1 WP-639-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO.639 OF 2011 WITH CIVIL APPLICATION NO.830 OF 2011 Gramin Vikas Pratisthan Kalamb and anr. ..Petitioners Vs Popat Smbhaji Malwadkar and anr. ..Respondents -- Mr.Vivek Salunke, for petitioners. Mr.P.G.Chavan, for respondent no.1. Mr.V.V.Yadav, for intervenor. -- CORAM : R.G.KETKAR, J. DATE : 19 th OCTOBER, 2011 P.C.: Heard Mr.Vivek Salunke, learned counsel for the petitioners, Mr.P.G.Chavan, learned counsel for respondent no.1 and Mr.V.V.Yadav, learned counsel for intervenor. 2 WP-639-11.odt 2] Rule. By consent of the parties, Rule is made returnable forthwith and heard finally. 3] By this petition, the petitioners are challenging the judgment and order dated 4 th December, 2010 passed by the learned Presiding Officer, School Tribunal, Pune Region, Pune in Appeal No.44 of 2010. By that order, the Tribunal set aside the termination of the first respondent vide communication bearing outward No.50/2010-11 dated 28 th July, 2010 and directed the petitioners herein to reinstate the first respondent in service as Senior Clerk from date of relieving him i.e.w.e.f.31 st July, 2010 and give continuity of service and pay back wages from the date of termination till his reinstatement in service. 4] In support of this petition, Mr.Salunke submitted that the first respondent made application on 30 th April, 2010 opting for voluntary retirement. On 30 th April, 2010, it was decided by the Management to consider this subject in the next meeting. Accordingly, in the next meeting convened on 8 th June, 2010, the Resolution No.4 was passed accepting the application made by the first respondent. 3 WP-639-11.odt However, the first respondent filed application on 1 st July, 2010 withdrawing his application dated 30 th April, 2010 opting for voluntary retirement. Subsequently, on 3 rd July, 2010, the first respondent did not press his application dated 1 st July, 2010. In view of this, on 3 rd July, 2010 Resolution No.4 was passed by the petitioners accepting the proposal of the first respondent for voluntary retirement as he did not press his application for withdrawal of notice dated 30 th April, 2010. Accordingly, the petitioners relieved the first respondent with effect from 31 st July, 2010. 5] Mr.Salunkhe submitted that the Tribunal committed serious error in not considering the case of the petitioners. He submitted that in the written statement filed on behalf of the petitioners, it was specifically asserted that the first respondent did not press his application dated 1 st July, 2010 withdrawing his voluntary retirement notice. This aspect is reflected in the Resolution dated 3 rd July, 2010. However, despite specific case being made by the petitioners, the Tribunal did not advert to this fact. He further submitted that on 8 th June, 2010, the petitioners accepted the proposal submitted by the first respondent on 30 th April, 2010. It was, therefore, not open to him 4 WP-639-11.odt to withdraw the said proposal after having been accepted. He also submitted that the first respondent did not produce Resolution dated 9 th September, 1988 in terms of which he had given notice dated 30 th April, 2010. If that be so, the first respondent has not established that he can withdraw the said proposal even within 90 days from the receipt of the proposal by the Management. At any rate, he submitted that while awarding full back wages, the Tribunal has not given any reason. He relied upon the judgment of the Apex Court in the case of Chand Mal Chayal Vs. State of Rajasthan, (2006) 10 SCC 258 to contend that the first respondent cannot withdraw the application dated 30 th April, 2010 after it was accepted by the petitioners on 8 th June, 2010. 6] On the other hand, Mr.Chavan supported the impugned judgment. He submitted that the petitioners have not established that the first respondent did not press his application dated 1 st July, 2010 for withdrawal of notice dated 30 th April, 2010. The reliance placed by the petitioners on Resolution No.4 dated 3 rd July, 2010 is wholly misconceived as the same is unilateral action of the petitioners. He further submitted that Notice dated 30 th April, 2010 5 WP-639-11.odt itself indicates that the first respondent has given three months’ notice of voluntary retirement commencing from 3 rd May, 2010 to 31 st July, 2010. In view of this, before expiry of 31 st July, 2010 he can withdraw the notice dated 30 th April, 2010. In so far as back wages is concerned, he relied upon the judgment of this Court in the case of Omprakash Shrawan Deshpande Vs. Presiding Officer, School Tribunal, 2005(2) Bom.C.R. 537. 7] I have considered the submissions made by learned counsel for the parties. Before the Tribunal, on behalf of the second respondent, reply was filed on 1 st November, 2010. It was asserted in that reply that before expiry of 90 days, the concerned person can withdraw the proposal of voluntary retirement. The action of the Management in accepting the proposal before expiry of 90 days was erroneous. In the instant case, the petitioners are asserting that though the first respondent submitted application on 1 st July, 2010 withdrawing his notice dated 30 th April, 2010, he subsequently did not press his application for withdrawal of voluntary retirement. However, in support of his assertions, no evidence is produced. The petitioners relied solely upon Resolution No.4 dated 3 rd July, 2010. 6 WP-639-11.odt Admittedly, in this meeting the first respondent was not present. That apart, even there is no written application made by the first respondent to the effect that he did not wish to press the application dated 1 st July, 2010. The Resolution passed by the petitioners is a unilateral action and in the absence of any other material on record, that cannot be a basis for accepting the case of the petitioners that the first respondent did not press his application dated 1 st July, 2010. In paragraph 10 of the impugned order, the Tribunal has recorded a finding that the petitioners did not produce any evidence in that regard. Even before this Court, no material is shown to substantiate the said plea. I, therefore, do not find that the Tribunal committed any error in reaching the said conclusion. 