1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 897 OF 2002 IN WRIT PETITION NO. 2256 OF 2002 1. Shri Vinayak Vidhyadayini Trust through its Secretary/Trustee having its office C/o. M/s. Sai Vidya Mandir, Aksa Village, Post: Kharodi, Madh-Marve Road, Malad (West), Mumbai – 400 095 2. Sai Vidya Mandir through its Headmistress having its address at Aksa Village, Post: Kharodi, Madh-Marve Road, Malad (West), Mumbai – 400 095. ..Appellants (Org. Petitioners) Vs. 1. Smt. Aruna T. Prabhu having its address at: 10, Shantilal Chawl, Nagardas Road, Andheri (West), Mumbai – 400 095. 2. Sanjay Vasantrao Patil Asst. Teacher, M/s. Sai Vidya Mandir having its address at Aksa Village, Post: Kharodi, Madh-Marve Road, Malad (West), Mumbai – 400 095. 2 3. The Education Inspector, (West Zone), Greater Mumbai, having its office C/o. Ismail Yusuf College, Jogeshwari (East), Mumbai – 400 060. 4. The State of Maharashtra (Respondent Nos.3 and 4 through the Government Pleader, O.S. High Court, Bombay) ..Respondents (Org.Respondents) Mr. Sureshkumar J. Panicker for appellants. Mr. Sunil Dighe for respondent no.1. Mrs. Uma Palsule Desai, AGP for respondent nos.3 and 4. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. Reserved on : February 16, 2010. Pronounced on : June 9, 2010. JUDGMENT: (Per Smt. V. K. Tahilramani,J.) 1. This writ appeal arises from the judgment and order dated 20/7/2002 rendered by the School Tribunal at Mumbai in Appeal Nos.73 and 119 of 1995 and confirmed by this court (Single Bench) in Writ Petition No. 2256 of 2002, as per the order dated 4/9/2002 and the present 3 appellants were the writ petitioners. 2. The appellant no.1 is a registered public trust and a society. It is running a private aided school by name “Sri Sai Vidya Mandir” at Kharodi, Malad (West), Mumbai. Appellant no.2 is the Headmistress of the said school. The present respondent no.1 was appointed as an Assistant Teacher on probation for two years i.e. from 6/7/1993 to 5/7/1995. She was issued an order of termination on 29/4/1995 and she challenged the same in Appeal No. 73 of 1995 filed under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short “the MEPS Act”). On 8/5/1995 the School Tribunal was pleased to grant an ex parte ad-interim stay to the order of termination and when the same was intimated to the management, the termination order dated 29/4/1995 came to be withdrawn on 15/6/1995. However, on 23/6/1995 the teacher was served with a show cause notice, after she was reinstated and various charges were levelled against her. She replied to the said show cause notice by her written statement/explanation dated 28/6/1995. On 1/7/1995, the management passed a fresh order and terminated the service of the teacher from the same date and on the ground that her service was not satisfactory. This second order of termination gave rise to Appeal No. 119 of 1995 filed 4 on 28/8/1995 before the School Tribunal. In the meanwhile Contempt Petition No. 221 of 1995 was also filed by the teacher before this court alleging that the order of termination dated 1/7/1995 was contemptuous and it was in breach of the ad-interim order passed on 8/5/1995 by the School Tribunal. On 31/7/1995 the Contempt Petition was dismissed by this court observing that, prima facie, there was no contempt as the order of termination dated 29/4/1995 was withdrawn and the teacher was reinstated in service on 15/6/1995. The management filed its written statement before the School Tribunal on 17/4/1997 and opposed the appeal i.e. Appeal No. 119 of 1995. It claimed that Appeal No. 73 of 1995 had become infructuous and the termination order dated 1/7/1995 was passed after issuing the show cause notice and considering the reply submitted by the teacher thereto. It was also claimed that the management had every right to terminate the service of the probationer if the service record during the probation period was not satisfactory and such an order was not stigmatic. 3. The School Tribunal framed the following issues and answered them accordingly:- 5 1) Whether the Appeal bearing No.MUM/73/1995 filed by above named appellant is maintainable? NO 2) Whether the Appellant is having just and sufficient cause to condone the delay in filing the Appeal No.BOM/119/1995? YES 3) Whether the alleged termination order dt. 1/7/1995 in Appeal No.BOM/119/1995 is bad in law and hence liable to be set aside? YES 4) Whether the appellant is entitled to reinstatement with full back wages and continuity of service? YES 5) What order? As per final order. By a common judgment and order dated 20/7/2002, the School Tribunal directed the reinstatement of the teacher with full backwages and all consequential benefits, by setting aside the order of termination dated 6 1/7/1995. At the same time, Appeal No. 73 of 1995 was dismissed as infructuous. The said order passed by the School Tribunal has been confirmed in Writ Petition No. 2256 of 2002 by this court, as noted hereinabove. 4. It appears that while the appeal filed by the teacher was pending before the School Tribunal, the present respondent no.2 came to be appointed in place of the respondent no.1 vide the first appointment order dated 24/6/1996 and he was consequently confirmed as per the order dated 14/6/1999. However, the said teacher was not added as an additional respondent before the School Tribunal and it further appears that the management did not take any steps to implead the newly appointed teacher in the array of respondents. However, when it approached this court in Writ Petition No. 2256 of 2002, the new teacher was impleaded as respondent no.2. While dismissing Writ Petition No. 2256 of 2002, this court clarified that the appointment of respondent no.2 would not be disturbed, by confirming the order under challenge and passed by the School Tribunal for the reinstatement of respondent no.1. 