{"id":230739,"date":"2008-07-22T00:00:00","date_gmt":"2008-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-sant-sawtamali-shikshan-vs-state-of-maharashtra-and-others-on-22-july-2008"},"modified":"2017-04-26T12:18:19","modified_gmt":"2017-04-26T06:48:19","slug":"shri-sant-sawtamali-shikshan-vs-state-of-maharashtra-and-others-on-22-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-sant-sawtamali-shikshan-vs-state-of-maharashtra-and-others-on-22-july-2008","title":{"rendered":"Shri Sant Sawtamali Shikshan vs State Of Maharashtra And Others on 22 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Sant Sawtamali Shikshan vs State Of Maharashtra And Others on 22 July, 2008<\/div>\n
Bench: P. B. Majmudar<\/div>\n
                                           -1-\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                             \n                            CIVIL  APPELLATE JURISDICTION\n\n\n\n\n                                                     \n                           WRIT PETITION NO. 4712  OF 2008\n\n    Shri Sant Sawtamali Shikshan \n    Prasarak Mandal, Tembhurni                                       ... Petitioner\n\n\n\n\n                                                    \n            versus\n\n    State of Maharashtra and others                                 ...Respondents\n\n\n\n\n                                         \n    Mr. A.M. Joshi for the petitioner.\n                             \n    Mr. A.P. Vanarase, Assistant Government Pleader, for  respondent No.1. \n    Mr. Dinesh W. Bhosale  for respondent No.3.  \n                            \n                                       CORAM:  P.B. MAJMUDAR, J. \n<\/pre>\n
                                       DATE:     JULY 24, 2008.\n          \n\n    ORAL JUDGMENT:\n       \n\n\n\n<\/pre>\n
    1.           Rule.  Mr. Bhosale, learned counsel appearing for the respondent-\n<\/p>\n
    teacher, waives service of rule.  Mr Vanarase, learned Assistant Government<\/p>\n
    Pleader, waives  service of Rule on behalf of the State of Maharashtra.   With<\/p>\n
    the consent of advocates, matter is heard today finally.\n<\/p>\n
     2.          By filing this petition, the petitioner-management has challenged<\/p>\n
    an order passed by School   Tribunal, Pune Region at Sholapur, dated 25th<\/p>\n
    March, 2008 in  Appeal No. 98 of 2006 by which the School  Tribunal allowed<\/p>\n
    the appeal of the respondent-teacher and set aside the order of termination<\/p>\n
    dated 14th November, 2005.\n<\/p>\n
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\n                                                  -2-<\/span><\/p>\n
    3.           The   respondent-teacher   (hereinafter   “the   respondent”)   had<\/p>\n
    preferred   an   appeal   before   the   School   tribunal   under   Section   9   of   the<\/p>\n
    Maharashtra   Employees   of   Private   Schools   (Conditions   of   Service)<\/p>\n
    Regulation Act, 1977, hereinafter referred to as “the Act”. The case of the<\/p>\n
    respondent is that he was appointed as an Assistant Physical Teacher in the<\/p>\n
    school on 11th June, 2001 as he possessed qualification of B.A. B.P.Ed.  It is<\/p>\n
    his case that he had served for four years  and five months till 13th November,<\/p>\n
    2005.  It is also the case of the of the respondent that he had completed the<\/p>\n
    probation  period  satisfactorily  and  he was having  unblemished tenure  and<\/p>\n
    that he was a permanent employee of the school  It is also his case that his<\/p>\n
    services were terminated on 14th  November, 2005 without following the due<\/p>\n
    process of law even though he was a permanent employee of the School.\n<\/p>\n
    4.           The said appeal was resisted by the school management on the<\/p>\n
    ground   that   the   respondent   was   not   having   a   permanent   status   in   the<\/p>\n
    employment and that he has suo motu gave resignation from the post with<\/p>\n
    effect   from   31st  May,   2005   and   since   then   he   is   not   in   service.     The<\/p>\n
    resignation   was   forwarded   to   the   Education   Officer   and   another   Assistant<\/p>\n
    Physical   Teacher Mr. Narayan Bhosale  was  appointed on  the said vacant<\/p>\n
    post.  It is the case of the management that since the appellant had resigned,<\/p>\n
    his   appeal   before   the   Tribunal   was   not   competent.     The   Tribunal,   after<\/p>\n
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\n                                                 -3-<\/span><\/p>\n
