1. Heard. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.

2. The present petition challenges the judgment and order dated 04.09.2020, passed by the School Tribunal, Chandrapur in STC Appeal No. 25 of 2009. By way of the impugned judgment, the said School Tribunal has rejected the appeal filed by the petitioner herein, which was filed challenging his otherwise termination.

3. Facts, as can be seen from the petition, are as under:

The petitioner, having qualification of M.Sc. (Chemistry) and also the professional qualification of B.Ed. was eligible for appointment as a Lecturer in a Junior College. In pursuance of the advertisement issued by respondent Nos. 1 and 2 on 31st December, 1999, the petitioner applied for the same and after undergoing a lawful recruitment process was appointed as a Lecturer in the Junior College vide order dated 1st February, 2000 with effect from 2nd February, 2000. The appointment of the petitioner was approved by respondent No.3 vide order dated 22.04.2000 on a non-grant-in-aid basis. Thereafter, after the completion of the probation period respondent Nos.1 and 2 issued a continuation order dated 24.06.2003 with effect from 26.06.2003 to the petitioner. Then respondent No.3, vide order dated 13.09.2007 granted approval with effect from 26.06.2002 on a grant-in-aid basis.

4. In the backdrop of these facts, the respondent No.2 issued a show-cause notice to the petitioner on 12th January, 2008 regarding his explanation about he being absent. The petitioner submitted his explanation on 18.01.2008 and clarified that since he is suffering from tuberculosis, which is a communicable disease, he thought it fit not to attend the school. Then there was a spate of notices and explanations by the petitioner thereafter. The gist of the explanations was that since the petitioner is undergoing treatment for tuberculosis, he had to remain absent from the school.

5. It is further averred in the petition that one of such notice dated 02.04.2009 was issued to the petitioner, which asked him to attend the office of respondent No.2 on 06.04.2009. He again clarified the position; however, the respondent No.2 asked him to come on the next day i.e. 07.04.2009. On the very next day, respondent No.2 took the petitioner to the office of the Secretary i.e. respondent No.1 Society. It is further stated in the petition that the Secretary pressurized and threatened the petitioner to submit his resignation from the post of Junior College Lecturer. Left with no alternative and since he was pressurized, he submitted his resignation, but the same was without his consent. It is further stated in the petition that though the petitioner requested respondent Nos.1 and 2 to provide a copy of the same, it was not done.

6. Realizing this, on the very next day i.e. on 08.04.2009, the petitioner, along with his wife and father, went to the office of the second respondent with an application of even date seeking cancellation of the resignation tendered earlier i.e. on 07.04.2009. The said letter was accepted by respondent No.2, but copy of acknowledgment was not given. This prompted the petitioner to issue a letter on the very next day i.e. on 09.04.2009 by Registered Post Acknowledgment Due (RPAD) to the respondent No.1. There is a specific narration in the petition that the said letter was duly received by the respondent No.1, and a certificate by the postal authority has been issued to that effect.

7. In the backdrop of these facts, when the petitioner went to join his duties on 27.04.2009, respondent Nos.1 and 2 did not allow him to join duties stating that the petitioner has already given his resignation and, therefore, there is no question of joining duty. Not only this, the respondents published an advertisement for filling up the post which has fell vacant after the resignation of the petitioner.

8. Since, according to the petitioner, he was otherwise terminated, he filed an appeal before the School Tribunal, Chandrapur, being STC Appeal No. 25 of 2009. In the said matter, the respondent Nos.1 and 2 filed their written statement and took a stand that the petitioner had submitted a one-month notice of resignation on 06.04.2009 by RPAD and thereafter issued a resignation letter on 07.05.2009 that too by registered post. It was further stated that the resignation was duly placed in the meeting of the Management and the same was accepted by passing a resolution in the meeting held on 08.05.2009 and accordingly a discharge certificate of even date was issued to the petitioner. Thus, respondent Nos.1 and 2 submitted that there is no question of otherwise termination and that the petitioner had resigned out of his own volition.

9. After multiple remands by this Court in writ petitions challenging interim orders, the School Tribunal proceeded to decide the appeal on merits and passed the impugned judgment on 04.09.2020 thereby dismissing the same. The said judgment is challenged in the present petition.

10. I have heard Mr. A.J. Kadu, learned counsel for the petitioner, Mr. Anand Deshpande, learned counsel for respondent Nos.1 and 2 and Mrs. M.R. Kavimandan, learned Assistant Government Pleader for respondent Nos. 3 and 5.

