1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3514 OF 1990 WITH CIVIL APPLICATION NO.699 OF 2002 Dnyan Prasarak Shikshan Sanstha and another ..Petitioners. Vs. Ashok Ramchandra Joshi and others ..Respondents. .... Mr. Niranjan P. Shimpi i/b Mr. P.K. Dhakephalkar for the Petitioners. Mr. M.P. Vashi i/b Mr. M.M. Vashi for Respondent No.1. Mr. S.K. Chinchlikar, AGP for Respondents 2 and 3. .... CORAM: DR. D.Y. CHANDRACHUD, J. 20th June, 2008. P.C. : 1. The Petition under Article 227 of the Constitution is directed against a judgment of the School Tribunal dated 29th June, 1990 by which the Tribunal set aside an order passed by the Petitioner terminating the services of the First Respondent and granted reinstatement to the post of Headmaster together with backwages and other incidental benefits. The First Respondent moved the School Tribunal in an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The case of the First Respondent was that 2 he was appointed on probation for a period of two years – 1986-87 and 1987-88 by a letter of appointment dated 10th June, 1986. The contention of the First Respondent is that during the period of probation a further letter was issued to him on 23rd March, 1988. In the meantime, on 24th May, 1988 the management issued an advertisement inviting applications for the post of Headmaster against which a protest was lodged by the First Respondent. When the school reopened on 13th June, 1988 the First Respondent claimed that he had been terminated from service by an oral order of termination dated 13th June, 1988. In the memo of appeal as originally filed the challenge was to the oral order of termination and reinstatement was sought with consequential benefits. 2. The management filed its written statement contesting the authenticity of the letters of appointment relied upon by the First Respondent and it was its case that certain blank letters of appointment had been signed in good faith but had been misused by the First Respondent. According to the management the 3 appointment of the First Respondent though on probation was a temporary arrangement; that it was not confirmed and that the First Respondent had not submitted documents with regard to qualifications and experience and past service record. According to the management the service record of the First Respondent was not satisfactory and there were complaints to the effect that he had committed irregularities in the discharge of his duties. According to the management the First Respondent had despite memos failed to improve his performance and consequently his services came to be terminated. 3. The services of the Respondent were terminated by a letter dated 5th July, 1988 which was to the following effect : “This is to inform you that, you have been appointed as Head Master on purely temporary basis for the period of two years from 14.8.1986. It is found that during the said period your performance as Head Master was not satisfactory, hence your services are hereby terminated.” 4. The letter of termination therefore was a termination simpliciter since there was a reference therein to the effect that 4 during the period of his appointment the performance of the First Respondent as Headmaster was not satisfactory. 5. During the pendency of the proceedings before the School Tribunal an application for amendment of the memo of appeal was filed by the First Respondent stating that upon the institution of the appeal he had received a letter dated 5th July, 1988 addressed by the management stating that since he was appointed as a Headmaster purely on a temporary basis from 14th August, 1986 his services would stand terminated as his performance is not satisfactory. In the grounds of appeal the First Respondent submitted that the order of termination dated 5th July, 1988 was illegal and it was incorrect to state that he was appointed purely on a temporary basis or that his service was not satisfactory. However, a formal amendment seeking to include a challenge to the letter of termination dated 5th July, 1988 was not included in the prayer clauses of the memo of appeal. 6. The School Tribunal allowed the appeal and came to the 5 conclusion that the First Respondent was appointed on probation for a period of two years. The Tribunal took note of the submission of the management that the letters of appointment upon which reliance has been placed by the First Respondent were forged. In fact, it may be noted that the contention of the management has been that the First Respondent could not have been engaged in service with effect from 16th June, 1986 since the documentary evidence on the record would show that he was engaged in the Chatrapati Shivaji High School at Ghatkopar until 12th August, 1986. As a matter of fact his resignation was accepted by the management of the erstwhile institution only on 25th June, 1987. Rule 18(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 requires a certificate of discharge as a condition precedent to a valid appointment in another institution. The School Tribunal however, considered that it was not necessary to go into the controversy relating to the date from which the First Respondent was appointed and proceeded on the basis that the service of the First Respondent commenced with effect from 14th August, 1986. The Tribunal held that if the 6 management of the School found that the work of the Appellant was not satisfactory and he had gone as far as to commit criminal acts as alleged, then a disciplinary enquiry ought to have been held before terminating his services. An order of reinstatement together with backwages was passed. 