Bahujan Vikas Mandal, Akola Vs. Ku. Manda Vithalrao Parsutkar - Court Judgment

Excerpt:
[v.jagannathan j.] this wp filed praying to quash the letter dt. 23.6.2008 at annex-a issued by the respondent to the petitioner no. 1.1] this writ petition challenges the judgment and order dated 20.11.2007 passed by the learned presiding officer, school tribunal, amravati, allowing appeal no. 63/2002, filed by respondent no.1 and setting aside resolution passed by the petitioners on 29.10.2002, accepting the resignation alleged to have tendered by the respondent no.1, on 30.7.2002, which is considered to be the otherwise termination of the service. the order of reinstatement and backwages has also been passed and this is the subject matter of challenge in this petition preferred by the management. 2] the facts leading to the case are as under the respondent no.1 was appointed as an assistant teacher on 3.7.1995. she was appointed as incharge headmistress from 1.7.1996 to 31.7.2002. the case of the management was that the respondent no.1 had tendered her resignation on 30.7.2002, which was received by the management on 1.8.2002. the management by its resolution dated 29.10.2002, accepted the said resignation and it was communicated to the petitioner on 30.10.2002. the case of the respondent no.1 was that she never resigned from the post and the management had prepared false resignation to terminate her services. hence, she filed an appeal no. 63/2002 before the school tribunal under section 9 of the maharashtra employees of private schools (conditions of service) regulation act, 1977 ( in short "the m.e.p.s. act") to challenge the alleged acceptance of resignation on 29.10.2002, treating it to be an otherwise termination from service.3] in memo of appeal, two specific grounds were raised, (i) that the respondent no.1 has never given three months' calender notice in the name of the petitionermanagement and (ii) that she never forwarded a copy of any resignation letter by registered post in the name of the petitionermanagement. the stand of the management was that the respondent no.1 had tendered her resignation out of her free will, by giving three months' notice in advance dated 30.7.2002, which was to take effect from 30.10.2002. during this period of three months, the respondent no.1 never expressed her intention to withdraw the said resignation. the acceptance was duly communicated to the respondent no.1 and hence the respondent no. 1 cannot now make hue and cry of the same. the respondent no.1 filed an affidavit before the school tribunal stating that the notice dated 30.7.2003 of resignation was fully prepared by the president of the management, who was joined as respondent no. 4 in the memo of appeal and it was a fraudulent imitation and also that the president had counterfeited her signature.4] the tribunal recorded the finding that the respondent no.1 was a permanent employee and her services were terminated without holding an enquiry. the tribunal considered the question as to whether the impugned notice of resignation dated 30.7.2002, given by the respondent no.1, was voluntary or was a manipulated document, prepared by the president of the management. the tribunal noted that the notice of resignation is dated 30.7.2002, whereas the management, by letter dated 31.7.2002, discharged the respondent no.1 from the post of incharge headmistress. the respondent no.1 was removed from the post of incharge headmistress w.e.f. 1.8.2002. the finding of the tribunal is that, when the management was knowing that the resignation was given on 30.7.2002, there was no question of management passing an order on the next date i.e. on 31.7.2002 removing the respondent no.1, from the post of incharge headmistress w.e.f. 1.8.2002. this is the one circumstance taken into consideration by the tribunal.5] the second circumstance taken into consideration by the tribunal is that the respondent no.1 had given letter dated 31.7.2002 to the deputy director of education, alleging that though she was working as incharge headmistress from 1.7.1996, she was not given regular appointment of headmistress by the management. it was alleged in the said letter that the president had put all the orders of approval of the employees in the school with him and therefore, it was impossible for the respondent no.1 to prepare the pay bills and hence the employees did not receive the salary from the period from 1.7.1998 to 31.7.2002. if it was the intention of the respondent no.1 to resign from the post on 30.7.2002, then she would not have written such letter on 31.7.2002 to the deputy director of education.6] the third instance taken into consideration by the tribunal was that the respondent no.1 had given letter dated 24.8.2002 to the education department making various allegations against the management and particularly against the president shri b.d.jadhav and this is not disputed by the management. if the respondent no.1 had an intention to resign from the post on 30.7.2002, then the question of making any such complaint on 24.8.2002, did not arise.7] the fourth circumstance taken into consideration by the tribunal is that on the complaint of the respondent no. 1 dated 17.8.2002, the education officer issued a letter dated 11.10.2002 to the president of the management asking him to decide the complaint made in the application and to submit the proposal for promotion to the respondent no.1 on the post of regular headmistress. the management did not deny that such communication was received from the education department. according to the tribunal, admittedly the president of the management has neither responded to such communication