1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2333 OF 2002. with CIVIL APPLICATION NO.3820 OF 2002 IN WRIT PETITION NO.2333 OF 2002. Ashok s/o Balaji Biradar, age 21 years, occu. Nil, r/o Dhondi Hipparga, Tal. Udgir, Dist. Latur. .... PETITIONER. VERSUS 1) Mahesh Shikshan Prasarak Mandal,Udgir, Tal. Udgir, (through its Secretary). 2) Mahesh Prathmik Vidya Mandir, Udgir, Tal. Udgir, Dist. Latur, (through its Head Master). 3) Education Officer (Primary), Zilla Parishad, Latur, Dist. Latur. .... RESPONDENTS. ... Shri Vivek Dhage, Advocate for Petitioner. Shri B.L. Sagar Killarikar, Advocate for R.Nos.1 and 2. Shri V.D. Gunale, Advocate for applicant in C.A. ... CORAM : S.S. SHINDE, J. Reserved on : 14.08.2009. Pronounced on : 28.08.2009. 2 JUDGMENT: 1. This petition takes exception to the judgment and order dated 3rd April, 2002 passed by the Presiding Officer, School Tribunal, Aurangabad in 216 of 1996. 2. The background facts of the case are as under: The petitioner herein preferred the appeal before the School Tribunal against the termination of his services. It is the case of the petitioner that he was appointed as a Clerk in the year, 1994. He had served continuously for a period of two years on the post of Clerk. The Education Officer – respondent No.3 has accorded approval to his appointment. 3. It is the case of the petitioner that respondent No.1 Secretary, Mahesh Shikshan Prasarak Mandal, Udgir told him that if he is not in a position to pay Rs.50,000/- then he should resign. It is further case of the petitioner that the Secretary pressurized the petitioner to 3 resign since he was not able to pay Rs.50,000/-. Respondent No.1 forcefully took resignation of the petitioner on the Bond Paper of Rs.20/- which was purchased by the petitioner – appellant on 6th July, 1996. Respondent No.1 also asked the petitioner to write his resignation on three blank papers and accordingly, on 6th July, 1996 the petitioner herein submitted his resignation in writing on one Bond paper of Rs.20/- and three on blank papers. It is further case of the petitioner that Respondent No.1 forced him to write in the resignation letter that he is resigning on his own accord due to domestic difficulties and due to ill health. The petitioner’s case is that the resignation tendered by him is not willful but, the same was obtained forcefully by respondent no.1. Therefore, the petitioner filed an appeal challenging the illegal and arbitrary action of respondent no.1 Secretary asking his resignation and not allowing the petitioner to discharge his duties as a Clerk since 6th July, 1996. 4. It is further case of the petitioner that he 4 is deemed permanent employee as he served continuously for a period of two years. So he is entitled for continuation and regularization in service. Resignation obtained by respondent no.1 was against the will of the petitioner and, therefore, the petitioner prayed in the appeal that he be continued in service as a Clerk in respondent no.1 institution. The petitioner in appeal prayed that respondents be directed to continue services of the appellant / petitioner as a clerk in respondent no.2 school and further they should pay salary of the appellant / petitioner regularly month to month, and call for record and proceedings from the respondent institution. 5. Respondents No.1 and 2 herein filed written statement on 8.8.1997 and denied all allegations leveled against them by the petitioner. It is stated that respondent no.1 never demanded Rs. 50,000/- as alleged by the petitioner for continuation of service. It is further denied that respondent no.1 pressurized the appellant / petitioner for payment of Rs.50,000- else to 5 resign. It is also denied that the Secretary has forcefully took resignation on three blank papers as alleged by the petitioner on 6.7.1996. By way of additional say, it was contended by respondents no.1 and 2 that due to domestic difficulties and cause of ill health, the resignation was tendered by the petitioner / appellant and the same was accepted by respondent no.1 in presence of the Education Officer, Zilla Parishad, Latur. According to respondent no.1, the appellant accompanied respondent no.1 and they went before the Education Officer, Zilla Parishad, Latur on 11.4.1996. The Education Officer verified the real facts and asked several questions to the appellant / petitioner as to why he wanted to resign from the post of clerk. The petitioner pointed out difficulties to the Education Officer and wrote resignation letter in his presence and on said resignation letter of the petitioner, the Education Officer made his endorsement. Respondent No.1 accepted the resignation of the petitioner in the meeting of the management on 14th April, 1996. It is the 6 case of the respondents that the resignation tendered by the petitioner was accepted as per his desire and in his place, one Smt. M.S. Wadkar was appointed and the Education Officer has granted approval to the appointment of said Smt. Wadkar. Smt. Wadkar was, therefore, necessary party to the appeal. However, she was not arrayed as party respondent to the appeal. 