Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 580 (GAU)

Munna Bhattacharjee v. State of Meghalaya

2005-08-09

B.K.SHARMA

body2005
B. K. SHARMA, J.— This writ petition has been filed challenging the legality and validity of the action of the respondents in accepting the purported resignation of the petitioner from service. The petitioner has challenged the Annexure-7 certificate dated 04.04.02 issued by the Joint Secretary of Laban Bengalee Girl's Higher Secondary School, Shillong certifying her service as Assistant Teacher from the school from 01.08.96 till she resigned from service w.e.f. 11.02.02, by filing the instant writ petition on 30.01.04. 2. The facts narrated in the writ petition are that the petitioner-was appointed as Assistant Teacher in the school by an order dated 09.08.96 and her service was confirmed by order dated 10.05.2000. According to her she had been discharging her duties most diligently to the satisfaction of all concerned and there was no blemish in her service career. She had to take maternity leave from 12.03.01 to 19.06.01, but had to extend her leave on medical advice. She resumed her duties on 10.12.01 by furnishing medical certificate and joining report and continued to attend her duties till 19.12.01 after which the school was closed on account of winter vacation. 3. On 19.12.01, the petitioner was served with a copy of the resolution dated 12.12.01 passed by the Managing Committee of the school wherein it was stated that her joining report would be accepted only after reopening of the school on 08.02.02. On reopening of the school on 08.02.02, the petitioner had gone to the school and made an enquiry about the acceptance of her joining report by the Managing Committee of the school, but she was not given any satisfactory reply. On 12.03.02 she was served with a show cause notice issued by the Secretary of the Managing Committee of the school to show cause as to why her service would not be terminated for her unauthorized absence from duty from 07.12.01 to 12.02.02. On receipt of the show cause notice, the petitioner submitted her reply dated 27.03.2002 (Annexure-5) stating the factum of her taking her maternity leave and the extension thereof. 4. In paragraph 13 of the writ petition, the petitioner has stated that she was surprised to receive the impugned certificate dated 04.04.02 Annexure-7 certifying her service in the school from 01.08.96 to 11.02.02 with effect from which date she had purportedly resigned from service. 4. In paragraph 13 of the writ petition, the petitioner has stated that she was surprised to receive the impugned certificate dated 04.04.02 Annexure-7 certifying her service in the school from 01.08.96 to 11.02.02 with effect from which date she had purportedly resigned from service. It is the case of the petitioner that at no point of time she had submitted resignation letter to the school authority nor expressed any intention to do so before the respondents No. 4 and 5. In this regard the statements made by her in paragraph 14 of the writ petition is quoted below: "14. That the petitioner states that at no point of time she has submitted any resignation letter to the school authorities nor expressed any intention to do the same and respondents No. 4 and 5 are put to the strictest proof thereof. The petitioner further submits that she being a teacher of the Higher Secondary section, the Joint Secretary of the High and Primary section of the School was not the competent authority to issue any such certificate in any case." 5. On 11.08.03, the petitioner submitted a representation to the respondent No. 5 to arrange release of her outstanding dues and thereafter on 21.08.03 she was paid a sum of Rs. 30,3297- as her outstanding dues. The letter by which the petitioner asked for her dues (Annexure-8) as quoted below: "From, Munna Bhattacharjee C/o. Shri M.N. Bhattacharjee Amzad Ali Road, Laban Shillong-793004 To, The Headmistress Laban Bengalee Girls' Higher Secondary School Madam, I request you to arrange payment of my dues along with a list of items comprising the total. Further, kindly fix a date on which I should come to receive the amount. Kindly acknowledge the receipt of the letter. Thanking you, Yours faithfully Munna Bhattacharjee Dated llth August, Shillong" 6. The petitioner made a representation before the respondent No. 3, i.e. the Inspector of Schools, East Khasi Hills District, Shillong mentioning the aforementioned facts and the respondent No. 3 by his letter dated 17.11.03 directed the respondent No. 5 to furnish comments. It appears that it was the Director of Higher and Technical Education (Respondent No. 2) who had asked the Principal of the School to furnish the comments and not the respondent No. 3, i.e. the Inspector of Schools as stated in the writ petition. 7. It appears that it was the Director of Higher and Technical Education (Respondent No. 2) who had asked the Principal of the School to furnish the comments and not the respondent No. 3, i.e. the Inspector of Schools as stated in the writ petition. 