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Bombay High Court · body

2009 DIGILAW 195 (BOM)

Bhimsmruti Shikshan Sanstha v. Chandan

2009-02-10

J.H.BHATIA

body2009
Judgment : 1. Both these petitions may be disposed of by common judgment as the facts and the questions of law involved in both the matters are identical. 2. Certain facts which are not in dispute are as follows: The petitioner No. 1 is education society running Virendra High School which is getting grant in aid from the Government. In writ petition No. 1120 of 2001, respondent No. 1 Chandan was firstly appointed as a Assistant teacher for a period of one year and again he was given appointment as Assistant teacher for the academic session 1996-97. After that fresh order of his appointment on probation of two years w.e.f. 01/7/1997 was issued and accordingly the respondent Chandan served as Assistant teacher on probation from 01/7/1997 onwards. In writ petition No. 1122 of 2001, respondent No. 1 Prakash was initially appointed in the year 1992 on temporary basis because he was not trained teacher and, therefore, year to year his appointments were made on temporary basis against the clear vacancy of Science teacher. In the year 1997 he secured B. Ed. Qualification and, therefore, w.e.f. 01/7/1997 he was appointed as Assistant teacher on probation for a period of two years. 3. The probation period of respondent No.1 came to an end on 30/6/1999. On 27/5/1999 and again on 31/5/1999 the petitioners issued order terminating the services of respondent No. 1 w.e.f. 01/7/1999. These orders were challenged by the respondent Chandan before the School Tribunal by way of appeal No. STN/41 of 1999 and by respondent Prakash by way of appeal No. STN/40 of 1999. According to the respondent No. 1 Chandan, he was in continuous service since 1995 and had completed four years of service, when his services were terminated, he had attained the status of permanent teacher and he could not have been removed from the service without following the procedure laid down in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (.the Act. in breif) and Rules framed thereunder and without holding an enquiry against him. It is contended that the act of the petitioners terminating services was mala fide and has nothing to do with his work and behavior as a teacher. in breif) and Rules framed thereunder and without holding an enquiry against him. It is contended that the act of the petitioners terminating services was mala fide and has nothing to do with his work and behavior as a teacher. He averred that he had refused to sign on the blank vouchers and had refused to keep his salary payment book with the management and had also protested against the payment of less salary and because of these reasons, the management terminated his services illegally. By the said appeal, he sought to quash and set aside the termination order and also sought his reinstatement in service w.e.f. 01/7/1999. 4. The petitioners contested the appeal. According to them for the academic session 1995-96 and again 1996-97 the respondent No. 1 was appointed as Assistant teacher purely on temporary basis against a vacancy reserved for Nomadic Tribe category. As no candidate of that category was available, the respondent No. 1 was given appointment for those respective sessions, and, therefore, that service cannot be taken into consideration. According to them one Mrs. Ghodki, Assistant teacher died in the year 1997 and against that clear vacancy, the respondent No. 1 was appointed on probation of two years w.e.f. 01/7/1997 to 30/6/1999. According to the management, the respondent No. 1 was involved in fraudulent valuation of the answer papers, he was irregular in attending the school, and therefore, several memos were given to him, but he had refused to accept and sign them. He had become active member of Shikshak Sansad, Nagpur, which was not a registered trade union. He indulged in union activities prejudicial to the interest of the management. He also sat on hunger strike in April, 1999. There was also complaint about his performance and behaviour. In view of all these circumstances, his behaviour was not found satisfactory during the probation period. As his probation was not completed satisfactorily, by the orders dated 27/5/1999 and 31/5/1999, his services were terminated w.e.f. 01/7/1999. It was contended that in view of these circumstances, the management was justified in taking action of termination. 5. After perusal of the record and hearing the parties, the School Tribunal came to conclusion that the termination of services of respondent No. 1 by the above referred two letters is contrary to the provisions of the Act. In the result, the appeal was allowed. 5. After perusal of the record and hearing the parties, the School Tribunal came to conclusion that the termination of services of respondent No. 1 by the above referred two letters is contrary to the provisions of the Act. In the result, the appeal was allowed. The termination order came to be set aside and the School Tribunal directed the management to reinstate the respondent No. 1 in service w.e.f. 01/7/1999 with back wages with further direction that arrears of emoluments be paid to him and in case the management fails, the same be deducted from the grant due and payable to the management. Hence, this petition at the behest of the management. 6. Heard the learned Counsel for the parties. Perused the pleadings of the parties and the documents which were relied upon by the management before the School Tribunal as well as the impugned judgments. In addition, also perused the affidavit in reply filed by respondent No.2-Education Officer, before this Court. 