    considering   the   rival     submissions   and   after   considering   the   evidence   on<\/p>\n
    record came to the conclusion that the theory of so-called resignation  is not<\/p>\n
    believable.  The Tribunal has found that the respondent had put in more than<\/p>\n
    four   years     service   continuously   and   he   had   acquired   the   status   of   a<\/p>\n
    permanent employee.  It has been found that the resignation was not sent as<\/p>\n
    per the  prescribed  procedure  as  contemplated  under  Section 7 of the  Act<\/p>\n
    read with Rule 40 of the Maharashtra Employees of Private  Schools Rules,<\/p>\n
    1981   (hereinafter   referred   to   as   “the   Rules”).   Considering   the   aforesaid<\/p>\n
    aspect, the Tribunal held that it cannot be said that the concerned employee<\/p>\n
    had   tendered   his   resignation   on   his   own   volition   but   his   services   were<\/p>\n
    terminated orally.  It has been found that even he had signed the muster roll<\/p>\n
    thereafter which muster roll has been considered by the   Court which is at<\/p>\n
    Exhibit-31 on record.  On this it was found that the stand of the management<\/p>\n
    is falsified by the evidence on record and it is also found that it cannot be said<\/p>\n
    that   the     respondent   had   resigned   on   his   own   accord   from   the   post   in<\/p>\n
    question.\n<\/p>\n
    5.           Mr.   Joshi,   learned   counsel   appearing   for   the   petitioners,<\/p>\n
    vehemently submitted that once a teacher has tendered his resignation, he<\/p>\n
    cannot approach the Tribunal by way of appeal under Section 9 of the Act.\n<\/p>\n
    Mr. Joshi has further submitted that it is not mandatory that a teacher must<\/p>\n
    sent resignation by registered post.  He further submitted that simply because<\/p>\n
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\n                                                     -4-<\/span><\/p>\n
    the   teacher   has   not   sent   his   resignation   by   registered   post   itself   is   not<\/p>\n
    sufficient   to   hold   that   such   resignation     is     not   legal.     Mr.   Joshi   further<\/p>\n
    submitted   that   the   procedure,   therefore,   is   merely   directory   and   not<\/p>\n
    mandatory.     In   order   to   substantiate   his   argument,   Mr.   Joshi     has  placed<\/p>\n
    reliance on the decision of this Court in the case of    Hon. Secretary, Talini<\/p>\n
    Imadadiah   committee   Mistry   High   School,   Ratnagiri   and   another   vs.   Wasif<\/p>\n
    Pasha Tajoddin Jagirdar, 2004 (4) MLJ 1065.  Mr. Joshi also further submitted<\/p>\n
    that during the pendency of appeal, the respondent was also reinstated in<\/p>\n
    service in view of the interim order passed by the Tribunal.   He, however,<\/p>\n
    submitted that the tribunal   has   erred in coming to the conclusion that the<\/p>\n
    teacher   cannot   be   said   to   have   resigned   from   the   services   as   he   was<\/p>\n
    subjected to oral termination.\n<\/p>\n
    6.             Mr. Bhosale, learned counsel appearing for the respondent, on<\/p>\n
    the other hand submitted that the finding of fact arrived at by the Tribunal<\/p>\n
    should not be disturbed by this Court   in its extraordinary jurisdiction under<\/p>\n
    Articles  226 and 227 of the constitution of India.   Mr. Bhosale has further<\/p>\n
    submitted that whether a teacher has voluntarily given resignation or not or<\/p>\n
    whether such resignation can be said to be valid or not all disputed questions<\/p>\n
    of fact and since the Tribunal after considering the evidence on record has<\/p>\n
    given a finding.  Such a finding  is not required to be disturbed by this Court.\n<\/p>\n
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\n                                                      -5-<\/span><\/p>\n
    He submitted  that the Tribunal after appreciating the evidence on record has<\/p>\n
    found that   after tendering the socalled resignation   the concerned teacher<\/p>\n
    has even signed the muster roll and under the circumstances the Tribunal<\/p>\n
    has found that the management took advantage of   some signatures of the<\/p>\n
    teacher taken on blank papers.   It is submitted that the resignation was not<\/p>\n
    even in the handwriting  of the petitioner as it  was on a typed paper.   He<\/p>\n
    submitted that there is no substance in the petition and the order of Tribunal<\/p>\n
    is required to be  confirmed.\n<\/p>\n
    6.            I have   heard Mr. Vanarase,  the   learned Assistant Government<\/p>\n