7. On behalf of the Petitioner it has been urged that (i) the appeal before the School Tribunal as originally filed proceeded on the basis that the services of the First Respondent were terminated by an oral order of termination; (ii) Even upon the service of the letter dated 5th July, 1988 upon the First Respondent when the memo of appeal came to be amended, the prayer clause was not amended so as to incorporate a challenge to the order of termination; (iii) The ground that the termination was punitive was not even put in issue in the memo of appeal and the Tribunal entertained the issue without pleadings and without the point being squarely addressed in the pleadings; (iv) The basic challenge of the management to the effect that the letters of appointment at Exhibits A and B to the memo of appeal were forged and fabricated has not been considered or dealt with by the Tribunal. 7 8. On the other hand, it has been urged on behalf of the First Respondent that [1] In the present case both in the written statement as well as in the writ petition the management has accepted that the First Respondent was appointed on probation and therefore the nature of the appointment of the First Respondent was not in issue; [2] The termination from service in the present case was ex facie stigmatic and punitive having regard to the allegations of misappropriation that have been made against the First Respondent in the advocate's notice dated 7th July, 1988 as well as in paragraphs 6 and 7 of the written statement; [3] Before effecting a termination of the services of the First Respondent as probationer notice of one month or payment in lieu thereof has not been effected which has been held to be a mandatory requirement. 8A. In evaluating the rival submissions which have been urged on behalf of the contesting parties, it would be necessary at the outset to note that the case of the First Respondent was that he 8 was appointed on probation by a letter dated 10th June, 1986 and by a further letter dated 19th March, 1988 for a period of two years. In its written statement the management squarely raised the defence that the letters of appointment which were produced by the First Respondent were not genuine and that they were forged. On the contrary, it was the case of the management that the First Respondent had misused certain letters which had been signed in blank. The photocopies of the two letters dated 10th June, 1986 and 23rd March, 1988 contain a reference to the appointment of the First Respondent as a probationer with effect from 16th June, 1986 but this is followed by a bracketed date of 14th August, 1986. Counsel appearing for the Petitioner has drawn the attention of the Court to the fact that there is material on the record to indicate that the First Respondent was engaged as a Headmaster with the Chatrapati Shivaji High School at Ghatkopar and that he had resigned from service with effect from 12th August, 1986. The managing committee of the institution had in a meeting held on 25th June, 1987 taken note of the resignation tendered by the First Respondent on 10th August, 1986 and accepted the resignation. 9 Consequently it has been urged that on 10th June, 1986 there would have been no occasion for the management to appoint the First Respondent with effect from 16th June, 1986 when he continued to be in service with another educational institution. Rule 18(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 provides that no employee with previous service in a school shall be employed in another school unless he produces a discharge certificate or furnishes a writing to the effect that he is unable to do so despite a request made to the previous management. 9. Counsel appearing for the First Respondent has submitted that in the written statement filed before the Tribunal as well as in the writ proceedings before this Court the management has proceeded on the basis that the appointment was on probation. Though in paragraph 1 of the written statement there is a reference to the appointment of the Respondent as being on probation, this statement cannot be read in isolation from the statement in paragraph 3 of the written statement that the letters of 10 appointment upon which reliance was placed by the First Respondent were forged and that the appointment of the First Respondent was only a temporary arrangement as stated in paragraph 5. The letter of termination dated 5th July, 1988 again refers to the appointment of the First Respondent as being on purely a temporary basis for a period of two years from 14th August, 1986. In the writ petition the averment is to the effect that the First Respondent was appointed as a Headmaster on a temporary basis on probation for a