State.Mr v. vs Bhavthankar
Facts
wp-4168-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.4168 OF 2022Vimal D/o Namdeorao KurwadeAge: 51 years, Occu.: Service asHead Mistress at Vasantrao BhagwatPrimary Ashram School, Soni-Moha,Tq. Dharur, Dist. Beed,R/o. Laxmi Nagar, Adat Road,Kille Dharur, Tq. Dharur, Dist. Beed... PETITIONERVERSUS1.The State of MaharashtraThrough its Secretary,Department of Social Justice and Special Assistance,Mantralaya, Mumbai-32.2.The Director for Welfare ofVJNT, OBC & SBC,Maharashtra State, Pune.3.Regional Deputy Commissioner,Social Welfare Department,Aurangabad.4.The Assistant Commissioner,Social Welfare, Beed,District Beed.5.Late Pandit Shyamprasad MukharjeeShikshan Sanstha, Kille Dharur,Tq. Dharur, District Beed,Through its Secretary. .. RESPONDENTS…Mr. V. D. Salunke, Advocate h/f Mr. P. G. Rodge, Advocate for the petitioner.Mr. K. S. Patil, AGP for respondent Nos.1 to 4 – State.Mr. V. V. Bhavthankar, Advocate for respondent No.5.… [1]
Legal Reasoning
wp-4168-2022.odtcancelled, however, in the alleged resolution dated 31.10.2019, thereis no reference to the letter dated 24.10.2019. Twice respondent No.4has decided the matter in favour of the petitioner and askedrespondent No.5 to reinstate the petitioner, however, respondent No.5is adopting delaying tactics. 8.It has been tried to be submitted that the GovernmentResolution dated 03.10.2017 cannot create an appellate authority, asit is a resolution and not a statutory enactment. Learned Advocate forthe petitioner relied on the decision of this Court in Swati ShivajiLawhare Vs. State of Maharashtra and others, [Writ Petition No.940 of2018 decided on 07.05.2021], wherein it is observed that “it is wellsettled that the appellate authorities can be created only by statuteand not by an executive order. Tribunals with adjudicatory powers canbe created only by statute and not by executive powers or by passinggovernment resolution”. Reliance was then placed on the decision inSecretary, A.P.D. Jain Pathshala Vs. Shivaji Bhagwat More andothers, ](2011) 13 SCC 1999], wherein it is held that “Apart fromconstitutional provisions, tribunals with adjudicatory powers can becreated only by Statutes. Such Tribunals are normally vested with thepower to summon witnesses, administer oath and compel assistanceof witnesses and examine them on oath, and receive evidence. Theirpowers are derived from the statute that created them and they have[7] wp-4168-2022.odtto function within the limits imposed by such statutes…… Creation,continuance or existence of a judicial authority in a democracy mustnot depend on the discretion of the executive but should be governedand regulated by appropriate law enacted by legislature.” LearnedAdvocate for the petitioner therefore submits that though thepetitioner had approached the respondent No.4 under GovernmentResolution dated 03.10.2017, the further clauses i.e. creation ofappeal, is illegal. 9.The learned Advocate for respondent No.5 submits that thealleged representation dated 24.10.2019 by the petitioner wasreceived by respondent No.5 Secretary on 04.11.2019. Therefore, inthe resolution dated 31.10.2019, there is no mention or there was nooccasion for the committee to decide the same. Respondent No.5relied on the application given by the petitioner intending to tenderresignation and treating the application dated 02.08.2019 to be thenotice for voluntary retirement. Even another person is then appointedin her place. The decision taken by respondent No.5 has been dulycommunicated to the petitioner. He relies on the decisions in KarachiEducation Society, Pune and others Vs. Pruthviraj R. Merchant andanother, [2005 (4) Mh.L.J.], Honorary Secretary, Talini ImadadiahCommittee, Mistry High School, Ratnagiri and another Vs. Wasif PashaTajoddin Jagirdar, [2005(4) Mh.L.J. 1064] and Kushappa Mahadeo[8] wp-4168-2022.odtKamble Vs. State of Maharashtra and others, [2010 (4) Mh.L.J.],wherein the Hon’ble Single Judges of this Court have held dependingupon the earlier decisions of this Court that the resignation notforwarded by registered post need not be considered as invalid.Irrespective of the surrounding circumstances, what is necessary is todecide whether the resignation is voluntary having regard to thesurrounding