1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2066 OF 1996 1 Principal, West Khandesh Bhagini Seva Mandal’s Arts & Commerce College for Women, Vocational Courses, Dayasagar Educational Campus, Dhule. 2 Chairman, West Khandesh Bhagni Seva Mandal’s Arts & Commerce College for Women, Vocational Course, Dayasagar Educational Campus, Dhule. Petitioner Versus Rajendra Janardhan Baviskar, House No.2609, Lane No.5, Dhule. Respondents Mr.V.D.Hon, advocate holding for Mr.D.S.Bagul, advocate for petitioners. Mr.C.V.Dharurkar, advocate holding for Mr.R.J.Godbole, advocate for the Respondent. CORAM: R.M.BORDE, J. Reserved on : 06.03.2009 Pronounced on: 04.04.2009. 2 ORAL JUDGMENT: 1 Petitioner-Institution is raising exception to the order dated 30 th December 1991, passed by Presiding Officer, School Tribunal, Bombay. 2 The order passed by Management terminating services of Respondent-employee by order dated 11.10.1990, was subject matter of challenge in the appeal presented by Respondent herein to the School Tribunal. The School Tribunal, while allowing the appeal, directed quashment of notice of termination dated 11.10.1990 and further directed the Management to reinstate Respondent-employee along with consequential benefits. 3 Respondent approached the School Tribunal with a contention that he was appointed as full time teacher in vocational course of Marketing and Salesmanship for the academic year 1989-90. By an order dated 07.08.1990, he was continued in service for the academic year 1990-91. According to the employee, the order, which was issued by the Management on 07.08.1990, was taken back from him under false pretext and a separate back dated order was issued on 11.10.1990. The service conditions incorporated in the earlier order of appointment were 3 unilaterally changed by the petitioner-Management. It is the contention of employee that initial appointment order dated 07.08.1990 was given effect since 20.06.1990 and the order was for a duration of one year. In response to the appointment letter dated 07.08.1990, Respondent- employee continued in service. According to the employee, appointment order dated 13.07.1990 is a fabricated one and is silent so far as duration of appointment is concerned. According to the Respondent- employee, termination order, issued prior to expiry of period of academic year, is illegal. The termination letter dated 11.10.1990 refers to two letters issued by the Principal of the College dated 27 th August 1990 and 5 th September 1990. The memos were issued with a view to create false record against him. There was no inquiry conducted in respect of the allegations contained in the memos. According to the employee, order of termination amounts to colourable exercise of powers by the employer. The employee, therefore, contends that the order of termination is illegal and required to be set aside. 4 The appeal presented by Respondent-employee was opposed by petitioners herein by presenting written statement. According to employer, Respondent-employee has filed a false criminal 4 case bearing STC No.1976/1990 and during the investigation of said criminal complaint, record belonging to the institution was seized under the search warrant. The employer, therefore, was prevented from placing before the tribunal relevant original record which is in the custody of Judicial Magistrate, First Class, Dhule. The employer has denied allegation in respect of taking back the order dated 7 th August 1990 and issuing a fresh order. According to employer, the employee was never appointed in view of letter dated 07.08.1990 with effect from 20.06.1990 for a period of one year. It is the contention of employer that there is no fixed period of one year, for which he was appointed, as alleged by the employee. According to employer, service record of the employee was not to the satisfaction of the employer and he was negligent in performing his duties. The employer has every right to terminate services of the employee who was appointed on temporary basis. As such, it is contended that the appeal presented by the employee does not call for any interference. 5 The School Tribunal found that the employee has substantiated his contentions and as such, by impugned order dated 30 th December 1991, allowed the appeal presented by employee. 6 I have heard arguments advanced by Shri V.D.Hon, learned 5 Counsel holding for Shri D.S.Bagul, advocate for petitioners and Shri C.V.Dharurkar, learned Counsel holding for Shri R.J.Godbole, advocate for Respondent. 7 Petitioners have vehemently contended that petitioner- institution was prevented from placing before the tribunal original record which was in the custody of Judicial Magistrate, First Class, Dhule. Learned Presiding Officer of the School Tribunal ought to have extended proper opportunity to the Management to submit the record. However, the Tribunal, without extending proper opportunity to the Management, proceeded to decide the matter hurriedly. It is the contention of petitioners that Respondent-employee applied to the Management seeking employment in pursuant to the advertisement issued on 10.05.1990 for duration of one year. In view of the interviews held, Respondent-employee was selected and appointed for a duration of one year. According to employer, appointment of Respondent-employee is purely on temporary basis for one academic year. It is also further contended that performance of petitioner was not satisfactory and as such, his services were dispensed with. It is not necessary to hold an inquiry prior to dispensing with services of a temporary employee. It is 6 canvassed by petitioners that the impugned order does not create any stigma r and as such it is open for the employee to dispense with services of a temporary employee without holding any departmental enquiry. The order passed by Presiding Officer, School Tribunal is not sustainable in law and, therefore, is liable to be quashed and set aside. 