: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1043 OF 1991 WRIT PETITION NO.1043 OF 1991 WRIT PETITION NO.1043 OF 1991 1. Lala Lajpatrai Institute ) 1. Lala Lajpatrai Institute ) 1. Lala Lajpatrai Institute ) a Society registered under the ) a Society registered under the ) a Society registered under the ) provisions of the Societies ) provisions of the Societies ) provisions of the Societies ) Registration Act, having its office ) Registration Act, having its office ) Registration Act, having its office ) at Lala Lajpatrai Marg, Mahalaxmi, ) at Lala Lajpatrai Marg, Mahalaxmi, ) at Lala Lajpatrai Marg, Mahalaxmi, ) Bombay 400 034 ) Bombay 400 034 ) Bombay 400 034 ) 2. M.G.Shirhatti, Principal, ) 2. M.G.Shirhatti, Principal, ) 2. M.G.Shirhatti, Principal, ) Lala Lajpatrai College of Commerce ) Lala Lajpatrai College of Commerce ) Lala Lajpatrai College of Commerce ) and Economics, having its office ) and Economics, having its office ) and Economics, having its office ) at Lala Lajpatrai Marg, Mahalaxmi ) at Lala Lajpatrai Marg, Mahalaxmi ) at Lala Lajpatrai Marg, Mahalaxmi ) Mumbai 400 034. )..Petitioners Mumbai 400 034. )..Petitioners Mumbai 400 034. )..Petitioners Versus Versus Versus 1. D.T.Godbole, 1. D.T.Godbole, 1. D.T.Godbole, residing at S.K.Raigule, Lokmanya ) residing at S.K.Raigule, Lokmanya ) residing at S.K.Raigule, Lokmanya ) Nagar, Pada No.3, Thane-6. ) Nagar, Pada No.3, Thane-6. ) Nagar, Pada No.3, Thane-6. ) 2. Presiding Officer, ) 2. Presiding Officer, ) 2. Presiding Officer, ) : 2 : Schools Tribunal,Bombay. )..Respondents Schools Tribunal,Bombay. )..Respondents Schools Tribunal,Bombay. )..Respondents Mr. Birendra Saraf with Mr V.K. Shiradkar and Hemang Mr. Birendra Saraf with Mr V.K. Shiradkar and Hemang Mr. Birendra Saraf with Mr V.K. Shiradkar and Hemang Parekh i/by Shiradkar & Co. for the petitioners Parekh i/by Shiradkar & Co. for the petitioners Parekh i/by Shiradkar & Co. for the petitioners Mr.Ashok N. Kotangale with Mr. Arun D. Nagarjun i/b Mr.Ashok N. Kotangale with Mr. Arun D. Nagarjun i/b Mr.Ashok N. Kotangale with Mr. Arun D. Nagarjun i/b Kotangale & Co. for the respondent no.1 Kotangale & Co. for the respondent no.1 Kotangale & Co. for the respondent no.1 CORAM : P.V.KAKADE, J. CORAM : P.V.KAKADE, J. CORAM : P.V.KAKADE, J. DATE : 23RD DEC., 2005 DATE : 23RD DEC., 2005 DATE : 23RD DEC., 2005 P.C.: P.C.: P.C.: 1. The petitioners have filed this petition under Article 1. The petitioners have filed this petition under Article 1. The petitioners have filed this petition under Article 227 of the Constitution of India challenging the order 227 of the Constitution of India challenging the order 227 of the Constitution of India challenging the order passed by the School Tribunal, Mumbai, allowing the passed by the School Tribunal, Mumbai, allowing the passed by the School Tribunal, Mumbai, allowing the appeal of the respondent and setting aside the appeal of the respondent and setting aside the appeal of the respondent and setting aside the termination notice dated 4.4.1989 issued by the present termination notice dated 4.4.1989 issued by the present termination notice dated 4.4.1989 issued by the present petitioner-Management. The Management was also directed petitioner-Management. The Management was also directed petitioner-Management. The Management was also directed to reinstate the present respondent to his original post to reinstate the present respondent to his original post to reinstate the present respondent to his original post and pay him differences of emoluments, including pay and and pay him differences of emoluments, including pay and and pay him differences of emoluments, including pay and allowances from the date of his termination in the allowances from the date of his termination in the allowances from the date of his termination in the present post. present post. present post. : 3 : 2. The petitioner is the Society registered under the 2. The petitioner is the Society registered under the 2. The petitioner is the Society registered under the provisions of the Societies Registration Act and was provisions of the Societies Registration Act and was provisions of the Societies Registration Act and was founded with the object of establishing, conducting, founded with the object of establishing, conducting, founded with the object of establishing, conducting, controlling and managing educational institutions. The controlling and managing educational institutions. The controlling and managing educational institutions. The petitioner no.2 is the Principal of Lala Lajpatrai petitioner no.2 is the Principal of Lala Lajpatrai petitioner no.2 is the Principal of Lala Lajpatrai College of Commerce and Economics founded