    Pleader, who has supported the order of the Tribunal.\n<\/p>\n
    7.            I have heard the learned advocates at length.   I have also gone<\/p>\n
    through the judgment of the    Tribunal and supporting documents annexed<\/p>\n
    with   the   petition.     In   this   connection,   it   is   required   to   be   noted   that   the<\/p>\n
    respondent     teacher   was   appointed   on   the   post   in   question   as   Assistant<\/p>\n
    Physical     Teacher.     It   is   not   in   dispute   that   he   was   holding   the   requisite<\/p>\n
    qualifications for such appointment.  His appointment  was made as back as<\/p>\n
    11th June, 2001 and he continued for more than four years and five months<\/p>\n
    on the said post.   It is also required to be noted that the approval was also<\/p>\n
    granted  for appointing him on the said post by the  Education Department on<\/p>\n
    27th  February,   2004   with   effect   from   11th  June,   2001.   The   Tribunal   has<\/p>\n
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\n                                                    -6-<\/span><\/p>\n
    considered the original copy of catalogue, original copy of catalogue for the<\/p>\n
    month of August, 2005, original copy of the leave application and copy of the<\/p>\n
    note  book.   Considering  the  said  documents   on record,   the  Tribunal   has<\/p>\n
    found  at point No.2 that the appointment was made as per the provisions of<\/p>\n
    the Act and Rules.  It has been found that the appointment was also given in<\/p>\n
    the duly prescribed form in Schedule-D.   The Tribunal has accordingly, on<\/p>\n
    appreciating the evidence on record, found that the appointment was made<\/p>\n
    on   a   clear   post,   approval   was   granted   by   the   Education   Officer   and   the<\/p>\n
    respondent had served for more than four years.     In my view, the  Tribunal<\/p>\n
    has considered   all aspects   by considering   relevant documents on record<\/p>\n
    and proper reasoning is given by the   Tribunal while deciding point Nos. 2<\/p>\n
    and 3 in the matter.\n<\/p>\n
    8            Mr.   Joshi   very   vehemently   submitted   that   in   any   case   since<\/p>\n
    teacher had tendered his resignation   and since such resignation has been<\/p>\n
    accepted by the management, there was no question of challenging the said<\/p>\n
    decision as the respondent had left the services on his own volition as he<\/p>\n
    resigned   from   the   post   in   question.   However,   this   argument   of   the<\/p>\n
    management is, in my view, is contradictory.  If the say of the management<\/p>\n
    that   the   appointment   is   only   temporary   and   he   had   no   right   to   the   post.\n<\/p>\n
    Naturally,   then   there   was   no   question   on   the   part   of   the   teacher   to   send<\/p>\n
    resignation as if he was not a teacher   in the permanent post.     Naturally,<\/p>\n
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\n                                              -7-<\/span><\/p>\n
    there was no question on his part to send resignation as he could have left<\/p>\n
    the services  at  any  point  of time.   The theory of so-called resignation  put<\/p>\n
    forward by the management itself justify the say of the management that  the<\/p>\n
    appointment was made after following due process.  That apart, it is the say<\/p>\n
    of the teacher that  blank signatures were taken from him  but he had never<\/p>\n
    tendered his resignation. On this aspect, the Tribunal has also found that the<\/p>\n
    so-called letter of resignation was typed later on     which the petitioner had<\/p>\n
    signed.\n<\/p>\n
    9.          Reference is required to be made to Section 7 of the Act which<\/p>\n
    reads as under.\n<\/p>\n
           7.   Procedure   for   resignation   by   employees   of   private
\n           schools:    If  any   employee  intends   to  resign  his  post  in  any
\n           private school, at any time after the appointed date, he shall
\n           draw up a letter of resignation in duplicate and sign both the<\/p>\n
           copies of that letter and put the  date thereon. He may then
\n           forward one copy to the Management by registered post and
\n           keep the other copy with him.”\n<\/p>\n
    10.         Rule 40 of the Rules reads as under:\n<\/p>\n
           “40.  Resignation:  (1)  A   permanent   employee   may   leave
\n           service after giving three calender months notice and a non-