7. The writ petition has been filed with the aforementioned facts without stating anything as to whether the petitioner at any point of time had submitted any tetter of resignation and/or offered to resign from her service. She has also not stated about any insistence made by her to accept her resignation from service. Rather as quoted above, it is the definite case of the petitioner that she never submitted any resignation letter to the school authority nor expressed any intention to do so. 8. The petitioner has annexed Annexure-5, her purported reply to the show cause notice. In paragraph 3 of her reply dated 27.03.02, the following statements appear: "3. On 11th Feb., 20021 submitted my application to the headmistress with a letter requesting her to favour me with the following: a) A certificate of service rendered by me in the School since August'96. b) Salary Certificates for the financial year 1997-98,1998-99.2001-2002. And to clear all my dues. The allegation that I have been absenting from the institution without intimation since 02.12.01 is not true." (Emphasis added) 9. The respondents No. 4 and 5 have filed their counter affidavit and so also by the respondent No. 6 who has since been appointed against the vacancy caused by the purported resignation tendered by the petitioner. The respondents No. 4 and 5 have highlighted as to how the petitioner was irregular in service all throughout. In paragraph 12 of the affidavit, they have given the details of her period of absence on perusal of which it appears that the petitioner on many occasions took leave, which needless to say was detrimental to the interest of the students. However, this issue need not detain us. Suffice is to say that the respondents have highlighted this issue to counter the stand of the petitioner that her service career was unblemished and was to the satisfaction of all concerned. 10. In paragraph 15 of the counter affidavit, the said respondents have stated as to how the petitioner met the Principal and Secretary of the School Managing Committee on 11.08.02 with a hand written letter of resignation. 10. In paragraph 15 of the counter affidavit, the said respondents have stated as to how the petitioner met the Principal and Secretary of the School Managing Committee on 11.08.02 with a hand written letter of resignation. The letter was sent for typing and the moment the typed copies were brought, the petitioner left the school taking back the hand written letter of resignation. She also did not sign the typed copy of the letter of resignation before leaving the school. 11. The respondents have questioned the veracity of Annexure-5 reply dated 27.03.02 of the petitioner, paragraph-3 of which has been quoted above. The respondents in their counter affidavit have annexed the photocopy of the said letter dated 27.03.02. While the Annexure-5 letter annexed to the writ petition does not bear the signature of the petitioner, the one annexed to the counter affidavit bears her signature. Thus, there is no manner of doubt that the letter dated 27.03.02 annexed to the counter affidavit was the actual letter submitted by the petitioner. A very important but minor variation could be seen in paragraph-3 of the letter. Paragraph-3 of the letter annexed to the writ petition has been quoted above. However, in the actual letter annexed to the counter affidavit, the petitioner used the word "resignation" in place of "application" appearing in Annexure 5 letter annexed to the writ petition, while the other things/statements in both the letters are the same. 12. The respondents have also shown in their counter affidavit as to how the petitioner in her representation dated 07.11.03 made to the respondent No. 3 did not mention anything about the aforesaid facts of her tendering resignation and the replacement of the word "resignation" by "application". They have also raised the question of delay in filing the writ petition and creation of third party right in the process which has occasioned with the appointment of the respondent No. 6 in place of the petitioner which has also been confirmed by respondent No. 3. While approving the appointment of the respondent No. 6 the respondent No. 3 has also noticed about the resignation tendered by the petitioner. 13. The respondent No. 6 in her affidavit has stated as to how she has been appointed in the resultant vacancy caused by the resignation tendered by the petitioner. While approving the appointment of the respondent No. 6 the respondent No. 3 has also noticed about the resignation tendered by the petitioner. 13. The respondent No. 6 in her affidavit has stated as to how she has been appointed in the resultant vacancy caused by the resignation tendered by the petitioner. One interesting feature of the case is that the petitioner filed the rejoinder affidavit on 25.11.04 which is available on record. However, she filed another rejoinder affidavit on 30.11.04 in the pretext of non availability of rejoinder affidavit in the records. Even if such a contention of the petitioner was correct the appropriate course for her was to submit the same very rejoinder affidavit copy of which was available with her. Instead, she filed altogether a different rejoinder affidavit trying to strengthen her case. In paragraph 15 of the second rejoinder affidavit, the petitioner has blamed the respondents in respect of her aforementioned actual letter dated 27.03.02. According to her the word "resignation" appearing in the said letter with her signature was a manipulation on the part of the respondents. She has stated that she never used the expression "resignation", but she had used the expression "application". 