High Court
Legal Reasoning
933-wp-3481-2014 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3487 OF 20141.Krantisurya Mahatma PhuleEducation Society, Mahakali Nagar,Mulund (E), Mumbai-81,Through its Secretary.2.The Head Master,Krantiveer Raghoji Bhangare SecondarySchool, Deogaon, Tq. Akole,Dist. Ahmednagar...PetitionersVersus1.Anil s/o Nivrutti Wandekar,Age : 43 years, Occu : Nil,R/o Nimbrel, Tq. Akole,Dist. Ahmednagar.2.The Education Officer (Secondary)Zilla Parishad, Ahmednagar,(Copy to be served on A.G.P.High Court of BombayBench at Aurangabad)3.Lahanu s/o Bhikaji Naikwadi,Age : 42 years, Occu : Service,R/o Navlewadi, Tq. Akole,Dist. Ahmednagar...Respondents...Advocate for the Petitioners : Mr. S.K. ShindeAGP for Respondent/State : Mrs. M.L. SangitAdvocate for Respondent No.1 : Mr. Amol N. Kakade i/b Mr. M.S. TaurAdvocate for Respondent No.3 : Mr. Atul B. GatneWITHWRIT PETITION NO.3525 OF 2014Lahanu s/o Bhikaji Naikwadi,Age : 42 years, Occu : Service,R/o Nawalewadi, Tq. Akole,Dist. Ahmednagar...Petitioner 933-wp-3481-2014 judg.odt(2)Versus1.Anil s/o Nivrutti Wandekar,Age : 43 years, Occu : Nil,R/o Nimbrel, Tq. Akole,Dist. Ahmednagar.2.The Education Officer (Secondary)Zilla Parishad, Ahmednagar,(Copy to be served on A.G.P.High Court of BombayBench at Aurangabad)3.The Head Master,Krantiveer Raghoji Bhangare SecondarySchool, Deogaon, Tq. Akole,Dist. Ahmednagar.4.Krantisurya Mahatma PhuleEducation Society, Mahakali Nagar,Mulund (E), Mumbai-81,Through its Secretary...Respondents...Advocate for the Petitioner : Mr. Atul B. GatneAGP for Respondent/State : Mrs. M.L. SangitAdvocate for Respondent No.1 : Mr. Amol N. Kakade i/b Mr. M.S. Taur... CORAM : S.G. MEHARE, J. DATED : FEBRUARY 28, 2024ORAL JUDGMENT :-1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.2.The petitioners in Writ Petition No.3487 of 2014 are themanagement/employer of respondent no.1, and the petitioner in WritPetition No.3525 of 2014 is the employee appointed in place ofrespondent no.1. Both have impugned the same order of the Tribunal 933-wp-3481-2014 judg.odt(3)passed in Appeal No.11/2008 dated 28.01.2014 allowing the appealof respondent no.1 and declaring the termination order dated10.06.2007 illegal. 3.This is a second round of litigation. After the remand bythis Court, the matter was again heard. Bearing in mind the directionsof this Court, the learned Tribunal has considered Section 5(3) of theMaharashtra Employees of Private School (Conditions of Service)Regulation Act, 1977 (for short 'Act of 1977) and the MaharashtraEmployees of Private Schools (Conditions of Service) Rules, 1981 (forshort 'Rules, 1981').4.It was not disputed that respondent no.1 was appointedby following the due procedure of law on probation for two years by awritten order dated 10.02.2006. However, before completing hisprobation by a written order dated 10.06.2007, his services wereterminated as his performance was unsatisfactory. On hearing therespective counsels at length, a short question arises, whether thetermination of respondent no.1 is as per Section 5(3) of the Act of1977 read with Rules 14 and 15 of the Rules, 1981.5.Rule 14 provides for the assessment of employees work.The employee/teacher has to prepare the plan for his academicprogramme at the beginning of each term and at the end of theacademic year, prepare a report of his work and submit it to the head.The employee has to submit the self-assessment report in the
Legal Reasoning
933-wp-3481-2014 judg.odt(4)respective Form within one month after the end of the year. Rule 15provides for writing of confidential reports, etc. The confidentialreports should be written annually in respective Forms. The head ofthe employee is the reporting authority. The confidential report shallbe written by the head of the employee who worked for six months ormore during an academic year commencing in June. If the head or ateacher is the Secretary of the Management, the confidential report inhis respect shall be written by the President of the Management. Theconfidential reports so written with respect to the employees and thehead shall be reviewed by the chief executive officer and the Presidentof management, respectively.6.Rule 15(3) is relevant to the question raised before thisCourt, which provides that the respective reporting authority shouldarrange to communicate confidentially in writing adverse remarks, ifany, to the concerned