5. It is also pertinent to note that as per the order dated 23/7/1993 7 issued by the Deputy Director of Education, Greater Mumbai, the appellant no.1’s school was granted permission to run classes from 5th to 8th standards (Marathi medium) and on no grant basis from June 1993. In the next academic year, a fresh order came to be passed by the Deputy Director of Education on 8/6/1994 and the recognition was granted for two academic years i.e. 1993-94 and 1994-95 for 5th to 8th standards. On 11/9/1995, the Deputy Director of Education passed an order stating that for the academic year starting from June, 1997 the school would receive 50% grant-in-aid and this was raised to 75% by the next order dated 8/9/1999 and finally as per the order passed in October, 1999 it became a fully aided school. 6. It is the case of the appellants that the respondent no.1 was appointed on probation, her performance during the said period of probation was not found satisfactory and, therefore, it invoked its power under Section 5(3) of the MEPS Act read with Rules 14 and 15 of the MEPS Rules. In its managerial powers, the assessment of the service record during the probation period was done and it was noticed that the teacher was not fit to be retained in service on account of her irregularity in attendance, late coming, inability to involve participation of the students and failure to maintain daily attendance register of the students. It was also 8 claimed that the respondent no.1 had not completed progress cards and mark-sheets for the results declared on 28/5/1995 in respect of the students in the 9th standard. She was also questioned on her approach to the School Tribunal and obtaining an ex parte ad-interim stay on the earlier termination order. The teacher had replied to the said show cause notice and by taking into consideration the said reply, which was found to be unsatisfactory, the management exercised its right to dispense with the service of the probationer and, therefore, there was no illegality committed in issuing the said termination order. In short, it is claimed that the School Tribunal as well as the learned Single Judge of this court was in error and the order passed by the School Tribunal as confirmed by the learned Single Judge is required to be quashed and set aside. 7. The learned counsel for the respondent no.1 has, on the other hand, supported the order passed by the School Tribunal. He submitted that at no point of time during the period of probation of two years, the respondent no.1 was ever intimated about her unsatisfactory performance by the Headmaster and for the first time, after she was reinstated pursuant to the ad-interim order passed by the School Tribunal, the management, by way of an after thought and so as to take revenge, issued the show 9 cause notice dated 23/6/1995 and it did not apply its mind to the reply given thereto as per the written statement dated 28/6/1995 by the teacher. The management was pre-determined to do away with the employment of the respondent no.1 and the order of termination was, therefore, arbitrary, whimsical, illegal and void ab initio. The School Tribunal was justified in setting aside the same, urged the learned counsel. 8. The show cause notice dated 23/6/1995 pointed out that in the academic years 1993-94 and 1994-95 the respondent no.1 had availed 20 and 22 days of casual leave. The statement provided of the said casual leave itself indicated that by and large it was one or two days in most of the months, except in September, 1993 she had taken 7 days and in March 1995 she had taken 10 days casual leaves. It was further alleged that she did not submit application for regularization of the leave. The next charge was her failure to involve the participation of the students during the course of her teaching. It was also alleged that the daily attendance register of the students in the 8th class in the academic year 1993-94 and of the 9th class in the academic year 1994-95 was not maintained properly and neatly. The teacher by her reply dated 28/6/1995 pointed out that the school locality was not properly connected by the BEST services and, therefore, almost 10 every teacher would be late in reaching the school on some days and the management was aware of this problem and had accepted the same. So far as the leave period in March, 1995 was concerned, she pointed out that her husband was hospitalized on account of kidney problem and she had submitted an application for the same. She also pointed out that whenever she had proceeded on leave, an application was submitted. As far as the involvement of the students is concerned, she pointed out that majority of the students came from the nearby community with different disadvantaged social backgrounds and it was quite strenuous for the teachers to bring them to the expected academic standards and she had made her best efforts to involve these students in the studies. So far as the result of 8th standard and 9th standard was concerned, she had pointed out that the mistakes or erasures noted were not her doing and if there were any corrections made, they were done at the instance of the Headmistress who decided to change her earlier decision regarding the unsuccessful students. She pointed out that number of students had failed in English and Maths and, therefore, the Headmistress revised the results. She also pointed out that she had prepared the mark-list of the final year in the year 1994-95 as per the instructions of the Headmistress who subsequently decided to hold a special examination of 31 students who had failed earlier. She also pointed 11 out that her service was terminated as per the order dated 28/4/1995 and, therefore, was not responsible for the alleged incomplete work during the period from 28/4/1995 to 28/6/1995. 