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Bombay High CourtIndian Cases

Anandilal Ganesh Podar Society And Anr. vs Mrs. V. Chakravarti And Anr. on 15 July 2004

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Bombay High Court
Anandilal Ganesh Podar Society And Anr. vs Mrs. V. Chakravarti And Anr. on 15 July, 2004
Equivalent citations: (2005)107BOMLR947, 2005(1)MHLJ480
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT

D.Y. Chandrachud, J.

1. The first petitioner claims to be established and administered by a linguistic minority and therefore, to be entitled to the protection of Article 30 of the Constitution. The petitioner conducts several educational institutions including Seth Anandilal Podar High School and Junior College at Santacruz (West), Mumbai. The first respondent joined the aforesaid school in 1981 as an Assistant Teacher in the English Medium. In March, 1987, the first respondent, was appointed as a Supervisor. On 6th June, 1989, the first respondent addressed a letter to the Director of the Management stating that she was tendering her resignation with a request that she be relieved immediately. The first respondent stated that she was ready to pay compensation in lieu of notice and sought “a good reference”. The resignation of the first respondent was accepted by the management on 13th June, 1989, subject however to the payment of three months’ salary in lieu of the period of notice. On 6th July, 1989, the first respondent addressed a letter to the President of the Greater Bombay Secondary Teachers’ Association stating that ever since the appointment of the new Principal at the School, the incumbent, Mrs. Marker, had resented the presence of the first respondent. According to the first respondent in the month of April before the school closed for vacation, the Principal did not meet all the members of the staff and the assignments were handed over to the first respondent not by the Principal, but by a clerk. On 5th June, 1989, the first respondent met the Principal on being called for, when the Principal allegedly sought the time table. Upon being presented with the time table, the Principal is stated to have said that the time table would have to be framed again as there were going to be certain changes. According to the first respondent, the Principal had effectively rendered the post of supervisor redundant and in fact, the Principal informed her that if she did not like the change, it was open to the first respondent to resign. The first respondent concluded her letter by stating that she was forced to resign and was later asked to pay three months’ salary in lieu of notice. Subsequently on 20th July, 1989 a complaint was addressed to the management by Greater Bombay Secondary Teachers’ Association recording that the first respondent had tendered her resignation in a fit anger during the period of vacation not remembering the fact that the resignation could not be tendered during vacation. Over two months after the tendering of her resignation, the first respondent in a letter dated 25th August, 1989 purported to withdraw the resignation stating that she had handed over the resignation across the table to the Director and which had subsequently been accepted by the Principal.

2. The first respondent thereupon moved the School Tribunal at Mumbai in October, 1989. The Management filed its written statement denying the allegations in the memo of appeal. The School Tribunal has by the impugned order dated 16th January, 1991 condoned the delay in filing of the appeal, “set aside” the alleged resignation dated 6th June, 1989 and directed the management to reinstate the first respondent in service with full backwages. The order of the School Tribunal came to be stayed when this petition was admitted on 24th April, 1991 by the Division Bench. Since the matter pertains to the jurisdiction of the Single Judge under the prevailing rules on the Original Side, the Division Bench directed the office on 14th March, 2002 to place the matter before the appropriate Bench, in pursuance of which the matter has been placed for final hearing before this Court.

3. Several reasons have weighed with the School Tribunal in arriving at its conclusion. The School Tribunal has first and foremost noted the requirement of Section 7 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 which provides thus :

“7. If any employee intends to resign his post in 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.”
4. The Tribunal has adverted to the provisions of Rule 40 of the Rules framed thereunder which are in the following terms :

“40(1) A permanent employee may leave service after giving three calender months notice and a non-permanent employee may leave service after giving one calender 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 by which the notice period falls short.
(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 or resignation shall not be given within a month after the beginning of the first term of the year.”
5. The Tribunal noted that it was sought to be contended that the contents of the resignation letter were not written by the first respondent, but were written by a clerk and produced before her for placing her signature and that in a disturbed state of mind she had signed the letter. The Tribunal has found that these submissions which were urged before it do not find any place in the memo of appeal or for that matter in the letter dated 6th July, 1989 written by the first respondent to the Teachers’ Association at the earliest possible opportunity. Having said this, the Tribunal has come to the conclusion that the resignation stood vitiated for the following reasons :

