High Court

Legal Reasoning

1 WP.5651-08.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.5651 OF 20081.The Secretary,National Charitable Trust, Khori Galli, Latur.2.The Head Master,Mahatma Gandhi Vidyalaya,Tungi, (Bk.), Tq. Ausa, District Latur.… Petitioners.Versus1.The State of Maharashtra,Through, Secretary Education Department,Mantralaya, Mumbai.2.The Education Officer (Secondary),Zilla Parishad, Latur.3.Dayanand s/o Chandrahas Kale,Age 30 years, Occu. Service,R/o Wanvada, District Latur,… Respondents....Advocate for Petitioners : Mr. R. K. Ashtekar. AGP for Respondent/s-State : Mr. A. S. Shinde.Advocate for Respondent No.3 : Mr. R. J. Godbole.…CORAM : S. G. MEHARE, J.RESERVED ON : 13.03.2024PRONOUNCED ON : 30.04.2024JUDGMENT :- 1.Heard the learned counsel for the petitioners, learnedAGP for respondents/State Authorities and learned counsel forrespondent No.3. 2 WP.5651-08.odt2.The management/respondent has impugned thejudgment and order of the School Tribunal dated 07.08.2008,passed in Appeal No.213 of 2006, District Latur. 3.The petitioners will be referred to as "respondents" andrespondent No.3 will be referred to as the "appellant" as pertheir status before the learned Tribunal. 4.Brief facts of the case were that the appellant wasappointed as Assistant Teacher by following due procedure oflaw on 23.06.2003. However, on two grounds, the respondentterminated his services by a written communication dated16.04.2005. Firstly, he repeatedly sought leave and did notattend school. His acts were illegal and against the interest ofthe society. Secondly, the Education Officer did not approvethe appointment as there was no requisite workload. 5.The appellant impugned the said order before thePresiding Officer. He contended that his termination of serviceswas illegal and against the provisions of the law. Hisperformance was never assessed as required under Rule 15(4)and (6) of the Maharashtra Employees Of Private Schools(Conditions Of Service) Regulations Act, 1977 (for short "Act 3 WP.5651-08.odtof 1977). He also has the case that the respondent cannotterminate his service only for non-approval by the EducationOfficer. He was on probation. He has a further case that he wasotherwise terminated on 29.01.2005 as he was not allowed tosign the muster roll. He admitted that he sought leave on27.01.2005 and half day on 28.01.2005.6.The respondent opposed the appeal of the appellant,contending that his performance was unsatisfactory. Therefore,his services were correctly terminated before the probationperiod was over.7.The learned Tribunal observed that the performance ofthe probationary is to be taken into consideration beforeterminating his services. Rule 15(6) and 14 thus are notcomplied with, and the termination of the probationary servicein exercise of power under Section 5(3) of the Act of 1977 isliable to be set aside. He further observed that Rules 14 and 15of the M.E.P.S. Rules do not overwrite the provisions of Section5(3) of M.E.P.S. Act. The Management did not place on recordany material about the adverse remarks or any adverseperformance of the appellant during the preceding year. Inview of the ratio laid down in the case of Progressive 4 WP.5651-08.odtEducation Society and another Vs. Rajendra and another; AIR2008 SC 1442, refusal of the individual approval is not aground to terminate the services. It has also been observed thatevery school is bound to appoint one physical educationteacher, and such a teacher is required to be up to the strengthof 250 pupils. If there are more than 250 pupils, then theschool may appoint another physical education teacher andgive him the workload of other subjects. He also directed theEducation Officer to consider the proposal of approval of theappellant afresh as per his findings.8.Learned counsel Mr. Ashtekar for the appellant hasvehemently argued that the strength of the student in theschool at the relevant time was below 250, and the post ofphysical education teacher was not sanctioned. The respondentknew it well. Hence, he remained absent in the school. Heargued that the learned Tribunal had incorrectly observed thatas per the Government Resolution dated 14.05.1987, theschools were bound to appoint one physical education teacher.The findings of the Tribunal on the workload are also baseless.He would submit that under Section 5(3) of the Act of 1977,the Management can terminate the services at any time beforethe probation period is complete. Therefore, his termination 5 WP.5651-08.odtwas correct. Rules 14 and 15(1)(3)(4)(5)(6) do not apply inthe case at hand. It is not necessary to communicate adversereports of performance to employees. 