\n           permanent   employee   may   leave   service   after   giving   one
\n           calender  month’ s   notice.    The  Management    may, however,
\n           allow an employee to leave service earlier on payment of pay
\n           (excluding allowances) for three months, or as the case may<\/p>\n
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\n                                                   -8-<\/span><\/p>\n
            be, one month in lieu of notice by the employee.  The amount<\/p>\n
            in lieu  of notice shall be restricted to the pay or the period by
\n            which the notice period falls short. <\/p>\n
            (2)    If any Management allows an employee to leave service
\n            earlier either without due notice or without making payment of
\n            pay in lieu of notice as specified in sub-rule (1), a proportionate
\n            amount of pay in lieu of notice shall be deducted from the grant<\/p>\n
            due to the school concerned.\n<\/p><\/blockquote>\n
            (3)   An employee entitled to vacation shall not give notice of
\n            resignation during the vacation or so as to cover any part of<\/p>\n
            the vacation. The notice of resignation shall not be given within
\n            a   month   after   the   beginning   of   the   first   term   of   the   year.\n<\/p><\/blockquote>\n
    11.         So far as the aforesaid provision is concerned, the statute provides<\/p>\n
    that a management cannot take undue advantage by compelling a teacher to<\/p>\n
    give resignation either by force or by giving any type of inducement. There is<\/p>\n
    safeguard  provided in the Act and with an object to see that in a given case<\/p>\n
    the management may not pressurise the teacher to give resignation and as to<\/p>\n
    whether   in   a   given   case   the   so-called   resignation   is   misused   by   the<\/p>\n
    management   and   for   that   purpose   safeguards   have   been   provided   in   the<\/p>\n
    statute in the case of resignation.  It is not in dispute that in the present case<\/p>\n
    the resignation has not been given as prescribed under Section 7 of the act<\/p>\n
    read with Rule 40 of the Rules.  This aspect has also been considered by the<\/p>\n
    Tribunal in detail.     At this stage, the learned counsel Mr. Joshi has relied<\/p>\n
    upon the judgment delivered by the learned single Judge in the case of Talini<\/p>\n
    Imadaddiah (supra).  It is true  that the learned single Judge has found that a<\/p>\n
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\n                                                  -9-<\/span><\/p>\n
    resignation   can   be   tendered   in   person   and   if   resignation   is   not   sent   by<\/p>\n
    registered post cannot be said to be an illegal resignation.  In the said matter<\/p>\n
    resignation   was   tendered   by   a   teacher   which   was   to   take   effect   from   the<\/p>\n
    future date that was the intervening   vacation. The single Judge has found<\/p>\n
    that merely because notice covers part of the vacation, it would not vitiate the<\/p>\n
    resignation itself as the vacation period was intended to be excluded from<\/p>\n
    being included in the notice period.  It is not in dispute  in that case the notice<\/p>\n
    period   covered   three   months.     The   learned   Judge   observed   in   para   7   as<\/p>\n
    under:\n<\/p>\n
             “Mr.   Kudle,   learned   counsel   for   the   respondent,   further
\n             submitted that the resignation is contrary to Rule 48, sub-rule
\n             (3), which reads as follows:-\n<\/p><\/blockquote>\n
                   (3)   An employee entitled to vacation shall not give<\/p>\n
                   notice of resignation during the vacation or so as to
\n                   cover   any   part   of   the   vacation.   The   notice   of
\n                   resignation shall not be given within a month after
\n                   the beginning of the first term of the year.<\/p><\/blockquote>\n<\/blockquote>\n
                    According   to   the   learned   counsel,   since   a   vacation
\n             intervened   between   18-12-1990   and   the   resignation   was
\n             intended   to   be   effective   from   June   1991,   the   notice   of
\n             resignation covered a part of the vacation and is, therefore,<\/p>\n
             illegal.  It is  obvious that Rule 40 is intended for the benefit of
\n             the   management   as   has   been   held   by   this   Court   in  N.J.B.
