MODERN SCHOOL v. SHASHI PAL SHARMA AND ORS

Citation: [2007] 10 S.C.R. 76

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

MODERN SCHOOL v. SHASHI PAL SHARMA AND ORS.pdf

Judgment text

MODERN SCHOOL 1 v. SHASHI PAL SHARMA AND ORS. SEPTEMBER 18, 2007 [S. B. SINHA AND H. S. BEDI, JJ. ] Education/Educational institutions: Delhi School Education Act, 1973-s. l l 4A-Delhi School Education Rules, l 973-s. l l 4(a)-Teacher submitted resignation on 17-03-1997-Resignation accepted by school on l 9-03-l997~Teacher directed to be relieved ofhis duties w. e. f 17-06-1997-Writ petition by teacher pleading that acceptance ofresignation was illegal as he had withdrawn the resignation on 18-03-1997-Finding offact by Single Judge ofHigh Court that the purported letter ofwithdrawal dated 18-03-1997 was not received by school-Writpetition filed by ,.. ,. teacher accordingly dismissed-Division Bench ofHigh Court did not interfere with such finding offact, however held that as the teacher was to be relieved w.

ef 17-06-1997, he could have withdrawn his resignation on any day prior thereto and as he had withdrawn his resignation prior to 17-06-1997, the question ofacceptance ofhis resignation by school did not arise-Propriety of-Held, notproper- Acceptance ofthe resignation was not made effective from anyfuture date-Resignation having been accepted, only because the teacher was to be relieved w. ef17-06-1997 that did not mean that even thereafter it was open to him to withdraw his resignation-In fact, ifthe letter dated 18-03-1997 is excluded. from consideration, the teacher hadnot withdrawn his resignation at all-Service Law-Resignation- Withdrawal of First Respondent, teacher, submitted his resignation to Appellant school on 17-03-1997. The resignation was accepted by the Managing Committee of Appellant school on 19-03-1997 vide a resolution passed through circulation. By a subsequent letter, Appellant informed First Respondent about the acceptance ofhis _J MODERN SCHOOL v.

SHASHI PAL SHARMA 77 resignation. In terms of the said letter, First Respondent was to be > relieved w. e. f. 17-06-1997. On receipt of the said letter, First Respondent sent letter dated 15-05-1997 alongwith a letter dated 18-03-1997, indicating withdrawal ofresignation, as also a telegram dated 14-05-1997, and on that ground contending that the acceptance ofhis resignation was illegal and invalid. Subsequently, First Respondent filed a writ petition. A Single Judge of the High Court on perusal of the original _J records ofAppellant school arrived at the finding that the purported letter dated 18-03-1997 was never received by Appellant-school and accordingly dismissed the writ petition.

Division Bench ofthe High Court did not interfere with the finding offact arrived at by the Single Judge regarding the purported letter dated 18-03-1997, however, set aside the order of the Single Judge holding that as the First Respondent was to be relieved with effect from 17-06-1997, he could I have withdrawn his resignation on any day prior thereto and as he had withdrawn his resignation prior to 17-06-1997, the question of acceptance ofhis resignation by the Appellant did not arise. Hence the present appeal. Allowing the appeal, the Court HELD:l. 1. The terms and conditions ofthe service ofthe First Respondent are governed by the provisions of the Delhi School Education Act, 1973 and the rules framed thereunder. Ifresignation is submitted by an employee ofa recognised school, it is obligatory on the part ofthe Managing Committee ofthe school to accept the same within a period of30 days from the receipt ofthe letter. (Para 13] (84-E-F) 1. 2.

The Managing Committee ofthe appellant-School accepted the resignation submitted by the First Respondent on 19-03-1997. Acceptance of the said resignation was, however, subject to the approval of the Director ofEducation. The Director ofEducation did not communicate his decision in regard to approval or refusal thereofwithin a period of30 days from the date ofreceipt ofthe said letter and in that view of the matter, subject of course to the withdrawal of the resignation by the concerned employee, the approval would be deemed to have been accorded. [Para 14] [84-G, H; 85-A] 1. 3. Resignation submitted by the First Respondent could be withdrawn by him before its acceptance. Such acceptance of resignation was to be made within a period of one month. As acceptance of the resignation of the First Respondent was communicated to him within a period of30 days, the same would take its effect in terms thereof. [Paras 16 and 20] (85-C; 87-F-G] 1. 4.

