1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.6520 OF 1998 Jotiram Narayan Chechar. ...Petitioner. Vs. The President, Panchganga Shikshan Prasarak Mandal, Prayag Chikhali (Kolhapur) & Ors. ...Respondents. .... Mr. R.G. Ketkar for the Petitioner. Mr. A.B. Borkar for Respondent No.2. Mr. R.M. Patne, AGP for Respondent No.3. ..... CORAM :DR.D.Y.CHANDRACHUD, J. April 15, 2008. ORAL JUDGMENT : The Petitioner was appointed as a Junior Clerk by the First Respondent on probation by an order dated 21st May 1992. The First Respondent is the President of the Panchaganga Shikshan Prasarak Mandal which conducts a High School at Prayag Chikhali. The aforesaid order of appointment was issued to the Petitioner under Section 9(5) of the Maharashtra Employees of Private Schools 2 (Conditions of Service) Rules, 1981. The Headmaster sought the approval of the Education Officer (Secondary), Kolhapur. The appointment was approved by the Education Officer on 4th May 1994. On 22nd March 1994, a notice to show cause was issued to the Petitioner by the Second Respondent claiming that the Petitioner was appointed against a reserved post and that approval to his service was refused on 25th August 1992. However, it was alleged that the Petitioner altered the roster by showing the post as an open post and got it approved through the President of the Institution. It is alleged that by preparing a false roster, the Petitioner misled the institute as well as the Education Department. A period of seven days was furnished to the Petitioner to show cause. Immediately thereafter, without waiting for the period to expire, an order was issued by the First Respondent on 22nd March 1994 terminating the services of the Petitioner with effect from 30th April 1994. 2. The Petitioner challenged the order of termination before the School Tribunal in an appeal under Section 9 of the Act. The 3 Education Officer of the Zilla Parishad, filed an affidavit in reply to the appeal stating therein that the Petitioner came to be appointed as a Junior Clerk upon which the proposal as submitted was sanctioned through his office for the Academic Year 1992-93. It was averred therein that since the institution had one school and there was only one post of clerk sanctioned by the Rules, hence, the termination by the management was improper. Before the School Tribunal, the management filed its Written Statement in which it was stated that during the probationary period, the Petitioner had committed a serious act of misbehaviour by preparing a bogus roster register and altered his own post from a reserved to an open post. It is stated that when the management came to know of this act of misbehaviour, it thought it fit to dispense with the probationary period of the Petitioner and issued a termination order and a show cause notice to explain the act of misbehaviour before proceeding to take criminal action. According to the management, the Petitioner had prepared a bogus roster register with a view to obtain the benefit of permanency and to accommodate another employee who belongs to the Scheduled 4 Caste category though a vacant post therein was reserved for the Scheduled Tribes. This act of the Petitioner, it was alleged, constituted a serious misbehaviour and hence, the services of the Petitioner were liable to be terminated. 3. The School Tribunal, as noted above, dismissed the appeal filed by the Petitioner by an order dated 17th August 1998. The Tribunal observed that when the management came to know that a false record was prepared by the Petitioner for his own benefit by showing that the post of a clerk was under the open category in order to obtain the approval of the Education Officer it had taken action. The Tribunal also held that during the pendency of the appeal, the Petitioner had forcibly taken charge of the muster and the keys without authority. The Tribunal categorically held that the act of the Petitioner constituted misconduct and since the Petitioner committed a serious act of misconduct during the probationary period, his services were rightly terminated by the management. The appeal was, in the circumstances, dismissed. 5 4. On behalf of the Petitioner, Learned Counsel urged that on 22nd March 1994, a notice to show cause was issued to the Petitioner making a serious allegation to the effect that he had tampered with the Register. On 23rd March 1994, without waiting for the reply of the Petitioner, his services came to be terminated. Before the School Tribunal, the management in fact, reiterated, in its Written Statement, that the Petitioner was found to be engaged in a serious act of misbehaviour involving the preparation of a bogus roster register and hence, his services were liable to be terminated. In these circumstances, it was submitted that the Written Statement of the management ex-facie shows that the termination was founded upon an allegation of misconduct and though the order of discharge is an order of discharge simpliciter, the termination was punitive in character. No enquiry was held consequent upon which, the Petitioner is liable to be reinstated in service. 5. On the other hand it has been urged on behalf of the 6 Petitioner-management that while it is true that the management had relied upon the serious act of misbehaviour on the part of the Petitioner to support the order of termination, the order of termination is one of discharge simpliciter and it is, therefore, not a punitive order. 