14. The respondents No. 4 and 5 have filed a further affidavit in respect of the second rejoinder affidavit filed by the petitioner wherein they have questioned the very authenticity of Annexure-12 letter dated 11.02.02. They have also pointed out the aforesaid variance of the contents of the letter dated 11.02.02 with that of Annexure-5 letter dated 27.03.02 and the one annexed to the counter affidavit bearing the signature of the petitioner. In the letters, both dated 27.03.02, the petitioner prayed for salary certificate for the financial years of 1997-98, 1998-99,2001 -2002 and to clear her dues. However, in Annexure-12 letter dated 11.02.02, annexed to the second rejoinder affidavit purportedly addressed to the Headmistress of the school, she prayed for the same very certificate, but on a different ground of requirement of the same for income tax purpose. However, in Annexure-12 letter dated 11.02.02, annexed to the second rejoinder affidavit purportedly addressed to the Headmistress of the school, she prayed for the same very certificate, but on a different ground of requirement of the same for income tax purpose. This according to the respondents is by way of falsehood with a purpose to develop her case inasmuch as while in her earlier letters she simply wanted the salary certificate for the years in question which indicated her acceptance of resignation tendered by her, but in the purported letter dated 11.02.02 she has made a distortion of facts by stating that such certificates were required for income tax purpose. According to the respondents, no such letter was received by them. 15. Mr. V.K. Jindal, learned Sr. counsel assisted by Shir L. Lingdoh, learned Advocate appearing for the petitioner questioning the very foundation of the action on the part of the respondents in accepting the purported resignation tendered by th'e petitioner submitted that in absence of letter of resignation from the petitioner, there was no occasion for the respondents to accept the purported resignation. Placing reliance on the own stand of the respondents in their counter affidavit, he submitted that when there was no letter of resignation, there was also no question of acceptance of the same. He was requested to produce the original of the Annexure-5 letter dated 27.03.02 which is unsigned one and which according to the respondents is a manipulation of the original one, a photocopy of which bearing her clear signature has been annexed to the counter affidavit. Surprisingly, the purported original copy of the letter dated 27.03.02 produced by the learned counsel for the petitioner bears the signature of the petitioner. It is not understood as to how the photo copy of the same annexed to the writpetition does not bear her signature, while the original bears her signature. This contradiction stares on the face of it. 16. Mr. B.N. Dutta, learned Sr. counsel assisted by Mr. B. Dutta, learned Advocate countering the above argument of Mr. Jindal, learned Sr. counsel for the petitioner, submitted that the petitioner being guilty of suppression of material fact and she having invoked the writ jurisdiction with dirty hand is not entitled to any relief. 16. Mr. B.N. Dutta, learned Sr. counsel assisted by Mr. B. Dutta, learned Advocate countering the above argument of Mr. Jindal, learned Sr. counsel for the petitioner, submitted that the petitioner being guilty of suppression of material fact and she having invoked the writ jurisdiction with dirty hand is not entitled to any relief. He submitted that when the petitioner by her conduct made it known to the respondents that she did not want to continue in the school and in her letter dated 27.03.02 photocopy of which has been annexed to the counter affidavit made her intention clear once again reiterating about her resignation tendered on 11.02.02, and in view of the fact that she continued to remain absent from the school with effect from 11.02.02, there was no option left for the school authority than to accept her re signation with effect from 11.02.02. 17. Mr. B. Bhattacharjee, learned counsel appearing for the respondent No. 6 while adopting the argument advanced by Mr. Dutta, also submitted that there being no challenge to the appointment made in favour of the respondent No. 6, the petitioner is not entitled to any relief in so far as the appointment of the respondent No. 6 is concerned. Referring to the resolution adopted by school authority towards her appointment and acceptance of the same by the respondent No. 3, he submitted that by now the respondent No. 6 has rendered about three years of service and has already become a member of the Higher Secondary School, he submitted that her such position should not be allowed to disturb at the behest of the petitioner who apart from approaching the Court belatedly is also guilty of suppression of material fact. 18. Amidst the aforesaid submissions made by the learned counsel for the parties and the materials which have been made available by the parties, the moot questions which arise for consideration are: (a) As to whether the petitioner is guilty of suppression of material fact and/or manipulation of records disentitling her to equitable relief in writ jurisdiction, and (b) Whether the respondents were justified in accepting the purported resignation tendered by the petitioner with effect from 11.02.02. 