It is not a case where acceptance of the resignation was made effective from a future date. Resignation of the First Respondent having been accepted, only he was to be relieved from 17. 06. 1997. The purport ofSection 114A ofthe Act is that in terms thereof, resignation was to be accepted within a period of30 days. In view ofthe aforementioned statutory provision, only because the First Respondent was to be relieved with effect from 17. 06. 1997 the same would not mean that even thereafter it was open to the First Respondent to withdraw his resignation. In fact, if the aforementioned letter dated 18. 03. 1997 is excluded from consideration, he had not withdrawn his resignation at all. [Para 17] [85-E,. G] 1. 5. In terms of the telegram dated 14. 05. 1997, the First Respondentdid not withdraw his resignation. He merely purported to have communicated that the same stood withdrawn on the next day of his submission of resignatio~, namely, 18. 03. 1997. If the .

contention of the First Respondent that he had withdrawn his resignation on 18. 03. 1997 is found to be incorrect, as has been held by the Single Judge of the High Court, receipt ofthe said letter by itselfwould not amount to withdrawal of his resignation before it is accepted. [Para 18] (86-C, D] Srikantha SM v. Mis. Bharath Earth Movers Ltd. , [2005] 8 SCC 314, held inapplicable. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4343 of 2007. -~ From the Judgment and Order dated 13. 12. 2005 ofthe High Court 'A of Delhi at New Delhi in LP. A. No. 354 of2003. Anip Sachthey, Mohit Paul, Arijit Prasad and Kamal Mehta for the Appellant. K. Ramamoorthy, Hari Shankar, K. Vikas Singh Jamgra, Varona Bhandari Gugnani, D. S. Mehra and Anil Katiyar for the Respondents. The Judgment ofthe Court was delivered by _J S. B. SINHA, J. 1. Leave granted. 2.

Appellant herein is a school recognized and governed under the Delhi School Education Act, 1973 (for short,_'the Act') and the rules framed thereunder. First Respondent herein had, at all material times, been working as a Sanskrit teacher, in the appellant school. On or about 14. 03. 1997, his wife made a c¢mplaint to the Principal of the school informing that the First Respondent had made fake coupons meant to be used at the fate ofthe school held on 15. 12. 1996. Several other serious -"411 allegations were made by the first respondent's wife against him. He tendered his resignation purported to be on the ground of having some domestic problems. The said letter ofresignation reads thus : "Because of some urgent and serious domestic problems it is difficult for me to continue serving the school. I request you to kindly accept this my letter of resignation.

Since my circumstances require me to take such a major step, I ' request your indulgence in making my situation somewhat easier by acceding to my following requests:- (A) My gratuity and other dues including earned leave may be encashed and disbursed quickly. (1J (B) The privilege of students that my children have enjoyed in Modem School at no cost to me may be continued. (C) My association with the school particularly through my books being used by the middle school for Sanskrit may be continued. (D) In case my benefit accrues to me for the past period on account ofrevision ofsalaries lμTiving out ofthe pay commission or the school management, the same may be granted to me in the due course. (E) Any fallout ofmy domestic problems and any attempts to malign me may please be ignored and not be allowed to effect upon my children" 3. Indisputably, acceptance of resignation by the appellant from a --L teacher is governed by Section 114A ofAct, 1973 which reads as under: "1l4A.