11. It is the principal contention of Mr. A.J. Kadu, learned counsel that the School Tribunal failed to appreciate that the petitioner herein has not voluntarily tendered his resignation, but the same was obtained by pressurizing him. He draws my attention to the communication at Page 37, which is dated 08.04.2009, as also the fact that the postal authorities have certified that the said communication is duly received by the respondent No. 1 herein. He therefore submits that, even though hypothetically assuming that the petitioner had tendered his resignation he had withdrawn it before its acceptance and therefore, the action of respondent Nos. 1 and 2 in not permitting him to join duties is totally illegal.

12. He draws my attention to the impugned judgment and states that a totally erroneous finding has been recorded by the School Tribunal regarding requirement of a Master's degree in two subjects. He submits that the said finding is contrary to Schedule 'B', Item 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which unequivocally states that the degree is required only in one subject. He therefore submits that the conclusion drawn by the School Tribunal that the petitioner was ineligible at the time of appointment is totally illegal and contrary to the legal position.

13. By drawing my attention to Section 7 of the Act, he submits that there are three essential requirements for a valid resignation that drawing the resignation in the handwriting of the employee putting signature and date on the resignation. It is his submission that if any of the three ingredients is missing, then the resignation is invalid. He submits that assuming that the petitioner had tendered a resignation the same was neither typewritten nor there was a date initially put on it and, therefore, the School Tribunal ought to have inferred that the resignation is not in terms of the rules. In totality, he submits that the judgment of the School Tribunal cannot withstand the scrutiny of law.

14. Per contra, Mr. Anand Deshpande, learned counsel for respondent Nos.1 and 2 (the employer), supports the impugned judgment. He also draws my attention to the impugned judgment and states that the Tribunal has elaborately considered the rival contentions and has framed various issues. Taking me through the issues framed, it is the submission of the learned counsel for the respondents that Issue Nos. 2(A) and 2(B) which contemplated that if the appellant proves regarding forcible resignation and that he had taken back his resignation have been rightly answered in the negative by the School Tribunal. He also states that the same is the position with Issue No.2(C), which casts a burden on the petitioner to prove as to the acceptance of the alleged resignation amounting to otherwise termination of service.

15. He submits that the School Tribunal has rightly considered the evidence of the contesting parties as also the handwriting expert, who has given an opinion in favour of the respondents. In totality, he supports the impugned judgment. He also draws support from the judgment of this Court reported in 2012 (1) BCR 730 in Sayyad Maqsood Ali Sayyad Rashid Ali Vs. Urz-E-Urdu Education Society & Anr. By emphazising para 11 of the said judgment it is the submission of the learned counsel for the petitioner that the said judgment elaborately states with the modus operandi of resignation and interprets Section 7 and Rule 40 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules.

16. Rival contentions fall for my consideration.

17. As can be seen from the impugned judgment that the School Tribunal framed Issue No.2 regarding as to whether the appointment of the appellant is made as per Section 5 of the MEPS Act and Rules. The said issue has been answered in the negative. The reasoning which has weighed with the School Tribunal in answering the said issue accordingly is that according to the School Tribunal, the concerned employee (i.e. the petitioner herein) could have held Master's degree in two subjects and he was not having professional qualification of B.Ed. at the time of appointment. However, in my considered opinion, both these reasons are erroneous inasmuch as, as already stated supra, Item 3 of Schedule 'B' of the MEPS Act states that he should have a Master's degree in second class in the subject for which he is applying. However, the School Tribunal has erroneously recorded a finding that a Master's degree in two subjects is essential. This finding is totally unsustainable in law.

18. Likewise, even if it can be seen that the petitioner was not having requisite professional qualification of Bachelor of Education at the time of his appointment, the fact remains that his appointment has been approved by the competent authority i.e. the Education Officer. In addition to this, it is nobody's case that the appointment of the petitioner was not as per Section 5 of the MEPS Act. The findings regarding Issue No.2, therefore, cannot be sustained.

19. Issue Nos. 2(A), 2(B), 2(C), and 2(D) are the gist of the matter, which pertain to the act of alleged forcible resignation, the fact that he had taken back his resignation and that the said resignation amounting to otherwise termination of service etc.

