-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1648 OF 2000 Mrs. Jayashri Jyotiram Phale, ) aged about 35 years, Occupation service, ) residing at Plot No. 45, Sahyadri Housing Society, ) Kadamwadi, Kolhapur. )..Petitioner versus 1. People's Education Society, Rajgraha, Plot No.2 ) Lakshtirtha Vasahat East Kolhapur, through ) its President. ) 2. The Head Mistress, Prabhudhar Bharat High School ) Lakshatirtha Vasahat, Kolhapur. ) 3. The Education Officer, (S.E.C.) ) Zilla Parashad, Kolhapur. )..Respondents Ms. Madhavi Tavanandi for the petitioner. CORAM: P.B. MAJMUDAR, J. DATE: AUGUST 05, 2008. ORAL JUDGMENT By filing this petition, the petitioner has challenged the judgment and order dated 2nd December, 1998, passed by the School Tribunal, Kolhapur Region, Kolhapur in Appeal No. 38 of 1998, by which the Tribunal has dismissed the appeal of the present petitioner. 2. The petitioner was appointed by respondent No.2 as a Peon vide order of appointment dated 2nd June, 1996. The appointment of the -2- petitioner was on probation for a period of two years as specifically stated in the said order of appointment. On the basis of such appointment order, petitioner started discharging her duties. The services of the petitioner came to be terminated by respondent No. 1 on 25th March, 1998. It is stated in the said termination order that the services of the petitioner are not required. The petitioner challenged the said termination order before the Tribunal on the ground that her services have been arbitrarily terminated and as such the said order was passed by way of penalty. While she was in service, her explanation was taken regarding missing of files and it was alleged that the petitioner is instrumental in the said incident of missing files. The Tribunal, after hearing both sides and after going through the record came to the conclusion that since the work of the petitioner was not found to be satisfactory, her services came to be terminated by giving one month's notice during the period of probation. It is the aforesaid order which is impugned at the instance of the petitioner in this petition. 3. Learned counsel for the petitioner submitted that the Tribunal has committed an obvious error in coming to the conclusion that the petitioner's services were terminated on the ground that her work was not satisfactory. It is submitted that looking to the reply of the management and the documents on record, it is clear that the order in question is stigmatic and has been passed in order to punish the petitioner in view of the incident of missing of some files for which the petitioner was not responsible. It is submitted that -3- even the services of a probationer cannot be terminated by way of punishment without holding an enquiry and without giving reasonable opportunity of hearing. In order to substantiate her say, the learned counsel for the petitioner has relied upon the reply of the management filed before the Tribunal as well as the reasoning of the Tribunal in this behalf. In the circumstances it is submitted that the order of the Tribunal is required to be set aside by setting aside the order of termination. 4. Though served, none appears on behalf of the respondent. Mr. R.K. Mendadkar, learned counsel, at this stage submits that he has filed Vakalatnama on behalf of the respondents. He has not received instructions from the respondents and the respondents had taken the papers from him and thereafter they have not made any other arrangement for engaging a lawyer. I have heard the learned counsel for the petitioner. I have also gone through the order of the Tribunal as well as the impugned order of termination. 5. In order to examine the controversy raised in the instant matter, it is required to be noted that the petitioner was appointed after following the due process of law in a reserved vacancy as she belongs to reserved category. It is not in dispute that the appointment of the petitioner was probationary for a period of two years and during the probationary period the impugned order of termination has been passed. On going through the -4- termination order, it becomes clear that there is nothing in the termination order to suggest that the order of termination is passed on the ground that her services during the period of probation was not satisfactory or that she was not suitable for the post in question. As per Section 5 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, if the management is of the opinion that the work or behaviour of any 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 of one month in lieu of notice. So far as the termination order in the instant case is concerned, it nowhere says that the performance of the petitioner is not satisfactory during the probationary period or that the work or behaviour is not satisfactory. The termination order merely says that the services of the petitioner is no longer required. It is not even the say of the management that the petitioner is not suitable for the post and the termination was passed during the probationary period itself but the order nowhere says that the work of the petitioner is not satisfactory. 6. It is required to be note that before the School Tribunal the management has stated in para 2 of their reply as under: “2. The Appellant was probationary employee from 16-6- 1996 as Peon. Firstly her work was good but, subsequently she started behaving arrogantly. She was not giving due -5- respect to Respondent Nos.1 and 2. She has committed theft of some documents which were in the custody of School and handed over those documents to a teacher who is removed from service by the management. The said teacher produced xerox copies of those documents in this Hon'ble Court and from that the Respondents came to know regarding the theft committed by the present appellant. When the Respondents asked the appellant about her criminal act, she admitted her guilt orally but refused to give the same in writing. The Appellant was working as a Peon and she used to handle all files in the custody of Head Mistress. It is not safe to continue such employee in service in further. So, that the Appellant was on probation, as her work and behaviour was highly unsatisfactory the management had no alternative than to terminate her services. The management came