nor complied with the direction. if the respondent no.1 had to resign from the service as per notice dated 30.7.2002, then, according to the tribunal, the president would have communicated or responded to the communication dated 11.10.2002, issued by the education department. however, no such reply was given and hence the resignation dated 30.7.2002 cannot be believed.8] in the background of the aforesaid facts and circumstances taken into consideration by the school tribunal, the questions which are required to be considered are, (i) whether the respondent no. 1 employee tendered the resignation on 30.7.2002 and (ii) whether the said resignation was voluntary, complying with the provisions of section 7 of the m.e.p.s. act. the parties have relied upon the following judgments. (i) 2004 (1) bom c.r. 421; ballaleshwar shikshan mandal and another vrs. jaywant bhaguji gadekar and others(ii) 2004 (5) bom. c.r. 772; barshi education society vrs. ashok ganesh kulkarni and others; (iii) 2008 (6) mh.l.j. 529, shri sant sawtamali shikshan prasarak mandal, tembhurni vrs. state of maharashtra and others.9] in the first judgment in case of jaywant bhaguji gadekar (cited supra), the provision of section 7 of the m.e.p.s. act is considered. it has been held that once an employee signs a letter expressing his intention to resign and voluntary submits a copy thereof to the management, such an act would be substantially in compliance of section 7 of the said act. it was further held that merely because a copy of letter has not been forwarded by registered post, cannot make the resignation void. it has further been held that the mode of dispatch would be relevant in cases where the employee disputes the execution of document. on facts, it was found that the letter of resignation submitted expressing an intention to resign, the date was put thereon and it was duly signed by an employee. the letter was made over directly to the management. the employee was held to be nonpermanent and neither the execution nor the delivery of the said letter was disputed. the appeal filed by the employee was dismissed by setting aside the judgment and order passed by the tribunal granting reinstatement and backwages.10] in the second judgment delivered in barshi education society's case, cited supra, it was held that under section 7 of the m.e.p.s. act, the resignation has to be a written resignation, duly signed and dated by the employee. the oral resignation was held to be impermissible. the requirement of forwarding of resignation by registered post though was not held to be mandatory, it was held that it is intended to ensure that the employee is not subjected to the action of coercion or duress, which may operate if an employee is called in person, required to sign a letter of resignation and hand it over to the management in person. it was held that where an employee has submitted the resignation not by registered post but otherwise, a greater degree of circumspection is required on the part of the tribunal. when it is alleged that the resignation was not voluntary, all the relevant circumstances must be taken into consideration, to find out whether the resignation was voluntary. it was held that the mode of service may in a conceivable case have a bearing on the question as to whether the resignation is truly voluntary. on facts, it was held that the tribunal had not decided on merits as to whether the first respondent therein has been able to establish his case that the resignation which he tendered from the post of headmaster was not voluntary. the matter was settled before the court.11] in the third judgment delivered by this court in sant sawtamali shikshan prasarak mandal's case (cited supra), it was held after quoting section 7 of the said act that the statute provides that the management cannot take undue advantage by compelling a teacher to give resignation either by force or by giving any type of inducement. there is safeguard provided in the act and with an object to see that in a given case, the management may not pressurize the teacher to give resignation and as to whether in a given case, the so called resignation is misused by the management. it was further held that in a given case, court on considering the evidence on record may come to the conclusion that if the resignation is not sent by registered post, that itself may not be treated as a conclusive proof, for coming to the conclusion that such resignation is not valid. it was held in the light of the facts of that case and in the light of the evidence on record that the employee had never tendered resignation on his own volition and that it was not voluntary resignation at all.12] in none of the aforesaid judgments, the question whether, the process of drawing up of resignation in duplicate, signing both the copies and putting of date therein, contemplated by section 7 of the m.e.p.s. act, should mandatorily be in the handwriting of an employee intending to resign from his post, has been considered. in order to consider this question section 7 of the said act will have to be seen and the same is, therefore, reproduced below.7. procedure for resignation by employees of private schools.if any employee intends to resign his post in any private school, at any time after the appointed ate, he shall draw up a letter of resignation in duplicate and sign both the copies of that letter and put the date thereon. he may then forward one copy to the management by registered post and keep the other copy with him.in terms of section 7 reproduced above, an intention to tender resignation has to be made clear by, (i) drawing up a letter of resignation in