(i) The letter of resignation was not received by the registered post, but was delivered across the table to the management and appeared to have been prepared at the office premises of the school;
(ii) The management ought to have taken due note of the fact that under Rule 40 a permanent employee is entitled to leave service after three calender months’ notice whereas in the present case the resignation was tendered with immediate effect;
(iii) The Principal Mrs. Marker had strained relations with the first respondent and when the first respondent was called upon to meet the Principal at her office during vacation time in connection with the preparation of the time table, a heated exchange of words took place after which the resignation was tendered immediately to the Director;
(iv) The first respondent had within the duration of three months prescribed by Rule 40 chosen to withdraw the resignation; and
(v) There was nothing to indicate that the resignation has been accepted by the management.
6. Counsel appearing on behalf of the petitioner has assailed the reasons which have weighed with the Tribunal and has submitted that the requirement of furnishing three months’ notice under Rule 40 of the Rules has been held by the Division Bench in its judgment in Banda Navbharat Shikshan Prasarak Mandal v. Raghunath Ganesh Manorikar, 1992 II CLR 956, to enure for the benefit of the management and is, therefore, a requirement which can be waived by the management. Moreover, it was sought to be urged that the resignation was withdrawn by the first respondent after a substantial delay of over two months and in any event after it was accepted. Moreover, if regard be had to the first letter dated 6th July, 1989 addressed by the first respondent to the President of the Teachers’ Association, it would be apparent that the grounds which were set up before the Tribunal have been belatedly set up, as an afterthought. Moreover, it was sought to be urged that the provisions in Section 7 that the employee may forward a copy of the resignation to the management by registered post is not a mandatory requirement, and non-compliance thereof would not render the resignation invalid.

7. On the other hand, counsel for the first respondent submitted that the question as to whether the resignation was withdrawn is a pure question of fact and the interference of this Court under Article 226 of the Constitution is not warranted. Moreover, it was sought to be submitted that there were four circumstances in the present case which supported the reasoning of the Tribunal : (i) Admittedly, there was a heated exchange of words between the first respondent and the Principal in the office of the Principal on 5th June, 1989 during the course of which, according to the first respondent, the Principal threatened the first respondent that her services would be discontinued as a supervisor and that an announcement would be made before the staff on 8th June, 1989; (ii) The first respondent is thereupon alleged to have handed over a type written letter to the Director containing the resignation; (iii) the letter was handed over across the table; and (iv) the letter was handed over during the course of vacation.

8. In considering the rival submissions, it would be necessary for the Court to interpret at the outset the provisions of Section 7 of the Act and Rule 40 of the Rules. Section 7 postulates that an employee intending to resign his or her post in a private school has to draw up a letter of resignation in duplicate, sign both the copies thereof and place a date thereon. Section 7 lays down that the employee may then forward one copy to the management by registered post. The question as to whether the requirement of forwarding a resignation by registered post is mandatory was initially considered by Mr. Justice A. M. Khanwilkar in Balaleshwar Shikshan Mandal v. Jaywant Bhaguji Gadekar (Writ Petition 6046 of 2002 decided on 10th June, 2003). The learned Judge there held that once an employee signs a letter expressing his intention to resign and voluntarily submits a copy thereof to the management, this would constitute substantial compliance with Section 7. In a subsequent decision reported in Neminath Jain Bhramhacharya Ashram (Jain Gurukul) v. Rajendra Sitaram Nikam, 2004(2) Mh.LJ. 909 = 2004 11 CLR 471. I had occasion to deal with the issue and with the question as to whether a letter of resignation by an employee in a private school would stand vitiated if it is not despatched by the mode of registered post. In Neminath Jain’s case (supra) it was held that where there is a serious dispute about the voluntary nature of the resignation, the surrounding circumstances would assume significance and the fact that the resignation was not submitted in a mode which was statutorily prescribed would be a material consideration. In that context, the following observations have been made :

“One need not go as far as to hold that a resignation which is not forwarded by registered post must on that ground be regarded as invalid in every case irrespective of the surrounding circumstances. An extreme position is not warranted on the language of Section 7. What must be emphasized is that where an employee seeks to contend that his resignation was not voluntary, the Tribunal must decide that question on the basis of the evidence before it. The fact that the resignation has not been submitted by the mode of registered post is one factor to be considered though that in itself is not conclusive.”
9. In the present case, therefore, having regard to these two judgments, the Court must proceed on the basis that the circumstance that the resignation was not tendered by registered post is one factor to be considered by the Court, though by itself this is not conclusive. Section 7, it must be noted, does not prescribe any requirement of a notice when a resignation is submitted by an employee of a private school. The requirement of a notice is prescribed by Rule 40 which stipulates the giving of three calender months’ notice by a permanent employee and one months’ notice by a non-permanent employee. Sub-rule (1) of Rule 40 however, provides that the management may allow an employee to leave service earlier on the payment of pay in lieu of notice or, a part of the period of the notice, as the case may be. Moreover, sub-rule (2) lays down the consequence where the management does not insist upon the payment of pay in lieu of notice. The consequence is a proportionate amount representing pay in lieu of the notice shall be deducted from the grant that is due to the school concerned. The furnishing of three months’ notice is intended to enable the authorities of the school to make alternative arrangements occasioned upon the resignation of an employee so that the course of education in the school is not disturbed. Indeed that is why sub-rule (2) of Rule 40 provides the consequence of the management allowing an employee to resign from service without the stipulated period of notice or pay in lieu thereof. The only consequence is that the management would lose to a proportionate extent, a deduction from the grant which is receivable for the school. This is also the view which has been taken by a Division Bench of this Court in Banda Navbharat Shikshan Prasarak Mandal v. Raghunath Ganesh Manorikar, 1992 II CLR 956, where Mr. Justice M. L. Pendse (as the learned Judge then was) speaking for the Court held that a period of three months’ notice is provided for the benefit of the management so that the management would not find any difficulty in appointing a substitute teacher. The Court held that it is, however, open for the management to give up the advantage conferred by the rule and accept the resignation forthwith by payment of salary in lieu of three months’ notice. The School Tribunal has placed a considerable degree of emphasis on the circumstance that the letter of resignation did not furnish three months’ notice and has found fault with the management for having accepted the letter of resignation with immediate effect. According to the Tribunal a conscientious employer ought to have taken notice of the circumstance that the resignation that is contemplated by Rule 40 is not one taking instant effect but with prospective effect. The Tribunal was of the view that it was not proper on the part of the management to contend that the employee alone can be blamed for the breach, if any, of the rule, The entire approach of the Tribunal, is in my view, erroneous. As already noted earlier, the settled position in law and indeed the plain implication of Rule 40 is that it is for the management to either waive the period of notice by accepting pay in lieu thereof or suffer the consequence of losing a proportionate part of its grant representing the period of notice. In the present case, the school is an unaided school and therefore, even the question of suffering the loss of a proportionate part of the grant need not arise. Be that as it may, it is impossible to subscribe to the view of the Tribunal in finding fault with the management for having accepted the letter of the first respondent with immediate effect. The resignation in the letter dated 6th June, 1989 was submitted with immediate effect and therefore, the action of the management in accepting the letter cannot be faulted. The Tribunal was also of the view that the letter could have been withdrawn within a period of three months. The question of withdrawal may, however, arise where the resignation is furnished with effect from a prospective date. In a case such as the present, where the letter of resignation was with immediate effect and was accepted by the management, evidently there was no question of the resignation being withdrawn upon its acceptance.