circumstances and the fact that the resignation was in themode which has been statutorily prescribed, would be a materialconsideration. In Kushappa Mahadeo Kamble (Supra), it is held thatthe resignation can be tendered personally, therefore, no fault can befound in the procedure undertaken by respondent No.5.10.Here, in the present case, it is firstly required to be seen as towhether the alleged resignation letter dated 02.08.2019 wasvoluntarily given by the petitioner or not. The view taken by theHon’ble the Single Bench in the above three matters need not bedisputed, but the core of the three judgments is that such voluntaryresignation should be really voluntary and is not out of the forcedcircumstances or obtained by fraud, misrepresentation etc. The modeof tendering the same to the employer may not have been then strictlyadhered to. Here, it appears from the record that even before thealleged resignation dated 02.08.2019 could be acted upon byrespondent No.5, the present petitioner had informed the respondent[9] wp-4168-2022.odtNo.4 by communication dated 29.08.2019 that the petitioner wascalled at the house by the President/Secretary of the Institute on02.08.2019 along with her husband. They were threatened and hersignature on the said letter of voluntary retirement was forcibly taken.The said communication has been received by the office of respondentNo.4 on the same day and the copy of the same was given torespondent No.3. In fact, when such serious incident or circumstancewas brought to the notice of respondent No.4, yet it appears thatthere was no inquiry by respondent No.4. Then the action of thepetitioner is followed by letter dated 24.10.2019 addressed torespondent No.5 stating that her said letter dated 02.08.2019regarding voluntary retirement be cancelled. Copy of the same is alsogiven to respondent Nos.3 and 4. Here, the present petitioner has notfiled the acknowledgment on behalf of respondent Nos.3 to 5 to thesaid letter dated 24.10.2019. According to respondent No.5 the saidletter was received by respondent No.5 on 04.11.2019. In theaffidavit-in-reply, it is stated that the said letter dated 24.10.2019 wasreceived by him on 04.11.2019 by post. However, except barestatement, there is nothing on record. In the affidavit-in-reply, it isalso stated that the conduct of the petitioner while in service was notappropriate and even the Social Welfare Department had issued showcause notices to her in respect of misconduct. However, along with theaffidavit-in-reply there is absolutely no evidence. It ought to have[10]
Arguments
wp-4168-2022.odtCORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. RESERVED ON : 19th MARCH, 2024. PRONOUNCED ON : 2nd APRIL, 2024.JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :- .Rule. Rule made returnable forthwith. Heard learned Advocatesfor the appearing parties finally by consent.2.The factual matrix leading to the present petition are that thepetitioner came to be appointed as Assistant Teacher from 12.07.1999after following due procedure of law by respondent No.5. Her serviceshave been permanently approved. She came to be promoted to thepost of Head Mistress of the school run by respondent No.5 in 2005.Permanent approval was also granted to her post as Head Mistress byDistrict Social Welfare Officer, Beed. She is in continuous service onthe said post. She was doing her job honestly and sincerely, however,she alleges that the Secretary and the other office bearers ofrespondent No.5 were interfering with her in day to day working andattempting to dislodge her from services. A detailed representationwas made by her on 11.10.2018 to respondent No.3 and requested foran inquiry in respect of her harassment. By pressurizing the petitioner,her signatures were got on the typed copy of application/notice for hervoluntary retirement on 02.08.2019. It was shown to be the advancenotice of voluntary retirement of three months. Petitioner had no[2] wp-4168-2022.odtintention to resign from her post and service. By representation dated29.08.2019, she requested to cancel the said application for voluntaryretirement. Respondent Nos.3 and 4, who are the controlling andsupervising authorities over respondent No.5, ought to have takenappropriate actions