ORAL JUDGMENT :- The petitioner-Educational Institution running a school has preferred this writ petition being aggrieved by the order passed by the learned Presiding Officer, School Tribunal, Aurangabad in Appeal No. 167 of 1994-M decided on 14-2-1997, whereby the oral termination with effect from 318-1994 was quashed and set aside and order was passed to reinstate the (appellant)-respondent No. 1 in the post of Head Master along with full backwages and continuity of service within 40 days and to pay the arrears of backwages. 2. Present respondent No. 1 Uttam Shrikhande approached the School Tribunal with a case that he is M.A., BEd. He is also belonging to physicallyhandicapped category. He was appointed as Assistant Teacher in Dayanand Vidyalaya, Kaigaon, Taluka Sillod, District Aurangabad run by the petitioner-institution with effect from 1-7-1989. In the year 1992 he was appointed as Head Master of the school. Initially the school was run on non-grant basis, however, subsequently it was granted aid. The appellant was appointed as Head Master as he was possessing requisite qualification and teaching experience. He worked in that post till 31-8-1994. However, the Secretary of the petitioner-institution wanted respondent No.3 to be appointed in place of respondent No. 1 being relative of the President of the petitioner-institution. Respondent No.3 was also working as Assistant Teacher in the same school. Respondent No.1 requested the Secretary of petitioner-institution to give confirmation to him and release salary not paid to him from June, 1993. Being aggrieved thereby the services of respondent No.1 were terminated with effect from 31-8-1994 and, therefore, he approached the School Tribunal. 3. The petitioner-institution is the main contestant. It came with a case that respondent No. 1 was wrongly appointed as Head Master in the year 1992-93 and same mistake occurred in the year 1993-94. Respondent No. 1 was not holding necessary experience as required by Rule 3 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as, "the Rules of 1981 "). It is further stated that the President of the petitioner-institution directed respondent No. 1 to hand over charge of the post of Head Master to respondent No.3. Accordingly respondent No.1 handed over charge of the post of Head Master to respondent No. 3 with effect from 13-6-1994. It is case of the petitioner-institution that on 1-7-1994 respondent No. 1 submitted resignation. Accordingly respondent No.1 handed over charge of the post of Head Master to respondent No. 3 with effect from 13-6-1994. It is case of the petitioner-institution that on 1-7-1994 respondent No. 1 submitted resignation. This resignation was accepted by the petitioner-institution in the meeting of its Executive Committee on 13-7-1994 and accordingly respondent No.1 was intimated. 4. Thus it is case of the petitioner-institution that respondent No. 1 tendered voluntary resignation as he was asked to step down from the post of Head Master and to work as Assistant Teacher; whereas it is case of respondent No. 1 that it was case of oral termination. It is argued before the School Tribunal that the alleged letter of resignation was obtained under duress and it was not voluntary. The said plea was accepted by the School Tribunal. It came to the conclusion that it is case of oral termination and not of voluntary resignation. 5. It is argued before this Court by the learned advocate for the petitioner-institution that respondent No. 1 was not duly qualified. A reference was made to Rule 3 of the Rules of 1981 and it is pointed .out that for appointment as a Head Master full time experience of 5 years after graduation in a Secondary School was required. In this case respondent No. 1 was appointed as Assistant Teacher in the year 1989 and was appointed as Head Master in the year 1992-93 and same mistake occurred in the year 1993-94. 6. Learned advocate for respondent No. 1 argued that if the appointment of respondent No. 1 was not as per Rule 3 of the Rules of 1981, the petitioner-institution could have held necessary inquiry and could have passed necessary order of reduction in rank after following due procedure. But it is not case of the petitioner-institution that necessary procedure is followed. Merely asking respondent No. 1 to hand over charge is not enough. Learned Presiding Officer of the School Tribunal did not believe that respondent No. 1 has actually handed over charge of the post of Head Master to respondent No.3 and, therefore, it directed that respondent No.1 be reinstated as Head Master. 