IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION VPH WRIT PETITION No. 3168 OF 2008 Krishnath D. Bhosale Petitioner Vs. Shri Shahu Chhatrapati Shikshan Respondents Sanstha Kolhapur & Ors. Mr. N. V. Bandiwadekar i/b Prashant Bhavake, for the petitioner. Mr. Rahul P. Walvekar, for the respondent Nos.1 & 2. CORAM : Dr. D. Y. CHANDRACHUD, J. DATED : 21st, November 2008. P.C. . Rule, by consent of the learned counsel made returnable forthwith. The counsel appearing for respondent Nos. 1 & 2 waives service. By consent of the learned counsel, the matter is taken up for final disposal. 2. The petitioner was a peon who was employed by the first and second respondents on 25th June, 1996. The petitioner was on medical leave from 3rd February 2005 till 3rd April 2005 and thereafter on earned leave from 3rd April to 3rd August 2005. It has not been disputed that the leave was sanctioned by the - 2 - Management. On 3rd September 2005 the respondent Management addressed a communication to the petitioner stating that he had exhausted his leave and that consequently, with effect from 4th September 2005, the petitioner would be regarded as being on leave without pay. The petitioner reported for work on 23rd December 2005. His grievance was that he was not allowed to join duties. Several letters were addressed by the Petitioner to the Management and two of those letters are annexed at Exhibits "F" & G" to these proceedings. The Management has by its letter 10th January 2006 informed the petitioner that he had tendered a resignation on 6th September 2005 which was accepted in a resolution passed by the Management on 19th December 2005 and that a communication of acceptance was remitted to the petitioner on 20th December 2005. The petitioner filed an appeal before the College Tribunal on 6th February 2006 treating the communication dated 10th January 200 as a termination of his services. 3. The contention of the petitioner in the appeal filed before the Tribunal was that as a matter of fact he had never resigned from service. According to the petitioner, it was the practice of the Management to take signatures of employees on blank papers at the time - 3 - when they joined service and that the Management has misused the signatures of the petitioner which had been obtained on a blank paper to fabricate a letter of resignation. 4. The Management filed a written-statement before the Tribunal denying the contention of the petitioner and, in addition, stated that on 21st January 2006 the petitioner had written a letter stating that he had no grievance against the institution. The document dated 21st January 2006 was styled by the Management as a bond. The petitioner thereupon filed an affidavit before the Tribunal on 9th February 2007 stating that while the document of 21st January 2006 was executed by him, it had been obtained at the residence of an office bearer under coercion. The petitioner also claimed that on 28th February 2006 he had addressed a complaint to the District Superintendent of Police, Kolhapur making a grievance that the letter dated 21st January 2006 was obtained by coercion. 5. The Tribunal dismissed the appeal by its judgment dated 30th November 2007. The Tribunal was of the view that the petitioner made no effort to examine a hand writing expert to establish that the letter of - 4 - resignation was fabricated or that his signature was forged. Secondly, the Tribunal held that in the memorandum of appeal that there was no averment in regard to the document executed by the petitioner on 21st January 2006. Thirdly, the Tribunal held that the petitioner was on leave in February 2005 and September 2005 and upon the intimation of the Management that he has exhausted his leave, the petitioner may have thought of resigning from service. The Tribunal held that the evidence on record is sufficient to hold that the petitioner might have resigned from his post as peon. Therefore, the Tribunal proceeded to dismiss the appeal. 6. The learned counsel for the petitioner has submitted that there is no reason for the petitioner who had put in 10 years of service to submit a resignation, particularly when he was on sanctioned leave till September 2005. It is urged that the finding of the Tribunal that the petitioner may have resigned because he had exhausted his leave, is conjectural. The learned counsel submitted that it was the case of the petitioner that his signature had been taken on the blank papers and had been misused. The letter of resignation was alleged to be executed in September 2005 but it was only on 10th January 2006 that the Management addressed a - 5 - letter to the petitioner claiming that it had passed a resolution on 19th December 2005 accepting the resignation. As regards the document dated 21st January 2006 the learned counsel submitted that immediately after the Management sought to place reliance on it in its written statement, the petitioner filed an affidavit before the Tribunal explaining the circumstances in which the document was executed and claimed that it was obtained under coercion. Hence, it is submitted that the Tribunal failed to consider all the material aspects of the evidence and that a remand of the proceeding would be warranted. 