9.To bolster his argument, he relied on the case of the FullBench judgment of Bombay High Court in Gramin Yuvak VikasShikshan Mandal + 1 Vs. Shivnarayan Datta Raut+1, in WritPetition No.5998 of 2019, dated 30.05.2023. He would submitthat the termination of the petitioner was not stigmatic.Therefore, he, being a probationary teacher, was correctlyterminated from services without inquiry. He also argued thatthe learned Tribunal did not consider the legal aspects andpassed the erroneous order. He prayed to allow the writpetition.10.Per contra, learned counsel Mr. Godbole, for contestingrespondent No.3, has vehemently argued that if the orderterminating the probationer's service is stigmatic, the inquiryis essential. The post of physical education teacher was inexistence. There was sufficient strength in the school. However,a false record was created with mala fide intent to terminatehis services. He referred to Rule 28 (5) and (c)/2 of theM.E.P.S. Rules, 1981 and argued that there was no persistent 6 WP.5651-08.odtabsence of the respondent without permission. Therespondents have cancelled the appointment of the applicant.The approval to his appointment was incorrectly rejected. Healso submits that the petitioner was entitled to back wagesautomatically upon succeeding in the appeal. 11.To bolster his argument, he relied on the case of ArtiVitthalrao Warkhede Vs. Education Officer (Secondary) ZillaParishad, Wardha and others; 2011 (1) Mh.L.J. 638 on thepoint that the School Tribunal has the jurisdiction to decide thecorrectness of the order of the Education Officer as anincidental question. He relied on the case of Jayashri JyotiramPhale Vs. People's Education Society, Kolhapur and others ;Maharashtra Education Cases, 67 and vehemently argued thatthe stigmatic termination order of the probationary alsorequires the inquiry contemplated under the Act of 1977. Healso relied on the case of V. P. Ahuja Vs. State of Punjab ; AIR2000 SC 1080. In this case, it has been held that the stigmaticorder affecting the performance and future of the teacher couldnot have been passed without holding a regular inquiry andgiving an opportunity of hearing to the appellant. He furtherrelied on the case of Vishwanath Dnyanoba Kirade Vs. NavAkanksha Mahila Mandal, Parbhani and others ; MEC 551 7 WP.5651-08.odtequal 2015 (3) Mh.L.J. 725. In this case, it has been observedthat the stigmatic order could not have been passed against theprobationer.12.The first question that goes to the root of the case iswhether the termination order is stigmatic and affects thefuture of the petitioner. A copy of the termination order isplaced on record. In the termination order, it has beencontended that from 24.01.2005 to 26.01.2005, he was sent tothe Adolescence Life Skill Camp. Then, on 27.01.2005, he tookleave. On 28.01.2005, in the morning, he was present, did histeaching and in the second half, he obtained the leave.Thereafter, he did not attend the school for discharging hisduties. His acts were illegal and against the interest of thesociety. Further, it has been mentioned therein that theEducation Officer refused the approval for his appointment asthere was no required workload. 13.Learned counsel for the appellant has vehementlyargued that the contents of the notice proved that thetermination of the petitioner of the appellant was stigmatic.Therefore, he could not have been terminated unless theinquiry was conducted against him. The Hon'ble Supreme 8 WP.5651-08.odtCourt, in the case of V. P. Ahuja (supra) has held that aprobationary, like a temporary servant, is also entitled tocertain protection and his services cannot be terminatedarbitrarily, nor can those services be terminated in a punitivemanner without complying with the principles of naturaljustice. This Court, in the case of Vishwanath (supra)considered the landmark judgment of Dipti Prakash BanerjeeVs. Satyendra Nath Bose National Centre for