Resignation:- The resignation submitted by an employee ofa recognized school shall be accepted within a period ofthirty days from the date ofreceipt ofthe resignation by the managing committee with the approval ofthe Director : Provided that ifno approval is received within 30 days, then such approval would be deemed to have been received after the expiry ofthe said period. " ;. - 4. The resignation tendered by the first respondent was accepted by the appellant and forwarded to the Director ofEducation in terms of its letter dated 09. 03. 1997, stating: "Enclosed please find the copy ofthe letter ofresignation submitted by Mr. S. P. Sharma, a teacher ofour school. ~ Since we need to advertise and get a substitute teacher needs to be recruited immediately. We have accepted his resignation subject to your approval. Since he is teaching class X Board classes, we need to find a replacement at the very earliest in the interest of students right from the start ofthe new session.

A replacement cannot be legal unless the post falls vacant. Hence, we request your indulgence and co-operation for an immediate approval. " ~ 5. As no order ofapproval was received by the appellant from the Director ofEducation as w~ required under Section 114A, it, by its letter dated 13. 05. 1997, informed the said authority that they were accepting the resignation and going ahead with fresh recruitment as per the Act and -~ '>- the Rules. By a letter ofthe said date, acceptance ofhis resignation was communicated to the First Respondent, stating : "This is to infonn you that we accept with regret your resignation letter dated 17th March, 1997. You have our sympathies for the domestic problems you face. We shall do whatever we can do help your children with their education. You shall be relieved w. e. f. June 17, 1997 after the three months notice period which expires on June 16, 1997.

You are requested to contact the schooloffice after June 16, 1997 on any working day during working hours to settle all full and final dues. " 6. On receipt of the said letter, the First Respondent by his letter dated 15. 05. 1997 and annexing therewith a purported letter withdrawing his resignation dated 18. 03. 1997, a letter ofthe Director ofEducation regarding procedure for compliance of Rule 114(a) of Delhi School --· Education Rules 1973 as also a telegram dated 14. 5. 1997 contended that acceptance ofhis offer ofresignation was illegal and invalid. The Education Officer ofthe Government ofDelhi also contended that the fact that the First Respondent had withdrawn his resignation on 18. 3. 1997 was not brought to the notice of the Managing Committee and the purported resolution adopted by it through circulation was not in accordance with law.

Appellant was, therefore, advised to hold the meeting ofthe Managing Committee in future in accordance with the directions ofthe Department. Purported refusal to accord approval by the State was resented to by If the appellant herein in tenns ofletter dated 26. 06. 1997 addressed to the Education Officer, Directorate ofEducation, stating : "We are surprised that our letter seeking approval ofthe resignation of Shri S. P. Sharma which was dated 19. 3. 1997 has been 1 acknowledged by you on 17. 6. 1997. We are unable to appreciate the reason for this delay. We are surprised to note that you have purported not to accord approval for the acceptance ofthe resignation ofShri Sharma due to the reasons enumerated in your communication. As regard, the first reason, the school did not receive any withdrawal of the resignation of Shri Shanna on 18. 3.

1997 and since there was no receipt ofany letter ofwithdrawal ofthe resignation, there was no necessity ofbringing this to the notice ofthe Managing Committee. subsequent communication enclosing a so-called withdrawal of resignation letter was sent to the school but by that time the Managing Committee of the school had already accepted the resignation and the said letter, ifat all, is an after-thought. As regards the second reason, we are surprised to note that the resolution of the managing Committee passed through circulation is not valid. Time and again resolutions have been passed through circulation by our Managing Committee and you have accorded approval, but it appears that now your stand is changing. In the light ofthe aforesaid, we would request you to withdraw your communication dated 17. 6. 1997. " 7. First Respondent thereafter filed a writ petition in the High Court ~ ofDelhi questioning acceptance ofhis purported resignation.

A learned Single Judge ofthe said court by an order dated 01. 04. 2003 dismissed the same. 8. We may notice that in the said Writ proceedings, the Appellant herein raised a contention that it had never received the purported letter dated 18. 03. 1997 from the First Respondent withdrawing his resignation. It was furthermore contended that the telegram which was sent by the r First Respondent to the appellant cannot be construed to be one whereby the resignation submitted by him can be said to have been withdrawn. 9. The learned Single Judge ofthe High Court called for the original records ofthe school, perused the same and opined that the purported receipt ofthe letter by the office of the appellant is not correct, stating : "The specific stand of the teacher is that he submitted his letter withdrawing the resignation letter on 18. 3. 1997 in the school which was received by the school authority by giving a diary number which is 1715of18. 3. 1997.

