1 wp5106.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5106 OF 2009 1 Vidhyavardini Bahuudeshiya Sikshan Sanstha Kandhar, Police Colony, behind Court Kandhar, Taluka Kandhar, District Nanded, Through its President Petitioners 2 The Secretary Vidhyavardini Bahuudeshiya Sikshan Sanstha Kandhar, Police Colony, behind Court Kandhar, Taluka Kandhar, District Nanded 3 The Head Master, Saint Namdeo Maharaj Madhyamik Vidhyayala Pansewadi, Taluka Kandhar, District Nanded V E R S U S 1 Sandeep s/o Prakashrao Sabne, Age 25 years, Occupation Service (Terminated), Resident of Balaji Galli, Mukhed, Taluka Mukhed, District Nanded Respondents 2 The Education Officer (Secondary) Zilla Parishad, Nanded, Taluka and District Nanded Mr. V.D. Salunke, Advocate for the petitioners Mr. P.S. Dighe, Advocate, holding for Mr. V.R. Dhorde, Advocate for respondent No.1 Smt. S.D. Shelke, AGP for respondent No. 2 / State CORAM : A.V. NIRGUDE, J. Reserved On : 5th May, 2011 Pronounced On : 7th June, 2011 JUDGMENT : 1. This writ petition under Articles 226 and 227 of the Constitution of India is filed against the Judgment and order dated 18th June, 2009, passed by the learned Presiding Officer, School Tribunal, Latur (henceforth be referred to as ‘learned P.O.’), in Appeal No. 10 of 2009, in which the petitioners were the respondents. 2 wp5106.09 Facts leading to this litigation, in short, can be narrated as under : 2. Petitioner Nos. 1 and 2 are President and Secretary of an education society / public trust having their Secondary School, at village Pansewadi, Taluka Kandhar, District Nanded. Petitioner No. 3 is the Headmaster of the school. Respondent No. 1 was appointed as ‘Shikshan Sevak’ on 9th April, 2007 and his appointment was approved by the concerned authority of the Education Department. Respondent No. 1 was on probation of three years. It seems, petitioner No. 2 issued certain direction to all the staff members of the school on 30th July, 2008 that they should not leave school premises during recess time. It seems, some untoward incident occurred on that day between respondent No. 1 and other teachers of the school and petitioner No.2 / Secretary. Petitioner No. 2 therefore issued a show-cause-notice to respondent No. 1 and asked him as to why disciplinary action should not be taken against him for his misconduct / arrogant behaviour etc. Respondent No.1 and other teaching staff of the school filed a complaint against respondent No. 2 with respondent No. 3 stating therein that it was petitioner No. 2 who was misbehaving on the day of incident dated 30th July, 2008 etc. Respondent No.1 nonetheless submitted his reply to the show-cause-notice on 16th August, 2008. As if that was not enough, petitioner No. 2 issued a warning to respondent No. 1 on 27th August, 2008, in which, he again alleged that respondent No.1’s behaviour was not orderly etc. Petitioner No. 2 on 31st August, 2008 filed a criminal complaint with police against respondent No. 1 and other staff members in respect of the incident that had occurred on 30th July, 2008. However, thereafter, respondent No.1 on one hand and the management on the other got settled dispute by compromise which occurred 3 wp5106.09 on 9th September, 2008. On that day, petitioner No. 3 / Headmaster informed the police that the Management would withdraw the complaint against respondent No. 1 and others. Apparently, the dispute between the parties got settled on that day. But, suddenly on 8th October, 2008, the petitioners terminated the services of respondent No. 1 as per Section 5 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, ‘MEPS Act’). Respondent No. 1 then filed Appeal No. 10 of 2009 before the School Tribunal. In his Appeal-memo, he not only denied the allegations in respect of the misconduct, arrogance etc, but he also mentioned that the dispute had come to an end on 9th September, 2008. He further mentioned that during his tenure, the Headmaster or the Management did not communicate to him any adverse remark recorded against him in his confidential report. He further mentioned that before terminating his services, the Management had not taken approval of the concerned authority of the Education Department, which is necessary as per the Government Resolution dated 13th October, 2000. The petitioners submitted their reply to the appeal-memo, and, it seems, they denied all the allegations made against them. However, the learned P.O. admittedly did not frame issue in respect of compliance of sub-rule 6 of Rule 15 of the MEPS Rules, 1981 as well as compliance of the Government Resolution dated 13th October, 2000. 3. Respondent No. 1 apparently raised an objection to his termination inter alia saying that before his termination, the Management ought to have taken approval of the Deputy Director, Secondary Schools. It seems, this allegation has not been dealt with by the Management in their written statement. So, either the learned P.O. should have recorded a finding on fact that such approval was not secured by the Management or he should 4 wp5106.09 have given them an opportunity to prove that they had taken such approval. Such an approval is quite essential. The necessity of such approval is highlighted by the Division Bench of this Court in the case of Mrs. Swati Vasant Patil and another v. The Kandivli Education Society and others (2002 (1) All MR 333). In my view, this important aspect of this case has been completely ignored by the learned P.O. and both the parties deserve an opportunity to agitate this question before him. 4. The Judgment of the Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (2008) 3 Supreme Court Cases 310) inter alia highlighted the importance of Rule 15 of the MEPS Rules. It is held in the Judgment that before termination of a teacher utilizing powers under Section 5 (3), the Management is under obligation to peruse the objective assessment recorded by head of the Institution against the delinquent. In order to understand the importance of Rule 15 of the MEPS Rules and the ratio of the above mentioned Judgment of the Supreme Court, one must read Rule. Rule 15 reads as under : 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. Confidentyial 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. (2) The