against respondent No.5 for not to pass anyorders/resolutions, however, respondent Nos.3 and 4 had not takenany action. She had made a representation again on 24.10.2019 torespondent No.5 before the Diwali Vacations of the school stating thatshe is willing to continue to serve as Head Mistress till the age ofattaining superannuation, however, during Diwali vacations,respondent No.5 had passed resolution dated 31.10.2019 resolving topermit her to retire voluntarily on the so called application dated02.08.2019. No opportunity of being heard was given to her.Respondent No.5 hurriedly and illegally shown appointment of onePradip Madhavrao Kulkarni as Head Master of the school in place ofpetitioner. Immediately on 11.11.2019 she made a representation torespondent No.4 giving all those details and to direct respondent No.5to cancel the orders. However, no response was given. Petitioner hadpreferred Writ Petition No.13908 of 2019 before this Court challengingboth the orders. The said writ petition is still pending, however, inview of further development, the said writ petition has becomeinfructuous. The respondent No.4 treated the representation of thepetitioner dated 29.08.2019 as complaint as per Clause (1) of[3] wp-4168-2022.odtGovernment Resolution dated 03.10.2017 and after issuing notice torespondent No.5 and hearing the petitioner as well as respondent No.5cancelled the order dated 31.10.2019 issued by respondent No.5, on24.12.2019. When the order of acceptance of retirement of thepetitioner was cancelled, the respondent No.5 has been directed byrespondent No.4 to allow the petitioner to join the post of HeadMistress with immediate effect. The respondent No.5 preferred WritPetition No.550 of 2020 challenging the said order dated 24.12.2019,however, later on respondent No.5 withdrew the said writ petition toavail alternate remedy of appeal. Respondent No.5 filed Appeal No.1of 2020 before respondent No.3 appellate authority. The appellateauthority by order dated 17.12.2020 quashed and set aside the orderdated 24.12.2019 passed by respondent No.4 and remitted the matterback to respondent No.4 for giving the fresh decision. After the matterwas remitted, respondent No.4 again by judgment and order dated30.07.2021 cancelled the order passed by respondent No.5 treatingthe petitioner as voluntary stood retired; directing respondent No.5 toreinstate the petitioner to the post of Head Mistress and release hersalary as per rules. 3.Respondent No.5 filed appeal again challenging the said order ofrespondent No.4 dated 30.07.2021. The respondent No.3 is notdeciding the said appeal within the stipulated period. In fact,respondent No.5 has not followed M.E.P.S. Rules while passing the[4] wp-4168-2022.odtresolution and acceptance. Hence, the petitioner has filed presentpetition to direct respondent No.5 to reinstate the petitioner to thepost of Head Mistress and release of salary. 4.Affidavit-in-reply has been filed on behalf of respondent Nos.1to 4 i.e. by one Ravikant Maroti Shinde, Assistant Commissioner,Social Welfare Department, Beed. He submits that GovernmentResolutions dated 03.10.2017, 21.03.2018 and 10.02.2022 have beenpromulgated for giving speedy relief to the employees of the Ashramschools as well as institutions which are receiving grant-in-aid fromthe State Government. The petitioner has filed writ petition as well ascontempt petition and still one more i.e. this writ petition has beenfiled and therefore, on this ground also, he prays for dismissal of thepetition.5.Affidavit-in-reply has been filed on behalf of respondent No.5 byone Deepak Vasudeorao Dube, the Secretary of respondent No.5. Inthe nutshell, he says that the resignation letter given by the petitioneris voluntary i.e. the notice that was given on 02.08.2019. Thepetitioner had sent the representation dated 24.10.2019 by R.P.A.D.on 01.11.2019 and it was received by respondent No.5 Society on04.11.2019, which is beyond the period of the three months noticeand, therefore, the resolution was passed by respondent No.5 toaccept her voluntary retirement. The alternative remedy as given in[5] wp-4168-2022.odtGovernment Resolution dated 03.10.2017 of appeal is available to thepetitioner and, therefore, no case is made out to exercise the