1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 880 OF 2009 Sunil Vasant Patil ..... Petitioner. V/s The Secretary, Bharat Education Society and Ors. ..... Respondents. Ms. Deepali Patil for the Petitioner. Mr. Rajesh Gehani for respondent Nos. 1 and 2. Ms. S.S. Bhende, AGP for respondent Nos. 3 and 4. CORAM: V.M. KANADE, J. DATE : 10TH JULY, 2009 P.C:- 1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent Nos. 1 and 2. 2. Rule. Respondents waive service. Rule is made returnable forthwith, by consent of parties. 2 3. Petitioner, by this Petition, is challenging the judgment and order dated29/4/2008 passed by School Tribunal whereby his appeal which was filed under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (For short “MEPS Act”) against the order of “otherwise termination” was dismissed . 4. Brief facts are as under:- 5. Petitioner, initially, was appointed as Assistant Teacher on 1/9/1999. Approval was granted to the said appointment. Thereafter, he was appointed again in clear and permanent vacancy. Probation was for a period of 2 years from 16/9/2000. It is the case of petitioner that sometime on/or about 3/11/2001, he was not permitted to join his duties and, therefore, he was constrained to file an appeal before School Tribunal. 3 6. In the appeal memo, it was contended that he was appointed in clear and permanent vacancy on probation for a period of two years and that without assigning any reasons he was prohibited from working in the said school from 3/11/2001. A specific contention was raised that he was working continuously upto 2/11/2001. In the Written Statement that was filed by the respondents herein, a specific contention was raised that the petitioner herein had voluntarily resigned from his service and had tendered his resignation by letter dated 1/2/2001 wherein he has stated that he was giving three months’ notice and he was resigning from 1/5/2001. It was further stated that a second letter was sent by the petitioner dated 11/4/2001 to the General Secretary reiterating and confirming his earlier letter of resignation. It was contended in the Written Statement that both these letters were written by the petitioner in his own handwriting and these letters were also signed by him. It was 4 further contended that the Headmistress of the School had informed the petitioner by letter dated 12/4/2001 that his resignation was accepted. It was further contended that this letter was received by the petitioner herein. It was therefore submitted that the petitioner having voluntarily resigned from his service was not entitled to file appeal. 7. Thereafter, a rejoinder was filed by the petitioner herein and, in the rejoinder, it was alleged that his signatures were obtained on blank papers and his two signatures which were taken on blank papers were used for the purpose of showing that he had voluntarily resigned. In the rejoinder, however, it was contended that the said hand-writing in the said letters was not that of the petitioner. So far as acknowledgment by the petitioner of the letter dated 12/4/2001 is concerned, there was a mere denial. It was further contended in the rejoinder that the petitioner was working continuously and in 5 support of the said contention certain answer-sheets of some students were annexed. Further, time table as also letters which were written by the Management seeking approval for appointment of the petitioner were also annexed in support of the said contention. 8. Tribunal, however, came to the conclusion that the hand-writing in the said letters was that of the petitioner and, further, it was observed by School Tribunal that the petitioner had not come to Tribunal with clean hands and had suppressed the fact of his resignation in appeal memo. It also observed that though acknowledgment was given by the petitioner to the letter of Management dated 12/4/2001, this fact was not disclosed in appeal memo. It also did not accept the contention that the petitioner was taking lectures continuously upto 2/11/2001. 9. Learned Counsel appearing on behalf of the 6 petitioner firstly submitted that in view of section 7 of MEPS Act, the letter of resignation had to be sent by registered post and the said letter had to be signed in duplicate and one copy had to be retained by the employee. It was submitted that the said provision was not followed and the circumstances under which the said letter was tendered were suspicious and, therefore, Tribunal ought to have accepted the contention of the petitioner that the said resignation was forcibly obtained. It was submitted that, therefore, Tribunal ought to have discarded the said letters of resignation produced by the respondents. In support of the said submission, reliance was placed on the judgment of this Court in Siddheshwar Kreeda Mandal, Sillod vs. Uttam s/o Kisanrao Shrikhande and others, reported in 2009(2) Mh. L.J. 275. 10. The learned Counsel appearing on behalf of respondent Nos. 1 and 2, on the other hand, tendered a 7 compilation of documents which were the part of record before Tribunal and submitted that no explanation was tendered by the petitioner herein to the acknowledgment given by the petitioner to the letter of Management dated 12/4/2001. He submitted that perusal of hand-writing of the petitioner from his application for employment dated 18/9/2000 made to Management and subsequent letter of resignations dated 1/2/2001 and 11/4/2001 clearly indicated that it was his hand-writing. The acknowledgment given by the petitioner to the letter of Management dated 12/4/2001 also clearly indicated that the petitioner was aware about the said letters of resignation. It was submitted that it was the duty of the petitioner, therefore, to have referred to these letters in his appeal memo. He submitted non-mentioning of the said fact in appeal memo clearly indicated that the petitioner had suppressed this fact from Tribunal. Secondly, it was submitted that it was not necessary that letter of resignation had to be sent by registered post. It 8 was submitted that the said condition was not mandatory condition for the purpose of tendering resignation. In support of the said submission, he relied upon the judgment of the learned Single Judge of this Court in Neminath Jain Bhramhacharya Ashram (Jain Gurukul) & Ors. vs. Rajendra Sitaram Nikam & others reported in 2004(6) Bom.C.R. 472. 