7. The main point to be decided in this petition is whether the petitioner-institution's case of voluntary resignation should be accepted in preference to case of oral termination made out by respondent No.1. 8. 7. The main point to be decided in this petition is whether the petitioner-institution's case of voluntary resignation should be accepted in preference to case of oral termination made out by respondent No.1. 8. So far as resignation is concerned, a procedure is laid down in section 7 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as, "the Act of 1977") and under Rule 40 of the Rules of 1981. Section 7 of the Act of 1977 is as follows: "If any employee intends to resign his post in any private school, at any time after the appointed date, 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." Rule 10 of the Rules of 1981 requires that a permanent employee may leave service after giving three calendar months notice and a non-permanent employee may leave service after giving one calendar month's notice. The management, however, may allow an employee to leave service earlier on payment of pay (excluding allowances) for thee months, or as the case may be, one month in lieu of notice by the employee. Sub-rule (2) of Rule 40 of the Rules of 1981 gives liberty to the management to allow an employee to leave service earlier either without due notice or without making payment of pay in lieu of notice. 9. The Rules are very clear that there cannot be oral termination. Termination has to be preceded with inquiry. Rules also make it clear that reduction in rank or tern1ination of service are major penalties within the meaning of Rule 31 of the Rules of 1981 and procedure is laid down for inflicting major penalties. It is not disputed that necessary procedure for oral termination is not carried out. 10. Two rulings are cited to support the case of the petitioner-institution. It is laid down in Barshi Education Society, Barshi vs. Ashok Ganesh Kulkarni and others, 2004(3) Mh.L.J. 587 that mere fact that resignation has not been sent by registered post by itself would not be sufficient to invalidate the same. 10. Two rulings are cited to support the case of the petitioner-institution. It is laid down in Barshi Education Society, Barshi vs. Ashok Ganesh Kulkarni and others, 2004(3) Mh.L.J. 587 that mere fact that resignation has not been sent by registered post by itself would not be sufficient to invalidate the same. The case of the employee seeking to dispute the voluntary nature of the resignation must be decided on the basis of all the facts and circumstances before the Tribunal. It is also held that in that case the requirement of giving notice in Rule 40 of the, Maharashtra Employees of Private School Rules, 1981 has been introduced to enable the management to make alternate arrangements. Another case cited is Neminath Jain Bhramhacharya Ashram (Jain Gurukul) and others vs. Rajendra Sitaram Nikam and others, 2004(2) Mh.L.J 909 . In that case it is laid down after referring to section 7 of the Act of 1977 that resignation not forwarded by registered post need not be treated as invalid in every case irrespective of surrounding circumstances. What must be emphasized is that where an employee seeks to contend that his resignation was not voluntary, the Tribunal must decide that question on the basis of the evidence before it. 11. When law lays down a peculiar mode for resignation, so also when it lays down that a notice or payment in lieu of notice should be given, these are precautions taken by the legislature to avoid possibility of obtaining resignation under duress or tendering resignation in haste or in the heat of moment. Rule 40 of the Rules of 1981 gives period of notice, mainly for reason that during the period of notice a person may reflect on his decision and may within period of notice withdraw such resignation if he relents. Similarly the procedure of sending resignation by registered post as laid down under section 7 is to ensure that the act is voluntary. So facts of this case will have to be considered keeping in mind omission to comply with section 7 of the Act of 1977 and Rule 40 of the Rules of 1981. 12. In this case the School Tribunal has given much thought to the case of voluntary resignation made out by the petitioner and had dealt with the said aspect at length. 