6. The Presiding Officer, School Tribunal, Aurangabad Division, Aurangabad framed necessary points for consideration and held that the services of the petitioner / appellant were not terminated by taking resignation of the petitioner forcefully by respondents on 6.7.1996. It is further held that the appellant / petitioner is not entitled for reinstatement. The judgment and order passed by the School Tribunal is assailed in this petition. 7. The learned Counsel for the petitioner submitted that there was no reason for the petitioner to tender the resignation and the same was obtained by respondents by pressurizing the 7 petitioner. According to the learned Counsel, the provisions of Rule 40 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, hereinafter referred to as the M.E.P.S. Rules, 1981) are not followed while accepting the forceful resignation of the petitioner. It is further submitted that the legislators have specifically provided Rule 40 to avoid arbitrariness of the Educational Institutions against the employees. According to the learned Counsel, the resignation which was obtained by respondents was forceful and petitioner was pressurized either to pay Rs. 50,000/- or tender his resignation. According to the learned Counsel for petitioner, resignation which was tendered by the petitioner was not with free will and the same was under coercion and pressure of respondents – Institution. It is further submitted that as per the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, hereinafter referred to as the M.E.P.S. Act, 1977), the services of the petitioner are permanent in nature and by virtue 8 of completing two years on the post of Clerk, he has become permanent employee of the respondent – institution. According to the learned Counsel, the respondents have accepted his contention that he is deemed permanent employee and appointed against clear vacant post. In support of his submission, the learned Counsel invited my attention to paragraph 2 of the appeal memo and submitted that in appeal, it was assertion of the petitioner that the appointment of the appellant is on clear vacant and permanent post and, in reply to said paragraph in written statement filed by respondents No.1 and 2, it is stated that the contents of para 2 are correct. Therefore, according to the learned Counsel, the petitioner should not have been terminated by taking forceful resignation from him for not fulfilling the demand of Rs.50,000/- made by the Secretary of respondent institution. It is further argued that since the Education Officer has approved the services of the petitioner and he has worked for two years continuously, the petitioner has acquired status of permanent employee. The learned Counsel further submitted 9 that the School Tribunal has not properly appreciated the contention of the petitioner that if the resignation was tendered before the Education Officer and if the Education Officer has endorsed the said resignation, it was necessary to examine the Education Officer and to call record from the Education Officer to ascertain the assertion of the respondents that the resignation was tendered by the petitioner – appellant before the Education Officer on 11.4.1996 and to that effect, there is endorsement made by the Education Officer on the resignation letter. According to the learned Counsel, this point goes to the roots of the matter and therefore, it was necessary for the School Tribunal to call the Education Officer with record. In spite of specific contention of the petitioner, the School Tribunal did not call record or Education Officer and failed to ascertain that the resignation was tendered in presence of Education Officer and the Education Officer has made endorsement on the said resignation. The learned Counsel further argued that the letter written by the management 10 contending therein that the resignation tendered by the petitioner has been accepted in the meeting dated 14th April, 1996 and the evidence produced by the management on record i.e. “Under Posting Stamp” from the post office would clearly indicate that the date appearing on the said stamp was “14th April, 1996”, which was Sunday and on account of Dr. Ambedkar Jayanti also, the same was holiday. Therefore,the learned Counsel would contend that the entire record, including the resignation letter, on which the respondents are relying, should not have been believed by the School Tribunal. The learned Counsel further submitted that the provisions of Rule 40 of the M.E.P.S. Rules, 1981 are not followed while accepting the resignation. The Presiding Officer, School Tribunal has not taken into consideration that the petitioner was pressurized and demand was made of Rs.50,000/- and the petitioner had not at all submitted resignation before the Education Officer. It is further argued that the petitioner has received salary up to May, 1996 11 and, therefore, there was no question of tendering any resignation as alleged by the respondents on 11.4.196 and, therefore,t he learned Counsel submitted that the action of the respondent no.1 is arbitrary and illegal and the School Tribunal utterly failed to appreciate the contentions of the petitioner. He, therefore, submitted that the petition deserves to be allowed. 