period of two years. For the purposes of evaluating the merits of the rival contentions this Court may well proceed on the basis that the appointment was on probation for a period of two years. Even if that be so, it is a well settled principle of law that during the period of probation it is open to the management to evaluate the performance of an employee to consider whether his services are satisfactory enough to warrant a confirmation in service. The mere fact that there are certain allegations against an employee or that the management has taken note of the allegations would not warrant an inference that the termination is stigmatic or punitive in character. For the purpose 11 of evaluating the nature of the performance of an employee during probation, the management is entitled to take into consideration the over all service record which must necessarily include every aspect of the functioning of the employee. 10. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences1, the Supreme Court held after considering the decided cases on the subject that one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c ) culminated in a finding of guilt. If all the three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. The Supreme Court noted that in the case which arose before the Constitution Bench in Benjamin (A.G.) v. Union of India2 complaints had been received against a 1 (2002) 1 SCC 520. 2 (1967) 1 LLJ 718(SC). 12 temporary employee and a notice had been sent to him to show cause as to why disciplinary action should not be taken. An officer was appointed but before the enquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice. The Supreme Court held that a preliminary enquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental enquiry held to decide whether punitive action should be taken. In Pavanendra Narayan Verma's case the Supreme Court held thus : “Generally speaking when a probationer' s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what in implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.” 11. The Court held that the use of language indicating that 13 the work and conduct of the probationer have not been found to be satisfactory does not make a stigmatic or punitive termination. 12. In the present case applying these tests, it is evident that as a matter of fact no enquiry was convened or held into allegations involving moral turpitude or misconduct. Consequently there was no occasion for entering a finding of guilt. The letter of termination is ex facie not stigmatic because all that it says is that during the period of his temporary appointment, the services of the First Respondent as Headmaster were not found to be satisfactory. The fact that on 7th July, 1988 after the termination a letter was addressed to the First Respondent to return an amount of Rs.5,000/- or that there was a reference in the written statement to the complaints made against the First Respondent would not result in an inference that the termination was punitive. In view of the well settled position in law it was open to the management notwithstanding the receipt of complaints against the First Respondent to take a decision not to hold a full scale departmental enquiry into the allegation of misconduct and to determine that the 14 First Respondent should be terminated from service by an order of termination simpliciter on the ground that his performance was not satisfactory. This would not involve any infraction of law as settled by the Supreme Court. 13. Moreover there is merit in the submissions which have been urged on behalf of the Petitioner but there was absolutely no foundation in the pleadings before the Tribunal to warrant an inference that the termination was punitive. As a matter of fact, there was not even a prayer despite the amendment of the pleadings to incorporate a challenge to the termination dated 5th July, 1988. That is perhaps one of the reasons why the Tribunal was constrained to set aside only the oral order of termination of 13th June, 1988. There was no pleading in the memo of appeal despite amendment to the effect that the termination was punitive, nor for that matter did the First Respondent choose to challenge the order of termination on the ground that there was no payment of one month's salary or a notice in lieu thereof. The Tribunal as noted above totally failed to even deal with the defence that the 15 letters of appointment upon which reliance was placed by the First Respondent were forged and were not genuine. For all these reasons the order of the Tribunal granting reinstatement with backwages is manifestly unsustainable. The First Respondent has in the interregnum attained the age of superannuation and in any event there can be no question of award of reinstatement in the present case. For all these reasons the judgment of the Tribunal would have to be quashed and set aside and would accordingly stand quashed and set aside. Rule is made absolute in terms of prayer clause (a). In the circumstances of the case, there shall be no order as to costs. In view of the disposal of the writ petition, Civil Application 699 of 2002 does not survive and stands disposed of.