The Court quashed the acceptance of a teacher's resignation due to defective quorum and failure to follow statutory notice requirements, ordering reinstatement with 50% back-wages instead of the Tribunal's 25% award.
Reinstatement of the respondent with continuity of service and payment of 50% back-wages.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4459 OF 2017
Jaywant Pratishthan Through its Chairman and another… Vs.
Petitioners
… Respondents
Prof. Govind Maruti Ambi and others
WITH WRIT PETITION (ST.) NO.11009 OF 2017
Prof. Govind Maruti Ambi … Petitioner Vs. Chairman, Jaywant Pratishthan and others … Respondents
Mr. Narendra V. Bandiwadekar for Petitioners in W.P. No.4459 of 2017 and for Respondents No.1 and 2 in W.P.(St.) No.11009 of 2017. Mr. Ganesh C. Gavnekar for Respondent No.1 in W.P.No.4459 of 2017 and for Petitioner in W.P.(St.) No.11009 of 2017.
Ms K. R. Kulkarni, AGP for Respondent No.3 in W.P.No.4459 of 2017 and for Respondents No.4 and 5 in W.P.(St.) No.11009 of 2017.
CORAM : R. G. KETKAR, J. DATE : JULY 21, 2017
P.C. :
Heard Mr. Bandiwadekar, learned Counsel for petitioners in Writ Petition No.4459 of 2017 and for respondents No.1 and 2 in Writ Petition (St.) No.11009 of 2017, Mr. Gavnekar, learned Counsel for respondent No.1 in Writ Petition No.4459 of 2017 and for petitioner in Writ Petition (St.) No.11009 of 2017 and Ms Kulkarni, learned AGP for respondent No.3 in Writ Petition No.4459 of 2017 and for respondents No.4 and 5 in Writ Petition (St.) No.11009 of 2017 at length.
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the respondent No.1 in Writ Petition No.4459 of 2017 and petitioner in Writ Petition (St.) No.11009 of 2017, hereinafter referred to as 'respondent'. The Tribunal set side the order of termination of services of the respondent dated 24.01.2014 and directed the management to reinstate the respondent on his original post as Assistant Professor in Sociology with continuity of service with effect from 24.01.2014 within three months from the date of the order. On reinstatement, if workload is not available, the Management is at liberty to apply to the University and Government for declaring the respondent as surplus. The Tribunal held that the respondent is entitled to 25% back-wages for the period from 28.01.2014 till the date of reinstatement.
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22.01.2014 alleging therein that management had obtained his resignation forcibly and against his wishes, and therefore, his resignation, which was undated, may be treated as cancelled. He invited my attention to the said letter, which also made grievance that respondent's applications dated 22/23/24.01.2014 for signing on the muster and putting thumb impression (bio-metric attendance) were rejected. In other words, he submitted that though the letter of cancelling resignation is purportedly dated 22.01.2014, it is clearly a anti-dated letter as respondent could not have made grievance about rejecting his applications dated 23/24.01.2014. He submitted that once the resignation was accepted, respondent could not have withdrawn or requested the management to cancel the resignation.
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respondent on 17.11.2016 and in particular paragraph 6 thereof. In paragraph 6, respondent stated that as he was permanently employed with the management, he did not look for service elsewhere and he did not get service anywhere. He submitted that the affidavit however does not give details as to what attempts were made by the respondent for securing the employment. He also invited my attention to the reply dated 29.01.2017 filed on behalf of the management and in particular paragraph 2 thereof. In paragraph 2, it is stated that respondent did not produce any material to substantiate that he made attempts for securing employment elsewhere. Respondent's wife is working as Professor in Yashoda Technical Campus, Satara and therefore, sufficient income is available in the family of the respondent. Hence, he is not entitled to any back-wages.
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filling up the said post, the said resolution is not given effect to. He also relied upon the decision of the Apex Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya , (2013) 10 SCC 324 , and in particular paragraph 38.3 thereof. In paragraph 38, the Apex Court culled out the propositions from the discussions referred therein.
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notice, pay to the Governing Body an amount equal to three months pay. Clause (c) thereof provides that the Governing Body, at its discretion may waive the notice period or notice pay in part or in full. He submitted that in the first place, Statute 204 does not use the term “resignation”. Secondly, it can be said that giving of resignation is a unilateral act. In the present case, having regard to clause (c) of Statute 204 as the Governing Body has to exercise discretion in waiving the notice period or pay in part or in full in lieu of notice. Acceptance of resignation is required and therefore, it is a bilateral act. He submitted that basically the acceptance of resignation in the meeting of 23.01.2014 itself is defective as admittedly, out of 5 trustees, 2 trustees expired and therefore, remaining 3 trustees do not constitute a requisite coram for accepting the resignation. He further invited my attention to paragraph 10 of the impugned order. He submitted that the Tribunal, without giving any reasons, awarded 25% back-wages.
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trustees are less than 7, the remaining trustees can carry out the work of the management and therefore, though 3 trustees accepted the resignation, it amounts to validly accepting resignation tendered by the respondent.
“S. 204 : Seeking Release:
a) No teacher shall leave the service of the affiliated College / Recognised Institution without giving to the Governing Body three months' notice, if he is confirmed or one month's notice if he is temporary or on probation or in lieu of
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notice, pay the Governing Body an amount equal to three months' or one month's pay as the case may be.
b) No Principal appointed in a College affiliated to the University / Head of the Recognised Institution shall leave the service without giving one month's notice if on probation or three month's notice, if confirmed, or in lieu of notice, pay one month's pay, if on probation or three months' pay if confirmed.
c) The Governing Body, at its discretion may waive the above notice period or notice pay in part or in full.”