8. The learned Counsel for the petitioner relied on various judgments in support of his contention. The learned Counsel submitted that the order passed by the School Tribunal is purely on assumptions and conjectures. The judgment and order of the School Tribunal is not based upon any evidence. For this contention, the learned Counsel relied upon reported judgment of the Supreme Court in the case of Rukmanand Hbairoliya v. The State of Bihar and others [AIR 1971 SC 746]. The learned Counsel further submitted that this Court under Article 227 of the Constitution can exercise power to set right the perverse findings recorded by the Courts below or to 12 correct the error apparent on the face of the record. The learned Counsel, in support of this contention, relied on reported judgment of this Court in the case of Rupee Co-op. Bank Ltd. vs. Shailesh V. Vaidya and others [2008(2) Mh.L.J. 434]. The learned Counsel placed reliance in the case of Siddheshwar Kreeda Mandal, Sillod vs. Uttam s/o Kisanrao Shrikhande and others [2009(2) Mh.L.J. 275] in support of his contention that Section 7 of the M.E.P.S. Act, 1977 and Rule 40 of the M.E.P.S. Rules, 1981 have not been properly appreciated by the School Tribunal. The learned Counsel further placed reliance on the reported judgment in case of Shri Sant Sawtamali Shikshan Prasarak Mandal, Tembhurni vs. State of Maharashtra and others [2008(6) Mh.L.J. 529] and submitted that the resignation tendered by the petitioner was not voluntary and he had never tendered resignation on his own volition and that it was not a voluntary resignation and, therefore, the learned Counsel would contend that the School Tribunal should have allowed the appeal holding that there was no reason for the petitioner to tender resignation and said 13 resignation obtained by the respondent No.1 was forceful. The learned Counsel further placed reliance in the case of State of Maharashtra v. Rashid Babubhai Mulani [2006 AIR SCW 162] to contend that the certificate of posting which is brought on record by the respondents – management is of little assistance to the respondents to contend that said compliance was in due regard to Rule 40 of the M.E.P.S. Rules, 1981. The learned Counsel further placed reliance on reported judgment of this Court in the case of Nita Ramesh Danane vs. Dombivali Mitra Mandal and others [2009(1) Mh.L.J. 796] and submitted that the present petitioner filed an application to the management and there was no requirement of advertisement for filling in the post of Clerk. The learned Counsel further relied on the reported judgment of this Court in case of Anil Dattatraya Ade vs. Presiding Officer, School Tribunal, Amravati and others [2003(4) Mh.L.J. 866] and submitted that the petitioner has acquired the status of deemed permanent employee and the services of the petitioner are terminated without following the mandatory provisions of the 14 M.E.P.S. Act, 1977. The learned Counsel invited my attention to paragraph 16 to 18 of the said judgment in support of his contention that the permanent employee cannot be terminated without following due procedure prescribed under the M.E.P.S. Act, 1977 and the Rules thereunder. The learned Counsel further submitted that the resignation obtained by the respondents from the petitioner was obtained fraudulently and therefore, the said resignation and acceptance of the same should be treated as nullity. He further submitted that the petitioner is wrongfully dismissed and it was unjust on the part of the School Tribunal to insist upon the technical requirement of pleadings and proof of absence of gainful employment. In support of his contention, he relied on reported judgment of this Court in case of Taranjitsingh I. Bagga Vs. Maharashtra State Road Transport Corporation, Amravati [2008(3) Mh.L.J. 743]. The sum and substance of the arguments of the learned Counsel for the petitioner is that the resignation of the petitioner was obtained by 15 the respondent no.1 under pressure, coercion and by fraudulent method and therefore, the said resignation was not the resignation as contemplated under the provisions of the M.E.P.S. Act, 1977 and Rules thereunder. It is further argued by the learned Counsel that the provisions of Rule 40 of the M.E.P.S. Rules, 1981 are not followed by the management. The School Tribunal has not properly considered the contentions and pleadings in the appeal filed before it and erroneously rejected the appeal of the petitioner and therefore, this petition deserves to be allowed. 