duplicate; (ii) signing both the copies of that letter; and (iii) putting the date thereon.the further requirement is of forwarding one copy of it to the management by registered post and keeping the other copy by an employee, intending to tender his resignation.13] "to resign" means an act by which an employee voluntarily gives up his job. it is the voluntary cessation of relationship of employer and employee or master and servant, by an employee. section 7, reproduced above, prescribes the process by which an employee should express his intention to resign from the post and therefore, the expression of such intention has to be in the manner prescribed. the first step in the process is, "to draw up a letter of resignation in duplicate". "to draw up" is a phrasal verb and it means "to prepare", "to compose", "to write out paper", as given in oxford thesaurus. the advanced law of lexicon, by shri justice y.v.chandrachud, defines it as, "to write in due form". it defines "drawing up" means "drafting in due form", "writing out". the oxford dictionary defines, "drawing", as a "picture or diagram made with pencil or pen". black's law dictionary defines the verb "draw" as "to create and sign" (a draft). thus, the phrasal verb "draw up" used in section 7 above, connotes the process of handwriting as against the process of typing or printing. the object of section 7 is to express an intention to voluntarily resign from the post, and such an intention can be made clear by preparing, composing, creating or writing out such letter of resignation by an employee in his own handwriting. to hold that such a letter of resignation can be typed written or printed, would defeat or frustrate the very object of section 7 of the said act. the use of word "shall" preceding the phrasal verb "draw up" in section 7, indicates the process of preparing a letter of resignation in his own handwriting, to be mandatory.14] there is one more reason as to why the requirement to draw a letter of resignation should be construed to be in the handwriting of the employee concerned intending to resign from the post. a judicial notice can be taken of several cases coming before this court, complaining that at the time of appointment itself, the management got a blank paper signed by an employee, which is used to type out or print out a letter of resignation, which the employee never intended to give. such a typed or printed letter of resignation is posted from the place of address of the employee concerned, by registered post or by ordinary post to the place of address of the management and this is the circuitous way adopted to get rid of the services of employees, who have rendered service for several years. there is, normally, no reason for an employee who is confirmed in the service to tender any such resignation unless he has secured better employment elsewhere or has engaged himself in any other business or occupation or has become physically or mentally unfit to carry out such duties. there may be several such reasons. be that as it may, such an eventuality can be avoided, if it is shown that the letter of resignation is handwritten, it bears the signature of an employee and the employee has consciously given it to the employer, knowing full well its consequences. normally, it would not be believable that an employee preparing letter of resignation in his own handwriting, would tender it to any person of management to dispatch it, either by ordinary post or by registered post. the possibility would be that the employee concern has himself posted it or has himself tendered it personally, to the management. if the letter of resignation is in the handwriting of the concerned employee, then unless the employee pleads and proves that he has written and signed the letter of resignation under coercion, duress or pressure from any of the member of the management, it will not be possible to believe that the resignation tendered was not voluntary.15] the next requirement of section 7 in the process of resignation, is to sign both the copies of letter of resignation. obviously, the signature has to be of an employee intending to resign the post. hence, the employee has to put signature on the letter of resignation in his own handwriting. consequently, putting the date on the letter of resignation has also to be in the handwriting by an employee intending to resign the post. both these requirements of signing the letter of resignation and putting the date thereon, are the part of one sentence and preceded by a phrase "draw up a letter of resignation in duplicate", which is held to be mandatory. hence, the requirement of putting signature and the date on the letter of resignation by an employee in his own handwriting, has also to be held as mandatory. in the circumstances, no one would imagine that the date to be put on the resignation, which is in the handwriting of an employee, would be typed or printed. 