8 Learned Counsel for the Respondent has vehemently contended that from the order dated 7 th August 1990, it is evident that appointment of Respondent-employee is for a period of one year with effect from 20.06.1990 as probationary Assistant Teacher. It was not open for the Management to terminate services of the employee before completion of period of one year. It is further contended that even if order dated 30.06.1990 is considered, it is mentioned in the order that re- employment of the Respondent for the year 1990-91 as a full time teacher is on probation. Although it is mentioned in the order that appointment is temporary, however, fact remains that Respondent-employee is treated as a probationer. The vacancy, against which the employee was appointed, was of a permanent nature. The order of termination issued on 11.10.1990 also makes a mention that Respondent-employee is a probationer and his services are being dispensed with for the reason of 7 unsatisfactory performance during probation period. The Respondent- employee has invited my attention to Rule 15(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and contended that Rule 15(6) is harmoniously required to be read along with Rule 28(1). The requirement of Rule 15(6) is not dispensed and unless there is record in respect of performance of a probationer as contemplated by Rule 15(6), action under Rule 28(1) cannot be taken under the powers vested with the Management in respect of dispensing with services of a temporary employee, who is appointed on probation, without giving any reasons, after giving one calendar month’s notice or paying one month’s salary in lieu of such notice, as contemplated by Rule 15(6). It is, thus, contention of Respondent-employee that unless requirement of Rule 15(6) is complied with, order of termination of services of probationer, by taking recourse to Rule 28(1), cannot be upheld. 9 I have given anxious consideration to the contentions raised by learned Counsel for respective parties. The order of appointment, on which, petitioners place reliance is placed on record at Exhibit-P-1 along with affidavit presented by petitioners. The order of appointment is dated 13.07.1990 and same refers to the fact that Respondent-employee is 8 appointed as full time teacher with effect from 20.06.1990 or from the date on which he resumes duties. The appointment letter is issued in pursuant to the application tendered by Respondent-employee seeking employment on 21.05.1990. In paragraph no.2 of the order, it is noted that re-employment of Respondent-employee is for the academic year 1990-91 and is of a temporary character. It is also further made clear that the appointment is on probation. The impugned notice of termination dated 11.10.1990 is annexed at Exhibit-A. The subject of the letter is in respect of dispensing with services of the employee on account of unsatisfactory performance during probation period. In the letter of termination, it is specifically noted that appointment of the employee is of temporary character and as the probation period has not come to an end, services are being dispensed with. It is also further noted that in accordance with provisions contained in the rules, the employee is being paid notice pay for one month in lieu of advance notice. Thus, it is clear that the appointment order, on which petitioners themselves place reliance, refers to reappointment of the Respondent-employee for the academic year 1990-91 and appointment letter as well as notice of termination make it clear that Respondent-employee is put on probation, although it is mentioned that his services are for a duration co-terminus 9 with academic year. Although before the School Tribunal as well as before this Court a grievance was made that original record on which petitioner-institution seeks to place reliance is in the custody of Judicial Magistrate, First Class, Dhule, however, along with affidavit, copies of relevant orders are placed on record of this petition. Petitioner was permitted to rely on the documents placed on record along with the affidavit. The advertisement issued on 10.05.1990 is in respect of appointment for the post of lecturer in vocational courses. The applications are invited for a duration of academic year 1990-91. The letter of appointment dated 07.08.1990 refers to advertisement dated 10.05.1990. As stated earlier, order dated 13.07.1990 as well as notice of termination refers to the aspect that Respondent-employee is a probationer. The order dated 13.07.1990, on which reliance is placed by the petitioner, refers to re-appointment of Respondent-employee. In these circumstances, therefore, contention of the Respondent-employee needs to be scrutinised. Respondent-employee contended that he was initially appointed as a lecturer in Marketing and Salesmanship in view of the order dated 24.10.1989. The appointment was since 24.10.1989 for one academic year and on temporary basis. After completion of the academic year, he was continued thereafter for the academic year 10 1990-91. The reference to reappointment made in the appointment letter dated 13.07.1990, on which reliance is placed by the petitioner, has to be construed with reference to earlier appointment dated 24.10.1989. Thus, it appears that Respondent-employee continued in employment for two academic years. There is no material to controvert the contentions raised by Respondent-employee to the effect that the post against which Respondent-employee is appointed, is not permanent one and is not a clear vacancy. Thus, it transpires from perusal of record that appointment of the employee is on probation as against the clear vacancy. The contention raised by petitioner to the fact that the appointment is of a temporary character and petitioner-institution has liberty to dispense with services without subscribing any reason does not appear to be convincing. 