writjurisdiction of this Court.6.Heard learned Advocate Mr. V. D. Salunke holding for learnedAdvocate Mr. P. G. Rodge for the petitioner, learned AGP Mr. K. S. Patilfor respondent Nos.1 to 4 – State and learned Advocate Mr. V. V.Bhavthankar for respondent No.5. In order to cut short it can be saidthat all of them have made submissions in support of their respectivecontentions.7.Learned Advocate Mr. V. D. Salunke holding for learned AdvocateMr. P. G. Rodge reiterating the same facts harps upon the Section 7 ofthe Maharashtra Employees of Private School (Conditions of Service)Regulation Act, 1977, read with Rule 40 of the Rules made thereunderand submits that if any employee contends to resign from his post inany private school, then such employee may give letter of resignationin duplicate and sign both the copies of that letter and put the datethereon. He may then forward one copy to the management byregistered post and keep the other copy with him. In this case, theimpugned notice dated 02.08.2019 does not bear the acknowledgmentand respondent No.5 wants to show that it was received personally onthe same day by the Secretary. Further, on 24.10.2019 the petitionerhad given representation stating that the said application should be[6]
Decision
wp-4168-2022.odtbeen then shown by proper evidence by respondent No.3 that prior to02.08.2019 such notice was issued to the petitioner and, therefore,instead of facing inquiry, she opted for voluntary retirement.11.The resolution regarding acceptance of said communicationdated 02.08.2019 came to be passed on 31.10.2019, however, asaforesaid, in absence of evidence, it will have to be presumed that theletter dated 24.10.2019 ought to have been received by respondentNo.5 prior to 31.10.2019. All these facts were not at all considered bythe Committee. It can be spelt out from the record that therelationship between the management and the petitioner was notgood, but that does not mean that respondent No.5 would bepermitted to act in derogation of the procedure. Much before theresignation letter was accepted by resolution dated 31.10.2019, thepetitioner had informed to respondent No.4 that the said letter dated02.08.2019 has been taken from her by pressurizing her and,therefore, it cannot be said that the said communication dated02.08.2019 was voluntary in nature. Respondent No.5 has takenobjection regarding the maintainability of the writ petition in view ofthe alternative remedy available in view of Government Resolutiondated 03.10.2017. It is also not in dispute that the petitioner hadapproached respondent No.4 to challenge the acceptance of thealleged resignation letter. Whether respondent No.4 had the power to[11] wp-4168-2022.odtdeal with the said complaint or not, is different question, but he hadgiven hearing to the Secretary of respondent No.5 and the petitioneron 27.11.2019. He had then directed respondent No.5 to reinstate thepetitioner on the post of Head Mistress by cancelling her voluntaryretirement. Respondent No.5 had then filed Appeal No.01 of 2020before respondent No.3, who had heard the matter and remanded thematter back to respondent No.4 for taking fresh decision. Thatdecision of respondent No.3 was then challenged before respondentNo.2 by the petitioner. Perusal of the appeal memo would show that itwas as per Clause (3) of the Government Resolution dated 03.10.2017challenging the order passed by respondent No.3 herein dated17.12.2020 and it appears that the said appeal is still pending, but inthe meantime respondent No.4 had passed order dated 30.07.2021,which is again in favour of the petitioner, thereby cancelling thedecision taken by respondent No.5 to allow the petitioner to takevoluntary retirement. Thus, it can be seen that either petitioner orrespondent No.5 had tried to exhaust the remedy under GovernmentResolution dated 03.10.2017, but now the petitioner is challenging thesaid Government Resolution to the extent of making the appellateforum available. 