6. During the course of the probation of an employee, it is open to the management or an employer, as the case may be, to assess the suitability of the employee for the purpose of confirmation. Merely because there has been an allegation of misconduct against an employee that would not necessarily lead to the conclusion that the termination of service of a probationer by an order of discharge simpliciter is punitive. In order to assess whether a probationer on probation should be confirmed in service, the employer would be entitled to satisfy himself of the competence of the probationer. For this purpose, the employer may also satisfy itself fairly as to the truth of any allegation that has been made against the employee. If no enquiry has been held, no findings have been arrived at and the employer is not inclined to conduct an enquiry, but at the same time, 7 did not want to continue the employee against whom there were complaints, that would only be a case of a motive for the termination and the order of termination would not be punitive in nature. Dipti Prakash Banarjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60); Secretary/Rector, Hyderabad Sindh National College Board vs. Deepak Indar Ahuja, 2006(5) Mh. L.J. 403; and Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I. of Medical Sciences, 2002(1) All MR 302. 7. In the present case, undoubtedly while a notice to show cause was issued to the employee, no formal enquiry was initiated. The employer was justified in calling for an explanation of the employee by its letter dated 22nd March 1994 because the purpose of the notice was to enable the employer to assess the competence of the employee for confirmation in service. But the matter did not rest there. After the termination took place on 23rd March 1994 by an order of discharge simpliciter, the employee moved the School Tribunal. Before the School Tribunal, the specific case of the 8 employer, the Respondent herein, was to the effect that the Petitioner had a committed serious act of misbehaviour during the course of his probationary service by preparing a bogus roster register. The management has categorically stated in paragraph 7 and again in paragraph 10 of the Written Statement that the act of the Petitioner constitutes serious misbehaviour and that his services were being terminated for his misbehaviour. Paragraph 10 of the Written Statement reads as follows: “That the Respondents emphatically deny that the termination order deserves to be set aside and quashed. It is submitted that the termination order is legal, proper and just. And the Respondents have terminated the probationary period of the Appellant for his misbehaviour. Hence, termination is the only proper and just action, available with the Respondents.” (emphasis supplied). 8. The present case, therefore, is one where the management has categorically contended and accepted that the services of the probationer were terminated for a serious act of misbehaviour. Once the management accepted this position before the School Tribunal, there could be no question about the position in law that the order of 9 termination was punitive in nature. Undoubtedly, the management was within its rights in initially issuing a notice to show cause to assess the suitability of the employee. The management could have issued an order of termination without holding an enquiry. Had the matter rested there, the position would have been different. In the present case, however, the management took the position in its Written Statement that the termination was for an act of misbehaviour. In view of this stand of the management, it will have to be held that the termination was punitive. The School Tribunal, as a matter of fact, came to the conclusion that an act of misconduct was committed by the Petitioner. If that be so, there is absolutely no reason to justify the dispensation of a formal disciplinary enquiry. Whether or not the misconduct was established, had to be a matter of determination in a regular disciplinary enquiry which was not held. 9. In the circumstances, the petition would have to be allowed and the Petitioner would have to be reinstated to the post of a probationer-Clerk. The Petitioner would have to serve out the 10 remaining period of probation during which the management would be at liberty to assess the competence of the Petitioner for confirmation in service in accordance with law. In so far as the payment of back wages is concerned, it is now a settled principle that the burden lies on the employee to establish that he was not gainfully employed during the period of termination. No such material has been placed on the record. There shall accordingly be an order of reinstatement without back wages. 10. In these circumstances, the order of the School Tribunal dated 17th August 1998 shall stand quashed and set aside and the appeal before the Tribunal shall stand disposed of in terms of the following directions: (1) The Petitioner shall be reinstated to the post of probationary clerk by the First and Second Respondents without any back wages; (2) During the remaining period of probation, it would be open 11 to the management to assess the suitability and competence of the Petitioner for confirmation in service as a probationary clerk; (3) The present order shall not preclude the management from instituting a regular disciplinary proceeding if it is so advised in accordance with law to enquire into the charge of misconduct; (4) In the event that any salary is due and remains to be paid to the Petitioner for the period for which he has actually rendered service that shall be remitted to him within a period of four weeks from today. 11. There shall be no order as to costs. .....