9. The learned Counsel for the respondents invited my attention to the reply filed before this Court as well as written statement which was filed before the School Tribunal and submitted that the respondents no.1 and 2 have categorically denied the allegations made against them and, therefore, the burden was on the petitioner to prove that the resignation tendered by him was due to pressure of the respondent no. 1. It is further submitted that the resignation 16 was in the hand-writing of the petitioner and same was tendered to the Secretary and these facts are not disputed by the petitioner. It is further argued that the petitioner has failed to bring on record as to which place and at what time the Secretary of Respondent No.1 exerted pressure on the petitioner to tender resignation. According to the learned Counsel, only vague allegations are made against the respondents. It is further submitted that the resignation which was tendered by the petitioner was accepted on 14th April, 1996. It is further submitted that the petitioner did not adduce any evidence before the School Tribunal in support of his contention that respondent no.1 pressurized him to tender resignation. The learned Counsel further submitted that from 11th April, 1996 the petitioner has not signed the Muster Roll. It is further submitted that the salary for the month of May, 1996 has not been paid by respondent management to the petitioner as alleged by him. The learned Counsel further submitted that there is no prayer in the appeal which was filed before the School Tribunal that the resignation be 17 declared as null and void. According to the learned Counsel when there was no specific prayer before the School Tribunal, there was no question of any adjudication by the Tribunal on the said issue. He further submitted that name of the Secretary against whom allegations are made, is not mentioned by the petitioner. It is further submitted that acceptance of Resignation is not under challenge. It is further submitted that appeal filed by the petitioner before the School Tribunal was belated and the same was filed after three months eleven days from the date of resignation. He further submitted that the respondents have specifically denied that any force was used to take resignation of the petitioner. It is further submitted that the burden was on the petitioner to prove that pressure was exerted by respondent No.1 and as a result of which, the resignation was tendered by the petitioner. It is further argued that the petitioner has not discharged the burden on him to prove his contention that the resignation tendered by the petitioner was forceful one. It is further submitted that if the appointment 18 letters of the petitioner are seen, it is clear that those are issued by Secretary who is not competent to issue the appointment letters. The learned Counsel further submitted that the petitioner was appointed on year to year basis and not on probation and, therefore, he cannot be treated as permanent employee. It is further submitted that the resignation was submitted by the petitioner on 11.4.1996, the same was accepted by the management on 14th April, 1996. The learned Counsel further submitted that the postal authorities, by inadvertence, put the stamp of 14.4.1996 on the envelope but, on further inquiries by the respondents, the postal authorities rectified the mistake and had put another stamp of 15.4.1996. According to the learned Counsel, the School Tribunal has properly appreciated the contentions of both the sides and arrived at proper conclusion. The learned Counsel further submits that the Tribunal has taken the possible view, the findings recorded by the tribunal are not perverse and, therefore, no interference is called for under writ jurisdiction. 19 10. The learned Counsel for respondents invited my attention to the judgments of the Apex Court as well as this Court in support of his case that the resignation which was tendered by the petitioner was not forceful resignation. The learned Counsel relied on the judgment of Apex Court in the case of Kalwa Devadattam and others v. Union of India [AIR 1964 SC 880] and more particularly, paragraph 11 of the said judgment and also on the judgment in the case Anil Rishi v. Gurbaksh Singh [AIR 2006 SC 1971]. The learned Counsel further submitted that the petitioner was never appointed on probation and if he was not appointed on probation, there was no question of deemed permanency and for this submission, he relied on Priyadarshini Education Trust & Ors. vs. Ratis (Rafia) Bano d/o Abdul Rasheed & ors. [2007(6) ALL M.R. 238, Hindustan Education Society and