by petitioner College of Commerce and Economics founded by petitioner College of Commerce and Economics founded by petitioner no.1. The 1st respondent is a Probationary Teacher, no.1. The 1st respondent is a Probationary Teacher, no.1. The 1st respondent is a Probationary Teacher, whose services have been terminated by the petitioners. whose services have been terminated by the petitioners. whose services have been terminated by the petitioners. The present respondent no.1 was appointed as Lecturer in The present respondent no.1 was appointed as Lecturer in The present respondent no.1 was appointed as Lecturer in the Junior College with effect from 22.6.1987. On the Junior College with effect from 22.6.1987. On the Junior College with effect from 22.6.1987. On 26.4.1988 a letter addressed to the Respondent no.1 was 26.4.1988 a letter addressed to the Respondent no.1 was 26.4.1988 a letter addressed to the Respondent no.1 was sent informing him about his unsatisfactory performance, sent informing him about his unsatisfactory performance, sent informing him about his unsatisfactory performance, during the year 1987-1988 and giving one more opportunity during the year 1987-1988 and giving one more opportunity during the year 1987-1988 and giving one more opportunity to improve his performance. There was Assessment Report to improve his performance. There was Assessment Report to improve his performance. There was Assessment Report of Professor (Mrs.) S.K.Garg on 27.9.1988 and further of Professor (Mrs.) S.K.Garg on 27.9.1988 and further of Professor (Mrs.) S.K.Garg on 27.9.1988 and further there was Assessment Report by the Principal of the there was Assessment Report by the Principal of the there was Assessment Report by the Principal of the College dated 17.1.1989. Assessment Report of College dated 17.1.1989. Assessment Report of College dated 17.1.1989. Assessment Report of Professor-in-charge and Superior Junior College Mr. Professor-in-charge and Superior Junior College Mr. Professor-in-charge and Superior Junior College Mr. Suresh Kumar was also dated 17.1.1989 and there was also Suresh Kumar was also dated 17.1.1989 and there was also Suresh Kumar was also dated 17.1.1989 and there was also Assessment Report of Prof. Ambekar dated 17.1.1989. Assessment Report of Prof. Ambekar dated 17.1.1989. Assessment Report of Prof. Ambekar dated 17.1.1989. 3. The meeting was held of the School Committee on 3. The meeting was held of the School Committee on 3. The meeting was held of the School Committee on 27.2.1989 wherein unanimous decision was taken to 27.2.1989 wherein unanimous decision was taken to 27.2.1989 wherein unanimous decision was taken to discontinue the services of the respondent no.1. discontinue the services of the respondent no.1. discontinue the services of the respondent no.1. : 4 : Thereafter meeting of the Governing Board was held Thereafter meeting of the Governing Board was held Thereafter meeting of the Governing Board was held wherein the said decision of the School Committee was wherein the said decision of the School Committee was wherein the said decision of the School Committee was confirmed on 27.2.1989 and accordingly on 4.4.1989 letter confirmed on 27.2.1989 and accordingly on 4.4.1989 letter confirmed on 27.2.1989 and accordingly on 4.4.1989 letter was addressed to Respondent no.1 informing him that his was addressed to Respondent no.1 informing him that his was addressed to Respondent no.1 informing him that his services should be terminated with effect from 19.6.1989 services should be terminated with effect from 19.6.1989 services should be terminated with effect from 19.6.1989 which was advance notice. On 11.4.1989 an Advertisement which was advance notice. On 11.4.1989 an Advertisement which was advance notice. On 11.4.1989 an Advertisement for the post of Lecturer in Commerce faculty in place of for the post of Lecturer in Commerce faculty in place of for the post of Lecturer in Commerce faculty in place of the respondent no.1 was given. The respondent no.1 also the respondent no.1 was given. The respondent no.1 also the respondent no.1 was given. The respondent no.1 also applied for the said post, but was not selected and applied for the said post, but was not selected and applied for the said post, but was not selected and therefore, he moved the School Tribunal against the order therefore, he moved the School Tribunal against the order therefore, he moved the School Tribunal against the order of termination and filed appeal being Appeal of termination and filed appeal being Appeal of termination and filed appeal being Appeal No.GEN.156/BOM-68 of 1989. After hearing both the No.GEN.156/BOM-68 of 1989. After hearing both the