1 lpa342.02.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 342 OF 2002 IN WRIT PETITION NO. 4683 OF 2001 Shri Kodandpani R. Kulkarni Age 30years, R/at- Sai Vihar Chawl No.3, Room No.1, Reti Bunder Road, Dombivali (W) District Thane 421 201 ..Appellant Vs. 1. The Headmistress, Sister Nivedita English Medium School,Gupte Road, Vishnu Nagar, Dombivali (W), Dist Thane 2. The Secretary, The Dombivali Shikshan Prasarak Mandal, Plot No.30, MIDC.Dombivali (W) Thane 421 201. 3. The Education Officer, Zilla Parishad, Thane .. Respondents Mr. A.A. Garge for the Appellant. Mr.G.R.Rege i/by Shri S.M.Railkar for Respondent Nos. 1 and 2. Mr. A.I. Patel, AGP for Respondent No.3. CORAM : P.B. MAJMUDAR AND A.A. SAYED, JJ. DATE : 7TH JUNE, 2011. 2 lpa342.02.sxw JUDGMENT (PER P.B.MAJMUDAR, J.) 1. This appeal is directed against the order of the learned Single Judge dated 25th June, 2002 in Writ Petition No. 4683 of 2001, by which the learned Single Judge has allowed the writ petition filed by the respondents and set aside the order passed by the School Tribunal in favour of the appellant. The present appellant was selected as an Assistant Teacher in the respondent-institute at the Vishnu Nagar Branch of the said institution. The appellant thereafter was given appointment order as Assistant Teacher in the institute. Subsequently, by an order dated 26th March,1998 the appellant was informed by the Head Master of the School that as per the instructions of the Chairman of the School Committee his services are terminated on the last working day of the academic year 1997-98. The aforesaid order was challenged by the appellant before the School Tribunal, Navi Mumbai by way of an Appeal being Appeal No.282 of 1998. A stand was taken before the School Tribunal by the Management that since the appellant herein was appointed on temporary basis, his services were terminated by the end of academic year 1997-98. A further stand was also taken by the Management that the appellant was guilty of misbehavior and that he has committed serious misconduct and therefore his services were rightly terminated. The Tribunal allowed the appeal filed by the present appellant and passed an order of reinstatement in favour of the appellant. The aforesaid order of the Tribunal was challenged by the respondent-Management by way of Writ Petition No.4683 of 2001. The learned Single Judge by the impugned order dated 25th June, 2002 allowed the writ petition by setting aside the order of the School Tribunal by holding that since the appellant was appointed on 3 lpa342.02.sxw probation and since his services were terminated during the probation period, he has no right to the post. On the aforesaid ground the learned Single Judge set aside the order of the School Tribunal, which resulted in filing of this LPA at the instance of the appellant-original teacher. 2. It is submitted by the learned Counsel for the appellant that the appellant was appointed on a clear vacancy and that too after following proper procedure by the School Committee. It is submitted by the learned Counsel that the learned Single Judge has made out a new case for the first time about appointment of appellant on probation. The learned Counsel Mr. Rege for the respondent-Management submitted that the appellant was never appointed on probation but he was given appointment only for a particular fixed period and his services were terminated at the end of academic term and in view of the same, the termination order is legal and proper. 3. We have heard both the learned Counsel at length. We have gone through the orders passed by the School Tribunal as well as by the learned Single Judge. It is required to be noted that by an order dated 1st June, 1996 the appellant was selected as an Assistant Teacher in the institute at Vishnu Nagar Branch. It is pointed out by the learned Counsel for the respondent- institution that the appellant was informed by the committee by order dated 1st June, 1996, which is at page 21 stating that the appellant is selected and he was asked to bring necessary testimonials. Though specific appointment order is not produced on record nor same is available for the perusal of the Court but there is also a certificate issued by the Management which is at page 22, which shows that the appellant was working in the institution from 13th June 1996 to 30th April 1997 and from 12th June 1997 to 30th April 4 lpa342.02.sxw 1998. It is argued on behalf of the appellant that during the summer vacation the institution used to give break. Though according to him, he was appointed on regular permanent vacancy by order dated 1.6.1996, the services of the appellant were terminated from the last working day of the academic year 1997-1998. The said impugned order is at page 23, dated 26th March, 1998. However the order of termination nowhere provides that since the appellant's work was not satisfactory during the probation period his services have been terminated. Only ground mentioned in the termination order is that since the appellant is appointed purely on temporary basis for a particular academic year, his services have been terminated at the end of academic year. It is not in dispute that at the time of appointment of the appellant, there was a clear vacancy existing in the school