2000 Supreme(Bom) 585

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
A.M. Khanwilkar, J.
Dr. S.R. Ambedkar Samiti another.... Petitioners.
Versus
Ku. M.L. Lonkar others.... Respondents.
Writ Petition No. 174 of 1991, decided on 28-7-2000.
Advocates appeared :
R.V. Smt. A.R. Patil, for petitioners.
Parsodkar, for respondent No. 1.
Government Pleader, for respondent No. 2.

Headnote:-Rules 16(2) and 28(1)Respondent No. 1 untrained teacher appointed on purely temporary basis for one academic session 1985-86Services of respondent No.1 continued on year to year basis up to 1988-89Respondent No. 1 granted medical leave from 6,10.1988 to 6.5.1989Respondent allowed to acquire D.Ed. qualification on grant of permission and to undergo training-Before expiry of medical leave respondent No. 1 by sending a letter under certificate of posting along with medical certificate requesting for continuation of medical leave upto 25.6.1989- On 26.6.1989 when respondent No.1 went to report on duty she was not allowed to join the duty as her services were terminated in view of Rule 16(2) on ground of abandonment of service-School tribunal allowed the appeal filed by respondent No.1 against termination accepting the claim of the teacher that she had sought extension of leave to which no reply given-Writ petition by management against the decision of School tribunal-Provision of Rule 16(2) not attracted as respondent No.1 had already sent a request letter for extension of medical leave along with medical certificate-Provision of Rule 18(2) not followed by the Management-Order allowing teachers appeal maintained.-Respondent No. 1 was appointed on purely temporary basis for one academic session 1985-86. At the relevant time the respondent No.1 was an untrained teacher. However, the services of the respondent No.1 were continued on year to year basis upto the academic year 1988-89. In the meantime with the permission the respondent No.1 joined the D.Ed. Course for acquiring the requisite qualification. Respondent No. 1 was on medical leave from 6.10.1988 to 6.5.1989. That was sanctioned by the petitioners. Before the medical leave was to expire the respondent No. 1 sent a letter requesting for continuing the medical leave for a further period upto 25.6.1989. The said request was made in writing and the copy of the letter was sent under certificate of posting along with the medical certificate. Since the respondent No.1 did not receive any intimation from the petitioners, she presumed that the medical leave was extended as prayed for. Accordingly, when the respondent No. 1 went to report duty on 26.6.1989, she was not allowed to join; instead she was told that her services stood terminated. Respondent No. 1 filed appeal before the School tribunal. The only point which was argued by the parties before the tribunal was, whether the respondent No.1 had failed to comply with the requirements of Rule 16(2) of the rules and in the circumstances had abandoned the services. The tribunal accepted the stand taken by the respondent No. 1 by holding that since the letter dated 6.5.1989 was sent under certificate of posting, there was presumption that same was duly served upon the petitioners and since the petitioner did not take any decision on the said application, it was held that, the medical leave was deemed to have been granted till 25.6.1989 and as such respondent No. 1 continued in service. The tribunal further held that the petitioners further failed to issue one months notice to the respondent No.1 before terminating the services as required under Rule 28(1) of the Rules. The tribunal also faulted the decision of terminating the services of respondent No.1 on the ground that it was by the order passed by the Headmaster who was not the competent authority to issue the order of termination. The Management challenged the decision of the School tribunal in High Court in writ petition.

       Held, tribunal rightly held that the respondent No.1 sent letter requesting for extending the medical leave on 6.5.1989 which was duly supported by medical certificate. The tribunal was, right in concluding that there was presumption that the said letter had reached the petitioners. No evidence was brought on record except bare denial by the petitioners about the service of the notice. No attempt was made even to exan1ine any witness or assert that the letter was not received though sent under certificate of posting. Ordinarily, when the letter was sent under certificate of posting on the known address of the addressee, it could be presumed that the same had reached the addressee on the given address. Mere denial in the written statement can be of no avail. The tribunal was right in proceeding on the assumption that the said letter was duly served upon the petitioners and it was therefore incumbent upon the petitioner to either accept the request or reject it, but nothing of that sort had been done by the petitioners. In the circumstances, the respondent No.1 was justified in assuming that the petitioners had accepted the request and leave was extended up to 25.6.1989 which was till end of academic session of 1988-89. Rule 28(1) clearly provides that the manner in which the services of any employee could be terminated. In view of the said provision it was not open to contend that no notice ought to have been served on the respondent No.1. During the academic session the respondent No.1 acquired the requisite qualification and, therefore, it was not open for the petitioners to treat that the services of the respondent No.1 stood terminated. Tribunal was right in allowing the appeal preferred by the respondent No. 1. Teacher having tendered resignation in May, 1994 no further order was necessary. 1997 (2) Labour Law Notes 1098, Relied.