16] coming to the last requirement of forwarding one copy of letter of resignation to the management by registered post and keeping the other copy with him by an employee, it has been held, as pointed out earlier, in balaleshwar shikshan mandal's case, that merely because a copy of the letter of resignation has not been forwarded by registered post, cannot make the resignation void. it was in the background of the fact that the employee neither disputed the execution of the document nor the delivery thereof to the management. it was held that the mode of dispatch would be relevant in cases where the employee disputes the execution of document. in another judgment delivered in barshi education society's case, though it has been held that section 7 uses the expression that the employee may forward one copy of the letter of resignation to the management by registered post, it is held that the requirement is intended to ensure that the employee is not subjected to any kind of coercion or duress which may operate, if an employee is called in person, required to sign a letter of resignation and hand it over the management in person. it has been held that when the question as to whether the resignation was or was not voluntary is raised, all relevant circumstances must be considered by giving due importance to the fact that sending of resignation by registered post shows that it is truly voluntary. in the third judgment in sant sawtamali shikshan prasarak mandal's case, it has been held that requirement of sending resignation by registered post, is a safeguard provided to an employee, against the management taking undue advantage of compelling a teacher to give resignation either by force or by giving any type of inducement. in view of this, it has to be held that the requirements of section 7 of the said act will have to be seen in its totality, to find out whether resignation tendered is voluntary or not.17] keeping in view the aforesaid position of law, the facts of the present case will have to be looked into. it is not in dispute that the original notice of resignation was produced on record of the tribunal and the same is produced here also. it is typed written. it was a three months' notice of resignation. the date of 30.7.2002 put thereon, is also typed written. the management claims that it bears the signature of the respondent no.1 employee, whereas the respondentemployee disputes it. below the signature, the rubber stamp of the headmistress of kranti jyoti marathi prathmik shala, akola, where the respondentemployee was working, is affixed. the letter is addressed to the president, bahujan vikas mandal, akola (management) and it has to take effect from 30.10.2002. it states that because of some domestic problems, it is not possible for the respondent no.1 employee to work on the post of an assistant teacher and hence three months' notice of resignation was given. it is further stated in the letter of resignation that respondent no.1 employee should be discharged from the post. it further states that the resignation is not being given under pressure from any one, but it is on her free will and it should be accepted. the petitioners have produced on record the envelop which bears postal stamp dated 30.7.2002 and according to the management, the resignation was received in this envelop by ordinary post on 1.8.2002. the respondent no.1 employee has, however, denied to have sent any such resignation either by ordinary post or by registered post.18] it is thus clear from the aforesaid factual position that the letter of resignation dated 30.7.2002 is not in the handwriting of the respondent no.1 employee. the date put thereon is also not handwritten. the respondent no.1 employee has disputed the signature appearing thereon. thus, execution of such letter is disputed. the letter of resignation has not been received by the registered post, but the management claims to have received it by an ordinary post. the respondent no.1 employee has disputed to have forwarded such a letter of resignation to the management. thus, there is no assurance that the respondent no.1employee has drawn a letter of resignation and that the resignation produced was voluntary in the sense that the management hs not used the blank paper signed by the employee, to type out a letter of resignation. there is no assurance that the employee was subjected to any kind of pressure or coercion or that the management has not taken undue advantage of compelling teacher to give resignation. thus, there is total non compliance of requirements of section 7 of the said act, which makes the resignation involuntary and voidabinition.19] subrule 3 of rule 40 states that an employee entitled to vacation shall not give notice of resignation during the vacation or so as to cover any part of the vacation. it further states that the notice of resignation shall not be given within one month after the beginning of the first time of the order. the tribunal has recorded a finding that there was diwali vacation in the school upto 18.11.2002 and the services of the respondent were brought to an end w.e.f. 30.10.2002 i.e. during the period of vacation. the respondent no.1 has lodged the police complaint on 18.11.2002 to the police station and on 25.11.2002 to the education officer and the director and deputy director of education. if the respondent no1. really intended to resign from the post, she would not have sent the resignation during the period of vacation, which is the prohibition contemplated by sub rule 3 of rule 40. if the notice of resignation is given in breach of prohibition under subrule 3 of rule 40, then that would make resignation as invalid.20] the tribunal has, after taking into consideration several circumstances, as pointed out earlier, recorded a finding of fact that the resignation dated 30.7.2002 was not voluntary and its acceptance by resolution dated 29.10.2002 was invalid. in view of the facts that there is total noncompliance of section 7 of the said act coupled with the circumstances taken into consideration by the tribunal, it has to be held that the acceptance of resignation by the management amounted to otherwise termination from services, the same has, therefore, been rightly quashed and set aside by the tribunal.21] in view of above, there is no substance in this petition. the same is, therefore, dismissed with no orders as to costs.

