Judgment Z.A. Haq, J. 1. Heard Shri Prashant Shende, the learned Advocate for the petitioners, Shri A.C. Dharmadhikari, the learned Advocate for the respondent No. 2, Ms. Rashi Deshpande, the learned AGP for respondent No. 1 an 1 Ms. S.S. Jachak, the learned AGP for the respondent No. 3. Rule. Rule made returnable forthwith. 2. The petitioners-Management has challenged the order passed by the Tribunal allowing the appeal filed by the respondent No. 2-employee, setting aside the order of termination and directing the reinstatement of the respondent No. 2 with 50% backwages. The respondent No. 2 was appointed as Assistant Teacher in the School administered by the petitioners-Management after following due procedure on 6th August, 2007. It is undisputed that the respondent No. 2 is qualified for the post. The Education Officer approved the appointment of the respondent No. 2 and the salary grants in respect of the respondent No. 2 were released by the Education Officer from the State Exchequer. 3. The services of the respondent No. 2 were terminated by notice dated 4th July, 2009, the termination being effective from 5th August, 2009. The respondent No. 2 challenged the order before the Tribunal in the appeal which is allowed by the impugned order. 4. Shri Shende, the learned Advocate for the petitioners-Management has submitted that the Tribunal has committed an error in relying on the findings recorded by it while passing the preliminary order. It is submitted that the Tribunal has erroneously relied on the documents which were fabricated by the respondent with the help of the Head Master of the school. It is submitted that the order of reinstatement passed by the Tribunal on the basis of false pleadings and fabricated documents is unsustainable in law. 5. Rule 15(1) of the Rules of 1981 casts an obligation on the Head Master of the school to write confidential reports annually in the Form prescribed in Schedule "G". It lays down that the confidential reports shall be written in respect of the employees who had worked for six months or more during an academic year commencing from June. Rule 10(1) of the Rules of 1981 explains that the employee shall be permanent or non-permanent. It further states that non-permanent employees may be either temporary or on probation. It lays down that the confidential reports shall be written in respect of the employees who had worked for six months or more during an academic year commencing from June. Rule 10(1) of the Rules of 1981 explains that the employee shall be permanent or non-permanent. It further states that non-permanent employees may be either temporary or on probation. Rule 10(2) of the Rules of 1981 explains that a temporary employee is one who is appointed to a temporary vacancy for a fixed period. 6. The respondent No. 2 having been appointed in a permanent and full time post and his appointment having been granted approval by the Education Officer, it cannot be said that the respondent No. 2 was temporary employee. Rule 15(2) of the Rules of 1981 lays down that the confidential reports as written in terms of Rule 15(1) of the Rules, 1981 shall be reviewed by the Chief Executive Officer. Rule 15(3) of the Rules of 1981 lays down that the reporting authority shall communicate in writing the adverse remarks, if any, to the concerned employee or the Head, as the case may be, before the end of August every year. In the present case, though the petitioners-Management has terminated the services of the respondent No. 2 on the ground that his performance was not satisfactory, the petitioners have not placed any material on the record to show the basis for coming to such conclusion. Shri Shende, the learned Advocate for the petitioner has not been able to point out that the procedure contemplated by Rule 15 of the Rules of 1981 was followed by the Management and the Head Master of the School and the record regarding performance of the respondent No. 2 was maintained on the basis of which the decision to discontinue the respondent No. 2 could have been taken. Rule 15(4) of the Rules 1981 provides an opportunity to the employee to make his representation to the competent authority, independent of the Management. Rule 15(5) of the Rules of 1981 lays down that failure to write and maintain confidential reports and to communicate adverse remarks to the employee within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under Report. Rule 15(5) of the Rules of 1981 lays down that failure to write and maintain confidential reports and to communicate adverse remarks to the employee within the period prescribed in sub-rule (3) shall have the effect that the work of the employee concerned was satisfactory during the period under Report. Rule 15(6) of the Rules of 1981 lays down that the performance of an employee appointed on Probation shall be objectively assessed by the Head Master during the period of his probation and record of such assessment shall be maintained. The petitioners have not been able to point out that the decision was taken by the petitioners-Management that the performance of the respondent No. 2 is not satisfactory on the basis of record maintained by the Head Master as contemplated by Rule 15(6) of the Rules of 1981. 7. In view of the above, the challenges as raised on behalf of the petitioners to the reasonings of the Tribunal are not required to be delved into. The termination of the respondent No. 2 being on the foundation that his performance is not satisfactory, in my view, the petitioners were under an obligation to plead that the decision was taken on the basis of the record maintained by the Head Master of the school and the Management in accordance with Rule 15(6) of the Rules of 1981 and it was further incumbent on the part of the petitioner to produce the record before the Tribunal to substantiate that decision. The petitioners having failed to plead and prove that the decision in the matter is taken by them on the basis of the record maintained as required by Rule 15 of the Rules of 1981, in my view, the termination order cannot be sustained. At this stage, Shri Shende, the learned Advocate submits that the record in this regards was produced before the Tribunal. However, on being asked to point out the pleadings either from the reply before the Tribunal or from the petition that such a defence is taken by the petitioners, he fairly conceded that there is nothing in the reply and no such defence is raised in the petition. 8. As far as the directions given by the Tribunal regarding payment of 50% backwages is concerned, I find that the respondent No. 2-employee pleaded in the memo appeal that he was not gainfully employed. 8. As far as the directions given by the Tribunal regarding payment of 50% backwages is concerned, I find that the respondent No. 2-employee pleaded in the memo appeal that he was not gainfully employed. Shri Shende, the learned Advocate submits that these pleadings were immediately after the termination and the employee should have filed an affidavit at the time of decision of the appeal stating that he continued to be unemployed throughout till the decision of the appeal. However, the submission as made on behalf of the petitioners cannot be accepted. The employee has stated in the appeal memo that he was not gainfully employed, the burden shifted on the Management and they have not countered the averment made by the respondent No. 2. Therefore, the directions given by the Tribunal regarding payment of backwages are not required to be interfered. In view of the above, the writ petition is dismissed. Shri Dharmadhikari, the learned Advocate for the respondent No. 2 submits that in spite of the order passed by the Tribunal and the fact that there is no interim order passed in the writ petition, the respondent No. 2 is neither reinstated nor arrears of salary are paid. In these circumstances, the petitioner to pay costs of Rs. 10,000/- to the respondent No. 2 till 31st January, 2015.