No.GEN.156/BOM-68 of 1989. After hearing both the parties and on the basis of available evidence the parties and on the basis of available evidence the parties and on the basis of available evidence the Tribunal was of the view that the act of the Tribunal was of the view that the act of the Tribunal was of the view that the act of the petitioner-management was not in accordance with the petitioner-management was not in accordance with the petitioner-management was not in accordance with the relevant law and termination order was illegal and hence relevant law and termination order was illegal and hence relevant law and termination order was illegal and hence appeal was allowed setting aside the termination notice appeal was allowed setting aside the termination notice appeal was allowed setting aside the termination notice with direction to reinstate the respondent no.1. Hence with direction to reinstate the respondent no.1. Hence with direction to reinstate the respondent no.1. Hence the present petition. the present petition. the present petition. 4. On 25.4.1991 the Petitioner-College filed Writ 4. On 25.4.1991 the Petitioner-College filed Writ 4. On 25.4.1991 the Petitioner-College filed Writ Petition No.1043 of 1991 and by an order dated 25.4.1991 Petition No.1043 of 1991 and by an order dated 25.4.1991 Petition No.1043 of 1991 and by an order dated 25.4.1991 the Division Bench of this Court passed an interim order the Division Bench of this Court passed an interim order the Division Bench of this Court passed an interim order to appoint the respondent no.1 in the employment and to appoint the respondent no.1 in the employment and to appoint the respondent no.1 in the employment and : 5 : assess his performance and it was directed that if he was assess his performance and it was directed that if he was assess his performance and it was directed that if he was found inadequate, then the opportunity was given to apply found inadequate, then the opportunity was given to apply found inadequate, then the opportunity was given to apply to the court to vacate the said ad-interim order. On the to the court to vacate the said ad-interim order. On the to the court to vacate the said ad-interim order. On the basis of the said order dated 25.4.1991 the petitioner basis of the said order dated 25.4.1991 the petitioner basis of the said order dated 25.4.1991 the petitioner appointed Respondent no.1, but his performance was found appointed Respondent no.1, but his performance was found appointed Respondent no.1, but his performance was found inadequate and in view of the same as per the liberty inadequate and in view of the same as per the liberty inadequate and in view of the same as per the liberty given to the petitioner they took out an application by given to the petitioner they took out an application by given to the petitioner they took out an application by way of Notice of Motion No.250 of 1992. The said notice way of Notice of Motion No.250 of 1992. The said notice way of Notice of Motion No.250 of 1992. The said notice of motion was heard and finally disposed of by order of motion was heard and finally disposed of by order of motion was heard and finally disposed of by order dated 30.6.1992 by Division Bench and by the said order dated 30.6.1992 by Division Bench and by the said order dated 30.6.1992 by Division Bench and by the said order this court found that there is considerable force in the this court found that there is considerable force in the this court found that there is considerable force in the submissions made by the petitioner about the performance submissions made by the petitioner about the performance submissions made by the petitioner about the performance of respondent no.1 and accordingly services of the of respondent no.1 and accordingly services of the of respondent no.1 and accordingly services of the respondent no.1 were discontinued. respondent no.1 were discontinued. respondent no.1 were discontinued. 5. On this background the petition is finally heard. At 5. On this background the petition is finally heard. At 5. On this background the petition is finally heard. At the outset it must be noted that the affidavit filed by the outset it must be noted that the affidavit filed by the outset it must be noted that the affidavit filed by Mr.D.C.Chaudhary dated 17.11.2005 which was brought to my Mr.D.C.Chaudhary dated 17.11.2005 which was brought to my Mr.D.C.Chaudhary dated 17.11.2005 which was brought to my notice wherein it is stated that the respondent no.1 is notice wherein it is stated that the respondent no.1 is notice wherein it is stated that the respondent no.1 is gainfully employed in Shivner Junior College of Commerce, gainfully