Judgment:
1] This writ petition challenges the judgment and order dated 20.11.2007 passed by the learned Presiding Officer, School Tribunal, Amravati, allowing Appeal No. 63/2002, filed by Respondent No.1 and setting aside resolution passed by the petitioners on 29.10.2002, accepting the resignation alleged to have tendered by the Respondent No.1, on 30.7.2002, which is considered to be the otherwise termination of the service. The order of reinstatement and backwages has also been passed and this is the subject matter of challenge in this petition preferred by the Management.

2] The facts leading to the case are as under The respondent no.1 was appointed as an Assistant Teacher on 3.7.1995. She was appointed as incharge headmistress from 1.7.1996 to 31.7.2002. The case of the Management was that the respondent no.1 had tendered her resignation on 30.7.2002, which was received by the Management on 1.8.2002. The Management by its resolution dated 29.10.2002, accepted the said resignation and it was communicated to the petitioner on 30.10.2002. The case of the respondent no.1 was that she never resigned from the post and the Management had prepared false resignation to terminate her services. Hence, she filed an appeal No. 63/2002 before the School Tribunal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ( in short "the M.E.P.S. Act") to challenge the alleged acceptance of resignation on 29.10.2002, treating it to be an otherwise termination from service.

3] In memo of appeal, two specific grounds were raised, (i) that the respondent no.1 has never given three months' calender notice in the name of the petitionerManagement and (ii) that she never forwarded a copy of any resignation letter by registered post in the name of the petitionerManagement. The stand of the Management was that the respondent no.1 had tendered her resignation out of her free will, by giving three months' notice in advance dated 30.7.2002, which was to take effect from 30.10.2002. During this period of three months, the respondent no.1 never expressed her intention to withdraw the said resignation. The acceptance was duly communicated to the respondent no.1 and hence the respondent no. 1 cannot now make hue and cry of the same. The respondent no.1 filed an affidavit before the School Tribunal stating that the notice dated 30.7.2003 of resignation was fully prepared by the President of the Management, who was joined as respondent no. 4 in the memo of appeal and it was a fraudulent imitation and also that the President had counterfeited her signature.

4] The tribunal recorded the finding that the respondent no.1 was a permanent employee and her services were terminated without holding an enquiry. The tribunal considered the question as to whether the impugned notice of resignation dated 30.7.2002, given by the respondent no.1, was voluntary or was a manipulated document, prepared by the President of the Management. The tribunal noted that the notice of resignation is dated 30.7.2002, whereas the Management, by letter dated 31.7.2002, discharged the respondent no.1 from the post of incharge headmistress. The respondent no.1 was removed from the post of incharge headmistress w.e.f. 1.8.2002. The finding of the Tribunal is that, when the Management was knowing that the resignation was given on 30.7.2002, there was no question of Management passing an order on the next date i.e. on 31.7.2002 removing the respondent no.1, from the post of incharge headmistress w.e.f. 1.8.2002. This is the one circumstance taken into consideration by the tribunal.

5] The second circumstance taken into consideration by the tribunal is that the respondent no.1 had given letter dated 31.7.2002 to the Deputy Director of Education, alleging that though she was working as incharge headmistress from 1.7.1996, she was not given regular appointment of headmistress by the Management. It was alleged in the said letter that the President had put all the orders of approval of the employees in the school with him and therefore, it was impossible for the respondent no.1 to prepare the pay bills and hence the employees did not receive the salary from the period from 1.7.1998 to 31.7.2002. If it was the intention of the respondent no.1 to resign from the post on 30.7.2002, then she would not have written such letter on 31.7.2002 to the Deputy Director of Education.

6] The third instance taken into consideration by the tribunal was that the respondent no.1 had given letter dated 24.8.2002 to the Education Department making various allegations against the Management and particularly against the President Shri B.D.Jadhav and this is not disputed by the management. If the respondent no.1 had an intention to resign from the post on 30.7.2002, then the question of making any such complaint on 24.8.2002, did not arise.

7] The fourth circumstance taken into consideration by the tribunal is that on the complaint of the respondent no. 1 dated 17.8.2002, the Education Officer issued a letter dated 11.10.2002 to the President of the Management asking him to decide the complaint made in the application and to submit the proposal for promotion to the respondent no.1 on the post of regular headmistress. The Management did not deny that such communication was received from the Education Department. According to the tribunal, admittedly the President of the Management has neither responded to such communication nor complied with the direction. If the respondent no.1 had to resign from the service as per notice dated 30.7.2002, then, according to the tribunal, the President would have communicated or responded to the communication dated 11.10.2002, issued by the Education Department. However, no such reply was given and hence the resignation dated 30.7.2002 cannot be believed.