9. The learned counsel for the appellants cited a host of decisions before us in support of his contentions that the termination of a probationer on completion of the probation period could not be interfered with by the School Tribunal and such termination was not stigmatic. So long as the termination was on account of unsatisfactory performance, there was no scope for interference in the decision of the management, at the hands of the School Tribunal. In the case of Mathew P. Thomas vs. Kerala State Civil Supply Corpn. Ltd. and ors. [(2003) 3 SCC 263], the Supreme Court held, “.....In cases where the services of a probationer are terminated by an order of termination simpliciter and the language and form of it do not show that either it is punitive or stigmatic on the face of it but in some cases there may be a background and attending circumstances to show that misconduct was the real basis 12 and design to terminate the services of a probationer. In other words, the facade of the termination order may be simpliciter, but the real face behind it is to get rid of the services of a probationer on the basis of misconduct. In such cases it becomes necessary to travel beyond the order of termination simpliciter to find out what in reality is the background and what weighed with the employer to terminate the services of a probationer. In that process it also becomes necessary to find out whether efforts were made to find out the suitability of the person to continue in service or he is in reality removed from service on the foundation of his misconduct.” In the case of State of Punjab and ors. vs. Sukhwinder Singh [(2005) 5 SCC 569], a three Judge bench of the Supreme Court stated, “Termination of service of a probationer during or at the of the period of probation will not ordinarily and by itself be a punishment because the servant so appointed has not right to continue to hold such a post any more than a servant 13 employed on probation by a private employer is entitled to. The period of probation, therefore, furnishes a valuable opportunity to the master to closely observe the work of the probationer and by the time the period of probation expires to make up his mind whether to retain the servant by absorbing him in regular service or dispense with his service. Period of probation may vary from post to post or master to master and it is not obligatory on the master to prescribe a period of probation. It is always open to the employer to employ a person without putting him on probation. Power to put the employee on probation for watching his performance and the period during which the performance is to be observed is the prerogative of the employer.” In the case of K. V. Krishnamani vs. Lalit Kala Academy [AIR 1996 SC 2444], the Supreme Court held that the very object of probation is to test the suitability and if the appointing authority finds that the candidate is not suitable, it certainly has the power to terminate the services of the employee and under such circumstances it cannot be held that the 14 reasons mentioned constitute motive and not foundation for the termination of service. 10. The learned counsel for the appellants has further relied upon an unreported decision of this court (DB) in the case of Mohammed Haji Saboo Siddik Institution and ors. vs. The State of Maharashtra and ors. [Writ Petition No. 1094/1985, decided on 18/8/1993]. The following observations made by the Division Bench have been cited before us: “... In the first place, as far as the performance of the probationer is concerned, it is to be assessed by the employer and thereafter to take decision as to whether the probationer is to be confirmed in service or not. There is no question of issuing any memo to a probationer for his unsatisfactory performance. We are also unable to appreciate the reasoning of the Tribunal that it is necessary for the Management to produce positive documentary evidence in order to demonstrate that the services of the respondent no.3 were not satisfactory. Unless there is material to show that the order of termination was actuated by malice or with ulterior motive, it 15 is not for the Courts to interfere with the assessment of the work of a probationer. Shri Bukhari, however, contends that under Rule 15, the School is required to prepare a confidential report of an employee and sub-rule (b) of Rule 15 provides that failure to write and maintain confidential reports shall have the effect that the work of the employee concerned was satisfactory during the relevant period. Shri Bukhari says that the Management should be produced the confidential report before the Tribunal. It is not possible to accept the contention of the learned counsel for more than one reason. Firstly, this contention is raised for the first time before the High Court. In any event, it is difficult to appreciate as to how the failure to maintain confidential report will render the termination illegal. Each case has to be determined on its own facts and it is not possible to lay down a general rule that failure of the school to maintain a confidential report will invalidate the order of termination....” 