Bombay High Court
Balaleshwar Shikshan Mandal And Anr. vs Jaywant Bhaguji Gadekar And Ors. on 10 June, 2003
Equivalent citations: 2004(1)BOMCR421
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. Pursuant to the notice issued on 22.10.2002 this matter is posted today for final disposal. The Respondents have been duly served. Parties have exchanged their pleadings. Arguments of the Counsel for the parties were advanced for final disposal in consent. In the circumstances, Rule. Rule made returnable forthwith, by consent.
2. This Writ Petition under Article 227 takes exception to judgment and order passed by the School Tribunal, Pune Region, dated 25.6.2002 in Appeal No. 104 of 1998.
3. Briefly stated, the Respondent No. 1 was appointed as Assistant Teacher in the Petitioner School. Initially, appointment of the Respondent No. 1 was on temporary basis against reserved post. The Tribunal has, however, found that letter Exhibit-19 the Respondent No. 1 was appointed against clear and permanent vacancy on probation. Be that as it may, certain complaints were received against the Respondent No. 1 from the students regarding his misbehaviour. In the wake of these complaints, the Respondent No. 1 tendered resignation on 16.8.1998. The resignation is addressed to the Chairman of the Petitioner Institute. It clearly records that having regard to the serious allegations made against him and till he is absolved of the said allegations, he was resigning from the present post and he may be allowed to resume later on. In substance, the letter clearly expresses the Respondent No. 1's intention to resign from the post having regard to the complaints pending against him. That resignation letter was placed before the Managing Committee of the Petitioner Institute in its meeting held on 29.11.1998 and was accepted by the Managing Committee. Communication in this behalf was sent to the Petitioner on 9.12.1998.
4. The Respondent No. 1 filed an appeal before the School Tribunal being Appeal No. 104 of 1998 asserting that he was not allowed to attend to his duties which amounts to termination. In this Appeal, no reference is made to the resignation tendered by the Respondent No. 1 and its acceptance. The Appeal, as aforesaid, was filed on 15.12.1998. The Petitioner appeared in the said proceedings and pointed out that the case made out by the Respondent No. 1 is false to his knowledge and the fact of resignation tendered by him was brought on record. It is only thereafter the Respondent No. 1 by filing further affidavit chose to assert that the said resignation was later on withdrawn by the Management. The Tribunal proceeded to examine the rival case and has found in the impugned judgment that the Respondent No. 1 was appointed against a clear and permanent vacancy and, therefore, his appointment will have to be treated as on probation. The Tribunal has further held that the resignation given by the Respondent No. 1 has been ignored by the Management and treated as cancelled. The Tribunal further held that the resignation was not in conformity with the provisions of Section 7 of the Act as well as Rule 40 and, therefore, the same was of no avail. On this reasoning, the Tribunal has allowed the Appeal preferred by Respondent No. 1. That decision is the subject matter of challenge in the present petition.
5. The learned Counsel for the Petitioner has assailed the correctness of the findings recorded by the School Tribunal that the appointment of the Respondent No. 1 was against a clear and permanent vacancy and should be treated to be on probation for a period of two years. Besides, the Petitioner has assailed the finding given by the School Tribunal that the resignation would be of no avail because the Management has treated the said resignation as cancelled. The Petitioner has also assailed the correctness of the conclusion given by the Tribunal with regard to noncompliance of Section 7 of the Act and Rule 40 of the Rules. On the other hand, the learned Counsel for Respondent No. 1 has adopted the reasons given by the Tribunal and contends that there is no infirmity either in the approach or the reasoning of the Tribunal. If that is so, no interference was warranted in exercise of writ jurisdiction.
6. Having considered the rival contentions,to my mind, it is not possible to overturn the finding of facts recorded by the Tribunal that the appointment of Respondent No. 1 was against a clear and permanent vacancy. The Tribunal has adverted to appointment order Exhibit 19 in that behalf. Whereas, the learned Counsel for the Petitioner relies upon the appointment orders at Exhibits 17 and 18 to contend that the appointment of Respondent No. 1 was always on temporary basis and against reserved post. That position may appear from appointment orders at Exhibits 17 and 18 but the Tribunal has considered the last appointment order Exhibit 19 which indicates that the Respondent No. 1 was appointed with effect from 8.6.1998 to 30.4.1999 against a clear and permanent vacancy. There is no reason to question the correctness of the said finding because the relevant appointment letter at Exhibit 19 alone has not been produced by the Petitioner. Accordingly, that finding of fact returned by the Tribunal will have to be accepted.
