1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LETTERS PATENT APPEAL NO.461/2010 IN WRIT PETITION NO.4753/2005 (D) Appellants :- 1. Avinash Shikshan Prasarak Mandal, Mangrulpir, District Akola through its Secretary. 2. The Headmaster, Vasantrao Naik VJNT Post Basic Ashram Shala, Chehel, Tahsil – Mangrulpir, District – Akola. ...Versus... Respondents :- 1. Suresh s/o Ganaji Jadhav, Aged about 35 years, Occ. - Service, R/o At Post Shewati, Tahsil – Karanja, District – Akola. 2. The Social Welfare Officer, Washim. 3. The Presiding Officer, School Tribunal, Amravati Division, Amravati. --------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------- [Shri S.P. Kshirsagar, Adv. for appellants] CORAM:- J.P. DEVADHAR AND A.B. CHAUDHARI, JJ. DATED :- 28.10.2010 1. Being aggrieved by the judgment and order recorded by the learned Single Judge of this Court on 21.07.2010 in Writ Petition No.4753/2005, by which the petition filed by respondent – employee was allowed, the present appeal has been filed by the appellants. 2 2. In support of the appeal, learned Counsel for the appellants vehemently argued that the learned Single Judge went wrong in not relying upon the communications issued to respondent – employee for his abandoning service under certificate of posting (UPC) on the ground that the said two communications should have been sent by R.P.A.D.. The learned Counsel for the appellants argued that law does not mandate that all communications should be sent by R.P.A.D. and communications sent by UPC are also well recognized admissible evidence. The employee did not deny the same by appropriate evidence. He then argued that the learned Single Judge ought not to have interfered with the finding of fact that was recorded by the School Tribunal in the extraordinary writ jurisdiction. The learned Single Judge ought to have seen that the employment of the respondent – employee was temporary and as such had no any right in law. He relied on the decision of the Supreme Court in the case of Shiv Kumar and others...Versus...State of Haryana and others, reported in 1994 (4) Supreme Court Cases 445. 3. We have gone through the impugned judgment and order recorded by the learned Single Judge so also the Tribunal and having heard the learned Counsel for the appellants at the outset, we find that the learned Single Judge rightly interfered with the finding of fact recorded by the Tribunal since the Tribunal wrongly placed reliance on the alleged communications to the respondent – employee under certificate of posting (UPC). In the case of State of Maharashtra...Versus...Rashid B. Mulani, reported in 2006 (1) Supreme Court Cases 407, in paragraph No.17, the Hon'ble Supreme Court held thus : 3 “17. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the post office. But when a mere certificate of posting is sought, no record is maintained by the post office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the post office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may.“ 4. The decision relied upon by the learned Counsel for the appellants, cited supra, is of no assistance to him since in that case also the Hon'ble Supreme Court refused to rely upon the communications by under certificate of posting on the workmen about the service of notice under Section 25-N of the Industrial Disputes Act, 1947 r/w Rule 76-A (2) of the Industrial Disputes (Central) Rules, 1957. The said decision is of no help to the appellants. We, thus, find that the learned Single Judge was 4 right in not relying upon the alleged communications about the abandonment to the employee under certificate of posting. That apart, the said finding is based upon other circumstances, which have been considered by the learned Single Judge in the impugned judgment and order. We quote paragraph No.6 of the impugned judgment and order of the learned Single Judge ; “6. Absence of signature in attendance register in present facts is not determinative because, petitioner has complained that he was prohibited from signing from 23.10.1994. The School Tribunal therefore, ought to have seen for some other indication and that is available only in the shape of two communications allegedly forwarded under UPC. If the employee was not attending duties, why the communications could not be forwarded by R.P.A.D. is not understood. Thus after these two UPC communications are ignored, there is absolutely nothing on record to show that petitioner who had worked since 1991 suddenly abandoned service in 1994. The story of abandonment appears to have been fabricated later on.” 5. Instead of repeating the reasons, we further find that the plea of abandonment set up by the appellants was not properly established by the appellants since as found by the learned Single Judge there is no single notice to the respondent - employee except the said two UPC communications about the alleged abandonment. The oral termination dated 2.1.1995 was therefore rightly set aside by the learned Single Judge. It is 5 noteworthy that the appeal was filed on 16.1.1995 i.e. within 14 days from the oral termination which conduct was considered by the learned Single Judge. We find from the impugned judgment and order of the learned Single Judge that care has been taken not to award 100% back wages and in our opinion rightly. 6. Before parting with the judgment, we are anguished to know from the Central Government Counsel Mr. S.B. Ahirkar who was present with an official from Postal Department on the date of hearing that the direction issued by the Hon'ble Supreme Court in paragraph No.17 of the decision in the case of State of Maharashtra...Versus...Rashid B. Mulani, cited supra, yet has not been complied with by the Department of Post. We hope and trust that the required steps would be taken early as four years have already passed after the said judgment was rendered as day in and day out such certificates are relied by the parties before the Courts and Tribunals. 7. For all the above reasons, therefore, we do not find any merit in the present letters patent appeal. The same is, therefore, dismissed. JUDGE JUDGE In view of the fact that order of reinstatement has been made by the learned Single Judge in writ petition for the first time, we are inclined to suspend the operation of the said judgment for a further period of eight weeks from today. JUDGE JUDGE SSW