employed in Shivner Junior College of Commerce, gainfully employed in Shivner Junior College of Commerce, Sakinaka, Powai at Andheri and Sahakar Night Junior Sakinaka, Powai at Andheri and Sahakar Night Junior Sakinaka, Powai at Andheri and Sahakar Night Junior College of Arts and Commerce, N.M.Joshi Marg, Lower College of Arts and Commerce, N.M.Joshi Marg, Lower College of Arts and Commerce, N.M.Joshi Marg, Lower Parel, Mumbai since 13th June 1997 and 19th June 1991 Parel, Mumbai since 13th June 1997 and 19th June 1991 Parel, Mumbai since 13th June 1997 and 19th June 1991 respectively. respectively. respectively. : 6 : 6. The learned counsel for the petitioner brought to my 6. The learned counsel for the petitioner brought to my 6. The learned counsel for the petitioner brought to my notice the provision of Rule 15 of the Maharashtra notice the provision of Rule 15 of the Maharashtra notice the provision of Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Employees of Private Schools (Conditions of Service) Employees of Private Schools (Conditions of Service) Rules, 1981, which concerned with writing of confidential Rules, 1981, which concerned with writing of confidential Rules, 1981, which concerned with writing of confidential reports. Sub-rule 6 of Rule 15 stipulates that reports. Sub-rule 6 of Rule 15 stipulates that reports. Sub-rule 6 of Rule 15 stipulates that performance of an employee appointed on probation shall performance of an employee appointed on probation shall performance of an employee appointed on probation shall be objectively assessed by the Head during the period of be objectively assessed by the Head during the period of be objectively assessed by the Head during the period of his probation and a record of assessment shall be his probation and a record of assessment shall be his probation and a record of assessment shall be maintained. On this basis the learned counsel for the maintained. On this basis the learned counsel for the maintained. On this basis the learned counsel for the petitioner has brought to my notice the record which was petitioner has brought to my notice the record which was petitioner has brought to my notice the record which was put forth before the tribunal, which according to me, was put forth before the tribunal, which according to me, was put forth before the tribunal, which according to me, was sufficient to show that the respondent no.1’s performance sufficient to show that the respondent no.1’s performance sufficient to show that the respondent no.1’s performance was not upto the remark and therefore the Principal as was not upto the remark and therefore the Principal as was not upto the remark and therefore the Principal as well as the head of the concerned department were within well as the head of the concerned department were within well as the head of the concerned department were within their rights to write and forward their assessment report their rights to write and forward their assessment report their rights to write and forward their assessment report on which basis the School Tribunal and finally the on which basis the School Tribunal and finally the on which basis the School Tribunal and finally the governing body has acted in issuing notice of governing body has acted in issuing notice of governing body has acted in issuing notice of termination. The learned counsel for the petitioner also termination. The learned counsel for the petitioner also termination. The learned counsel for the petitioner also put reliance on the ruling of this court in the case of put reliance on the ruling of this court in the case of put reliance on the ruling of this court in the case of Savitribai Fule Shikshan Prasarak Mandal, Wardha and anr Savitribai Fule Shikshan Prasarak Mandal, Wardha and anr Savitribai Fule Shikshan Prasarak Mandal, Wardha and anr Vs. Dhananjay Deoraoji Diwate and ors. reported in 2004 Vs. Dhananjay Deoraoji Diwate and ors. reported in 2004 Vs. Dhananjay Deoraoji Diwate and ors. reported in 2004 (3) Mh.L.J. 18 (3) Mh.L.J. 18 (3) Mh.L.J. 18 wherein it was held that on a conjoint wherein it was held that on a conjoint wherein it was held that on a conjoint reading of Section 5(3) of the Maharashtra Employees of reading of Section 5(3) of the Maharashtra Employees of reading of Section 5(3) of the Maharashtra Employees of : 7 : Private Schools (Conditions of Service) Regulations Act, Private Schools (Conditions of Service) Regulations Act, Private Schools (Conditions of Service) Regulations Act, 1977 and Rule 15(6) of the Maharashtra Employees of 1977 and Rule 15(6) of the Maharashtra Employees of 1977 and Rule 15(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 it Private