Letters Patent Appeal No.156 of 2003,Writ Petition No.2327 of 2002

25th January, 2008

Petitioner Counsel: Mr. CHANDRAMANI DEVRAJ TIWARI
Respondent Counsel: Mr. OWEN MENEZES,Mr. R. M. PATNE

Cases Cited:
B.S.N. Joshi & Sons. Ltd. Vs. Nair Coal Services Ltd., (2006) 11 SCC 548 [Para 10]
Bombay Dying & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group, 2006(3) ALL MR 1 (S.C.)=2006(3) SCC 434 [Para 10]
Prabodh Verma Vs. State of Uttar Pradesh, (1984)4 SCC 251 [Para 10]
Rani Laxmibai Kshetriya, Gramin Bank Vs. Chand Behari Kapoor, (1998)7 SCC 469 [Para 10]
Common Cause Vs. Union of India, (2004)5 SCC 222 [Para 10]
Umabai Vs. Nilkanth Dhondiba Chavan, (2005)6 SCC 243 [Para 10]

JUDGMENT

A. A. SAYED, J.:- Admit. By consent heard forthwith.

2. This Letters Patent Appeal challenges the impugned order dated 15.4.2002 of the learned Single Judge of this Court dismissing the writ petition of the appellant, whereby the order passed by the learned Presiding Officer, School Tribunal, dismissing the appellant's appeal, was confirmed.

3. The case of the appellant before the School Tribunal was that he was duly qualified and was appointed as Assistant Teacher in the secondary section of the school of the respondent-management, which is a government aided school. He was appointed on permanent and clear vacancy with effect from July, 1995. However, he was not issued any appointment letter at the time of his appointment. He was working with the said school till his termination on 1.10.1999. According to the appellant, he was pressurised to give in writing that he was appointed in the school since 14.6.1999, and he was also pressurised to give his signatures on blank letter-heads and blank papers without any matter and date. He has further alleged that the management had paid him less salary than what he was entitled to and that when the salary was credited directly in his account the respondent Nos.1 and 2 i.e. the secretary of the Trust and the Head Master of the School, used to take blank cheques signed by the appellant payable to self and used to withdraw the salary and pay the appellant only a part of the same and that they used to keep the cheque book and pass book themselves. The appellant had filed complaints dated 26th July, 1999 and 23rd September, 1999 and 4th October, 1999 to the Education Officer, i.e. respondent No.3 and also to the Police Authorities dated 20th July, 1999, 1st October, 1999 and 4th October, 1999. It is further the case of the appellant that the respondent did not allow the appellant to attend the school and take the lectures with effect from 1st October, 1999. It is contended by the appellant that his services cannot be terminated except by due process of law. He therefore, prayed that the oral termination order dated 1.10.1999 be set aside and he be reinstated with continuity of service with all consequential benefits including back wages, pay and allowances.

4. Per contra, the case of the management was that the appellant had resigned from his duties voluntarily by tendering his resignation from the school vide his letter dated 2nd August, 1999, wherein he had requested that his resignation be accepted with effect from 30th September, 1999. The management accepted the resignation of the appellant, vide letter dated 22nd September, 1999 and the appellant was accordingly issued discharge letter dated 30th September, 1999. It was further contended that there was a farewell function hosted by the management of the school for the appellant and a circular dated 27th September, 1999 was issued in that regard. The management also relied upon the xerox copies of the photographs taken during the farewell party hosted by the school authorities and contended that the original photographs and the negatives were curiously missing. According to the management the Education Officer, respondent No.3 had carried out inspection on 2nd August, 1999 and 5th October, 1999 and the said Education Officer had submitted his inquiry report wherein it was clearly stated that the appellant had voluntarily resigned from his duties. It was the case of the management that the appellant was appointed on temporary basis and it was denied that he was appointed on a permanent and clear vacancy. It was denied by the management that the appellant was continuously working in the school from 11th July, 1999. It was further denied that there was any termination. It was contended that the case of the appellant with regard to the payment of only part of salary to him was absurd in as much as salaries were directly credited to the Bank accounts and the story of signing of blank papers and cheques was false. It was further contended that there is no question of oral termination as the appellant had resigned from his service with effect from 30th September, 1999. It was further pointed out that one Narendra Tiwari, who is the respondent No.4 in the above appeal, was appointed from 01.10.1999 on the post rendered vacant on resignation by the appellant, whose appointment has been approved by the respondent No.3 and that the entire case of the appellant was false.

5. After hearing the Counsel for the parties and considering the material on record the learned Presiding Officer, School Tribunal, Navi Mumbai dismissed the appeal.

6. The Ld. Presiding Officer in his Judgment has dealt with the case of the appellant in detail and has referred to the 13 affidavits of the other staff members produced by the management wherein they had confirmed that the appellant had submitted his resignation voluntarily and a farewell party was hosted for the appellant in the school premises, pursuant to the circular dated 27/9/1999 issued by the principal of the school and that the appellant had also given a speech of thanks. The learned presiding officer in his judgment has also noted that the Education Officer, respondent No.3 had made inquiries with the staff members of the school and came to the conclusion that the appellant had given his resignation voluntarily and that the Education Officer had visited the School, which was evident from the extract of the visit report dated 5.10.1999. It is further observed in the judgment that the signature of the appellant is not disputed and the only case of the appellant was that he was pressurised to sign blank papers, which had been used by the management to prepare the false resignation. In his judgment, the learned Presiding Officer has observed - "it is thus, clear that the appellant has made false allegations against respondent No.2". The learned Presiding Officer has further observed - "the case is proved beyond shadow of doubt of voluntary resignation tendered by the appellant. Therefore, the present appeal is devoid of merits." The learned Presiding Officer thus dismissed the appeal.