19. If the first question is answered against the petitioner, the second question will be only academic. 19. If the first question is answered against the petitioner, the second question will be only academic. However, I have decided to answer both the issues on the basis of the arguments advanced by the learned counsel for the parties and the materials on record. 20. Dealing with the first question, it is noted that the petitioner has not even obliquely stated in her writ petition about the incident that took place in the office chamber of the Principal of the school on 11.02.02. On that day she met the Principal and Secretary of the school with a hand written letter of resignation making her intention clear that she wanted to resign from service. She does not deny that her hand written letter was sent for typing and was typed out. However, she left the school taking away the original hand written letter of resignation with her. She also did not sign the typed copy of the letter of resignation. On that day, she made her intention clear that she wanted to resign from service. Her conduct also leads to such conclusion. 21. In paragraph 8 of the writ petition, the petitioner has stated that she was prevented from attending the duties by the school authorities. However, in paragraph 7 of her representation dated 07.11.03 addressed to the respondent No. 2 (annexed to the counter affidavit), she stated that she stopped attending her duties from 11.02.02 in view of the revengeful attitude of the authority. Thus, there is apparent variation in the stand of the petitioner. This is also an indication about her intention not to attend the school after submitting the letter of resignation dated 11.02.02. The petitioner throughout the writ petition has not even obliquely stated about the incident of offering resignation on 11.02.02, rather has made the statement in paragraph 14 quoted above, which is contrary to the actual state of affairs. Thus, there is suppression of material fact. 22. The petitioner in her wisdom has annexed Annexure-5 representation dated 27.03.02 which is unsigned one, but has produced the purported original of the same which is a signed one. If the original copy was signed, the photo copy of the same could not have been without her signature. 23. Thus, there is suppression of material fact. 22. The petitioner in her wisdom has annexed Annexure-5 representation dated 27.03.02 which is unsigned one, but has produced the purported original of the same which is a signed one. If the original copy was signed, the photo copy of the same could not have been without her signature. 23. The aforesaid manipulations on the part of the petitioner has a bearing in the matter inasmuch as in her actual letter dated 27.03.02, a copy of which has been annexed to the counter affidavit, she categorically stated that on 11th Feb., 2002 she submitted her resignation to the Headmistress with a letter requesting her to favour with a certificate of the services rendered by her in the school since August, 1996. In her said letter she also prayed for salary certificate for the financial years of 1997-98, 1998-99 and 2001-02. She also prayed for clearing all her dues. On bare perusal of the contents of this letter will go to show that she made it known to the authorities about her intention not to continue in her service. Had there been any other intention, she would not have insisted that she had resigned from her service with effect from 11.02.02 and for furnishing the certificate certifying the service rendered by her in the school. She also would not have insisted to clear all her dues. Acting on that basis, if the respondents have released her from service with effect from 11.02.02,1 am of the considered opinion that no fault could be attributed to the respondents. 24. As regards the aforesaid stand of the petitioner in her original and actual letter dated 27.03.02, the petitioner in her writ petition has distorted the facts even by annexing the manipulated representation dated 27.03.02. In her over enthusiasm to make out a case, she made another copy of the representation substituting the word "resignation" with that of "application". Not only that, being confronted with the actual state of affairs pertaining to her actual letter dated 27.03.02, she in her second rejoinder affidavit attributed fault to the respondents. She has even gone to the extent of saying that it is the respondents who have manipulated the word "application" by substituting the same with "resignation". 25. Not only that, being confronted with the actual state of affairs pertaining to her actual letter dated 27.03.02, she in her second rejoinder affidavit attributed fault to the respondents. She has even gone to the extent of saying that it is the respondents who have manipulated the word "application" by substituting the same with "resignation". 