\n             Ashram   vs.   Rajendra,     2004   (2)    Mh.L.J.   909.      I   am   in
\n             agreement with that view.  Moreover, sub-rule (3) is intended
\n             to avoid curtailing the notice period.  It is intended  to exclude
\n             the vacation period from being included in the notice period.
\n             Rule 40 itself provides for the consequence that would follow if
\n             the notice period is shorter than three months.   I am of view
\n             that merely because the notice covers a part of the vacation, it
\n             would not vitiate the resignation itself in a case such as the
\n             present one.   In the present case, it makes no difference”.\n<\/p><\/blockquote>\n
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\n                                                   -10-<\/span><\/p>\n
    12.          It is true that in a given case Court on considering the evidence on<\/p>\n
    record may come to the conclusion that   if the resignation has not sent by<\/p>\n
    registered   post,   that   itself   may   not   be   treated   as   a   conclusive   proof   for<\/p>\n
    coming to the conclusion that such resignation is not valid.  However, in the<\/p>\n
    instant   case,   it   is   the   consistent   case   of   the   teacher   that   he   had   never<\/p>\n
    resigned.   After the so-called resignation in fact he has signed the muster<\/p>\n
    roll.   He made attempts to resume duty which aspect has been considered<\/p>\n
    by the Tribunal by considering the evidence on record.    It is not in dispute<\/p>\n
    that in the present case three months notice period was not taken care in the<\/p>\n
    resignation.     Therefore,   while   considering   the   case   of   the   respondent,<\/p>\n
    whether it was a genuine resignation or not, the court can certainly consider<\/p>\n
    the provisions of Section 7 of the Act read with rule 40  which may come to<\/p>\n
    the aid of such a teacher in case   if he is able to place other evidence on<\/p>\n
    record that the resignation was not genuine.  Mr. Joshi has fairly submitted<\/p>\n
    that it is not his argument that Section 7 of the act and rule 40 of the rules<\/p>\n
    may   be   treated   as   redundant   as   it   is   still   there   in   the   statute   book.\n<\/p>\n
    Considering the said aspect,  in the light of the facts of this case and in the<\/p>\n
    light   of   the   evidence   of   the   respondent   that   he   had   never   tendered<\/p>\n
    resignation on his own volition and  that it was not a voluntary resignation at<\/p>\n
    all.  The  Tribunal also rightly found that when the respondent had served for<\/p>\n
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\n                                               -11-<\/span><\/p>\n
    more than four years, there was no reason   for him to tender resignation.\n<\/p>\n
    Considering the aforesaid aspect, in my view, this is not a case in which the<\/p>\n
    well reasoned order of the  Tribunal is required to be disturbed by this Court<\/p>\n
    in   its   extraordinary   jurisdiction   under     Articles   226   and   227   of   the<\/p>\n
    Constitution of India.  I, therefore, find no substance in any of the arguments<\/p>\n
    of Mr. Joshi.     Petition  is   accordingly  dismissed.  Rule  is  discharged.     No<\/p>\n
    order as to costs.\n<\/p>\n
                              ig
\n                                                          P.B. MAJMUDAR, J.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:36:57 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Sant Sawtamali Shikshan vs State Of Maharashtra And Others on 22 July, 2008 Bench: P. B. Majmudar -1- 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-230739","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Sant Sawtamali Shikshan vs State Of Maharashtra And Others on 22 July, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-sant-sawtamali-shikshan-vs-state-of-maharashtra-and-others-on-22-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Sant Sawtamali Shikshan vs State Of Maharashtra And Others on 22 July, 2008 - 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