7. Being aggrieved by the aforesaid order of the learned Presiding Officer, the appellant filed a writ petition in this Court. The learned Single Judge of this Court after considering of the judgment of the learned Presiding Officer came to the conclusion that there was no perversity in the findings of the learned Presiding Officer and that no interference was called for and the petition came to be rejected.

8. The appellant thereafter filed a review petition being Review Petition (Stamp) No.44032/2002 contending that under section 7 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (MEPS Act, 1977 for short), it was mandatory that the notice be sent by RPAD and to be accepted, else the resignation was invalid in law. This Court, in the review petition held that this ground was not specifically raised in the petition and cannot be raised in the review petition for the first time and dismissed the review petition by its order dated 31-03-2003. Pertinently, the order dated 31.03.2003 in the review petition has not been challenged in the above Letters Patent Appeal.

9. We have heard the petitioner in person and the Counsel for the respondents. Though indicated to the appellant, who has appeared in person, that we were not inclined to go into the facts of the case, he has nevertheless mainly sought to argue on the facts. Suffice it to say that it is difficult to digest the case of the appellant that he was pressurized into signing blank pages and cheques by the management; that the respondent no.3, who was the inquiry officer and an independent person was in collusion with the management; that the 13 staff members of the school had signed affidavits confirming the fact of the appellant having tendered his resignation voluntarily and having attended the farewell party of the appellant were also in collusion with the management; and that even the Xerox copies of the photographs of the farewell party were bogus and manufactured. The appellant further contended that the procedure prescribed under section 7 of MEPS Act, 1997 in respect of his alleged resignation has not been followed and urged that he be reinstated with continuity in service and all consequential benefits.

10. On the other hand, the Ld. Counsel on behalf of the respondent Nos.1 and 2 submitted that the grounds about the legality of the resignation is not found in the Appeal Memo in the Tribunal, nor such argument regarding the procedure for resignation having not been followed, had been raised before the learned Single Judge. He has further contended that this Court in its jurisdiction in Appeal under Letters Patent cannot go into evidence regarding the finding of fact by the Tribunal. To fortify his submissions, the learned counsel has placed reliance on the following cases viz: (1) B. S. N. Joshi & Sons. Ltd. Vs. Nair Coal Services Ltd. and Ors. - (2006)11 SCC 548 (2) Bombay Dying & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group & Ors. - 2006(3) SCC 434 : [2006(3) ALL MR (S.C.) 1] (3) Prabodh Verma & Ors. Vs. State of Uttar Pradesh and Ors.- (1984)4 SCC 251 (4) Rani Laxmibai Kshetriya, Gramin Bank Vs. Chand Behari Kapoor & Ors., (1998)7 SCC 469 (5) Common Cause Vs. Union of India & Ors.- (2004)5 SCC 222 (6) Umabai and Anr. Vs. Nilkanth Dhondiba Chavan - (2005)6 SCC 243.

11. The principles laid down in the above cases are well settled and we are in agreement with the learned Counsel in that regard. The issue of resignation not being in accordance with law, as provided under section 7 of the MEPS Act, 1977, was not pleaded before the learned Presiding Officer and was for the first time sought to be argued before the learned Single Judge in the writ petition and thereafter in review petition and this is impermissible as is reiterated time and again by the Apex Court and this Court.

12. Moreover, to claim benefits of deemed permanency under section 5(2) of MEPS Act, 1977, it was necessary for the appellant to prove before the learned Presiding Officer that he was duly selected in the manner prescribed. There was nothing on record before the learned Presiding Officer to show that there was an advertisement inviting applications to which the petitioner had responded and he was subjected to selection process by competition amongst all eligible and desirous candidates. Assuming for the sake of argument that some illegality was committed by mutual consent, that could not in itself confer any legal sanction to the appointment of the appellant.

13. The learned Presiding Officer had come to the conclusion that the case of appellant was false and devoid of merits and the learned single Judge of this Court had rejected the writ petition of the appellant after observing that there was no perversity in the findings of the School Tribunal. The review petition of the appellant also came to be dismissed. Thus the appellant has had three rounds of litigation without success. Moreover it is noted that the respondent No.4, was duly appointed, after the resignation of the appellant was accepted by the management and the respondent No.4 has been working in the school since 1.10.1999 and the appointment has been approved by the respondent No.3.

14. In our considered view, the discretion exercised by the learned Single Judge of this Court cannot be faulted for affirming the findings arrived at by the School Tribunal and there is no substance in the above appeal. Resultantly, the appeal is dismissed with no order as to costs.

15. For the reasons separately recorded in the judgment the Hon'ble Court has passed the following order.

16. In our considered view, the discretion exercised by the learned Single Judge of this Court cannot be faulted for affirming the findings arrived at by the School Tribunal and there is no substance in the above appeal. Resultantly, the appeal is dismissed with no order as to costs.

Appeal dismissed.