employee or the head, as the case may be,before the end of August every year. Communicating such confidentialreports gives the employee an opportunity to make a representationagainst whom the adverse remarks have been recorded. Rule 15(5) isagain important to decide the issue involved before this Court, whichprovides for effect on failure to write and maintain confidentialreports and to communicate adverse remarks to the employees withinthe period prescribed in sub-rule (3). It has the effect that the work of 933-wp-3481-2014 judg.odt(5)the employee concerned was satisfactory during the period underreport.7.Learned counsel for the management has argued that themanagement has exercised the power under Section 5(3) of the Act of1977. The management assessed the performance of the respondentno.1. Therefore, his services were terminated by notice as requiredunder the said section. He would submit that after the remand, thelearned Tribunal ought not to have made the observations against thereasons recorded by this Court in the writ petition. However, thelearned Tribunal, exceeding its powers went on interpreting the aboveSection and Rules and recorded the findings against the law. Thelearned Tribunal recorded the finding that the confidential reportssubmitted by respondent no.1 were not genuine. Therefore, theTribunal ought not to have passed the order holding that thetermination was illegal. The findings of the Tribunal are self-contradictory. He would submit that the learned Tribunal misread theratio laid down by the Hon'ble Supreme Court in the case ofProgressive Education Society and Anr Vs. Rajendra and Anr, AIR2008 SC 1442. In addition, thereto, he would submit that anotheremployee who had filed Writ Petition No.3525 of 2014 has beenappointed in his place. As of today, there is no vacancy as such. Thetermination was legal, proper and in compliance with the Act andRules. Therefore, the petition deserves to be allowed. 933-wp-3481-2014 judg.odt(6)8.Before recording the reply of respondent no.1, thearguments of learned counsel for the petitioner in Writ PetitionNo.3525 of 2014 are recorded first because he has also assailed thesame order on the ground that this order has affected his rights. Thelearned counsel has argued that compliance with Rules 14 and 15 ofthe Rules 1981 is not a mandate to exercise power under Section 5(3)of the Act of 1977. Section 5(3) of the said Act does not provide forcommunication of the reasons for termination. The sole requirementis either a month's notice or a salary of one month. That has beencomplied with. Rules 14 and 15 do not override Section 5(3) and thiswas exactly the ratio of the Hon'ble Supreme Court in the case ofProgressive Education Society (supra). He would submit that theeffect of not maintaining the confidential reports would be that theperformance of the employee is good. He meant to say that even if theperformance of the employee is good, the management has the powerto terminate the services of the employee at any time beforecompleting probation. He referred to the judgment of the ProgressiveEducation Society (supra). Reading paras 15 and 17 thereof, he hasargued that the management/employer has the liberty to terminatethe services of the probationer without maintaining any performanceassessment record. He prayed to allow the writ petition.9.Per contra, learned counsel for respondent no.1 in bothpetitions, who is fighting against the management and the newly 933-wp-3481-2014 judg.odt(7)appointed employee, has argued that compliance of Rules 14 and 15of the Rules, 1981 is mandatory. Without assessing the performance ofthe employee, the management cannot exercise its power underSection 5(3) of the Act of 1977. He supported the impugnedjudgment and order of the learned Tribunal. To bolster his arguments,he relied on the case of V.P. Ahuja Vs. State of Punjab and others, AIR2000 SC 1080, Progressive Education Society (supra) and ShriVinayak Vidhyadayini Trust and anr Vs. Smt. Aruna T. Prabhu andOrs, 2011 (1) Mah.L.J. 550.10.Perusal of the judgments relied upon by both parties, thisCourt is of the view that the answer to the question raised before theHon'ble Supreme Court has been given in the case of ProgressiveEducation Society (supra). The Hon'ble Supreme Court, in para 15,has observed that the law with regard to termination of the services ofa probationer is well established, and