I had called for the original dispatch register from the school authority in order to examine the veracity tit/(_ MODERN SCHOOL v. SHASHI PAL SHARMA [SINHA, J. ] 83 ofthe said statement pursuant to which the same was placed before me. The said diary No. 1715 ofthe dispatch register relates to some other correspondence and not that of the particular letter stated to have been submitted by the Respondent No. 4 under the said number. It is interesting to note that the said entry is ofone Shri C. S. Sharma which is also dated 18. 3. 1997 and the petitioner is seeking to take advantage ofthe said entry because ofsimilarity in the surname.

Besides, the previous day the teacher submitted his resignation giving urgent and serious domestic problems as the reason for submitting the resignation and on the very next day he allegedly submitted another application withdrawing the letter of resignation stating that his domestic problems which forced him to take a drastic step like submitting a resignation had been solved overnight. It appears that the said letter is made out by the Respondent No. 4 in order to show that he had withdrawn the resignation letter even before it was accepted by the Principal. By that he also could persuade the Director ofEducation not to accord approval to the acceptance ofthe resignation which is established from the letter ofthe Director of Education dated 17. 6. 1997. " 10. Aggrieved by and dissatisfied with the said order dated 01. 04.

2003 passed by the learned Single Judge ofthe High Court, an intra-court appeal was preferred by the First Respondent herein and by reason ofthe impugned judgment dated 13. 12. 2005, a Division Bench ofthe High Court allowed the same holding that as the First Respondent was to be relieved with effect from 17. 06. 1997, he could have withdrawn his resignation on any day prior thereto and as he had withdrawn his resignation prior to 17. 06. 1997, the question of acceptance of his resignation by the appellant did not arise. In regard to the contention of the appellant that the letter dated 18. 03. 1997 whereupon the First Respondent relied u1xm, was a forged document, the Division Bench held: "Learned counsel for the respondent submitted that the appellant had fabricated the letter dated 18. 03. 1997. In our opinion, this fact is disputed by the appellant and it is not for this court to go into this disputed question offact in writ jurisdiction.

At any event, since we have not relied on the alleged letter dated H' 18. 3. 1997, the same has no relevance. " 11. Mr. Anip Sachthey, learned COWlsel appearing on behalfofthe appellant, would submit that having regard to the finding offact arrived at by the learned Single Judge, the Division Bench ofthe High Court committed a manifest error in passing the impu. gned judgment. 12. Mr. K. Ramamoorthy, learned Senior Counsel appearing on behalfofthe respondents, on the other hand, submitted : (i) Having regard to the circular letter issued by the Education Department of the Government of Delhi, purported acceptance of resignation by the members ofthe Managing Committee was wholly illegal; (ii) The State Government having not granted its approval, the impugned judgment should not be interfered with. (iii) As the letter of resignation had been withdrawn by the First Respondent, the High Court rightly relied upon a decision ofthis Court in Srikantha S. M v. Mis.

Bharath Earth A/overs Ltd, [2005] 8 SCC 'r 314 ; JT (2005) 12) SC 465. 13. The terms and conditions ofthe service ofthe First Respondent are governed by the provisions of the said Act and the rules framed thereWlder. We have noticed hereinbefore that ifresignationis submitted ! Jy an employee ofa recognised school, it is obligatory on the part ofthe Managing Committee ofthe school to accept the same within a period of 30 days from the receipt ofthe letter. Such acceptance must be preceded by the approval ofthe Director in this behalf Proviso appended to Section 114A of the Act, however, raises a legal fiction that in the event no approval is received within the period of 30 days, the same would be deemed to have been received. 14. It is neither in doubt nor in dispute that legalities apart, the Managing Committee of the appellant-School accepted the resignation submitted by the First Respondent on 19. 03. 1997.

