1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.1544 OF 2010 Arvind Shamshabd Ojha, age about 32 years, r/at B-16 Aashirwad Society, Juvekar Marg, Nr. Shankar Temple, Bhandup Village Bhandup (East), Mumbai 400 042 ....Petitioner. Vs. 1.Saraswati Education Society A registered Trust having its office at S.E.S. High School Building, Panchpakhadi, Thane 400 602 through its President/Secretary. 2.Saraswati Education Society’s Hgih School &Junior College at Panchpakhadi, Thane 400 602 3.The Dy. Director of Education (Thane Division) (Higher Sec). Having its Office at Jawahar Bal Bhavan, Netaji Subhash Road Near Charni Road Rly Station, Mumbai 400 004 ....Respondents. Mr. Sunil D. Dighe, for the Petitioner. Mr. R. S. Apte, Senior Counsel i/b Shri M.S. Lagu for the respondent Nos l & 2. Shri P. I. Khemani, AGP for the Respondent No.3. CORAM : ANOOP V. MOHTA, J. DATE : 6th April, 2010 Oral Judgment 1. Rule returnable forthwith. Heard finally. 2 2. The petitioner has challenged the order dated 16.12.2009, passed by the School Tribunal, Navi Mumbai whereby the appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, l977 (for short called as "MEPS Act"), was dismissed. 3. There is no dispute that the petitioner was on probation. The termination order reflects that he was terminated as his work was not satisfactory and therefore, the management no longer interested in continuing him in service as a teacher in the school. 4. The learned Tribunal, after considering the material placed on record by reasoned order dismissed the appeal and maintained the order of termination. The submission based upon the observations by Hon'ble Supreme Court, in Progressive Education Society and anr -vs- Rajendra and anr (2008 (2) Mah L. J. p715 is made that even before taking any action of termination of employees on probation, the subjective satisfaction is a must and therefore for want of such material on record such termination without due enquiry or without show cause notice is bad in law and perverse and therefore, the impugned order needs to be set aside. 5. In case of Progressive Education Society (supra), considering the same provision of the Act basically section 5(5) of MEPS Act, and rule 14 and 15, Hon'ble Supreme Court has in para 13 and l4 elaborated and reiterated as under: "13. The assessment has to be made by the Appointing Authority itself and the satisfaction is that of the Appointing Authority as well. Unless a stigma is attached to the 3 termination or the Probationer is called upon to show cause for any shortcoming which may subsequently be the cause of termination of the Probationer’s service, the Management or the Appointing Authority is not required to give any explanation or reason for terminating the services except informing him that his services have been found to be unsatisfactory” 14. If the two provisions are read together, it would mean that before taking recourse to the powers vested under sub section (3) of section 5 of the MEPS Act, the performance of an employee appointed on probation would have to be taken into consideration by the School Management before terminating his services”. 6. The concept of subjective satisfaction depends upon the facts and circumstances of each case. If the employee/teacher appointed on probation and before completion of the prescribed period of probation if the management on all material available with them taking note of totality of the matter including various aspects of employment and the conduct of the teacher/employee comes to the conclusion that they do not want such person/teacher to continue, it is difficult for third person/party to interfere with the said decision merely because there was no such communication made prior to said termination and/or show cause notice issued before taking such action. The termination letter shows that there was no intention of management to continue the petitioner on the post. They took this action before completion of probation period ie only 3 to 4 months left to complete the probation and that itself in my view cannot be a reason to overlook the action taken by the petitioner to terminate the service. The 4 management if entitled under the law and based upon the material available, takes decision not to continue such person and therefore, before completion of probation period by giving due notice if they terminated service cannot be said that it is beyond the law and/or authority. 7. The learned Tribunal, after considering the material on record and basically in para 33 has reproduced and taken note of material available on record. Para 33 reads thus, “Appellant himself has clarified that while working as Shikshan Sevak he has been also working as main partner or Director of M/s Cosmos Systems. This fact shows that at once appellant has worked on two different posts. Appellant has tried to point out that while working as Director or main Partner of M/s Cosmos Systems he was not utilizing the time of his duty hours. In my opinion as appellant was working on two posts definitely he could not have concentrated properly on either of the works. Appellant has alleged that he was terminated without giving an opportunity of explaining the facts about his arrest etc. Appellant cannot take such a ground merely because he is not terminated on the ground of his arrest. Further appellant cannot take such ground of giving explanation for his unsatisfactory work because respondents have filed certain memos on record showing that explanation was definitely sought from appellant. Not only it even though appellant is contending that nothing adverse was noted against him in the period of his service, it is worthy to note here that appellant himself has sent a notice dated 27-4-2009 and he himself has called explanation from the Principal of the Junior College. It is further worthy to note here that the Respondent No.2 has replied said notice on 7-5-2009 and informed the appellant about all the irregularities in his work, about his indisciplined behaviour while being on probation etc. Notice dated 27-4-2009 makes it clear that appellant was aware of 5 the fact that his behaviour was not up to the mark therefore only he has called explanation from Principal and the management by sending such notice . Appellant was having apprehension of termination of his service. In my opinion such apprehension would have arisen in the mind of appellant because he was knowing very well that his work was not satisfactory. The contents of the notice dated 27.4.2009 show that appellant has made wild allegations against Principal and this amounts to insubordination. It cannot be accepted that the probationer who makes insubordination of the superiors can be said to have worked satisfactorily. The conduct of the appellant prior to his termination shows that he was not having any respect about his work. Therefore, only he was indulged as a partner or main Director of the some of the Company. This fact establishes that appellant himself was not behaving properly and he is making the wild allegations against the superiors. In such circumstances in my opinion it cannot be held that management has committed any mistake in concluding that performance of the appellant was not satisfactory. Therefore, I find that appellant has failed in proving the fact that his termination is illegal and liable to be quashed and set aside.” 8. The reasoning so given in my view cannot be said to be perverse or contrary to the record. The view so taken by the Tribunal is possible view and it is well within the framework of law. I see there is no reason to give other opinion and or any directions by re-appreciating the same material basically when the management for the reasons recorded by the Tribunal, decided not to continue the petitioner in service. In the present case, it is difficult for the Court to compel the management to continue and/or allow such person to work further. Therefore, I see there is no reason to interfere with the order so passed by the Tribunal. It is 6 well within the framework of law and record. The petition is dismissed. No costs. (ANOOP V. MOHTA, J.)