12. In this case the School Tribunal has given much thought to the case of voluntary resignation made out by the petitioner and had dealt with the said aspect at length. It is not disputed that in 1989 respondent No. 1 was appointed and he continued to work till 31-8-1994. So under Rule 3 of the Rules of 1981 he was a deemed confirmed employee as he has worked for more than 2 years. Learned Presiding Officer, School Tribunal in para 17 has held that since appellant had worked in the post of Head Master for more than 2 years, he is deemed to have been confirmed and if he is to be demoted to post of Assistant Teacher for reason that he was not holding necessary qualification, the procedure laid down by the Rules ought to have been followed. 13. There is a copy of inspection report of the Education Officer dated 21-7 -1993 on record and it shows that the appellant possesses qualification M.A., B.Ed. and his date of appointment was 1-7-1989. It is case of the appellant in para 4 of the appeal memo filed before the School Tribunal that he had requested Secretary of the petitioner-institution to give him salary and to confirm with effect from June, 1993 and, therefore, the petitioner forced respondent No. 1 to give signatures on blank papers which may be used against him in future and the application to that effect was submitted by respondent No. 1 to the Education Officer, Zilla Parishad, Aurangabad. 14. It is pertinent to note that though it is case of the petitioner that the petitioner had submitted the resignation on 1-7-1994 and it was accepted on 137-1994 by resolution passed by petitioner-institution in its meeting of Executive Committee, still respondent No. 1 has undergone training classes conducted at Sillod between 1-8-1994 and 3-8-1994. This clearly indicates that there must not have been tender of resignation and its acceptance. Copy of application dated 318-1994 sent to the Education Officer was produced on record. It bore endorsement that the Education Officer received the same on that day itself. It is mentioned in the application that appellant had forcibly obtained signatures of the respondent No.1 on blank papers on 8-8-1994. So this is one of the major reason relied upon by the School Tribunal. It bore endorsement that the Education Officer received the same on that day itself. It is mentioned in the application that appellant had forcibly obtained signatures of the respondent No.1 on blank papers on 8-8-1994. So this is one of the major reason relied upon by the School Tribunal. It is also admitted position that respondent No.1 has signed on muster roll till 31-8-1994. There is no question of allowing respondent No. 1 to sign on muster roll even after acceptance of resignation. 15. The learned Presiding Officer of the School Tribunal has considered outward register and also resolution book and has come to a conclusion that those are not documents worthy to be relied upon and that is a record prepared subsequently. It is pointed out in para 24 of the judgment of the School Tribunal that the petitioner has produced a copy of letter dated 10-6-1994 issued to respondent No.1, by which he was asked to hand over charge to respondent No.3 with effect from 13-6-1994. It was also noted that the date of resignation was 1-7-1994. So question arose how respondent No.1 was asked to hand over charge of the post of Head Master on 13-6-1994 when appellant had not resigned from that post. It is also noted that there was no evidence to show that the letters dated 2-7-1994 and 30-7-1994 were duly served. In paras 26 and 27 of the judgment, the School Tribunal has shown how the outward register is not reliable. It is pointed out that letter dated 2-7-1994 does not bear outward number. The appellant has produced letters dated 4-7-1994 and 2-8-1994, but there was no reference to these letters in the outward register. The letter dated 106-1994 was produced, but no outward number was given to it. It is also observed that the register appears to have been prepared in one sitting. 16. Learned advocate argued that there was no reason for respondent No. 1 to resign. Nothing has happened to prompt respondent No.1 to resign from the post. The age of respondent No. 1 is stated to be 50 years at present. So in the year 1994 he would be about 36 years of age and unless there is some reason one would not resign at that stage. 17. So the theory of voluntary resignation made out by the petitioner cannot be said to be proved on preponderance of probabilities. So in the year 1994 he would be about 36 years of age and unless there is some reason one would not resign at that stage. 17. So the theory of voluntary resignation made out by the petitioner cannot be said to be proved on preponderance of probabilities. Considering the detailed reasons given by the School Tribunal, I do not find sufficient reason to interfere with the conclusions drawn by it. 18. In the result, the writ petition is dismissed. Rule discharged. The parties to bear their own costs. Petition dismissed.