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2009 DIGILAW 719 (BOM)

Dinkar s/o Baliramji Bundele v. Presiding Officer

2009-06-22

R.C.CHAVAN

body2009
Judgment :- 1. Being aggrieved by the dismissal of his appeal by the learned Presiding Officer, School Tribunal, Amravati, the petitioner has approached this Court by filing the present petition. 2. It is not in dispute that respondent No.2 Management and respondent No.3 Head Master of the School had appointed the petitioner to the post of Chowkidar (Watchman) by order dated 31-7-1991 after he was interviewed for the said post in pursuance of the advertisement issued on 27-7-1991. He claims to have rendered satisfactory service till 31-5-1992. According to the petitioner, he was appointed on probation for a period of two years. However, after 31-5-1992, he was not allowed to continue with the work. According to him, he was suffering from Tuberculosis and was taking treatment at Amravati from 21-4-1992 to 16-2-1993. On 10-3-1993, his services were orally terminated. He, therefore, filed an appeal before the School Tribunal at Amravati, challenging his oral termination. 3. The respondent Management contended before the Tribunal that the petitioner had been appointed purely on temporary basis only for the academic session and, therefore, his employment came to an end as soon as the session was over. It was further stated that the Management had in fact informed the petitioner by letter dated 27-5-1992 that since his appointment was till the end of the session, he would be relieved from service from 1-6-1992, which letter the petitioner had duly acknowledged. Therefore, there was no question of any oral termination. The Management, therefore, prayed for dismissal of appeal. 4. Upon consideration of evidence tendered before the Tribunal, the Tribunal found that the Management had terminated the services of the petitioner by order dated 27-5-1992, which order had not been challenged by the petitioner, even after this order was placed on the record of the Tribunal. The Tribunal also held that since the work and behaviour of the petitioner was not satisfactory, the petitioner’s services were rightly terminated by the Management and one Sardar had also been appointed in the place of the petitioner on 1-3-1993. The Tribunal, therefore, dismissed the appeal. 5. I have heard Shri V.A. Kothale, learned counsel for the petitioner, and Shri A.M. Deshpande, learned AGP for respondent No.5. 6. The Tribunal, therefore, dismissed the appeal. 5. I have heard Shri V.A. Kothale, learned counsel for the petitioner, and Shri A.M. Deshpande, learned AGP for respondent No.5. 6. The learned counsel for the petitioner submitted that in terms of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, it was not open to a Management to appoint a person on a permanent vacancy except on probation of two years. Subsection (2) of Section 5 of the M.E.P.S. Act reads as under: “5. Certain obligations of Management of private schools: (1) ... ... ... (2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of sub-secti8ons (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed. (3) ... ... ... (4) ... ... ... (5) ... ... ...” Therefore, according to the learned counsel for the petitioner, the appointment order Annexure 1 dated 31-7-1991 would have to be read as appointment on probation for a period of two years. He submitted that the services of the probationer could be terminated by the Management at any time during the period of probation if such services were not found to be satisfactory after giving such probationer one month’s notice or salary in lieu of one month’s notice. 7. The learned counsel for the petitioner pointed out that the order dated 27-5-1992, which had been relied on by the respondent Management and had been accepted by the School Tribunal, terminated the services of the petitioner by giving four days’ notice and, therefore, was bad. Under Rule 10 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, all non-permanent employees could be either temporary employees or employees on probation. Since the petitioner was appointed on a permanent vacancy in view of the provisions of sub-section (2) of Section 5, his appointment would have to be taken as one on probation. 8. The learned counsel for the petitioner submitted that the claim of the Management to have appointed one Sardar in the place of the petitioner itself shows that the vacancy was permanent. 8. The learned counsel for the petitioner submitted that the claim of the Management to have appointed one Sardar in the place of the petitioner itself shows that the vacancy was permanent. Rule 28 of the M.E.P.S. Rules invoked by the learned counsel for the petitioner is not applicable, since the petitioner was thus appointed on probation as per the learned counsel for the petitioner. 9. The learned counsel for the petitioner cited judgment of Supreme Court in Chandra Prakash v. State of U.P., reported at (2000) 5 SCC 152 , in order to contend that if the conduct of the petitioner was unsatisfactory as mentioned in order dated 27-5-1992, it was incumbent upon the Management to conduct an enquiry or at least to issue a show cause notice to him to enable him to explain lapse if any. This is not a case where after conducting any enquiry behind the back of the petitioner, he has been discharged and, therefore, discharge cannot be said to be founded upon any misconduct, and so is not punitive. Hence, ratio of judgment in Chandra Prakash is unhelpful. 