to conclusion that it is dangerous to continue the Appellant in service as she has admitted her criminal act orally. If she is continued in service she may again do such wrong things and which will result in heavy loss to the management.” From the above it is seen that the management has clearly taken a stand that because of her alleged act of so-called theft that her services have been terminated. The Tribunal in the concluding paragraph 10 of the order has observed thus: “It will be seen that in order to form an opinion against the Appellant it was not necessary for the Management to be in possession of any evidence against the Appellant regarding her involvement in the theft case. It will also have to be taken into account that any evidence indicating implication of the Appellant in the theft case which was beyond any reasonable doubt was also not necessary for the Management. In the circumstances, the opinion of the Management that the behaviour of the Appellant was not satisfactory will have to be accepted. In the circumstances my answer on the point No.1 is in the negative.” -6- 7. It is required to be noted that when the management has come out with a specific case that the petitioner was involved in a theft case and that her act is criminal in nature, in my view, without holding any enquiry or without giving reasonable opportunity to defend herself, her services could not have been terminated as it would clearly amount to a stigmatic order as serious allegations are levelled against the petitioner. By relying upon Section 5 (3) of the Act, it was not open to the management to terminate the services of the petitioner on the ground of her alleged involvement in the theft of some files. In order to reach to the conclusion about satisfactory work of the petitioner during the probationary period, it was not open for the management to rely upon some misconduct alleged against the petitioner. As per the scheme of the Act, it is always open to the management to terminate the services of a probationer during the probationary period in the eventuality mentioned in the Section but if the record of the case clearly establishes that because of alleged misconduct that the management has resorted to Section 5 (3) of the Act by terminating her services, such action would not be justified as the same will be penal in nature and on the ground of misconduct, even the services of a probationer cannot be terminated without holding any enquiry. The facts of the case is absolutely clear that because of the alleged involvement of the petitioner, as per the say of the management in their reply before the Tribunal, in connection with the incident about missing of file has weighted with the management in passing the impugned order of termination. It is clear that under the guise of simpliciter -7- termination under Section 5 (3) of the Act, the management really wanted to dismiss the petitioner from services in view of the alleged misconduct which is not permissible. 8. In view of the judgment of the Supreme Court in the case of Parshotam Lal Dhingra vs. Union of India, [ (1958) SCR 828], if the services of an employee is terminated on the ground of misconduct, such orders cannot be passed without holding an enquiry and without giving an opportunity to the concerned employee in this behalf. Even in the case of a probationer, if services are sought to be terminated on the ground of misconduct, enquiry is required to be held. It has been held by the Supreme Court in the case of Dipti Prakash Banerjee vs. S.N. Bose National Centre for Basic Sciences, Calcutta and others, [ 1999 (81) FLR 687] that to establish stigma, it need not be contained in the order of termination but may also be contained in an order or proceeding referred to in the order of termination or in an annexure thereto and would vitiate the order of termination. It has been further held that whether the order of termination of a probationer can be said to be punitive or not depends upon whether certain allegations which are the cause of the termination are the motive or foundation. It has also been held that there is no difference between cases where services of a temporary employee are terminated and where a probationer is discharged. 9. The Supreme Court in the case of V.P. Ahuja vs. State of Punjab -8- and others, AIR 2000 SC 1080, has held that a probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. 10. In view of the stand taken by the management in its reply, it hardly leaves any doubt that the foundation for passing the impugned order of termination is the alleged act of theft on the part of the petitioner. The termination, therefore, cannot be said to be innocuous termination. The services of the petitioner have been terminated in view of the alleged act of the petitioner and such order of termination is bad in law as it is penal in nature. Considering the said aspect, the impugned order of the Tribunal by which the Tribunal has accepted the say of the management that services of the petitioner were terminated during probationary period because of her improper behaviour is required to be set aside. The petitioner is, therefore, required to be reinstated in service. 11. However, as regards prayer for back wages is concerned, since no specific submission has been made that all throughout she was unemployed, it would be just and proper to pass reinstatement with 25 per cent back wages for the intervening period. The respondent management is -9- directed to reinstate the petitioner within four weeks from today on her original post. It will be open for the respondent to hold an enquiry if they deem fit in connection with the incident in question. The petition is allowed mainly on the ground that even though the order of termination appears to be a simple order of discharge and in substance the same is penal in nature. In view of the material on record, it is a stigmatic order and the same is passed without giving opportunity of hearing and without holding an enquiry against the petitioner and on that ground the same is set aside. 12. The petition is accordingly allowed by directing the management to reinstate the petitioner on her original post with 25 per cent back wages. Rule is made absolute to the aforesaid extent with no order as to costs. P.B. MAJMUDAR, J.