1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3899 OF 2009 The Chairman Shri Ekveeradevi Sanskrutik Mandal and others. .. Petitioner Versus Balu Bhaurao Patil and another. .. Respondents --- Mr. Mukul Kulkarni, Advocate for the petitioner Ms. A.N. Ansari, Advocate for respondent No.1. CORAM : B.R. GAVAI ,J. DATE : 20TH AUGUST, 2009. ORAL ORDER 1] By way of present petition, the petitioner impugns the judgment and order passed by the learned School Tribunal, Nasik in Appeal DHL/5/2003 dated 11th December, 2008, thereby allowing the appeal filed by the respondent No.1. 2] The respondent employee was appointed as Assistant Teacher by the petitioners w.e.f. 2/2/1999 till 30th April, 1999 for a 2 fixed period. The respondent was thereafter continued by appointing him as Assistant Teacher till 10th December, 2002. it is not in dispute that on the date of his initial appointment, the respondent was having qualification of B.A. B.P.Ed., and as such, duly qualified to hold the said post. 3] It was the contention of the respondent employee that when he went to resume the duties on 11th December, 2002, he was not permitted to resume the duties. 4] Alleging oral termination, an appeal came to be filed by the respondent. The appeal was resisted by the management on the ground that the employee had resigned vide letter dated 17th December, 2002 and the resignation was also accepted on 14/1/2003. It was submitted that since the respondent employee had resigned from his services, the appeal was without merit. 5] The learned Tribunal, while allowing the appeal, held that the respondent was duly qualified to be appointed on the date of his initial appointment. It has been further held that the appointment of the respondent was on a clear and permanent vacancy and the appointment ought to have been for a period of 2 years on probation. It has been further held that the management has passed a resolution on 14/1/2003 thereby confirming the services of the respondent. 6] The learned Tribunal has further found that the story of resignation was an after thought. The learned Tribunal, upon 3 comparison of the signature on the alleged resignation with the signature of the appellant on the admitted documents, found that the signatures did not tally and, therefore, did not believe the theory of resignation. Being aggrieved thereby, the present petition. 7] Shri Kulkarni, the learned counsel appearing on behalf of the petitioners submits that the learned Tribunal initially had allowed the application filed by the present petitioner for sending the specimen of the appellant to the Handwriting Expert for comparison with the admitted documents, vide order dated 19th December, 2006, subject to payment of costs of Rs. 250/-. He states that since the said costs were not paid, another application was filed for sending the signature for comparison of the Handwriting Expert. The same was allowed, however, subject to payment of costs of Rs. 15,000/-. Vide the said order dated 11th December, 2008, the petitioner was also directed costs of Rs. 10,000/- to meet the expenses of the Handwriting Expert. He further submits that it was not even the case of the appellant regarding resignation and as such, the learned Tribunal had totally erred in going into the question of alleged resignation. 8] The contentions of the petitioner are without merit. It was the specific case of the appellant that he was not permitted to resume the duties and, therefore, according to him, the case would fall under otherwise termination. It was the defence of the present petitioners that the respondent employee had resigned and as such, the learned Tribunal was required to go into the 4 question of alleged resignation. Since the petitioners did not comply with the order dated 19th December, 2006, directing them to deposit Cost of Rs. 250/- the specimen signature could not be send for comparison to the Handwriting Expert. Even after the second order was passed on 11th December, 2008, the amount of Rs. 10,000/- was not deposited so as to meet the expenses of the Handwriting Expert. The said order was also not challenged by the present petitioners. It, therefore, does not lie in their mouth that since the amount directed to be deposited was exhorbitent, they did not comply with the same. 9] The petitioners having failed to take the necessary steps for sending the disputed signature for comparison with the admitted documents to the Handwriting Expert, the Tribunal was left with no other alternative than to compare the said documents itself. 10] Upon perusal of the documents, the learned Tribunal has found that the signature of the respondent/appellant on the alleged resignation did not tally with his signature on the admitted documents. It cannot be disputed that such an exercise is permissible under Section 73 of the Indian Evidence Act. 11] From perusal of Section 7 of the MEPS, Act, it is clear that a procedure is prescribed for sending the resignation. Section 7 of the MEPS Act, reads thus : “If any employee intends to resign his post in any private school, at any time after the appointed date, he shall draw up a 5 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.” 12] It can thus be seen that the resignation is required to be in duplicate and one copy is required to be sent to the Management by R.P.A.D. No doubt that, as held by this court in the case of “Nemichand Jain Bramhacharya Ashram (Jain Gurukul) Vs. Rajendra Sitaram Nikan and others” (2004)2 MLJ. 909, the learned Tribunal is required to decide the question as to whether the resignation is voluntary or not on the basis of the evidence led before it. Admittedly, in the present case, the resignation is not sent by R.P.A.D. In that view of the matter, the Tribunal was required to examine the question as to whether, in fact, there was a resignation or not, on the basis of the evidence led before it. 13] Upon perusal of the evidence before it, the Tribunal has found that the alleged resignation itself was not signed by the appellant. In that view of the matter, the learned Tribunal has found that the case fell under the otherwise termination and has rightly allowed the appeal. In that view of the matter, no infirmity could be found with the approach adopted, so as to warrant interference. Hence, the writ petition is rejected. [B.R. GAVAI, J.] grt/