Schools (Conditions of Service) Rules, 1981 it Private Schools (Conditions of Service) Rules, 1981 it can be inferred that adverse remarks need not be can be inferred that adverse remarks need not be can be inferred that adverse remarks need not be communicated to a probationer in order to grant him communicated to a probationer in order to grant him communicated to a probationer in order to grant him opportunity to improve upon the same or agitate the same. opportunity to improve upon the same or agitate the same. opportunity to improve upon the same or agitate the same. All that is provided is the assessment of probationer’s All that is provided is the assessment of probationer’s All that is provided is the assessment of probationer’s work by the Head and decision of the Management whether work by the Head and decision of the Management whether work by the Head and decision of the Management whether to continue his services or not. If the Management is of to continue his services or not. If the Management is of to continue his services or not. If the Management is of the opinion that during the period of probation, the the opinion that during the period of probation, the the opinion that during the period of probation, the services of the probationer were not satisfactory, it can services of the probationer were not satisfactory, it can services of the probationer were not satisfactory, it can very well terminate the services of such employee before very well terminate the services of such employee before very well terminate the services of such employee before the probation period comes to an end. the probation period comes to an end. the probation period comes to an end. . This ratio laid down by this court is sufficient . This ratio laid down by this court is sufficient . This ratio laid down by this court is sufficient answer to the submission advanced on behalf of the answer to the submission advanced on behalf of the answer to the submission advanced on behalf of the respondent no.1 to the effect that adverse reports were respondent no.1 to the effect that adverse reports were respondent no.1 to the effect that adverse reports were not brought to the notice of the respondent no.1, and not brought to the notice of the respondent no.1, and not brought to the notice of the respondent no.1, and therefore, the notice of termination was bad in law. therefore, the notice of termination was bad in law. therefore, the notice of termination was bad in law. 7. In my considered view, no fault could be found with 7. In my considered view, no fault could be found with 7. In my considered view, no fault could be found with the action taken by the management and the tribunal the action taken by the management and the tribunal the action taken by the management and the tribunal appears to be clearly fallen in error in interpreting the appears to be clearly fallen in error in interpreting the appears to be clearly fallen in error in interpreting the relevant provision of law while allowing the appeal. relevant provision of law while allowing the appeal. relevant provision of law while allowing the appeal. : 8 : 8. In view of this position, I am of the view that the 8. In view of this position, I am of the view that the 8. In view of this position, I am of the view that the order of the tribunal is bad in law and therefore, is order of the tribunal is bad in law and therefore, is order of the tribunal is bad in law and therefore, is required to be set aside. Needless to mention that the required to be set aside. Needless to mention that the required to be set aside. Needless to mention that the respondent no.1 appears to be gainfully employed since respondent no.1 appears to be gainfully employed since respondent no.1 appears to be gainfully employed since after his termination, especially when the fact to that after his termination, especially when the fact to that after his termination, especially when the fact to that effect is not rebutted by the respondent no.1. effect is not rebutted by the respondent no.1. effect is not rebutted by the respondent no.1. 9. Be as it may, the fact remains, that the petition 9. Be as it may, the fact remains, that the petition 9. Be as it may, the fact remains, that the petition deserves to be allowed. The rule is made absolute. The deserves to be allowed. The rule is made absolute. The deserves to be allowed. The rule is made absolute. The Petition is allowed in terms of prayer clause (c) and Petition is allowed in terms of prayer clause (c) and Petition is allowed in terms of prayer clause (c) and stands disposed of with no order as to costs. stands disposed of with no order as to costs. stands disposed of with no order as to costs.