http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  4343 of 2007

PETITIONER: Modern School

RESPONDENT: Shashi Pal Sharma & Ors

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & H.S. Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 4343 OF 2007 (Arising out of SLP (C) No.1721 of 2006)

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 complaint to the Principal of the school informing that the First  Respondent had made fake coupons meant to be used at the fate of the  school held on 15.12.1996.  Several other serious 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 of resignation 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. (B)     The privilege of students that my children  have enjoyed in Modern 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 of revision of salaries arriving  out of the pay commission or the school  management, the same may be granted to me in the  due course. (E)     Any fallout of my 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  teacher is governed by Section 114A of Act, 1973 which reads as under : "114A. Resignation:- The resignation submitted by  an employee of a recognized school shall be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

accepted within a period of thirty days from the  date of receipt of the resignation by the managing  committee with the approval of the Director : Provided that if no approval is received within 30  days, then such approval would be deemed to have  been received after the expiry of the said period."

4.      The resignation tendered by the first respondent was accepted by the  appellant and forwarded to the Director of Education in terms of its letter  dated 09.03.1997, stating : "Enclosed please find the copy of the letter of  resignation submitted by Mr. S.P. Sharma, a  teacher of our 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 of the 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 of approval was received by the appellant from the  Director of Education as was 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 of the said date,  acceptance of his resignation was  communicated to the First Respondent,  stating : "This is to inform 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 school office 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 of the Director of Education 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 of his  offer of resignation was illegal and invalid.  The Education Officer of the  Government of Delhi 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 of the Managing Committee in future in  accordance with the directions of the Department.  Purported refusal to  accord approval by the State was resented to by the appellant herein in terms  of letter dated 26.06.1997 addressed to the Education Officer, Directorate of  Education,  stating : "We are surprised that our letter seeking approval  of the resignation of Shri S.P. Sharma which was  dated 19.3.1997 has been acknowledged by you on  17.6.1997.  We are unable to appreciate the reason  for this delay.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

       We are surprised to note that you have  purported not to accord approval for the  acceptance of the resignation of Shri 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  Sharma on 18.3.1997 and since there was no  receipt of any letter of withdrawal of the  resignation, there was no necessity of bringing this  to the notice of the Managing Committee.  A  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, if at 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 of the 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 of  Delhi questioning acceptance of his purported resignation.  A learned Single  Judge of the said court by an order dated 01.04.2003 dismissed the same.   8.      We may notice that in the said writ proceedings, the First Respondent  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 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 of the High Court called for the original  records of the school, perused the same and opined that the purported receipt  of the 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 1715 of 18.3.1997.  I had called  for the original dispatch register from the school  authority in order to examine the veracity of the  said statement pursuant to which the same was  placed before me.  The said diary No.1715 of the  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 of one Shri C.S. Sharma  which is also dated 18.3.1997 and the petitioner is  seeking to take advantage of the said entry because  of similarity 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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 of Education not to accord approval to the  acceptance of the resignation which is established  from the letter of the 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 of the High Court, an intra-court appeal  was preferred by the First Respondent herein and by reason of the impugned  judgment dated 13.12.2005, a Division Bench of the 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 upon, 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 of fact in writ  jurisdiction. At any event, since we have not relied  on the alleged letter dated 18.3.1997, the same has  no relevance."           

11.     Mr. Anip Sachthey, learned counsel appearing on behalf of the  appellant, would submit that having regard to the finding of fact arrived at  by the learned Single Judge, the Division Bench of the High Court  committed a manifest error in passing the impugned judgment. 12.     Mr. K. Ramamoorthy,  learned Senior Counsel appearing on behalf of  the 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 of the 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 of this Court in  Srikantha S.M. v. M/s. Bharath Earth Movers Ltd. [(2005) 8 SCC 314] : [JT  2005 (12) SC 465].