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becomes effective, and it becomes effective when it operates to terminate the employment or the office- tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or officetenure terminated, when it is accepted by the competent authority.”
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by the management and whether the teacher can withdraw his resignation before acceptance of it by the management. It is settled principle of law that withdrawal of resignation is always linked with acceptance. Where no acceptance is required and the resignation has been made in accordance with the prescribed procedure, the process gets exhausted and the resignation becomes fait accompli . Clause (a) of Statute 204 gives the teacher a unilateral right to cut short his tenure by following the procedure prescribed therein, of his own volition. Such a resignation to be effective may not require acceptance by the management. Clause (a) does not give right to withdraw the resignation once given in accordance with the manner prescribed therein. If acceptance is required then the teacher cannot withdraw the resignation after it is accepted. If acceptance of the management is not required, the resignation tendered must be in conformity with Clause (a) of Statute 204. In order to terminate his tenure, the confirmed teacher has to-
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permanent employee 'B' is concerned, he has not given three months notice required by clause (a) of Statute 204 but has given say two months notice as also not paid three months pay in lieu of notice but say has paid two months pay. In that case, the management will have to invoke clause (c) for considering whether to exercise discretion of waiving the notice period or notice pay in part or in full. In the case of permanent employee 'C', he does not give any notice and also does not pay any amount equal to three months' pay and pays lesser amount. Even in that case, the management will have to invoke clause (c) of Statute 204 for considering whether to exercise discretion of waiving notice pay in part or in full. In the case of permanent employee 'A', it will be an effective resignation which perhaps would not require management to invoke clause (c) of Statute 204. In that case, it will not be necessary for the management to accept the resignation. I am not expressing any final opinion on this point as the said issue is not involved in these Petitions. In so far as permanent employees 'B' and 'C' are concerned, surely, the management will have to invoke clause (c) of Statute 204. In that case, it cannot be said that employees 'B' or 'C' tendered effective resignation. The management will have to exercise discretion in terms of clause (c) of Statute 204, and waive either notice period or notice pay in part or in full. The resignation given by employee 'B' or 'C' is dependent, for its effectiveness, on the acceptance by the Governing Body, and therefore, employee 'B' or 'C' has an unqualified right to withdraw the resignation until the same is accepted by the authority. In other words, the position is that where the resignor has a right to resign but the resignation can be effective only after acceptance, it is a bilateral act. That is to say, resignation by one and acceptance of resignation by the other. Unless the two acts are completed, the transaction remains in an inchoate form. That is to say, a resignation sent by a servant is no resignation in the eye of law until
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accepted by the employer and so long as it is not an effective resignation, there can be no bar to withdrawing the same.
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service of the management, he did not look for job elsewhere, he also did not get job elsewhere. After the death of his father on 30.04.2013, the entire responsibility of his family is on his shoulder. As against this, management has filed reply dated 29.01.2017. In paragraph 2, it is asserted that respondent has not brought any material on record to substantiate that he has made attempt for securing employment elsewhere. Respondent's wife is working as a Professor in Yashoda Technical Campus, Satara, and therefore, respondent has sufficient income and he is not entitled to back-wages.
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highlighted that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realized that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at.
“38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully
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employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-àvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame.
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Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.”
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subject for the years 2014-15, 2015-16 and 2016-17 i.e. during the pendency of the appeal. Mr. Bandiwadekar submitted that on account of reduction of the workload, the post on which the respondent was working is abolished. There is no sanctioned post of Assistant Professor in Sociology. Though on 23.01.2014, resolution was passed for filling up the vacancy caused on account of resignation tendered by the respondent, the said resolution is not given effect to.
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resignation and the respondent is entitled to reinstatement, this order shall remain stayed for a period of 8 weeks from today subject to the management depositing 50% back-wages from 24.01.2014 till date, within a period of four weeks from today in this Court, under intimation in writing to Advocate for the respondent. It is made clear that if the amount is not deposited within four weeks from today, ad-interim order shall stand vacated without further reference to the Court. It is made clear that no application for further extension for ad-interim order shall be made and entertained by this Court. List the Petitions for reporting compliance after 6 weeks. Order accordingly.
(R. G. KETKAR, J.)
Minal Parab
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3 issues framed by the court
Whether the management validly accepted the resignation of a confirmed employee given defect in quorum for the meeting.
Whether the resignation tendered without proper notice or payment can be rendered effective by the Governing Body exercising discretion to waive notice.
Whether the Tribunal was correct in awarding 25% back-wages or if a different percentage is justified in the circumstances.
Colour shows how this judgement treated each authority
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Kendriya Vidyalaya Sanghatan Vs. S. C SharmaExplained¶29
Kendriya Vidyalaya Sanghatan Vs. S. C Sharma, (2005) 2 SCC 363 · Who else cites this
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak MahavidyalayaExplained¶33
Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 · Who else cites this
Union of India Vs. Gopal Chandra MisraExplained¶55
Union of India Vs. Gopal Chandra Misra, (1978) 2 SCC 301 · Who else cites this
Allahabad Jal Sansthan Vs. Daya Shankar RaiExplained¶83
Allahabad Jal Sansthan Vs. Daya Shankar Rai, (2005) 5 SCC 124 · Who else cites this
Hindustan Tin Works (P) Ltd. Vs. EmployeesExplained¶83
Hindustan Tin Works (P) Ltd. Vs. Employees, (1979) 2 SCC 80 · Who else cites this
Jaywant Pratishthan
Prof. Govind Maruti Ambi
R. G. Ketkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