12.Learned Advocate for respondent No.5 as well as learned AGPpoints out that there are several decisions of this Court in Writ Petition[12] wp-4168-2022.odtNo.1200 of 2021 decided on 06.08.2021 and Writ Petition No.1001 of2019 with companion matters decided on 11.03.2020, wherein thepetitioners were directed to approach the forum that has been createdunder the Government Resolution dated 03.10.2017. In this respect,we would like to say that if a person / litigant in ignorance of lawapproaches a forum, that does not mean that he has submitted itselfto the jurisdiction of the said forum and would be estopped fromtaking proper legal recourse. Wrong assumption of jurisdiction will notcreate any kind of estoppel as against the person approaching the saidforum. We are in agreement with the decision of this Court in SwatiShivaji Lawhare (Supra), as it is based on the decision of the Hon’bleApex Court in Secretary, A.P.D. Jain Pathshala (Supra), wherein it hasbeen clearly stated in paragraph No.30 by the Hon’ble Apex Courtthat :-“30.Therefore, we hold that constitution of aGrievance Committee as a public adjudicatory forum,whose decisions are binding on the parties to the disputes,by an executive order of the Government is impermissible.Secondly, the High Court cannot in exercise of judicialpower interfere with the jurisdiction of the civil courtsvested under Code of Civil Procedure. Any such GrievanceCommittee created by an executive order, either on thedirection of the High Court or otherwise, can only be factfinding bodies or recommending bodies which can look intothe grievances and make appropriate recommendations tothe government or its authorities, for taking necessary[13] wp-4168-2022.odtactions or appropriate reports to enable judicial Tribunalsto render decisions.”Therefore, this Court in Swati Shivaji Lawhare (Supra) observedthat :-“23.These observations of the Hon’ble Supreme Courtclearly spell out that adjudicatory authorities can becreated only by statutes and not by an executive order ofthe Government. If such a course is permitted there isevery likelihood of tribunals being created withoutappropriate provisions in regard to the constitution,functions, powers, appeals, revisions and enforceability oftheir orders, leading to chaos and confusion. Rights ofemployees are likely to be adversely affected by such adhoc authorities exercising judicial functions, who are notindependent nor competent to adjudicate disputes andrender binding decisions. Therefore, the executive powerof the State cannot be extended to creating judicialtribunals or authorities exercising judicial powers andrendering judicial decisions.”We fully agree to the said position of law. In view of this legalposition, respondent Nos.2 and 3 had no legal appellate powers andtherefore, the decision taken by them in this case cannot be allowed tosustain. We therefore hold that no alternative efficacious remedy ofappeal was available to the petitioner. 13.Petitioner had approached respondent No.4 by way of complaintand then respondent No.4 had given directions to reinstate the[14] wp-4168-2022.odtpetitioner. Respondent No.5 has not raised any objection regarding thejurisdiction of respondent No.4 to deal with the complaint filed by thepetitioner and, therefore, when the said order is not obeyed byrespondent No.5, we hold that she can approach this Court under itswrit jurisdiction. 14.For the aforesaid reasons, case is made out for interference andexercising of our constitutional powers under Article 226 of theConstitution of India. Hence, the following order :-ORDERI)The Writ Petition stands allowed.II)It is declared that the further remedies from clause No.(2)onwards of Government Resolution dated 03.10.2017 were notavailable to the petitioner, as the State Government by way ofGovernment Resolution was not empowered to create appellateforum by issuing the said Government Resolution.III)It is also declared that the alleged resignation letter by thepetitioner dated 02.08.2019 is not voluntary and the actiontaken by respondent No.5 as per resolution dated 31.10.2019, isillegal.IV) Respondent No.5 is directed to reinstate the petitionerforthwith on the post of Head Mistress of Vasantrao Bhagwat[15] wp-4168-2022.odtPrimary Ashram School run by it and release the arrears of hersalary.V)The judgment and order passed by respondent No.3 on25.05.2022 in Appeal No.04 of 2021 is hereby quashed and setaside.VI) Rule is made absolute in the above terms. [ S. G. CHAPALGAONKAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[16]