was made as back as
11th June, 2001 and he continued for more than four years and five months
on the said post. It is also required to be noted that the approval was also
granted for appointing him on the said post by the Education Department on
27th February, 2004 with effect from 11th June, 2001. The Tribunal has
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considered the original copy of catalogue, original copy of catalogue for the
month of August, 2005, original copy of the leave application and copy of the
note book. Considering the said documents on record, the Tribunal has
found at point No.2 that the appointment was made as per the provisions of
the Act and Rules. It has been found that the appointment was also given in
the duly prescribed form in Schedule-D. The Tribunal has accordingly, on
appreciating the evidence on record, found that the appointment was made
on a clear post, approval was granted by the Education Officer and the
respondent had served for more than four years. In my view, the Tribunal
has considered all aspects by considering relevant documents on record
and proper reasoning is given by the Tribunal while deciding point Nos. 2
and 3 in the matter.
8 Mr. Joshi very vehemently submitted that in any case since
teacher had tendered his resignation and since such resignation has been
accepted by the management, there was no question of challenging the said
decision as the respondent had left the services on his own volition as he
resigned from the post in question. However, this argument of the
management is, in my view, is contradictory. If the say of the management
that the appointment is only temporary and he had no right to the post.
Naturally, then there was no question on the part of the teacher to send
resignation as if he was not a teacher in the permanent post. Naturally,
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there was no question on his part to send resignation as he could have left
the services at any point of time. The theory of so-called resignation put
forward by the management itself justify the say of the management that the
appointment was made after following due process. That apart, it is the say
of the teacher that blank signatures were taken from him but he had never
tendered his resignation. On this aspect, the Tribunal has also found that the
so-called letter of resignation was typed later on which the petitioner had
signed.
9. Reference is required to be made to Section 7 of the Act which
reads as under.
7. Procedure for resignation by employees of private
schools: If any employee intends to resign his post in any
private school, at any time after the appointed date, he shall
draw up a letter of resignation in duplicate and sign both the
copies of that letter and put the date thereon. He may then
forward one copy to the Management by registered post and
keep the other copy with him.”
10. Rule 40 of the Rules reads as under:
“40. Resignation: (1) A permanent employee may leave
service after giving three calender months notice and a non-
permanent employee may leave service after giving one
calender month’ s notice. The Management may, however,
allow an employee to leave service earlier on payment of pay
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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 grantdue 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 ofthe vacation. The notice of resignation shall not be given within
a month after the beginning of the first term of the year.11. So far as the aforesaid provision is concerned, the statute provides
that a management cannot take undue advantage by compelling a teacher to
give resignation either by force or by giving any type of inducement. There is
safeguard provided in the Act and with an object to see that in a given case
the management may not pressurise the teacher to give resignation and as to
whether in a given case the so-called resignation is misused by the
management and for that purpose safeguards have been provided in the
statute in the case of resignation. It is not in dispute that in the present case
the resignation has not been given as prescribed under Section 7 of the act
read with Rule 40 of the Rules. This aspect has also been considered by the
Tribunal in detail. At this stage, the learned counsel Mr. Joshi has relied
upon the judgment delivered by the learned single Judge in the case of Talini
Imadaddiah (supra). It is true that the learned single Judge has found that a
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registered post cannot be said to be an illegal resignation. In the said matter
resignation was tendered by a teacher which was to take effect from the
future date that was the intervening vacation. The single Judge has found
that merely because notice covers part of the vacation, it would not vitiate the
resignation itself as the vacation period was intended to be excluded from
being included in the notice period. It is not in dispute in that case the notice
period covered three months. The learned Judge observed in para 7 as
under:
“Mr. Kudle, learned counsel for the respondent, further
submitted that the resignation is contrary to Rule 48, sub-rule
(3), which reads as follows:-(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.
According to the learned counsel, since a vacation
intervened between 18-12-1990 and the resignation was
intended to be effective from June 1991, the notice of
resignation covered a part of the vacation and is, therefore,illegal. It is obvious that Rule 40 is intended for the benefit of
the management as has been held by this Court in N.J.B.
Ashram vs. Rajendra, 2004 (2) Mh.L.J. 909. I am in
agreement with that view. Moreover, sub-rule (3) is intended
to avoid curtailing the notice period. It is intended to exclude
the vacation period from being included in the notice period.
Rule 40 itself provides for the consequence that would follow if
the notice period is shorter than three months. I am of view
that merely because the notice covers a part of the vacation, it
would not vitiate the resignation itself in a case such as the
present one. In the present case, it makes no difference”.
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12. It is true that in a given case Court on considering the evidence on
record may come to the conclusion that if the resignation has not sent by
registered post, that itself may not be treated as a conclusive proof for
coming to the conclusion that such resignation is not valid. However, in the
instant case, it is the consistent case of the teacher that he had never
resigned. After the so-called resignation in fact he has signed the muster
roll. He made attempts to resume duty which aspect has been considered
by the Tribunal by considering the evidence on record. It is not in dispute
that in the present case three months notice period was not taken care in the
resignation. Therefore, while considering the case of the respondent,
whether it was a genuine resignation or not, the court can certainly consider
the provisions of Section 7 of the Act read with rule 40 which may come to
the aid of such a teacher in case if he is able to place other evidence on
record that the resignation was not genuine. Mr. Joshi has fairly submitted
that it is not his argument that Section 7 of the act and rule 40 of the rules
may be treated as redundant as it is still there in the statute book.
Considering the said aspect, in the light of the facts of this case and in the
light of the evidence of the respondent that he had never tendered
resignation on his own volition and that it was not a voluntary resignation at
all. The Tribunal also rightly found that when the respondent had served for
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more than four years, there was no reason for him to tender resignation.
Considering the aforesaid aspect, in my view, this is not a case in which the
well reasoned order of the Tribunal is required to be disturbed by this Court
in its extraordinary jurisdiction under Articles 226 and 227 of the
Constitution of India. I, therefore, find no substance in any of the arguments
of Mr. Joshi. Petition is accordingly dismissed. Rule is discharged. No
order as to costs.
ig
P.B. MAJMUDAR, J.
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