13.     The terms and conditions of the service of the First Respondent are  governed by the provisions of the said Act and the rules framed thereunder.   We have noticed hereinbefore  that if resignation is submitted by an  employee of a recognised school, it is obligatory on the part of the Managing  Committee of the school to accept the same within a period of 30 days from  the receipt of the letter.   Such acceptance must be preceded by the approval  of the 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 of the said resignation was,  however, subject to the approval of the Director of Education.  It is not in  dispute that the Director of Education did not communicate his decision in  regard to approval or refusal thereof within a period of 30 days from the date  of receipt of the said letter and in that view of the matter, subject of course to  the withdrawal of the resignation by the concerned employee, the approval

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

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 of  resignation; and (ii) whether the First Respondent could withdraw his  resignation prior to 16.06.1997.

16.     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.  Within the said period itself, the Director of  Education should have accorded or refused to accord his approval.  We have  noticed hereinbefore, the findings of the learned Single Judge of the High  Court holding categorically that the purported letter dated 18.03.1997 was  never received by the authorities of the school.  The said finding of fact has  not been interfered with by the Division Bench of the High Court.

17.     Once the resignation of the 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 of the  First Respondent having been accepted, only he was to be relieved from  17.06.1997.   We have noticed hereinbefore the purport of Section 114A of  the Act, in terms whereof resignation was to be accepted within a period of  30 days.  In view of the aforementioned statutory provision, 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 : "DEPARTMENTOF 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 \026 S.P.  SHARMA."          18.     In terms of the said telegram the First Respondent did not withdraw  his resignation.  He merely purported  to have communicated that the same  stood withdrawn on the next day of his submission of resignation, 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 correct, as has been  held by the learned Single Judge of the High Court, in our opinion, receipt of  the said letter by itself would not amount to withdrawal of his resignation  before it is accepted.  There is no doubt whatsoever that the Director of  Education acted in terms of the representation made by the First Respondent  that he had withdrawn his resignation.  If the 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  of the letter of the First Respondent.   

19.     The decision of this Court in Srikantha S.M. (supra), in view of the  factual situation obtaining in the instant case, cannot be said to have any  application whatsoever.  In that case even after the purported acceptance of  the resignation of the appellant, he had been granted casual leave from  05.01.1993 to 13.01.1993 and was informed that he would be relieved after  office hours on 15.01.1993.  In the aforementioned fact situation obtaining  therein, this Court opined :         "26. On the basis of the above decisions, in  our opinion, the learned Counsel for the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

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  vinculum juris, therefore, in our considered  opinion, continued and the relationship of  employer and employee did not come to an end on  4.1..1993. The relieving order and payment of  salary 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 of the  appellant was accepted immediately and he was to  be relieved on 4.1.1993. It was because of the  request of the 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 of the  day. A cheque of Rs. 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 of this Court and  hence, the action of the 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 of the 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 of the  resignation of the 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 instruction  dated 17.10.1996 is not relevant.  The said departmental instruction reads  thus :         "As per provisions of Delhi School Act and  Rules, 1973, the Managing Committee of the  school is the appointing authority in respect of  aided and unaided recognized schools.  On various  occasions the Managing Committee has to  discharge the statutory obligation of obtaining  approval of the 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 of the resolution passed by the  Managing Committee.         In the past, it is observed that most of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

schools are not adhering to the approved Scheme  of Management.  DE nominees have been provided  to all the aided and unaided schools, who are not  invited by the Managing Committee of the 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 \026 1.      to call the meeting of the Managing  Committee in accordance with the approved  Scheme of Management. 2.      to invite the DE nominees/advisory board  nominees in the meeting and notice of the  meeting should be sent by special messenger  or by Regd. Post only. 3.      to incorporate in the body of resolution, the  names of members who have attended the  meeting of Managing Committee.  If the 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 of the Managing Committee  should  be called for is a matter governed by the internal rules of the school.  The  said departmental instructions does not state that any deviation therefrom  would result in the Resolution passed by the Managing Committee by  circulation, if  rendered nullity, the same must be held to be directory.   23.     The Division Bench of the High Court committed a serious error in  passing the impugned judgment, which cannot be sustained and is set aside  accordingly.  The appeal is allowed.  No costs.