10. That leaves the Court with the question as to whether the interference of the Court is warranted on the finding that the resignation was not voluntary. The facts which have been narrated in the earlier part of the judgment would indicate that it was the case of the first respondent that her relations with the Principal were strained. On 5th May, 1989 the first respondent was called to the office of the Principal when there appears to have been an exchange of words over the preparation of the time table. After the first respondent tendered her resignation on 6th June, 1989 and which was accepted on 13th June, 1989, the first respondent submitted a complaint to the Greater Bombay Secondary Teachers’ Association on 6th July, 1989. In that letter, the first respondent states that she could “make out” that the principal had made the post of the supervisor redundant. Indeed, according to the first respondent in June, 1988 the Principal had indicated to her that the position of a supervisor was not needed and those duties could be delegated to other teachers. According to the first respondent, the Principal indicated to her in the meeting on 5th May, 1989 that if she did not like the change in the time table which the Principal was to make, she could well resign and leave. On these facts, the first respondent stated that she had been “forced to resign”. The letter written by the Teachers Association on 20th July, 1989 states that the first respondent had resigned “in a fit of anger”. The first respondent thereafter waited till 25th August, 1989, while purporting to withdraw the resignation contending on this occasion that the letter of resignation was given under “tremendous mental strain and under duress”. Counsel appearing on behalf of the first respondent has urged, and in my view correctly, that physical duress or force is one form of duress contemplated by law. There may well be other forms of coercion or duress which would be comprehended under the expression. Equally, before a letter of resignation that is tendered by an employee is held to be vitiated by coercion or duress, the Court must have cogent evidence to sustain such a case. In the present case, the circumstances which have been relied upon on behalf of the first respondent do not establish a case of coercion or a case of duress. Though before the Tribunal it was sought to be urged across the bar that the letter of resignation had been typed by a clerk and was produced before the first respondent for her signature, the Tribunal noted that these facts were not found to be contained in the memo of appeal or in the letter dated 6th July, 1989. The theory that the resignation was forced must be assessed with reference to the first letter written by the first respondent after 6th June, 1989. Even that letter, which was written exactly a month after the date of the resignation to the Teachers’ Association on 6th July, 1989 falls far short of establishing a case of coercion or duress. The resignation was purported to be withdrawn over three months after it was written on 6th June, 1989. The resignation having been accepted on 13th June, 1989, the withdrawal purportedly on 25th August, 1989 is of no legal effect. There is no evidence of physical duress. There is no evidence of circumstances that would indicate that the Will of the first respondent or her capacity to make a free and voluntary decision had been overborne. In the circumstances, I am of the view that both as a matter of law and on facts, the finding which has been arrived at by the School Tribunal is perverse and warrants interference by the Court in the exercise of its jurisdiction under Article 226 of the Constitution. In the exercise of its supervisory jurisdiction this Court is conscious of the need to exercise the jurisdiction sparingly. Ordinarily, the Court would not do so unless inter alia the finding is perverse or it is not borne by the evidence on the record. The view which has been formed by the Tribunal on the issue of law before it is contrary to the law laid down by this Court and the view on facts is clearly not sustainable by the evidence on the record. In the circumstances, the petitioners are entitled to succeed. The petition is allowed. The impugned judgment and order of the School Tribunal dated 16th January, 1991 is quashed and set aside. The appeal filed before the School Tribunal shall in the circumstances stand dismissed.

There shall be no order as to costs.

Certified copy expedited.