11. After having heard the learned counsel appearing for both parties, in my view, submissions made by the learned Counsel appearing on behalf of respondent Nos. 1 and 2 will have to be accepted. Before rival contentions are taken into consideration, it is necessary to refer to section 7 of the MEPS Act, 1977 and Rule 40 of the Maharashtra Employees of Private School Rules, 1981 which read as under:- “7. Procedure for resignation by employees of private schools: If any employee intends to resign his post in 9 any private school, at any time after the appointed 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.” “40. Resignation: (1) A permanent employee may leave service after giving three calendar months notice and a non-permanent employee may leave service after giving one calendar month’s notice. The management may, 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. 10 (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.” It is obvious that the said provision has been incorporated in order to ensure that the resignation of employee is not obtained by exercising undue influence or coercion and, therefore, section 7 stipulates that under normal circumstances resignation 11 should be sent by registered post and duplicate copy of the letter should be retained by the employee. This had become necessary because several complaints were received, alleging that the signatures of the employee were obtained in advance on blank papers and later on these signatures obtained on blank papers were used by filling up the blank papers as letter of resignation. However, in my view, the said section 7 cannot be construed to be a mandatory requirement for the purpose of acceptance of letter of resignation. If no allegation is made regarding acceptance of letter of resignation by the employee or employer, then, merely because letter of resignation is not sent by registered post, it cannot be said that it is non-est or void-ab- initio. It is only when a letter of resignation is not sent by registered post and the circumstances under which it is accepted by the employer are inherently suspicious, then, in such cases, it has to be seen that why the employer has not asked the employee to send it by registered post. Therefore, merely 12 because the resignation letter is not sent by registered post that ipso-facto would not make the said act of resignation illegal. The said provision obviously had been incorporated in order to give protection to the employees and in order to ensure that no attempt is made to obtain such resignation under duress or by exercising undue influence or coercion. Similar view has been taken by this Court in Neminath Jain Bhramhacharya Ashram (Jain Gurukul) (supra) and in Balaleshwar Shikshan Mandal vs. Jaywant Bhaguji Gadekar, reported in 2004(1) Bom.C.R. 421. 12. In the instant case, Tribunal was justified in coming to the conclusion that the petitioner herein had suppressed material facts from Tribunal. Tribunal was justified in coming to the conclusion that the petitioner was aware about existence of letters of resignation, particularly because he had acknowledged the letter dated 12/4/2001 sent by Management to him, conveying acceptance of the said letter by Management. 13 Petitioner has given acknowledgment towards receipt of the said letter by putting his initials. Petitioner has nowhere stated on oath or otherwise that the initials which are put on the said letter dated 12/4/2001 are not his initials. Petitioner has merely denied of having received the said letter. No comment had been offered by the petitioner regarding acknowledgment of the said letter or his initials on the said letter. In Written Statement, a specific reference to the acknowledgment of letter dated 12/4/2001 has been made by Management. If the said letter had not been received by the petitioner, he could have, after taking inspection of the said letter, categorically taken a stand that he has not given his initials on the said letter. Petitioner, in his rejoinder, has specifically stated that his signatures were obtained on two blank papers. The initials which are put on the letter dated 12/4/2001 is a third paper where his signature is found. The theory of the petitioner, therefore, that his signatures were obtained on blank papers, clearly falls to the 14 ground. Apart from that, Tribunal has rightly observed that the said letter of resignation has been written by the petitioner in his own hand-writing which has been verified by the Court by comparing hand-writing of the petitioner on his application for employment and letter of resignation. 13. Tribunal, therefore, in my view, was justified in holding that the petitioner had voluntarily resigned in February, 2001 which was to take effect from 4/5/2001. Tribunal, in my view, also has rightly held that the documents on which reliance was placed by the petitioner to contend that he had continued to work till 2/11/2001 was not acceptable and not true. The letters which are written by Management, seeking approval to the appointment of the petitioner pertain to the earlier year and these letters, therefore, cannot prove that the petitioner had worked till 2/11/2001. The time table, obviously, also was of the earlier year during which the petitioner had worked. The 15 answer-sheets on which reliance is placed by the petitioner also does not establish that he was taking lectures upto 2/11/2001. There is, therefore, no merit in the submission made by the learned Counsel for the petitioner that he had worked till 2/11/2001. 14. Reliance was also placed by the learned Counsel for the petitioner on the judgment of this Court in Siddheshwar Kreeda Mandal (supra). However, in my view, the said judgment would not be of any assistance to the petitioner,since the learned Single Judge has decided the case on the facts of the said case. In the said case, teacher had submitted resignation and the circumstances in the said case clearly created doubt regarding the manner in which the resignation was tendered. In that case, an application was made to the Education Officer, Zilla Parishad, stating therein that after he had requested the Secretary of the petitioner-institution to give him salarly and to 16 confirm with effect from June, 1993, petitioner forced respondent No.1 to give signatures on blank papers. In that case, employee had specifically made that allegation much before the appeal was filed before School Tribunal. In the present case, however, only after the Written Statement was filed by respondents, the theory of his signatures having obtained on blank papers was put-forth by the petitioner which, in my view, is clearly an afterthought and excuse to come out of the resignation which he has tendered to the respondents – Management. 15. Under these circumstances, order of Tribunal is confirmed. Writ Petition is dismissed. Rule is discharged. (V.M. KANADE, J)