Acceptance ofthe said resignation was, however, subject to the approval ofthe Director of Education. It is not in dispute that the Director of Education did not communicate his decision in regard to approval or refusal thereofwithin MODERN SCHOOL v. SHASHI PAL SHARMA [SINHA, J. ] 85 a period of30 days from the date ofreceipt ofthe said letter and in that view ofthe matter, subject ofcourse to the withdrawal ofthe resignation by the concerned employee, the approval would be deemed to have been accorded. 15. Two principal questions, therefore, arise for our consideration herein namely, (i) whether the First Respondent has legally withdrawn his . letter ofresignation; and (ii) whether the First Respondent could withdraw his resignation prior to 16. 06. 1997. -l 16. Resignation submitted by the First Respondent could be withdrawn by him before its acceptance. Such acceptance ofresignation was to be made within a period of one month.

Within the said period itself, the Director ofEducation should have accorded or refused to accord his approval. We have noticed hereinbefore, the findings ofthe learned Single Judge ofthe High Court holding categorically that the purported letter dated 18. 03. 1997 was never received by the authorities of the school. The said finding offact has not been interfered with by the Division Bench ofthe High Court. 17. Once the resignation ofthe First Respondent had validly been accepted, the question which would arise for consideration is as to whether the same could be done before 17. 06. 1997. It is not a case where acceptance of the resignation was made effective from a future date. Resignation ofthe First Respondent having been accepted, only he was to be relieved from 17. 06. 1997. We have noticed hereinbefore the purport ofSection 114A ofthe Act, in terms whereofresignation was to be accepted within a period of 30 days.

In view ofthe aforementioned statutory proyision, in our opinion, only because the First Respondent was to be relieved with effect from 17. 06. 1997 the same would not mean that even thereafter it was open to the First Respondent to withdraw his resignation. In fact, if the aforementioned letter dated 18. 03. 1997 is excluded from consideration, he had not withdrawn his resignation at all. ~ We may at this juncture notice the telegram sent by the First Respondent, which is as under : "DEPARTMENT OF TELECOMMUNICATIONS INDIA TELEGRAM ~ X 1850 N-120 NEW DELHI RAJOURI GARDEN 14/5 30/36 PRINCIPAL MODERN SCHOOL VASANT VIHAR NEW DELHI MY RESIGNATION OF SEVENTEENTH MARCH 1997 WAS DULY WITHDRAWN THE NEXT DAY YOUR ACCEPTANCE IS NOT ACCEPTED BECAUSE IT IS INFRUCTUOUS-S. P. SHAR. l\1A. " 18. In terms of the said telegram the First Respondent did not wifodraw his resignation.

He merely purported to have communicated that the same stood withdrawn on the next day ofhis submission ofresignation, namely, 18. 03. 1997. Ifthe contention ofthe First Respondent that he had withdrawn hi. s resignation on 18. 03. 1997 is found to be incorrect, as has been held by the learned Single Judge ofthe High Court, in our opinion, receipt ofthe said letter by itselfwould not amount to withdrawal of his resignation before it is accepted. There is no doubt whatsoever that the Director of Education acted in terms ofthe representation made by the First Respondent that he had withdrawn his resignation. Ifthe same was factually incorrect, the said authority was obligated in law to communicate his decision to the school authority within a period of 30 days from the ~ date of communication ofthe letter ofthe First Respondent. 19. The decision of this Court in Srikantha S. M.

(supra), in view ofthe factual situation obtaining in the instant case, cannot be said to have any application whatsoever. In that case even after the purported acceptance ofthe resignation ofthe appellant, he had been granted casual leave from 05. 01. 1993 to 13. 01. 1993 and was informed that he would rbe relieved after office hours on 15. 01. 1993. In the aforementioned fact situation obtaining therein, this Court opined : "26. On the basis ofthe above decisions, in our opinion, the learned Counsel for the appellant is right in contending that though the respondent-Company had accepted the resignation of the appellant on 4. 1. 1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5. 1. 1993 . ~ to 13. 1. 1993. Moreover, he was informed that he would be relieved after office hours on 15. 1. 1993. The vinculumjuris, therefore, in our considered opinion, continued and the relationship MODERN SCHOOL v. SHASHI PAL SHARMA [SINHA, J.