8] In the background of the aforesaid facts and circumstances taken into consideration by the School Tribunal, the questions which are required to be considered are, (i) whether the respondent no. 1 employee tendered the resignation on 30.7.2002 and (ii) whether the said resignation was voluntary, complying with the provisions of Section 7 of the M.E.P.S. Act. The parties have relied upon the following judgments.

(i) 2004 (1) Bom C.R. 421; Ballaleshwar Shikshan Mandal and another vrs. Jaywant Bhaguji Gadekar and others

(ii) 2004 (5) Bom. C.R. 772; Barshi Education Society vrs. Ashok Ganesh Kulkarni and others;

(iii) 2008 (6) Mh.L.J. 529, Shri Sant Sawtamali Shikshan Prasarak Mandal, Tembhurni vrs. State of Maharashtra and others.

9] In the first judgment in case of Jaywant Bhaguji Gadekar (cited supra), the provision of Section 7 of the M.E.P.S. Act is considered. It has been held that once an employee signs a letter expressing his intention to resign and voluntary submits a copy thereof to the Management, such an act would be substantially in compliance of Section 7 of the said Act. It was further held that merely because a copy of letter has not been forwarded by registered post, cannot make the resignation void. It has further been held that the mode of dispatch would be relevant in cases where the employee disputes the execution of document. On facts, it was found that the letter of resignation submitted expressing an intention to resign, the date was put thereon and it was duly signed by an employee. The letter was made over directly to the Management. The employee was held to be nonpermanent and neither the execution nor the delivery of the said letter was disputed. The appeal filed by the employee was dismissed by setting aside the judgment and order passed by the tribunal granting reinstatement and backwages.

10] In the second judgment delivered in Barshi Education Society's case, cited supra, it was held that under Section 7 of the M.E.P.S. Act, the resignation has to be a written resignation, duly signed and dated by the employee. The oral resignation was held to be impermissible. The requirement of forwarding of resignation by registered post though was not held to be mandatory, it was held that it is intended to ensure that the employee is not subjected to the action of coercion or duress, which may operate if an employee is called in person, required to sign a letter of resignation and hand it over to the Management in person. It was held that where an employee has submitted the resignation not by registered post but otherwise, a greater degree of circumspection is required on the part of the Tribunal. When it is alleged that the resignation was not voluntary, all the relevant circumstances must be taken into consideration, to find out whether the resignation was voluntary. It was held that the mode of service may in a conceivable case have a bearing on the question as to whether the resignation is truly voluntary. On facts, it was held that the tribunal had not decided on merits as to whether the first respondent therein has been able to establish his case that the resignation which he tendered from the post of headmaster was not voluntary. The matter was settled before the Court.

11] In the third judgment delivered by this Court in Sant Sawtamali Shikshan Prasarak Mandal's case (cited supra), it was held after quoting Section 7 of the said Act that the statute provides that the Management cannot take undue advantage by compelling a teacher to give resignation either by force or by giving any type of inducement. There is safeguard provided in the Act and with an object to see that in a given case, the Management may not pressurize the teacher to give resignation and as to whether in a given case, the so called resignation is misused by the Management. It was further held that in a given case, Court on considering the evidence on record may come to the conclusion that if the resignation is not sent by registered post, that itself may not be treated as a conclusive proof, for coming to the conclusion that such resignation is not valid. It was held in the light of the facts of that case and in the light of the evidence on record that the employee had never tendered resignation on his own volition and that it was not voluntary resignation at all.

12] In none of the aforesaid judgments, the question whether, the process of drawing up of resignation in duplicate, signing both the copies and putting of date therein, contemplated by Section 7 of the M.E.P.S. Act, should mandatorily be in the handwriting of an employee intending to resign from his post, has been considered. In order to consider this question Section 7 of the said Act will have to be seen and the same is, therefore, reproduced below.

7. Procedure for resignation by employees of private schools.

If any employee intends to resign his post in any private school, at any time after the appointed ate, he shall draw up a letter of resignation in duplicate and sign both the copies of that letter and put the date thereon. He may then forward one copy to the Management by registered post and keep the other copy with him.