25. For verification of Annexure-5 representation annexed to the writ petition, the learned counsel for the petitioner was requested to produce the original of the same. During the course of hearing he produced the same, but unlike the photocopy of the same annexed to the writ petition which is unsigned, the purported original of the same bears the signature of the petitioner. If this is not afterthought what else could be, more particularly when the respondents to whom she addressed her letter dated 27.02.03, has produced the same in which her signature appears and in paragraph 3 the word "resignation" appears which is not to be found in Annexure-5 annexed to the writ petition. Thus, the petitioner with the sole purpose of projecting her case of not having tendered her resignation at any point of time has even gone to the extent of manipulating the actual letter submitted by her on 27.03.02 by substituting the word "resignation" with that of "application". This speaks volumes of ill intention on the part of the petitioner. 26. The petitioner in her evil design to mislead the Court has even gone to the extent of filing a second rejoinder affidavit with the statement that her first rejoinder affidavit was not available in the case records. Contrary to her such stand, the first rejoinder affidavit is very much available on record. Even if the contention of the petitioner is to be accepted, the only course open for her was to file the same very rejoinder affidavit which was earlier filed, instead she filed another rejoinder affidavit elaborating her case. Like earlier occasions, this time also she distorted the facts by annexing the purported letter dated 11.02.02 about which she never made any mention in the writ petition and in her first rejoinder affidavit. Manipulation made by the petitioner by annexing purported letter dated 11.02.02 (Annexure-12) to the second rejoinder affidavit is writ large on the face of it. Like earlier occasions, this time also she distorted the facts by annexing the purported letter dated 11.02.02 about which she never made any mention in the writ petition and in her first rejoinder affidavit. Manipulation made by the petitioner by annexing purported letter dated 11.02.02 (Annexure-12) to the second rejoinder affidavit is writ large on the face of it. While in her earlier letters she simply asked for her salary certificate for the financial years 1997-98,1998-99 and 2001 -02 in her manipulated letter dated 11.02.02, she made an addition to the effect that she required the certificate for income tax purpose. This has been done deliberately to make out a new case. 27. Going by the sequence of events from the stage of what transpired on 11.02.02 on which date the petitioner submitted her resignation (although took back the hand written one, but kept the unsigned typed written one), her submission of letter dated 27.03.02 intimating about her resignation with effect from 11.03.02, her admisston in her representation dated 07.11.03 that she stopped attending duty from 11.02.02, her insistence for furnishing the certificates for service rendered by her in the school, her request for release of all the dues etc. leave no manner of doubt about her intention to leave the school. However, to cover up her such original intention and to project the case with new idea with the efflux of time, as reflected in the writ petition which has been filed after about two years of her abandoning the service, she has manipulated not only the original letter dated 27.03.02 substituting the word "resignation" with that of "application", but has also made further manipulation by way of filing the second rejoinder affidavit annexing therewith a manipulated letter dated 11.02.02. Apart from this, as noticed above, she has not even obliquely stated about the incident of offering resignation on 11.02.02 even in her representation made to the respondent No. 2, a copy of which has been annexed by the respondents in their counter affidavit. The petitioner in her said representation, did not state about the developments which have come to light in this proceeding and projected her case to be one of not allowing her to attend her duties by the school authority. Thus, all throughout, the petitioner made a foundation of her case on falsehood. 28. The petitioner in her said representation, did not state about the developments which have come to light in this proceeding and projected her case to be one of not allowing her to attend her duties by the school authority. Thus, all throughout, the petitioner made a foundation of her case on falsehood. 28. In view of the above conduct of the petitioner towards invoking the writ jurisdiction of this Court, I am of the considered opinion that the petitioner is not entitled to any relief from this Court. The writ Court being a Court of equity, the claim must also be based on equity. 29. In view of the above, the issue No. 1 is answered against the petitioner and on this score alone, the petitioner is not entitled to any relief. 30. As regards the issue No. 2, it is true that the hand written resignation letter tendered by the petitioner on 11.02.02 was subsequently taken away by her. However, the typed copy of the same although unsigned, remained with the respondents. That was followed by her letter dated 27.03.02 in which she made it clear that she had resigned from service on 11.02.02 and accordingly prayed for certificate of service rendered by her in the school since August, 1996. She also prayed for salary certificate and to clear all her dues. All these circumstances will go to show that her intention not to remain in service of the school was clear and she made that known to the authority. 