] ofemployer and employee did not come to an end on 4. 1 .. 1993. ) The relieving order and payment ofsalary also make it abundantly clear that he was continued in service of the Company upto 15. 1. 1993. 27. In affidavit in reply filed by the Company, it was stated that resignation ofthe appellant was accepted immediately and he was to be relieved on 4. 1. 1993. It was because of the request ofthe appellant that he was continued upto 15. 1. 1993. In the affidavit in rejoinder, the appellant had stated that he reported for duty on 15. 1. 1993 and also worked on that day. At about 12. 00 noon, a letter was issued to him stating therein that he would be relieved at the close ofthe day. A cheque ofRs. 13,511/- was paid to him at 17. 30 hrs. The appellant had asserted that he had not received terminal benefits such as gratuity, provident fund, etc. It is thus proved that upto 15. 1. 1993, the appellant remained in service.

If it is so, in our opinion, as per settled law, the appellant could have withdrawn his resignation before that date. It is an admitted fact ~ that a letter of withdrawal of resignation was submitted by the appellant on 8. 1. 1993. It was, therefore, on the Company to give effect to the said letter. By not doing so, the Company has acted contrary to the law and against the decisions ofthis Court and hence, the action ofthe Company deserves to be quashed and set aside. The High Court in our opinion, was in error in not granting relief to the appellant. Accordingly, the action ofthe Company as upheld by the High Court is hereby set aside~'' 20. As we have noticed hereinbefore, the terms and conditions of service are governed by the statute and the statutory rules. As acceptance ofthe resignation ofthe First Respondent was communicated to him within a period of 30 days, the same would take its effect in terms thereof. 21. Reliance placed by Mr.

Ramamurthy on the departmental r-· instruction dated 17. l0. 1996 is not relevant. The said departmental instruction reads thus: "As per provisions ofDelhi School Act and Rules, 1973, the Managing Committee ofthe school is the appointing autl1ority in ,.. _ - \ respect of aided and unaided recognized schools. On various { occasions the Managing Committee has to discharge the statutory obligation of obtaining approval ofthe Director of Education to various proposals by passing a resolution. Before any proposal is put up before the D. E. , for obtaining his approval, the individual proposal is to be examined on merits, which includes scrutiny ofthe resolution passed by the Managing Committee. +- In the past, it is observed that most of the schools are not adhering to the approved Scheme ofManagement. DE nominees have been provided to all the aided and unaided schools, who are not invited by the Managing Committee ofthe schools.

In some cases, 'special invitees' are invited to attend the meeting of the Managing Committee in contravention to the approved Scheme of Management. All the Managers of aided/unaided schools are therefore, ,•directed- 1. to call the meeting ofthe Managing Committee in accordance with the approved Scheme ofManagement. 2. to invite the DE nominees/advisory board nominees in the meeting and notice ofthe meeting should be sent by special messenger or by Regd. Post only. 3. to incorporate in the body ofresolution, the names ofmembers who have attended the meeting ofManaging Committee. Ifthe DE nominee has not attended the meeting, a certificate should be recorded therein that notice of meeting of Managing Committee was sent on (Date) by Regd. Post or by special messenger. 4. Resolution should not be passed by circulation among the ·'-' members. " 22. The manner in which the meeting ofthe Managing Committee should be called for is a matter governed by the internal rules ofthe school.

The said departmental instructions does not state that any deviation A therefrom would result in the Resolution passed by the Managing Committee by circulation, ifrendered nullity, the same must be held to be directory. 23. The Division Bench ofthe High Court committed a serious error B in passing the impugned judgment, which cannot be sustained and is set aside accordingly. The appeal is allowed. No costs. B. B. B. Appeal allowed.