another v. Sk. Kaleem Sk. Gulam Nabi and another vs. Sk. Kaleem Sk. Gulam Nabi and others [AIR 1997 SC 2126] , and Bhartiya Gramin Punarrachana Sanstha v. Vijay 20 Kumar and others [AIR 2002 SC 3092]. The learned Counsel further relied on reported judgment of this Court in the case of Barshi Education Society vs. Ashok Ganesh Kulkarni and others [2004(5) Bom.C.R. 772] and more particularly, paragraphs 8 and 20 of the said judgment in which Rule 40 of the M.E.P.S. Rules, 1981 is interpreted. He further relied on paragraph 8, 9 and 10 of the reported judgment of this Court in the case of Anandilal Ganesh Podar Society and another vs. Mrs. V. Chakravarti and another [2005(1) Mh.L.J. 480] to point out the scope of Section 7 of the M.E.P.S. Act, 1977. The learned Counsel further relied on other two reported judgments in the case of Ranjeet Singh vs. Ravi Prakash [(2004)3 SCC 682] and Saindranath s/o Jagannath Jawanlal vs. Pratibha Shikshan Sanstha and another [2007(3) Mh.L.J. 753]. The learned Counsel submitted that the findings recorded by the School Tribunal and on that basis, dismissal of appeal of the petitioner is perfectly justified in law and therefore, writ petition filed by the petitioner deserves to be dismissed. 21 11. I have given anxious consideration to the rival submissions of the parties. Two important points which arise for consideration in this writ petition are – Whether the resignation tendered by the petitioner was under pressure of Respondent No.1 and whether the petitioner had placed sufficient material / evidence before the School Tribunal to prove his case that the resignation tendered by him was forceful one, under coercion and pressure of respondent no.1? and the second point which falls for consideration is interpretation of Section 7 of the M.E.P.S. Act, 1977 and Rule 40 of the M.E.P.S. Rules, 1981. 12. Coming to the first point that the resignation tendered by the petitioner was obtained forcefully by respondent no.1, it could be seen that the School Tribunal had framed specific point to that effect. The School Tribunal, after appreciating the contention of the petitioner as well as respondents, arrived to the conclusion that the contents of the letter of resignation are in the handwriting of the 22 appellant / petitioner. The School Tribunal has further observed that no evidence has been produced by way of affidavit of witnesses or any other evidence on record by the petitioner / appellant to show that the resignation was forcefully obtained by respondent no.1. The Tribunal has further recorded that the copy of the resignation at Exh.R-1 shows that voluntarily the appellant had resigned from his post. He has also put the date as 11.4.1996 on the said resignation letter. It is further observed by the School Tribunal that it is necessary for the petitioner to prove that he is victim of forceful resignation and the copy of the resignation letter dated 11th April, 1996 clearly shows that the resignation was prepared before the Education Officer, Zilla Parishad, Latur and Education Officer has also put his signature having endorsement “before me”. Therefore, the Tribunal arrived at the conclusion that the resignation was not forceful one. The Tribunal has further observed that the petitioner did not complain to the Education Officer about forceful resignation. The Presiding Officer of the School Tribunal has 23 recorded that the appellant / petitioner himself had tendered resignation of his post to the Secretary and the same was accepted by the Institution on 14.4.1996. The Tribunal has also taken note that the postal authorities inadvertently impressed wrong stamp of date as 14.4.1996 instead of 15.4.1996 and the same was subsequently corrected. The Tribunal has further recorded that the resignation was voluntarily tendered by the petitioner and the same was accepted by the management in accordance with the relevant provisions of M.E.P.S. Act, 1977 and the Rules thereunder. 13. On careful perusal of the appeal memo which was filed before the School Tribunal by the petitioner herein, it appears that the prayers were made to call for record and proceedings, directions to the respondents to continue services of the appellant / petitioner as clerk in respondent no.2 school, directions to respondents to make payment of salary of the appellant / petitioner regularly and month to month and by way of interim relief to continue 24 services of the petitioner as a clerk in the respondent no.2 school. Further careful perusal of the prayers in the appeal would reveal that there is no prayer to the effect that resignation tendered by the petitioner should be declared as null and void. In absence of any prayer to that effect, before the School Tribunal, it is not open for the petitioner to contend that the resignation, was forceful resignation under pressure of respondent no.1. In absence of specific prayer