8] In the instant case, perusal of the application notice dated 30 th April, 2010 indicates that the first respondent gave three months’ notice of voluntary retirement commencing from 3 rd May, 2010 to 31 st July, 2010 in terms of Government Resolution No.PEN/1078/1005/2605/SE-6 dated 9 th September, 1988. Before expiry of that period, on 1 st July, 2010 he gave application for withdrawal of application dated 30 th April, 2010. No material is 7 WP-639-11.odt produced on record by the petitioners, save and except, Resolution no.4 dated 3 rd July, 2010, to substantiate their contention that the first respondent did not press his application dated 1 st July, 2010. In view thereof, the Tribunal rightly came to the conclusion that the action of the petitioners in issuing communication bearing Outward No. 15/2010-28 th July, 2010 is illegal, null and void. As noted earlier, the second respondent in reply has categorically stated that the action of the Management in accepting the proposal before expiry of 90 days was illegal. The first respondent gave application on 30 th April, 2010 for voluntary retirement commencing from 3 rd May, 2010 to 31 st July, 2010. Before expiry of this period, the petitioners accepted the proposal of voluntary retirement under Resolution No.6 dated 8 th June, 2010. The action of the petitioners is, therefore, clearly illegal. In the case of Chand Mal Chayal (supra), the appellant before the Apex Court was working as a Reader/ Court Master in the Magistrate Court. He tendered his resignation on 27 th January, 1990 to contest the election to be held in the year 1990. His resignation was accepted on 28 th January, 1990 and he was, thereafter, relieved from the post on 29 th January, 1990. Though he filed nomination as a candidate, he withdrew it on 2 nd February, 1990. He made 8 WP-639-11.odt representation on 12 th February, 1990 to the District Judge for retaining the post held by him. The said representation was rejected by the District Judge. The appellant preferred Writ Petition before the High Court which was disposed of by directing to conduct the enquiry. The Enquiry Committee submitted its report on 26 th June, 1991. Ultimately, by order dated 5 th June, 1999, the Government rejected the request made by the appellant for re-employment. In that context, the Apex Court held that the incumbent is entitled to withdraw his resignation before acceptance. Once his resignation is accepted, there is no jural relationship between the employee and employer and the employee cannot claim for withdrawal of resignation nor reinstatement in the post. The Apex Court also found that in the Rules there was no provision for reemployment after resignation was tendered by the employee and accepted by the employer. 9] In the instant case, respondent no.1 has withdrawn his application dated 30 th April, 2010 before expiry of 90 days. I am, therefore, of the opinion that the judgment of the Apex Court in the case of Chand Mal Chayal (supra) is not applicable to the facts and 9 WP-639-11.odt circumstances of the present case. I do not find that the Tribunal committed any error in directing the petitioners to reinstate the first respondent in service as Senior Clerk from 31 st July, 2010 and giving benefit of continuity in service. In my opinion, the Tribunal rightly came to this conclusion. 10] Mr.Chavan relied upon the judgment of this Court in the case of Omprakash Shrawan Deshpande (supra) to contend that the back wages must follow automatically when reinstatement is ordered and burden is on the Management to prove that the first respondent was gainfully employed. In the case of Navin J. Surti Vs. Modi Rubber Ltd., 2004 II CLR 46, it has been observed that in the matter of claim of back wages consequent to the order of reinstatement in favour of the employee, the Tribunal or the Court has to exercise its discretion in a judicial and judicious manner. 11] Section 11 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 empowers the Tribunal to give appropriate reliefs and direction. Section 11 lays down that where the Tribunal finds that the order of termination was illegal or 10 WP-639-11.odt improper, it may set aside the order of Management and direct the Management (a) to reinstate the employee on the same post or on a lower post as it may specify and (c) to give arrears of emoluments to the employee for such period as it may specify. 12] Perusal of Section 11 indicates that the discretion is conferred upon the Tribunal to order grant of emoluments. Perusal of the impugned judgment indicates that no reasons are given by the Tribunal while awarding full back wages. I, therefore, deem it appropriate to set aside only that part of the order of the Tribunal and further direct the Tribunal to consider the aspect of grant of back wages. Since I am remitting the matter to the Tribunal to consider this aspect, I do not propose to go into the rival contentions raised by learned counsel for the parties as also deal with the judgments relied upon by them on this aspect. 13] In view of this, the petition partly succeeds and is disposed of in the following terms : (a) The impugned order of termination bearing outward No. 11 WP-639-11.odt 50/2010-11 dated 28 th October, 2010 is quashed and set aside and declared as null and void. (b) The petitioners are directed to reinstate the first respondent in service as Senior Clerk with effect from 31 st October, 2010 when he was relieved from service and he shall be reinstated with continuity in service. (c) The direction to pay back wages from the date of termination till reinstatement in service is quashed and set aside. Appeal No.44 of 2010 is restored to the file of the Tribunal so as to consider the aspect of payment of back wages only. Rest of the order of the Tribunal is confirmed. (d) The learned counsel for the petitioners and the first respondent agreed that the parties will appear before the School Tribunal on 14 th November, 2011. On that date, the Tribunal may decide the matter or may give further date as per its convenience and decide the case as expeditiously as possible and, at any rate, within six months from the production of this order. No fresh notice is required to be given to the 12 WP-639-11.odt parties as they agreed to appear before the Tribunal on 14 th November, 2011. (e) Rule is partly made absolute in the aforesaid letter with no order as to costs. (f) In view of disposal of the Writ Petition, Civil Application No.830 of 2011 for intervention does not survive and the same stands disposed of . [R.G.KETKAR, J.]