7. On the other hand, learned counsel on behalf of the Management submitted that the view which has been taken by the Tribunal is a possible one and should be confirmed in exercise of jurisdiction under Article 226 of the Constitution. 8. In assessing the merits of the rival submissions it is necessary for the Court to advert to some of the admitted circumstances on the record. Firstly, the petitioner was on sanctioned leave until the beginning of September 2005. The Management has affirmed to this position in its letter dated 3rd September 2005 where it - 6 - states that his absence thereafter on leave would be treated as on leave without pay. Thus, it appears from the material on record that this was not a case of unauthorised absence but a case where the petitioner had applied for leave which was sanctioned by the Management. Even the letter dated 3rd September 2005 only proceeds to state that leave thereafter would be treated as without pay. 9. The Management by its communication dated 10th January 2006 addressed to the petitioner relied upon the purported letter of resignation dated 6th September 2006. An important circumstance which has been urged on behalf of the petitioner is that there is no explanation as to why, if the letter of resignation was addressed on 6th September 2005 the Management waited untill 19th December 2005 to pass a resolution. The Management’s letter dated 10th January 2006 refers the fact that the petitioner was addressing letters everyday after 23rd December 2005 for being taken on duty. The delay on the part of the Management in passing a resolution and in communicating its acceptance is an important consideration which ought to have been borne in the mind by the Tribunal. - 7 - 10. The Tribunal has adverted to the circumstance that on 21st January 2006 the petitioner had executed a letter but there was no averment in the memo of appeal that his signature was obtained under coercion. The Tribunal has perhaps overlooked this circumstance that it was in the written statement of the Management that reliance was sought to be placed on that document. Thereupon the petitioner filed an affidavit on 9th February 2007 explaining the circumstances in which the document was executed by him and it was the case of the petitioner that it was executed under coercion. Whether the aforesaid document was executed under coercion or otherwise was a matter for the Tribunal to consider. The Tribunal has not done so. It is the contention of the petitioner that he submitted a police complaint to the District Superintendent of Police Kolhapur on 28th February 2006. The contention of the petitioner is that the letter of resignation was fabricated on certain signatures which were obtained from him by the Management on blank papers when he joined duty. Whether this submission has any substance, was a matter to be considered by the Tribunal. The Tribunal has not done so. The Tribunal has not prima-facie compared the signatures on the letter of resignation with the admitted signature on the document dated 21st January - 8 - 2006. For all these reasons it was urged on behalf of the petitioner that the Tribunal has not considered several material circumstances which would have a bearing on the outcome of the appeal. These circumstances have been adverted to in the present judgment, not with a view to accept the submissions of the petitioner on merits, but to emphasise that these are aspects which ought to have been considered by the Tribunal. The Tribunal being a primary fact finding body, the evidence must be considered by that specialised forum, which is created under the Maharashtra Universities Act 1994. 11. In these circumstances, it is in the interest of justice to remit the matter to the Tribunal so as to facilitate a fresh determination by the Tribunal. . The petition shall accordingly stand disposed of with following directions. (i) The judgment and order of the College Tribunal dated 30th November 2007 is set aside and the proceedings shall stand remitted back to the Tribunal for a fresh decision. Appeal No. 6 of 2006 shall stand restored to the file of the - 9 - Tribunal; (ii) Parties shall appear before the Tribunal on 8th December, 2008 for receiving directions; (iii) Upon remand, the Tribunal shall pass a fresh order after hearing the parties; (iv) On the request of the learned counsel for the petitioner it is made clear that it would be open to the petitioner to apply to the Tribunal for leading the evidence of a handwriting expert. If any such application is made, the Tribunal shall deal with it in accordance with law; (v) All the rights and contentions of the parties are kept open. The present judgment shall not be regarded as the expression of a conclusive opinion on the merits of the rival contentions in the appeal; (vi) No order as to costs. Sd/- [ Dr. D.Y. CHANDRACHUD, J.]