it has been repeatedly held thatsuch power lies with the Appointing Authority, which is at liberty toterminate the services of a probationer if it finds the performance ofthe probationer to be unsatisfactory during the period of probation.The assessment has to be made by the Appointing Authority itself, andthe satisfaction is that of the Appointing Authority as well. Unless astigma attached to the termination of the probationer is called uponto show cause for any shortcoming which may subsequently be thecause for termination of the probationer's service, the Management or 933-wp-3481-2014 judg.odt(8)the Appointing Authority is not required to give any explanation orreason for terminating the services except informing him that hisservices have been found to be unsatisfactory. The Hon'ble SupremeCourt, dealing with the provisions of the Act of 1977, has observed inpara 16 and 17 which read thus :"16.This brings us to the next question regarding thesufficiency of the materials before the School Management whilepurporting to pass the order of termination on 1st August, 1994.As has been discussed, both by the School Tribunal and the HighCourt, the Confidential Report which has been produced onbehalf of the School Management does not inspire confidence onaccount of the different dates which appear both on Part-I andPart-II of the said Report. Part-I of the Self-Assessment Formgives the particulars of the concerned teacher and the remarksof the Reporting Authority, namely, the Head Mistress of theSchool. The date in the said Part is shown as 4th July, 1994,whereas the date at the end of Part-II, which is the Form of theConfidential Report giving details of the teacher's performance,is dated 24th June, 1994, which appears to be in line with thedate given of the forwarding letter written by the Head Mistressto the Secretary of the Society. To add to the confusion createdby the different dates on the Form, there is a third date whichappears on Part-I of the Self-Assessment Form which shows thatthe documents were presumably forwarded to the Managementof the School on 6th August, 1994, which is a date which is priorto the date of termination of the services of the RespondentNo.1, namely, 1st August, 1994.17.This merely goes to show that the said documents are notabove suspicion and that the requirements of Rule 15(6) andRule 14 had not been complied with prior to invocation by the 933-wp-3481-2014 judg.odt(9)School Management of the powers under sub-Section (3) ofSection 5 of the MEPS Act. "11.Similarly, this Court in the case of Shri VinayakVidhyadayini Trust (supra), has also reiterated the same viewconsidering the case of Progressive Education Society (supra).12.The Act of 1977 provides for the termination of theservices of an employee on probation and the factors for suchtermination.13.The interpretation of the learned counsel Mr. Gatne forthe petitioner i.e. the subsequent appointee, that Rules 14 and 15cannot override the powers of the management under Section 5(3) ofthe Act of 1977 appears not correct on the facts. In the case of theProgressive Education Society (supra), the Hon'ble Supreme Courtcrystallized law on this point, which was reiterated continuously inmany subsequent cases. 14.Admittedly, no adverse remarks were communicated torespondent no.1 during the period of his services for one year.However, the management has tried to stand on the legs ofrespondent no.1, who had filed the confidential reports, contendingthat the Tribunal observed that those are not genuine. Factually, theburden on the management is to prove compliance of Rules 14 and15. Therefore, they cannot take advantage of the mistakes ofrespondent no.1. There is no force in the submission of the learned 933-wp-3481-2014 judg.odt(10)counsel for the management that whatever the confidential reportswere before the Tribunal were not genuine. Hence, their terminationorder is correct and legal.15.In view of the facts and the law laid down by the Hon'bleApex Court and this Court, this Court is of the view that thetermination of respondent no.1 is in contravention of Section 5(3)r/w Rules 15 and 16 of the Act of 1977 and Rules, 1981.16.Perusal of the impugned judgment and order reveals thatit is free from infirmities and illegalities. There is no substance in boththe petitions. Hence, both petitions stand dismissed. 17.No order as to costs. (S.G. MEHARE, J.)Mujaheed//