20. I have gone through the entire record of the School Tribunal. The entire edifice of the case of the respondents rests on Exhibit-55, which is a communication dated 06.04.2009 by the petitioner herein. Furthermore, Exhibit-56 is a carbon copy of the said communication. In view of the fact that the petitioner had specifically disputed that the said communication is in his handwriting and that he had never signed the same, opinion of the handwriting expert was called. As can be seen from record that Exhibit-57 is the resignation letter dated 07.05.2009. After examining all these documents, the handwriting expert has given an opinion that she finds that Exhibit-55 and Exhibit-57 are signed by the petitioner, who has signed the documents A-1 to A-4 (admitted documents). She has also opined that the handwriting also matches with the admitted documents and after examining the same he she has submitted her report along with relevant photographs.

21. If her cross-examination is perused, there is nothing concrete or substantial which would benefit the case of the petitioner. In her cross-examination, a specific question was put regarding omission by the expert to give opinion regarding entire date (i.e. 06.04.2009) written on Exhibit-55. She even though admits that she has not given opinion regarding the said entire date but has volunteered that she has examined every digit, but not mentioned the whole date in report. It is thus clear that an expert in the form of handwriting examiner has opined that there is no ambiguity in Exhibits- 55 and 57, which are the one-month notice and the resignation letter, respectively. After careful analysis of the said documents, she found that the said documents is not only signed by the petitioner but is in his own handwriting only. These facts have been considered by the School Tribunal in the impugned judgment while answering Issue Nos. 2(A) to 2(D) against the petitioner.

22. As can be seen from the impugned judgment, the aspect of the petitioner allegedly withdrawing the resignation before its acceptance has also been dealt with correctly. Even though the postal authorities have certified that the communication at page 37 of the petition was received, there is nothing on record to show that the said communication appended at page 37 was the very same communication which was addressed to the respondent No.1. As per the certificate of the postal authorities the alleged letter was bearing No.407. However, there is nothing on record in the form of a postal receipt or otherwise to show that the letter appended at page 37 of the petition was in fact sent by RPAD vide postal receipt No.407 which was received by respondent No.1. It can also be seen that the said communication is addressed to respondent No.1 and not to respondent No. 2.

23. There is another flaw in the said communication. Even if assuming hypothetically that the said communication was in fact addressed and received by respondent No.1, the contents thereof nowhere show that the petitioner was forced to resign on the previous day. It only states that the mentality of the petitioner was not proper, which forced him to resign. Had it been the case that he was forced to resign, the letter dated 08.04.2009 would have elaborately narrated that aspect, which, according to the petitioner, was relevant.

24. Another aspect which weighs against the petitioner is that, admittedly, the petitioner has not addressed any communication to the Education Department authorities like the Education Officer or the Deputy Director of Education. Had it really been a case that the petitioner was forced to resign, he could have promptly addressed letters to various authorities, as he had addressed letter to the respondent No. 1. This conduct of the petitioner cannot be said to be normal human conduct.

25. Furthermore, as can be seen from the impugned judgment that the School Tribunal has recorded a finding that it was admitted by the petitioner in his cross-examination that during the relevant time he was suffering from tuberculosis and was undergoing treatment. Thus, it can very well be said that there was a reason to tender his resignation. Thus the Tribunal has rightly recorded that there is nothing on record to show, nor the petitioner could prove that he had withdrawn his resignation. On the contrary, and rightly so it records a finding that the respondent Nos. 1 and 2 have sufficiently proved on the basis of the opinion of the handwriting expert as also on the basis of muster roll that the petitioner had given a one-month notice of resignation on 06.04.2009 and thereafter has resigned on 07.05.2009.

26. Learned counsel for the respondents has rightly relied the judgment of Sayyad Maqsood (supra). In the said judgment, this Court has elaborately held that the Management may waive compliance of sub-rules (1) and (2) of Rule 40 and only because the resignation is not typed or otherwise cannot make the resignation invalid ipso facto.

27. Taking total and overall view of the matter, I do not find that the judgment of the School Tribunal suffers from any perversity. The judgment is well-reasoned and passed after consideration of the entire documentary and oral evidence on record including the opinion of the handwriting expert, since there is no perversity or jurisdictional error, interference in writ jurisdiction is uncalled for. The petition is liable to be rejected. Hence, I pass following order :

ORDER

(i) The Writ Petition is rejected.

(ii) Rule is discharged. No order as to costs.