and the appellant was appointed on such clear existing vacancy. At this stage, reference may be made to Section 5 of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977, which reads as under : " Certain obligations of Management of Private Schools : (1) The Management shall, as soon as possible, fill in, in the manner prescribed, every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy : (provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay, ( the Education officer, Zilla Parishad or, as the case may be, the Director or the Officer designated by the Director in respect of Schools imparting technical, vocational, art or special education.) whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy. 5 lpa342.02.sxw (2) Every person appointed to fill a permanent vacancy (except Shikshan Sevak) shall be on probation for a period of two years. Subject to the provisions of sub-sections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed : (Provided that, every person appointed as Shikshan sevak shall be on probation for a period of three years.) (2A) Subject to the provisions of sub-sections (3) and (4), Shikshan Sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher. (3) If in the opinion of the Management, the work or behavior of any probationer during the period of this probation, is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice ( or salary or honorarium) of one month in lieu of notice. (4) If the services of any probationer are terminated under sub- section (3) and he is reappointed by the Management in the same school or any other school belonging to it within a period of one year from the date on which his services were terminated, then the period of probation undergone by him previously shall be taken into consideration in calculating the required period of probation for the purposes of sub-section (2). (4A) Nothing in sub-section (2), (3) or (4) shall apply to a person appointed to fill a permanent vacancy by promotion or by absorption as provide under the proviso to sub-section(1). (5) The Management may fill in every temporary vacancy by appointing a person duly qualified to fill such vacancy. The order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person. 4. When there was a clear vacancy existing, the appointment of the appellant cannot be said to be a temporary appointment, especially when 6 lpa342.02.sxw even the order by which appellant is informed about selection which is at page 21, nowhere states that the the appellant is selected for a temporary period. It will be fruitful to incorporate the wordings of the selection order dated 1st June, 1996, page 21, which reads thus: "SISTER NIVEDITA ENGLISH HIGH SCHOOL Dombivali (Govt. Recognized) Date : 1.6. 96 To, Mr. K.R. Kulkarni Dombivali (E). Dar Sir/Madam, With reference to your application dated 22.5.96 and interview on 30.5.96, we are pleased to inform you that you are selected as an Asstt. Teacher in our institution at the Vishnu Nagar Branch. You are required to meet the undersigned on or before 5th June, between 10 A.M. and 12 Noon. You are requested to being all your original certificate alongwith you. Sd/- Head Master Sister Nivedita High School Dombivali (East)" 5. Be that as it may, the appellant having been given periodical order for the academic year itself would not be a conclusive proof for coming to the conclusion that the appellant was appointed only as a temporary teacher and therefore, he had no right to the post. The learned Single Judge also accordingly, found that the appellant was appointed on probation. Under the rules, a person can be appointed as regular employee but initially for two years is to be kept on probation. Interestingly, it is not the say of the Management that the services of the appellant were terminated because of 7 lpa342.02.sxw unsatisfactory work during the probation period, nor such a stand was either taken before the School Tribunal or before the Single Judge or even before us. It is no doubt true that a probationer has no right to the post. If the work is not satisfactory during the probation period his services can be terminated. Considering the factual aspect of the matter, it is clear that the appellant was appointed on clear vacancy as a regular teacher. Even though there is no specific mention in any of the orders about the probation period yet by way of statutory requirement it can be said that he is deemed to be on probation upto two years. The question which falls for consideration is whether the services of the appellant can be said to have been terminated on the ground of unsatisfactory performance. The termination was merely on the ground that since the appellant has been appointed purely on temporary basis, his services have been terminated on the last day of academic year 1997-98. As per the requirement particularly as Section 5 Sub-section (3), if in the opinion of the Management, the work or behavior of the probationer during the period of his probation is not satisfactory, the Management may terminate his services at any time during the said period after giving him one month's notice or salary or honorarium of one month in lieu of notice. It is also required to be noted that as per Rule 28 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the services of a temporary employee, other than on probation, may be terminated by the Management at any time without assigning any reason after giving one calender month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice. Even if according to the Management the appellant was appointed as a temporary employee, then also the Management was required to follow the above rule but in this case the same rule is not followed by the Management. 