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IN THE HIGH COURT OF BOMBAY
Sandeep V.Marne, J.
Vijaykumar Raosaheb Kulkarni - Appellant
Versus
Rasta Peth Education Society - Respondent
Writ Petition No. 11633 of 2022
Decided On : 13-09-2023
TERMINATION - EMPLOYMENT LAW - Maharashtra Employees of Private Schools (Conditions of Service) Act 1977, Rule 40 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 - The court interpreted the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Act 1977 and the associated rules, particularly focusing on the definitions and implications of 'resignation' versus 'voluntary retirement'. The court concluded that the petitioner's application was for voluntary retirement, not resignation, and thus he retained the right to withdraw it before it took effect. This interpretation was pivotal in the court's decision to reinstate the petitioner.
Fact of the Case:
The petitioner, an Assistant Teacher, challenged the dismissal of his appeal against what he claimed was an oral termination order after he withdrew his application for voluntary retirement. The school management treated his application as a resignation, leading to his termination.
Finding of the Court:
The court found that the petitioner's application was indeed for voluntary retirement, despite the management's treatment of it as a resignation. The court held that the petitioner had the right to withdraw his application before it took effect.
Issues: 1. Whether the application submitted by the petitioner was for voluntary retirement or resignation. 2. If it was for voluntary retirement, did the petitioner have the right to withdraw it?
Ratio Decidendi: The court established that an employee can withdraw a request for voluntary retirement before it takes effect, even if it has been accepted. The court emphasized the importance of the employee's intention and the context of the application, ruling that the petitioner intended to opt for voluntary retirement and not resignation.
Final Decision: The court set aside the School Tribunal's order, reinstated the petitioner effective from 25/11/2020, and treated the intervening period as duty for all purposes except backwages.
JUDGMENT/ORDER
1. Rule. Rule is made returnable forthwith. With the consent of the learned counsels appearing for the parties, petition is taken up for final hearing.
2. By this petition, Petitioner challenges judgment and order dtd. 20/4/2022 passed by the Presiding Officer, School Tribunal, Pune dismissing Appeal No.29 of 2020. The appeal was filed by Petitioner challenging what he described as 'oral otherwise termination order' dtd. 2/12/2020. It was Petitioner's grievance before the Tribunal that he had withdrawn the application for 'voluntary retirement', but he was still terminated from service on the basis of decision of the School Management to accept the 'resignation'. Petitioner's application for 'voluntary retirement' is thus treated as 'resignation' and by accepting the same, his services are terminated.
3. Facts of the case are that Petitioner was appointed as Assistant Teacher in Vidhyarthi Vikas High School, Bopkhel, Pune run and managed by Yogeshwar Education Society, Sangvi on 1/6/1997. The said secondary school was recognized 100% aided school and the Education Officer (Secondary) Zilla Parishad, Pune had granted approval to Petitioner's appointment on 23/11/2004. Due to withdrawal of recognition of the said school, Petitioner was directed to be absorbed by the Order of Education Officer dtd. 10/7/2013 in Abasaheb Atre Day High School and Junior College run and managed by Rasta Peth Education Society (Respondent No.1). Petitioner accordingly joined Respondent school on 11/7/2013.
4. It is Petitioner's claim that he was harassed by the new management which took over affairs of Respondent School in the year 2019. He therefore opted for voluntary retirement and tendered application dtd. 31/8/2020 stating that he be voluntarily retired from 1/12/2020 and sought his date of relieving as 30/11/2020. Petitioner also used the word 'resignation' in his letter dtd. 31/8/2020.
5. It appears that Petitioner's application dtd. 31/8/2020 was treated as 'resignation' by Respondent Management. By letter dtd. 9/9/2020, he was called upon to submit details of his health for processing his resignation. Petitioner accordingly submitted medical certificate dtd. 16/9/2020 vide letter dtd. 17/9/2020 and requested for early process of his resignation. By its letter dtd. 21/9/2020, Respondent Management called upon Petitioner to submit medical certificate of Government Hospital, as he was serving as Government Servant in Government approved education institution. Petitioner contested Respondent's claim that he is Government employee and expressed inability to submit medical certificate from Government Hospital by his letter dtd. 22/9/2020. The Respondent Management however insisted by letter dtd. 22/9/2020 for production of medical certificate of Government Hospital and also sent reminder letter dtd. 27/10/2020 to Petitioner.
6. On 25/11/2020, the Respondent management adopted resolution accepting Petitioner's resignation. The decision of the Management was communicated to Petitioner by letter dtd. 27/11/2020. The receipt of letter was acknowledged by Petitioner on 27/11/2020. However on 28/11/2020, Petitioner withdrew request for voluntary retirement and submitted letter to that effect. Petitioner thereafter went on making representations on 2/12/2020 and 9/12/2020 about withdrawal of his voluntary retirement and requested Respondent school to permit him to sign the muster. Petitioner also approached Education Officer (Secondary), Zilla Parishad, Pune who addressed letter dtd. 15/12/2020 to the Respondent school to take appropriate action on Petitioner's application for withdrawal of voluntary retirement.
7. Since the Respondent school did not take any decision on Petitioner's application for withdrawal of voluntary retirement, he approached School Tribunal, Pune by filing appeal No.29 of 2020. By judgment and order dtd. 20/4/2022, the Tribunal has proceeded to dismiss the appeal. Aggrieved by decision of the School Tribunal, Petitioner ha
An employee's request for voluntary retirement can be withdrawn before it takes effect, and the intention behind the request must be considered in determining its nature.
An employee cannot withdraw his resignation after it has been accepted by the employer.
The main legal point established in the judgment is that a teacher's resignation should be made voluntarily, and if the employee withdraws such resignation, it is duly entitled to do so.
Voluntary retirement requires explicit acceptance from the appointing authority and cannot be deemed effective solely based on a lack of response.
An employee if has attained the age of 50 years and has spent 20 years of service, he would be entitled to seek voluntary retirement and so consequential benefits
An employee has the right to withdraw the proposal for voluntary retirement before the jural relationship of employee and employer comes to an end.
Non-communication of acceptance of resignation does not invalidate the resignation, and the resignation becomes effective on its acceptance, even if the acceptance is not communicated, as long as the....
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