10 The argument advanced by Respondent-employee that the powers of the Management under Rule 28(1) are controlled by Rule 15(6) needs serious consideration. The order of termination refers to two letters issued by Principal dated 27.08.1990 and 05.09.1990. Copies of the said letters are placed on record. The communication dated 27.08.1990 refers to absence of Respondent-employee on 02.08.1990 between 3.00 to 5.00 11 p.m. whereas, memo dated 05.09.1990 refers to absence of Respondent- employee on 04.09.1990 at 03.15 p.m. The employee has replied both memos wherein it is contended that periods prescribed are between 07.40 to 1.00 O’ clock as per the time table and a teacher is required to make preparation for next day’s lecture thereafter. The reply to the memo appears to be convincing and the allegations contained in the memo are not of such a nature which calls for dispensing with services of an employee. Moreover, it is clear from record that the Management has not maintained the record in respect of employment of Respondent- employee, as contemplated by Rule 15. Rule 15(6) requires that the performance of the employee appointed on probation shall be objectively assessed by the Head during the period of his service and record of such assessment shall be maintained. In the instant matter, the Institution has not produced any record as contemplated by Rule 15 nor the same has been placed before the School Tribunal. Thus, taking recourse to powers under Rule 28(1), without complying with the requirements of Rule 15(6), is not proper. The order of termination, therefore, stands vitiated. Although the Respondent-employee has made allegations in respect of substituting the order of appointment, however, even after considering the admitted stand of the petitioner-institution, 12 without going into the rival contentions in respect of order of appointment, the order passed by petitioner-institution terminating services of the probationer by taking recourse to Rule 28(1), is not proper and same has been rightly quashed and set aside by the School Tribunal. 11 The petitioners have placed reliance on a decision in the case of Rajkumar Onkar Jagtap Vs. Secretary, Kshatrakulotpana, reported in 2006(3) MhLJ 502. In the reported judgment, it was found that performance of probationer during his continuance in service was found to be unsatisfactory and the memos in that regard were issued by the Management. This Court, therefore, upheld the order of termination issued by the Management. In order to canvass the contention that the language employed in the order of termination to the effect that the work and conduct of the employee is not satisfactory, is not ex facie stigmatic and it was not necessary to hold inquiry to assess probationer’s fitness for being continued on probation. The petitioner has placed reliance on the judgments in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi P.G.I. Of Medical Sciences, reported in AIR 2002 SC 23, in the case of H.F.Sangati Vs. R.G.High Court of Karnataka and others, reported in AIR 2001 SC 1148; and in the case of Mahipal Singh Mann Vs. 13 State of Punjab and another, reported in 1993 II CLR 657. There cannot be any dual opinion in respect of proposition laid down in the reported judgments. In the instant matter, it is not an argument that the order is stigmatic and as such departmental enquiry is called for. However, the question is in respect of exercise of powers by taking recourse to Rule 28(1) without complying with the requirements of Rule 15. The respondent-employee has placed reliance on the judgment of the Apex Court in the case of Progressive Education Society and another Vs. Rajendra and another, reported in AIR 2008 SC 1442. It is appropriate to refer to paragraphs 13 to 15 of the judgment: “13 On a consideration of the submissions made on behalf of the respective parties, the main issue which, in our view, requires determination in this appeal is whether the provisions of Rules 14 and 15, and, in particular Sub-rule (6) of Rule 15 of the MEPS Rules, 1981, would control the powers vested in the Management of the School under Sub-section (3) of Section 5 of the MEPS Act. The law with regard to termination of the services of a Probationer is well established and it has been repeatedly held that such a power lies with the Appointing Authority which is at liberty to terminate the services of a Probationer if it finds the performance of the Probationer to be unsatisfactory during the period of probation. 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 termination or the Probationer is 14 called upon to show cause for any shortcoming which may subsequently be the cause for 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 The facts of this case are a little different from the normal cases relating to probation and the termination of the services of a Probationer in that the satisfaction is required to be arrived at under Sub- section (3) of Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS Rules, 1981 with particular reference to Sub-rule (6) which provides that the performance of an employee appointed on probation is to be objectively assessed by the Head during the period of his probation and a record of such assessment is to be maintained. 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. 15 Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot override the provisions of Sub- section (3) of Section 5 of the MEPS Act, it has to be said that the requirements of Sub-rule (6) of Rule 15 would be a factor which the School Management has to take into consideration while exercising the powers which it undoubtedly has and is recognised under Sub-section (3) of Section 5 of the Act.” 12 In the instant matter, it would be necessary to find out 15 whether there is sufficiency of material before the Management while issuing the order of termination. It is quite evident that the Management has not stated anything about the confidential reports of the Respondent- employee. It is also not clear as to whether confidential record is maintained, as required by Rule 15 of the Rules. The memos, on which reliance is placed, cannot be a substitute for the record, which is required to be maintained by the School Management in accordance with Rule 15. There is nothing on record to indicate that performance of the probationer was assessed by the Management and same was found to be unsatisfactory, by taking recourse to the confidential record. No such record has been placed before the Tribunal. Thus, there is total non compliance of Rule 15. There is nothing to come to the conclusion that performance of the probationer was assessed by the School Management and same was not found to be satisfactory. 13 In these circumstances, the impugned order of termination issued by the Management is not sustainable. The view adopted by the School Tribunal is reasonable and proper and does not call for interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. There is no merit in the petition and same deserves 16 to be dismissed. 14 For the reasons stated above, Writ Petition does not deserve any consideration. Hence dismissed. Rule is discharged. There shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/wp206696.odt