7. That takes me to the main contention as to the efficacy of the resignation tendered by the Respondent No. 1. The resignation letter is dated 16.8.1998. It is not in dispute that the said letter was made over to the chairman of the Petitioner Instituted by the Respondent. The record also clearly establishes that the said letter was placed for consideration in the Managing Committee meeting on 29.11.1998. The Managing Committee in that meeting has accepted the said resignation of the Respondent No. 1. Once the resignation is accepted, the matter stood finally concluded. There is nothing on record to indicate that before the Managing Committee of the Petitioner accepted the resignation, the Respondent No. 1 had ever attempted to recall the resignation or requested to treat the same as cancelled. If that is so, then it necessarily follows that the resignation tendered by the Respondent on 16.8.1998 became final with the acceptance thereof by the Managing Committee on 29.11.1998. The Tribunal has, however, proceeded on the premises that the resignation tendered by the Respondent No. 1 was ignored by the Management and treated as cancelled. There is no basis for recording that finding. On the other hand, the Managing Committee of the Petitioner Institute already accepted the resignation on 29.11.1998. In that situation, there was no occasion for any other officer to treat the said resignation as cancelled at the subsequent point of time. Besides, it is not the case of the Respondent that he called upon the Management to treat the said resignation as cancelled. As mentioned earlier, except the observation of the Tribunal, there is nothing on record to suggest that the Management had treated the resignation as cancelled. Whereas, if the Management had treated the resignation as cancelled, obviously there was no reason for the Management not to permit the Respondent No. 1 to resume duties. The learned Counsel for the Respondent No. 1, however, submits that there is a letter on record which clearly indicates that the Management had treated the resignation as cancelled. However, no such specific letter has been adverted to by the Tribunal in its judgment nor that letter has been made available before this Court, although the Respondent No. 1 has filed reply affidavit opposing this writ petition. In the circumstances, it will have to be held that the resignation tendered by the Respondent No. 1 dated 16.8.1998 became final and came into effect with its acceptance by the Managing Committee on 29.11.1998.
8. The Tribunal has, however, held that there is noncompliance of Section 7 of the Act. It will, therefore, be appropriate to refer to Section 7 of the Act which reads thus:
"Section 7. If any employee intends to resign his post in any private school, at any time after the appointment 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."
On plain reading of this Section, it would appear that once an employee signs the letter expressing his intention to resign and voluntary submits a copy thereof to the Management, such an act would be substantial compliance of Section 7 of the Act. In the present case, it is not in dispute that the letter dated 16.8.1998 clearly expresses Respondent's intention to resign and the letter is dated and duly by the Respondent No. 1 and that the said letter was made over directly to the Management. Merely because a copy of the letter has not been forwarded by registered post cannot make the resignation void as has been found by the Tribunal. The mode of despatch would be relevant in cases where the employee disputes the execution of document. But in the present case, the Respondent No. 1 has neither disputed execution of the document nor the delivery thereof to the management. In such a case, in my view, there is substantial compliance of the procedure for tendering resignation. The Tribunal has further found that there is infraction of Rule 40 of the Rule. Rule 40 reads thus:
"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, however, allow an employee to leave service earlier on payment of pay (excluding allowances) for three months, or as the case may be, one month in lieu of notice by the employee. The amount in lieu of notice shall be restricted to the pay for the 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 grant due 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 of the vacation. The notice of resignation shall not be given within a month after the beginning of the first term of the year.
9. In the present case, it is seen that the Respondent No. 1 tendered resignation on 16.8.1998. Nevertheless, resignation was actually accepted by the Managing Committee on 29.11.1998. No doubt, one calendar month's notice was not given by the Respondent No. 1 who was a non-permanent employee at the relevant time. However, since resignation has been accepted after one month from its receipt, the requirement of deduction of one month pay in lieu of one month notice will not arise. So also the question of Management allowing the Respondent No. 1 to leave service earlier will not arise in the present case. Assuming that the Management has not complied its obligation under Rule 40, it does not make resignation and its acceptance invalid because Sub-rule (2) provides that in that situation, proportionate amount of pay in lieu of notice shall be deducted from the amounts due to the school concerned. Understood thus, the conclusion reached by the Tribunal that the resignation tendered by the Respondent No. 1 cannot be given effect to because of noncompliance of Section 7 of the Act or Rule 40 of the Rules does not commend to me.
10. Accordingly, this Writ Petition deserves to be allowed for the above reasons. Hence, the Rule is made absolute. The impugned order of reinstatement and full back wages is set aside. No order as to costs.
11. Parties to act on a true copy of this order duly authenticated by the Court Shiristedar.