10. As for the observation in the said judgment that termination has to be brought about in a manner prescribed by rules, it is for the petitioner to show that any rule was breached in relieving the petitioner on expiry of term of his appointment. Under Rule 28 of the M.E.P.S. Rules, the termination of an employee, other than a probationer, could be effected only after giving one month’s notice or paying one month’s salary in lieu of notice. He, therefore, submitted that viewed from any angle, the termination was bad. 11. I did not have the benefit of assistance of the counsel for the respondent Management. The learned AGP, however, submitted that it would not be open to infer as to what is the nature of appointment on the basis of the provisions of law and that the nature of appointment would have to be gathered from the appointment order itself. He, therefore, submitted that the argument of the learned counsel for the petitioner that the appointment of the petitioner was on probation, has to be rejected, since the appointment order mentioned that the appointment was till the end of the academic session. He, therefore, submitted that the argument of the learned counsel for the petitioner that the appointment of the petitioner was on probation, has to be rejected, since the appointment order mentioned that the appointment was till the end of the academic session. Though in the appointment order the clause relating to appointment on probation for two years was not scored out, since the first line in clause 2 of the order mentioned that the appointment was temporary from 1-8-1992 till the end of the session, it would have to be taken as one till the end of the session, as held by the Supreme Court in Hindustan Education Society and another v. Sk. Kaleem Sk. Gulam Nabi and others, reported at (1997) 5 SCC 152 . In that case too, the Court considered the provisions of Section 5 of the M.E.P.S. Act and the obligation to appoint a person on a permanent vacancy on probation. The appointment of the person concerned in that case was for 11 months, though it was against a clear vacancy. The Court held that the appointment could not be considered as permanent and, therefore, allowed the appeal by the Management. 12. The learned AGP submitted that it is pertinent to note that in Hindustan Education Society, it was specifically noted by the Supreme Court that the appointment order was in a clear vacancy. He submitted that in spite of this, the Court held that the appointment was not against a permanent post and after reproducing the provisions of Section 5 of M.E.P.S. Act, restricted the appointment to the terms of appointment order. He pointed out that even in the case at hand, the appointment order clearly mentions that the appointment was purely temporary. He, therefore, submitted that a clear vacancy does not necessarily imply a permanent vacancy. He submitted that possibly the Apex Court was alive to this distinction and so, it did not hold that the appointment order had to be interpreted in terms of subsection (2) of Section 5 of M.E.P.S. Act. According to the learned AGP, a vacancy in a School would not become a permanent vacancy unless the institution has stabilized to a particular strength of students over a number of years justifying continuation of vacancy indefinitely, when it would translate itself into a permanent vacancy. According to the learned AGP, a vacancy in a School would not become a permanent vacancy unless the institution has stabilized to a particular strength of students over a number of years justifying continuation of vacancy indefinitely, when it would translate itself into a permanent vacancy. Therefore, according to the learned AGP, the appointment of the petitioner could not be taken as one on probation. 13. It may not be appropriate to apply the analogy of the facts in Hindustan Education Society and another v. Sk. Kaleem Sk. Gulam Nabi and others, reported at (1997) 5 SCC 152 , since it is not shown that the Management was making an appointment by-passing any requirement and, therefore, was required to restrict the period of appointment till the end of the academic session only. It could have or rather should have appointed the petitioner on probation if he was selected after issuing an advertisement and was being appointed against a permanent vacancy, as may be gathered from appointment of petitioner’s successor – one Sardar. 14. It cannot be disputed that the petitioner had in fact ceased working with the School since 21-4-1992, as, according to him, he was undergoing treatment at T.B. Hospital at Amravati, which treatment continued till 16-2-1993. It is not shown by the petitioner that he had ever informed the Management about the cause of his absence or sought any leave from the Management. Therefore, it cannot be said that the Management was not justified in concluding that the conduct of the petitioner was not satisfactory requiring termination of his services. The contention of the petitioner that he had been approaching the Management from time to time and was not allowed to work from 31-5-1992, is falsified by his contradictory recitals in para 2 of the petition and copy of letter addressed by him on 19-1-1993 to the Education Officer. He had stated in the petition that he was suffering from Tuberculosis from 21-4-1992 till 16-2-1993. Therefore, his claim that he had not been called for duty after 31-5-1992, is obviously false, since he was himself not in a position to perform the duty. He had stated in the petition that he was suffering from Tuberculosis from 21-4-1992 till 16-2-1993. Therefore, his claim that he had not been called for duty after 31-5-1992, is obviously false, since he was himself not in a position to perform the duty. Further, though he claimed in the petition that on 10-3-1993, he learnt of his termination orally, it is clear from the letter dated 19-1-1993 addressed by him to the Education Officer that he had already come to know that he was not being allowed to work. In fact, by the said letter, he had threatened to undertake fast unto death. In view of this, it cannot be said that the Management was unjustified in not continuing the petitioner. However, it ought to have done so after either issuing one month’s notice or paying the petitioner one month’s salary in lieu of notice. Failure to pay the salary or to issue one month’s notice, though would ordinarily vitiate the order, in the peculiar facts and circumstances of the case, would not entitle the petitioner to reinstatement in service. All that the petitioner would be entitled to is one month’s salary in lieu of notice with interest from the date the payment became due, i.e. 27-5-1992, till payment is made at the rate of 9% per annum. 15. In view of this, the order passed by the School Tribunal holding the petitioner disentitled to reinstatement or back wages does not call for any interference. However, respondent Nos.2 and 3 are directed to pay to the petitioner one month’s pay in lieu of notice as on 27-5-1992 with interest at the rate of 9% per annum on the said amount from that date till it is actually paid. 16. The petition is disposed of accordingly.