11. The School Tribunal in the instant case noted that the probation period of the respondent no.1 – teacher was to expire on 5/7/1995 and the 16 second termination order was issued by the Management just before five days of completion of the probation period i.e. on 1/7/1995. The date of the memo issued to the teacher was not mentioned and it was only stated that memos were issued to her pointing out that she did not take classes regularly. The complaints received against the teacher were dated 19th April 1995 and 23/6/1995 and based on that show cause notice was issued on 28/6/1995. During the said period she was not in employment and the order of termination issued was a subject matter of challenge in Appeal No. 73 of 1995 and till the filing of the said appeal, no complaint was received by the management against the respondent no.1 and, therefore, no memo was issued to her. She was also not paid one month’s pay in lieu of notice when the order dated 1/7/1995 was issued. Similarly during the entire probation period starting from 6/7/1993 she was not served with any memo about any complaints relating to her work and all of a sudden the show cause notice dated 23/6/1995 was issued to her after the termination order dated 29/4/1995 was withdrawn. 12. It is thus clear that the School Tribunal did not refer to the scheme of Rules 14 and 15 of the MEPS Rules and only on the basis of factual position as noted hereinabove, the Tribunal recorded a finding that the 17 termination order dated 1/7/1995 was issued with malice and ulterior motives and, therefore, bad in law. In Writ Petition No.2256 of 2002 the learned Single Judge did not refer to the scheme of Rules 14 and 15 of the MEPS Rules, though he referred to the provisions of Section 5(2) and (3) of the MEPS Act. It was further noted that the teacher was required to be informed about the unsatisfactory performance during the probationary period and the same must be supported by some credible material on record so as to indicate that the performance of the teacher was correctly and properly assessed to come to a bona fide conclusion that the probationary period could not be extended or that her services deserved to be discontinued for unsatisfactory work. Every probationer must be sounded, told and warned that he / she was committing certain mistakes and the areas of improvements. In spite of these efforts and warnings by the management, if the probationer failed to improve the performance, perhaps the management would be justified in terminating the employment of the probationer. Merely because an employee is appointed on probation and since probation is completed, he / she could not be thrown out of the employment arbitrarily and the work and performance was required to be genuinely and properly assessed during the course of the probationary period. Reliance in this regard was placed on the decision in the case of 18 Krishnadevaraya Education Trust and anr. Vs. L.A. Balakrishna [AIR 2001 SC 625], by the Single Bench. 13. It is true that as a general principle in service jurisprudence an employee is appointed on probation to test his/her performance and suitability for the post appointed and if during this period of probation, the performance is found to be unsatisfactory, the employer has the right to discontinue the employee on completion of the probationary period and without assigning any reasons. It is also equally well settled that such an order of termination is not a stigmatic order and as per the contract of service or the terms of appointment, the employer has such a right so that the exercise of such right would not amount to an illegal action on the part of the employer. Such an order will not by itself be a penal order and the period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer. However, the MEPS Act is a special piece of legislation and Section 5(2) of the said Act states that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of Subsections 3 and 4, he shall, on completion of his probation period of two years, be deemed to have been confirmed. As per Subsection 3 of Section 5 of the MEPS Act, 19 if in the opinion of the management, the work or behaviour 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 of one month in lieu of notice. Thus, the appointment on probation and the termination of the service of the probationer are governed by the provisions of Subsections 2 and 3 of Section 5 of the MEPS Act. In addition, Rules 14 and 15 of the MEPS Rules, 1981, have elaborately set out the procedure for the assessment of the probationer’s performance and writing of his confidential reports. When a special statute like the MEPS Act has provided for a specific procedure to be followed while terminating the employment of a probationer on the ground of unsatisfactory performance, the said procedure is mandatory and non compliance thereof would vitiate the order of termination and the School Tribunal will be fully justified to interfere with the same and set it aside by directing reinstatement of the appointee/appellant. 14. Rules 14 and 15 of the MEPS Rules read as under: “14. Assessment of employees work – (1) At the beginning of 20 each term, the teacher shall prepare the plan of his academic programme and at the end of the academic year, prepare a report of the work done by him and submit it to the Head. (2) Each employee on the teacher and non-teaching staff of a school shall submit the report of self-assessment in the respective Form in Schedule “G” within one month after the end of a year. 15. Writing of confidential reports etc. - The confidential reports shall be written annually in the respective Form in Schedule “G”. The reporting authorities in respect of the employees and the Head shall be the Head and the Chief Executive Officer respectively. Confidential reports shall be written in respect of the employee or the Head who had worked for six months or more during an academic year commencing from June. If the Head or a teacher is the Secretary of the Management the confidential report in his respect shall be written by the President of the Management. 21 (2) The confidential