confidential reports so written in respect of the employees and the Head shall be reviewed by the Chief Executive Officer and the President of the Management, respectively. The confidential report of the Head or a teacher written by the President 5 wp5106.09 shall be reviewed by the Managing Committee. (3) The respective reporting authority shall arrange to communicate confidentially in writing adverse remarks, if any, to the concerned employee or the Head, as the case may be, before the end of August every year. (4) Representation, if any, from any employee against the adverse remark communicated to him in accordance with sub-rule (3) above shall be decided by the School Committee. Similar representation, if any, from the Head shall be decided by the Managing Committee. (5) Failure to write and maintain confidential reports and to communicate adverse remarks to the employees 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. (6) Performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained. 5. In this case, since respondent No. 1 was on probation, provisions of sub-rules 1 to 5 would not apply to his case, but sub-rule 6 would certainly apply to his case. In view of sub-rule 6, it was incumbent upon the Headmaster to objectively assess the performance of respondent No. 1 during the period of probation and maintain a record in respect of the same. It seems from the impugned Judgment that the Management was not given an opportunity to produce such record before the Tribunal. It seems further that the petitioners filed their written statement mainly relying on the ratio of the Judgment of this Court in the case of Ms Niraj Singh v. Shishu Vihart Mandal & Ors. (2007 (2) All MR 644), and therefore, it seems, they did not realize the importance of the confidential record in respect of respondent No. 1 maintained by the Headmaster of the School. No doubt, respondent No. 1 6 wp5106.09 has mentioned in his appeal-memo that no adverse remark recorded in the confidential roll was communicated to him during his tenure. This averment in the appeal-memo has certainly but impliedly refer to requirement of sub- rule 6 of Rule 15. But, no issue was framed by the learned P.O. in this regard. I think, the Management of the School was not under obligation to intimate to respondent No. 1 the adverse remarks recorded in the confidential report, because sub-rule 6 does not prescribe such compliance. I have held above that other sub-rules of Rule 15 are not applicable to the case of probationary. In case of probationary, the Headmaster is required to objectively assess his performance and maintain a record about the same. Such a record would be utilized at the time of his confirmation as well as at the time of his termination. The Supreme Court in the above referred Judgment has observed thus : “The appointing authority is at liberty to terminate services of a probationer if it finds performance of probationer to be unsatisfactory during the period of probation. The assessment has to be made by the appointing authority itself and the satisfaction is to be that of the appointing authority as well. Unless a stigma is attached to the termination or the probationer is called upon to show cause for any shortcoming which may subsequently be the cause for termination of the probationer’s services, the management or the appointing authority is not required to give any explanation or reason for terminating services except informing him that his services have been found to be unsatisfactory.” “......satisfaction required to be arrived at under Section 5 (3) of the Act has to be read along with Rule 15 of the Rules with particular reference to sub-rule (6) which provides that 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 two provisions are read together, 7 wp5106.09 it would mean that before taking recourse to powers vested under Section 5 (3) of the Act, the performance of an employee appointed on probation would have to be taken into consideration by the school management before terminating his services.” From the impugned Judgment, it is seen that the learned P.O., after referring to the Judgment of the Supreme Court, referred to above, without giving an opportunity to the petitioners, jumped to a conclusion that they had terminated the services of respondent No.1 without taking into account the confidential record maintained by the Headmaster. Such a conclusion, in my view, is erroneous, because the question as to whether confidential record was maintained by the Headmaster or not, was not the question before the Court at all. As said above, no issue was framed by the learned P.O. in this regard and he did not give any finding of facts as to whether the Headmaster recorded confidential report as contemplated by sub-rule 6 of Rule 15. Unless such a finding is recorded, the learned P.O. could not have placed reliance on the ratio of the Supreme Court Judgment. I think, the learned P.O. rather hastily passed his Judgment. 6. I think, the case deserves to be remanded back to the School Tribunal where the parties would be given fresh opportunities to bring on record their pleadings in respect of (i) whether the approval of the Deputy Director was obtained before terminating respondent No.1 ?, (ii) whether such approval was necessary ?, (iii) whether confidential record was maintained by the Headmaster in respect of respondent No.1’s performance ?, and (iv) whether the Management took into account such record before terminating respondent No.1 ? Thus, Rule is made absolute in terms of following order : ORDER 8 wp5106.09 1. The impugned Judgment and order dated 18th June, 2009, passed by the learned School Tribunal Latur in Appeal No. 10 of 2009 stands set aside. 2. The case is remanded back to the School Tribunal Latur for deciding the same afresh in accordance with the above directions. 3. In view of above, respondent No. 1 is likely to loose his employment, and therefore, the learned Presiding Officer, School Tribunal, Latur is directed to decide the case within three weeks from the date of communication. 4. At the request of learned Advocate appearing for the respondent, effect of the order is kept in abeyance for a period of three weeks. ( A.V. NIRGUDE, J. ) SRM/wp/5106/09/7/6/11/ok