7. The learned Counsel for the respondent No. 1 vehemently contended that the respondent No. 1 was appointed as a teacher against a clear vacancy in the year 1995 initially for one year and again for one year and thereafter by order issued in 1997 for further period of two years. According to him on 30/6/1999 he had already completed four years of service and as the management had not produced any material on record to show that there was no clear vacancy in the year 1995 when he was first appointed, it must be held that he had attained the status of a permanent teacher long before the termination order. However, in view of the reply filed by the petitioners and the orders for the earlier few years run contrary to this contention. The management had taken clear stand that there was a vacancy for the post of Assistant teacher in the year 199596 as well as 1996-97, but that was reserved for the Nomadic Tribe category and the respondent No. 1 is admittedly not from that category and, therefore, he could not have been given appointment against that vacancy. Admittedly, the Government has made reservation of certain posts for the different categories belonging to the backward communities. Admittedly, the Government has made reservation of certain posts for the different categories belonging to the backward communities. The learned A. G. P. also points out that the vacancy reserved for backward community has to be kept vacant for five years awaiting the suitable candidate from that category. If, no candidate from that category is available, that post can be filled in on temporary basis and after expiry of five years also if the candidate from that particular category is not available, the post would be filled up by making appointment of a person from another backward category as per the guidelines given by the Government of Maharashtra resolution No. BCC-1094/CR- 57/94/16-B, dated 05th December, 1994. Admittedly, the respondent No. 1 does not belong to N. T. category and, therefore, he could not have been appointed against the vacancy reserved for the N. T. candidate during the year 1995-96 of 1996-97. Admittedly, one Mrs. Ghodki, Assistant teacher expired in the year 1997 and, therefore, against that clear vacancy, the respondent No. 1 was appointed on probation period by the order dated 01/7/1997. That appointment on probation of two years as per the said order was also approved by the Education Officer as per order dated 13/12/1998. Therefore, it must be held that the respondent No. 1 was on probation w.e.f. 01/7/1997 and his earlier services cannot be taken into consideration for the present dispute. 8. Sections 5(2) and 5(3) of the Act are relevant, which read as follow: 5. Certain obligations of Management of private schools: (2) Every person appointed to fill a permanent vacancy except shikshan sevak shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall on completion of this probation period of two years, be deemed to have been confirmed. (3) If in the opinion of the Management, the work or behavior of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice or salary or honorarium of one month in lieu of notice.. (3) If in the opinion of the Management, the work or behavior of any probationer during the period of his probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice or salary or honorarium of one month in lieu of notice.. On perusal of these two sub-sections, it becomes clear that a person appointed to fill in a permanent vacancy shall be on probation for a period of two years and he shall on completion of this probation period of two years, be deemed to have been confirmed in service. Sub-section (3) provides that if in the opinion of the management the work or behavior of any probationer during the period of his probation is not satisfactory, the management may terminate his services at any time during the said period after giving him one month's notice or salary in lieu of notice. On perusal of termination orders dated 27/5/1999 and 31/5/1999, I find that first two sentence are formal in nature indicating the date of his appointment and his approval. The last two sentence are relevant. They are as follows: .Your probation comes to an end on 30/06/1999. Please note that management does not wish to extend your probation period beyond 30/06/1999. Hence your services are not required from 1-07- 1999.. In this termination order, there is not a single word that in the opinion of the management, the work or behavior of the respondent No. 1 was not found satisfactory. 9. The learned Counsel for the petitioner vehemently contended that the management did not want to put a stigma on the carrier of respondent No. 1 and, therefore, it must have avoided to state that his work and behavior was not found satisfactory and according to him, during the period of probation, the services can be terminated by termination order simplicitor without giving any reason and in support of that, he placed reliance upon Krishnadevaraya Education Trust & another Vs. L. A. Balakrishna -AIR 2001 S. C. 625. That was the matter from Karnataka State. It was held that the employer has, in terms of letter of appointment, right to terminate his services. L. A. Balakrishna -AIR 2001 S. C. 625. That was the matter from Karnataka State. It was held that the employer has, in terms of letter of appointment, right to terminate his services. In order to avoid allegation that the order is stigmatic, the employer did not state the reasons still that termination was valid if there was sufficient material to show that his performance was not satisfactory. Their Lordships observed as follows: 5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated. 6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.. From this, it appears that even if in the order of termination, it was not specifically mention that the performance was not found satisfactory, still the management may be called upon to point out that the performance was not satisfactory, if that order is challenged. From this, it appears that even if in the order of termination, it was not specifically mention that the performance was not found satisfactory, still the management may be called upon to point out that the performance was not satisfactory, if that order is challenged. It will be useful to refer to Rule 28(1) in contradistinction with sub-section 5(3). Rule 28(1) of the Maharashtra Employees of Private Schools Rules, 1981 reads as follows: 28. Removal or Termination of Service : (1) The services of a temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after giving one calender month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice........ From this, it is clear that the services of a temporary employee other than one on probation, may be terminated by the management any time without assigning any reason after giving one month's notice or salary in lieu of notice. 10. Section 5(3) is already quoted above. It shows that the services of a probationer may be terminated if his behavior and work is not found satisfactory. If these two provisions are read together, it will become clear that the Legislature wanted to give free hand to the management to terminate the services of temporary employee without assigning any reason. However, when it comes to the case of a probationer, the Legislature wanted the management to come to an opinion that his work and behaviour was not satisfactory and on that ground his services may be terminated during the probation period. If these two provisions are borne in mind, it becomes necessary that the management must indicate in the termination order that the performance of the probationer was not found satisfactory and hence his services liable to be terminated. In the present case, no such reason was given. It was an order of termination simplicitor without giving any reason. Such order could have been passed in case of a temporary employee appointed against a temporary post but such order cannot be sustained when it is passed against a probationer duly appointed under Section 5 of the Act. 11. In the present case, no such reason was given. It was an order of termination simplicitor without giving any reason. Such order could have been passed in case of a temporary employee appointed against a temporary post but such order cannot be sustained when it is passed against a probationer duly appointed under Section 5 of the Act. 11. The material on record reveals that according to the management, the responden No. 1 had indulged in some fraudulent activities in valuation of Secondary School Examination papers and he had helped one Prakash Gadpayale (respondent No. 1 in W. P. No. 1022 of 2001), in that respect. However, the S.S.C. Examinations are not held by the school management but by the S.S.C. Board. There is no material on record to show that the S.S.C. Board had held any enquiry or taken any action against the respondent No. 1 or had informed the management about any such illegal activities of the respondent No. 1. The learned Counsel for the respondent No.1 rightly pointed out that as per regulation 31(2)(iv) of the Maharashtra Secondary And Higher Secondary Education Boards Regulations, 1977, no person shall ordinarily be eligible for appointment as an examiner in a subject unless he has experience of teaching that subject to the top classes, namely standards IX or X, of a secondary school. If a teacher or a member of the teaching staff, at least for a period of five years if he is a trained graduate and for at least ten years if he is untrained graduate. The respondent No. 1 is a trained graduate teacher. However, even if his total service is counted from 1995, he had completed only four years of service till the time of his termination and, therefore, he was not even eligible for appointment as an examiner by the S.S.C. Board. There is no material on record to show that he was ever appointed as Examiner or Valuer of the S. S. C. examination papers by the S.S.C. Board. Therefore, the allegation of the management that he had acted fraudulently in valuation of S.S.C. Examination papers, cannot be accepted. There is no material on record to show that he was ever appointed as Examiner or Valuer of the S. S. C. examination papers by the S.S.C. Board. Therefore, the allegation of the management that he had acted fraudulently in valuation of S.S.C. Examination papers, cannot be accepted. In writ petition No. 1122 of 2001 respondent No. 1 Prakash Gadpayale was initially appointed as untrained teacher in the year 1992 and he had not completed five years of service as trained teacher and, therefore, he could not have been eligible to work as examiner for the purpose of valuation of S.S.C. Examination papers. 12. Thereafter, the management relied upon three letters purporting to be dated 20/10/1997, 26/02/1998 and 20/02/1999. As per these three letters, the management claims to have cautioned or warned him against his irregularities and indiscipline. However, on these letters it is mention that respondent No. 1 had refused to sign in acknowledgment. Therefore, there is no material to show that only of these three letters was actually served on the respondent No. 1 at any time. It is also material to note that on these three letters no outward number was mentioned. Normally, whenever any such letter is issued from the office, it bears outward number and date. If there would be outward number, its authenticity could be examined by referring to the outward register. In absence of outward number and in absence of any acknowledgment about the receipt of these letters, except the word of management, there is no material to show that any such memo or letter was given to him. 13. The next document is the statement made by the respondent No. 1 on the stamp paper, which appears to have been purchased on 14/8/1998. In this document, there is admission of the respondent No. 1 that he had helped Shri Gadpayale in valuation of S.S.C. examination papers. He had assured that he would not be a member of any unauthorised teachers association, he would not commit breach of any discipline of school, he would not beat or assault any student and he would keep contact with the guardians of the students and that he would be punctual in attendance of the school and would take care of the progress of the school. It is not clear on what date this document was prepared. It is not clear on what date this document was prepared. According to the respondent No. 1, he was required to put