SUMAN V. JAIN Vs. MARWADI SAMMELAN

JUDGEMENT

(1.) The instant appeal arises out of the judgment dtd. 4/7/2008, passed by the Division Bench of the 'High Court of Judicature at Bombay' in Appeal No. 63 of 2008, whereby the Division Bench dismissed the appeal preferred by the appellant and confirmed the order dtd. 8/8/2006 passed by learned Single Judge in Writ Petition No. 1611 of 2004. The said writ petition was filed by the appellant being aggrieved by an order dtd. 30/4/2004 passed by the 'Mumbai University and College Tribunal, Mumbai' (hereinafter referred to as "College Tribunal") in 'Civil Appeal No. 51 of 2003'. Before the College Tribunal, the appellant filed an appeal to quash the order dtd. 10/9/2003 passed by respondent No. 1 "Marwadi Sammelan Trust" (hereinafter referred to as "Trust") rejecting her request for withdrawal of resignation vide letter dtd. 9/9/2003. As such, this appeal is arising out of the orders passed by the three fora before whom the challenge was made by the appellant to the rejection of withdrawal of her prospective resignation, prior to the effective date, and the rejection of her prayer for rejoining the duties.

(2.) Assailing the rejection of request for withdrawal of the prospective resignation prior to the effective date, appellant preferred an Appeal No. 51 of 2003 before the College Tribunal. The College Tribunal vide judgment dtd. 30/4/2004 was of the opinion that since it was not an order of dismissal, removal or termination of service, therefore, the appeal was not maintainable under Sec. 59(1) of the Maharashtra Universities Act, 1994 (hereinafter referred to as "1994 Act") and on such, the question of limitation under Sec. 59(2) does not arise. The College Tribunal having found that the appeal is not maintainable, even delved into the question of withdrawal of the prospective resignation before the effective date on merits. After appreciating the facts, it was held in law that the prospective resignation can be withdrawn before the expiry of the intended date. However, on facts, it was held that there was an implied understanding between the parties' prohibiting withdrawal of resignation. Hence, according to the College Tribunal, the present case fell within the exception in the judgment of the House of Lords in the case of "The Rev. Oswald Joseph Reichel Vs. The Right Rev. John Fielder (1889), House of Lords, XIV, 249", and hence, the College Tribunal dismissed the appeal.

(3.) The said judgment was challenged by filing a Writ Petition No. 1611 of 2004 before the Bombay High Court. Learned Single Judge considered the question as to whether a right to withdraw the prospective resignation can be given up or abandoned While considering the same, learned Single Judge relied upon the judgment of Rev. Oswald (supra) and after quoting the same, observed that the right to withdraw the prospective resignation is capable of being given up or waived off by the person who holds that right. Later, the Court referred to the judgment on the principle of 'estoppel' and 'waiver' and in view of the letters dtd. 28/3/2003, 8/4/2003 and looking to the conduct of the appellant held that the findings recorded by the tribunal on merits did not warrant any interference. Learned Single Judge failed to appreciate the aspect about the Tribunal having once found the appeal as not maintainable, as to how far it was justified in confirming the findings and examining the issue on merits.