In terms of Section 7 reproduced above, an intention to tender resignation has to be made clear by, (i) drawing up a letter of resignation in duplicate; (ii) signing both the copies of that letter; and (iii) putting the date thereon.

The further requirement is of forwarding one copy of it to the Management by registered post and keeping the other copy by an employee, intending to tender his resignation.

13] "To resign" means an act by which an employee voluntarily gives up his job. It is the voluntary cessation of relationship of employer and employee or master and servant, by an employee. Section 7, reproduced above, prescribes the process by which an employee should express his intention to resign from the post and therefore, the expression of such intention has to be in the manner prescribed. The first step in the process is, "to draw up a letter of resignation in duplicate". "To draw up" is a phrasal verb and it means "to prepare", "to compose", "to write out paper", as given in Oxford Thesaurus. The Advanced Law of Lexicon, by Shri Justice Y.V.Chandrachud, defines it as, "to write in due form". It defines "drawing up" means "drafting in due form", "writing out". The Oxford Dictionary defines, "drawing", as a "picture or diagram made with pencil or pen". Black's Law Dictionary defines the verb "draw" as "to create and sign" (a draft). Thus, the phrasal verb "draw up" used in Section 7 above, connotes the process of handwriting as against the process of typing or printing. The object of Section 7 is to express an intention to voluntarily resign from the post, and such an intention can be made clear by preparing, composing, creating or writing out such letter of resignation by an employee in his own handwriting. To hold that such a letter of resignation can be typed written or printed, would defeat or frustrate the very object of Section 7 of the said Act. The use of word "shall" preceding the phrasal verb "draw up" in Section 7, indicates the process of preparing a letter of resignation in his own handwriting, to be mandatory.

14] There is one more reason as to why the requirement to draw a letter of resignation should be construed to be in the handwriting of the employee concerned intending to resign from the post. A judicial notice can be taken of several cases coming before this Court, complaining that at the time of appointment itself, the Management got a blank paper signed by an employee, which is used to type out or print out a letter of resignation, which the employee never intended to give. Such a typed or printed letter of resignation is posted from the place of address of the employee concerned, by registered post or by ordinary post to the place of address of the Management and this is the circuitous way adopted to get rid of the services of employees, who have rendered service for several years. There is, normally, no reason for an employee who is confirmed in the service to tender any such resignation unless he has secured better employment elsewhere or has engaged himself in any other business or occupation or has become physically or mentally unfit to carry out such duties. There may be several such reasons. Be that as it may, such an eventuality can be avoided, if it is shown that the letter of resignation is handwritten, it bears the signature of an employee and the employee has consciously given it to the employer, knowing full well its consequences. Normally, it would not be believable that an employee preparing letter of resignation in his own handwriting, would tender it to any person of Management to dispatch it, either by ordinary post or by registered post. The possibility would be that the employee concern has himself posted it or has himself tendered it personally, to the Management. If the letter of resignation is in the handwriting of the concerned employee, then unless the employee pleads and proves that he has written and signed the letter of resignation under coercion, duress or pressure from any of the member of the Management, it will not be possible to believe that the resignation tendered was not voluntary.

15] The next requirement of Section 7 in the process of resignation, is to sign both the copies of letter of resignation. Obviously, the signature has to be of an employee intending to resign the post. Hence, the employee has to put signature on the letter of resignation in his own handwriting. Consequently, putting the date on the letter of resignation has also to be in the handwriting by an employee intending to resign the post. Both these requirements of signing the letter of resignation and putting the date thereon, are the part of one sentence and preceded by a phrase "draw up a letter of resignation in duplicate", which is held to be mandatory. Hence, the requirement of putting signature and the date on the letter of resignation by an employee in his own handwriting, has also to be held as mandatory. In the circumstances, no one would imagine that the date to be put on the resignation, which is in the handwriting of an employee, would be typed or printed.