31. There is no bar for the authorities to accept even an oral representation and such representation need not necessarily always be in writing. With the sequence of events about which mention have been made above, it cannot be said that the respondents committed a wrong in releasing the petitioner from service with effect from 11.02.02 for which she also insisted. However, with the efflux of time, during the gap of about two years, the petitioner motivated another idea and in the process manipulated the things in such a manner which disentitle her to any relief. 32. After the impugned action of the respondents, the petitioner remained silent and accepted the position even by receiving the final settlement dues and certificate of her service. Thereafter, within the gap of two years, she developed the idea of rejoining her service taking recourse to falsehood. 32. After the impugned action of the respondents, the petitioner remained silent and accepted the position even by receiving the final settlement dues and certificate of her service. Thereafter, within the gap of two years, she developed the idea of rejoining her service taking recourse to falsehood. The delay of about two years in approaching the Court is also fatal in the given circumstances. The petitioner is now estopped from raising the plea of the alleged infirmity in accepting her resignation, by her own conduct. 33. In the above context, I may gainfully refer to the decision of the Apex Court reported in (2004) 4 SCC 484 (Punjab and Sind Bank & Anr Vs. S. Ranveer Singh Bawa & Anr.), in which referring to its earlier decision, it has been held that estoppel is based upon acceptance and retention of benefits, by one having acknowledge or notice of benefits from a contract or transaction. In paragraph-5 of the judgment the following observation has been made : "5. In the case of Bank of India Vs. O.P. Swarnakar this Court observed that estoppel is based upon the acceptance and retention of benefits, by one having knowledge or notice of the benefits from a contract or a transaction. The doctrine of estoppel is a branch of the rule against assumption of inconsistent positions. One who knowingly accepts the benefits of a contract is estopped from denying the binding effect on him of such contract. This rule has to be applied to do equity. It was accordingly held that those optees who knowingly received the payments and utilized them were not entitled to withdraw from VRS. In the case of Punjab National Bank Vs. Virender Kumar Goel the applicant Bank submitted that some of the optees having accepted the benefits under VRS cannot be permitted to withdraw therefrom. In that matter, several review petitions were filed and in some of those review petitions, it was found that the optees were aware of the credits in their accounts and they had even withdrawn the amounts deposited and had utilized the same and consequently in such cases, this Court did not permit the optees to withdraw from VRS. To the same effect is the order passed by this Court in the case of Bank of India Vs. Pale Ram Dhania. To the same effect is the order passed by this Court in the case of Bank of India Vs. Pale Ram Dhania. In the light of the above judgments, we have to consider the facts of the present case. 34. Contrary to her stand that it was the impugned certificate which was furnished to her, the records have revealed that the resolution adopted by the Managing Committee of the school accepting her resignation was also furnished to her. However, she deliberately withheld this information from this Court and projected her case in the above manner and making a false statement that she did not receive the copy of the resolution adopted by the Managing Committee of the school. Both the resolution and the certificate were sent to the petitioner on the same date and the same were received by her family member. If the petitioner could acknowledge the receipt of the certificate through her family member, there is no earthly reason as to why she could not acknowledge the receipt of the resolution. Thus, she adopted the policy of falsehood with the sole purpose of strengthening her case unmindful of the fact that to seek equitable relief coming to the writ Court, one must come with clean hand. 35. There is another aspect of the matter. The petitioner has not challenged the order of appointment made in favour of the respondent No. 6 which has been approved by the competent authority. By now more than three years have passed and a right has accused to the respondent No. 6. In view of the circumstances noticed above, I am of the considered opinion that any relief to the petitioner which may tell upon the service career of the respondent No. 6 cannot be extended. The petitioner will have td thank none other than to herself for her conduct which has put her to the present situation for which she is not entitled to any relief from the Court of equity. Any amount of indulgence to her would mean the indulgence to manipulation and suppression based on which she has approached this Court. 36. In view of the above, the writ petition is liable to be dismissed, which I hereby do. 37. The writ petition is dismissed. No costs.