signature on this paper just because he wanted continuity of his job. On perusal of this document, it reveals that it was only a assurance given by him that he would maintain discipline of the school. I do not find from this document that he had confessed to have committed any breach of the discipline. The learned Presiding Officer of the School Tribunal noted that there was a charge levelled by the management that some students had made allegations against the respondent. However, there was no material to support this allegation also. 14. As pointed out earlier, in the termination order, the management had nowhere stated that the management had formed an opinion that the work and behavior of the respondent No. 1 was not satisfactory and, therefore, his services were required to be terminated. The management tried to place some material on record to show that the performance of the respondent No. 1 was in fact not satisfactory. That material was minutely considered by the School Tribunal and it is also considered in the above paras and I find that in fact there was no material to come to conclusion that performance of the respondent No. 1 was not satisfactory. One of the contentions of the management was that the respondent No.1 had gone on hunger strike in April'99. It is the contention of respondent No. 1 that the management wanted him to put signatures on muster roll and was to keep his salary book in the office of the management and the management wanted him to accept salary less than due and, therefore, he had protested and that was the reason why the management, with mala fide intention took the action of termination. The management has not come forward with any explanation or reason as to why the respondent No. 1 had gone on hunger strike. Normally, the probationer would not dare to go on hunger strike and precipitate the action against himself. In absence of any reason given by the management, I find that there must be substance in the contention of respondent No. 1. Therefore, on merits, the termination order cannot be sustained. 15. Normally, the probationer would not dare to go on hunger strike and precipitate the action against himself. In absence of any reason given by the management, I find that there must be substance in the contention of respondent No. 1. Therefore, on merits, the termination order cannot be sustained. 15. As pointed out earlier in para 3 of the affidavit in reply filed by the respondent No. 2Education Officer before this Court, he has stated that the respondent No. 1 was appointed as Assistant teacher on probation w.e.f. 01/7/1997 and his services were terminated w.e.f. 01/7/1999 and, therefore, the respondent No. 1 had completed two years probation period on 30/6/1999 and he had acquired the status of permanent employee. Thus, according to the Education Officer, the respondent No. 1 had attained the status of permanent employee and he could not have been removed from the service without following due procedure laid down in the Rules in respect of enquiry against the permanent employee. The Education Officer has also stated that there was no material to show any misconduct on the part of respondent No. 1 in each case, either in the examination or otherwise. 16. In the written statement filed by the management before the School Tribunal it was vaguely stated that enquiry was made. However, no document was placed on record to show that any enquiry was held and that in the said enquiry the respondent No. 1 was found guilty. In the termination order also there is no reference to any such enquiry or findings of the enquiry. The learned Counsel for the petitioner contended that in case of a probation, it is not necessary to hold any enquiry and the management can terminate the services if it is of opinion that the performance of the probationary was not satisfactory. I find nothing wrong in this proposition of law. However, on perusal of Subsections (2) and (3) of Section 5, it becomes clear that on completion of probation period of two years, the probationer is deemed to have been confirmed in service. Subsection (3) provides that if during the period of probation his performance is not found satisfactory, the management may terminate his services at any time during the said period of probation. Subsection (3) provides that if during the period of probation his performance is not found satisfactory, the management may terminate his services at any time during the said period of probation. The period of probation in the present case was up to 30/6/1999 and the management could have terminated the services during the period of probation i.e. before the completion of period of two years, if it was satisfied that the performance was not satisfactory. However, in the present case the services of respondent No. 1 were not terminated during the period of probation. The period of probation had come to an end on 30/6/1999 and even though the termination order was issued on 27/5/1999 and 31/5/1999, his termination was to take effect from 01/7/1999 i.e. after completion of a period of probation and not during the period of probation. In view of this also, the order of termination cannot be sustained. If after completion of a period of probation, the management wanted to terminate the services, the management was required to follow the procedure laid down in Rules 31 to 37. Admittedly, no such enquriy was held and the said procedure was not followed. Facts in both the petitions are almost identical and, therefore, legal position, as discussed in respect of Writ Petition No. 1120/2001 is also applicable to Writ Petition No. 1122/2001. For the reasons, I find that termination of services of both of them, after completion of their probation period, without holding any enquiry as required by rules, is not permissible under the law and could not be sustained. In view of the facts and the legal position discussed above, I find no substance to interfere in the impugned order passed by the School Tribunal. In the result, both the writ petitions stand dismissed. Rule discharged.