16] Coming to the last requirement of forwarding one copy of letter of resignation to the Management by registered post and keeping the other copy with him by an employee, it has been held, as pointed out earlier, in Balaleshwar Shikshan Mandal's case, that merely because a copy of the letter of resignation has not been forwarded by registered post, cannot make the resignation void. It was in the background of the fact that the employee neither disputed the execution of the document nor the delivery thereof to the Management. It was held that the mode of dispatch would be relevant in cases where the employee disputes the execution of document. In another judgment delivered in Barshi Education Society's case, though it has been held that Section 7 uses the expression that the employee may forward one copy of the letter of resignation to the Management by registered post, it is held that the requirement is intended to ensure that the employee is not subjected to any kind of coercion or duress which may operate, if an employee is called in person, required to sign a letter of resignation and hand it over the Management in person. It has been held that when the question as to whether the resignation was or was not voluntary is raised, all relevant circumstances must be considered by giving due importance to the fact that sending of resignation by registered post shows that it is truly voluntary. In the third judgment in Sant Sawtamali Shikshan Prasarak Mandal's case, it has been held that requirement of sending resignation by registered post, is a safeguard provided to an employee, against the management taking undue advantage of compelling a teacher to give resignation either by force or by giving any type of inducement. In view of this, it has to be held that the requirements of Section 7 of the said Act will have to be seen in its totality, to find out whether resignation tendered is voluntary or not.

17] Keeping in view the aforesaid position of law, the facts of the present case will have to be looked into. It is not in dispute that the original notice of resignation was produced on record of the tribunal and the same is produced here also. It is typed written. It was a three months' notice of resignation. The date of 30.7.2002 put thereon, is also typed written. The Management claims that it bears the signature of the respondent no.1 employee, whereas the respondentemployee disputes it. Below the signature, the rubber stamp of the Headmistress of Kranti Jyoti Marathi Prathmik Shala, Akola, where the respondentemployee was working, is affixed. The letter is addressed to the President, Bahujan Vikas Mandal, Akola (Management) and it has to take effect from 30.10.2002. It states that because of some domestic problems, it is not possible for the respondent no.1 employee to work on the post of an Assistant Teacher and hence three months' notice of resignation was given. It is further stated in the letter of resignation that respondent no.1 employee should be discharged from the post. It further states that the resignation is not being given under pressure from any one, but it is on her free will and it should be accepted. The petitioners have produced on record the envelop which bears postal stamp dated 30.7.2002 and according to the Management, the resignation was received in this envelop by ordinary post on 1.8.2002. The respondent no.1 employee has, however, denied to have sent any such resignation either by ordinary post or by registered post.

18] It is thus clear from the aforesaid factual position that the letter of resignation dated 30.7.2002 is not in the handwriting of the respondent no.1 employee. The date put thereon is also not handwritten. The respondent no.1 employee has disputed the signature appearing thereon. Thus, execution of such letter is disputed. The letter of resignation has not been received by the registered post, but the Management claims to have received it by an ordinary post. The respondent no.1 employee has disputed to have forwarded such a letter of resignation to the Management. Thus, there is no assurance that the respondent No.1employee has drawn a letter of resignation and that the resignation produced was voluntary in the sense that the Management hs not used the blank paper signed by the employee, to type out a letter of resignation. There is no assurance that the employee was subjected to any kind of pressure or coercion or that the management has not taken undue advantage of compelling teacher to give resignation.

Thus, there is total non compliance of requirements of Section 7 of the said Act, which makes the resignation involuntary and voidabinition.

19] Subrule 3 of Rule 40 states that an employee entitled to vacation shall not give notice of resignation during the vacation or so as to cover any part of the vacation. It further states that the notice of resignation shall not be given within one month after the beginning of the first time of the order. The tribunal has recorded a finding that there was Diwali vacation in the school upto 18.11.2002 and the services of the respondent were brought to an end w.e.f. 30.10.2002 i.e. during the period of vacation. The respondent no.1 has lodged the police complaint on 18.11.2002 to the Police Station and on 25.11.2002 to the Education Officer and the Director and Deputy Director of Education. If the respondent no1. really intended to resign from the post, she would not have sent the resignation during the period of vacation, which is the prohibition contemplated by sub rule 3 of Rule 40. If the notice of resignation is given in breach of prohibition under subrule 3 of Rule 40, then that would make resignation as invalid.

20] The tribunal has, after taking into consideration several circumstances, as pointed out earlier, recorded a finding of fact that the resignation dated 30.7.2002 was not voluntary and its acceptance by resolution dated 29.10.2002 was invalid. In view of the facts that there is total noncompliance of Section 7 of the said Act coupled with the circumstances taken into consideration by the tribunal, it has to be held that the acceptance of resignation by the Management amounted to otherwise termination from services, the same has, therefore, been rightly quashed and set aside by the tribunal.

21] In view of above, there is no substance in this petition. The same is, therefore, dismissed with no orders as to costs.