8 lpa342.02.sxw 6. Admittedly the said procedure is also not followed as it is not in dispute that the appellant was not given one month's notice or month's salary. On the contrary. the stand of the Management is that the appellant was not appointed on probation but he was appointed on temporary basis and therefore, his services have been terminated. The learned Single Judge found that the appellant was on probation. In our view the order of termination passed by the Management on the ground that the appointment of the appellant was on temporary basis and his services are terminated, is not sustainable. As pointed out earlier the termination order nowhere speaks that because of unsuitability or unsatisfactory work during the probation period, his services are terminated. In our view, the learned Single Judge has committed an error in setting aside the impugned order of School Tribunal holding that as a probationary teacher the appellant has no right to the post. It was for the Management to take appropriate stand before the School Tribunal in this behalf. There is also an additional aspect of the matter by which the impugned order of termination is not sustainable. Before the Tribunal a stand was taken by the Management that the behavior of the appellant with the student was intolerable and dangerous to the reputation of institution. In para 7 the Tribunal in its judgment has observed the allegations levelled by the Management against the appellant about the misconduct. It is not a case where simplicitor termination order was passed stating that since the appellant is on probation and his work is not satisfactory his services have been terminated. On the contrary, the Management has opened it's card before the Tribunal by pointing out that the appellant has misbehaved with the students and committed an act of misconduct. In para 7 of the Judgment, the Tribunal deals with the said 9 lpa342.02.sxw aspect of the matter. The services of the probationer can be terminated, if his work is not found satisfactory but in such an eventuality employee is given one month's notice and/or one month's salary, which has not been done in the present case. Even in the case of probationer, the services of the probationer cannot be terminated on the ground of misconduct, unless reasonable opportunity is given to the probationer in connection with such alleged misconduct. In the instant case, even preliminary inquiry was held by the Management against the appellant. Since the appellant was not allowed to defend his case regarding the alleged misconduct, the order of termination which is passed in view of the alleged misconduct on the part of the appellant, the said order is not sustainable in law. The law is very clear on this point and the services of the probationer cannot be terminated on the ground of misconduct, as such termination can be said to be punitive order and without holding appropriate inquiry such order cannot be passed. As pointed out earlier, the appellant was appointed on clear vacancy and he was appointed after following due process of law. In that view of the matter and considering the order of selection, it is clear that the appellant was appointed as a regular employee and therefore, he is deemed to be probationer for initial period of two years from the date of such appointment. 7. In view of the same, the order of the learned Single Judge is set aside and that the order of the Tribunal is restored. 8. At this stage, the learned Counsel appearing for the respondent Mr. Rege argued that now the school is closed and therefore, the concerned employee may be given whatever monetary benefit is entitled, instead of 10 lpa342.02.sxw reinstatement. The learned Counsel for the appellant disputes the said statement, as according to him, the school is still functioning. It is not necessary for us to decide this point in the present proceedings. In case school is closed, respondent cannot reinstate the appellant in service and therefore, the respondent shall act accordingly as per rules and law in this behalf and in fact if really the school is closed lawfully, it is for the management to calculate the monetary benefits and to give it to the appellant as per law. 9. It is further clarified that in case the Management wants to proceed with departmental inquiry against the appellant on the ground of alleged misconduct, it will be open for the Management to proceed against the appellant accordingly by way of departmental inquiry in accordance with law, after reinstating the appellant. The submission of the learned Counsel in this behalf to allow the Management to hold inquiry is accepted. 10. In view of what is stated above, the appeal is allowed. The order of the learned Single Judge is accordingly set aside and the order of the School Tribunal is restored. ( A.A. SAYED, J. ) (P.B. MAJMUDAR, J.)