Basic Sciences ;(1993) 3 SCC 60, on the point of the termination of theprobationer. In that case, a specific issue was framed: when canan order of termination of a probationer be said to expressstigma?14.The law is well settled that any order terminating theservices of the probationary is stigmatic or punitive in nature;the employee cannot be terminated without following theprinciple of natural justice, i.e. without giving him anopportunity of hearing and holding an inquiry. The terminationof the services under Section 5(3) of the Act 1977 of theprobationer should not reflect the contents that are stigmaticor punitive because such orders affects the future of theemployee. 9 WP.5651-08.odt15.Reading the contents of the termination order, in nomanner of doubt, it is stigmatic and punitive. Therefore, theservices of the appellant could not have been terminatedwithout holding an inquiry contemplated under the Act of1971. 16.The next question has been raised that Rules 15 and 14of the M.E.P.S. Rules are not applicable in the case of theprobationer. Learned counsel for the respondent relied on thecase of Gramin Yuvak (supra). It was a case referred to theLarger Bench since there were conflicting judgments on theapplicability of entire Rule 15 of M.E.P.S. Rules. The Full Benchhas answered the questions referred to it and held that onlySub Rule 6 of Rule 15 of M.E.P.S. Rules applies where anemployee is appointed on probation when the Managementtakes action under Section 5(3) of M.E.P.S. Act and not theentire Rule from Sub Rule 1 to 6 of the M.E.P.S. Rules. It hasbeen further answered that failure to adhere to therequirement of sub Rule (3) and (5) of Rule 15 of M.E.P.S.Rules will not ipso facto vitiate action taken by theManagement under Section 5 (3) of M.E.P.S. Act. If theManagement satisfied the requirement of Sub Rule 6 of Rule15 of M.E.P.S. Rules by ensuring that the performance of an 10 WP.5651-08.odtemployee appointed on probation has been objectively assessedby the Head or the record of such assessment has beenmaintained. It has been further held in the said case that non-compliance of Sub Rule 5 of Rule 15 of M.E.P.S. Rules did notvitiate an order of termination of service simplicitor issued bythe Management under Section 5(3) of the M.E.P.S. Act as itcovers termination of an employee appointed on probation onboth counts it is unsatisfactory work and also for unsatisfactorybehaviour. Lastly, it has been observed that it can be summedup by holding that the plain reading of Rule 15 of M.E.P.S.Rules does not indicate that Rules 15(1) to 15 (5) apply toprobationers along with Rule 15 (6) of the M.E.P.S. Rules.17.The Bombay High Court, in the case of High SchoolEducation Society and another Vs. Presiding Officer, SchoolTribunal and another; 2004 SCC OnLine Bombay 915, inparagraph No.18 observed that if Sub Section (3) of Section 5of the Act and sub Rule 6 of Rule 15 of the Rules are readconjointly, it can very well be inferred that adverse remarksneed not be communicated to a probationer in order to granthim an opportunity to improve upon the same or agitate thesame. Communication of adverse remarks, holding of enquiry,grant of further chance for improvement etc., in my view, is not 11 WP.5651-08.odtcontemplated either under Section 5(3) of the Act or Rule15(6) of the Rules. Therefore, if the Management is of theopinion that during the period of probation, the services of aprobationer were not satisfactory, it can very well terminate theservices of such employee before the probation period comes toan end.18.The law is clarified in Gramin Yuvak (supra) that failureto adhere to requirements of sub-rules (3) and (5) of Rule 15of the MEPS Rules would ipso facto vitiate an action taken bythe Management under Section 5(3) of the MEPS Act. If theManagement satisfies the requirement of sub-rule (6) of Rule15 of the MEPS Rules by ensuring that the performance of anemployee appointed on probation has been objectively assessedby the Head and a record of such an assessment has beenmaintained. However, the Management did not produce anysuch record. The respondent failed to produce such a recordbefore the Court. 19.This Court has already observed above that thetermination order is ipso facto stigmatic and punitive.Therefore, the view of the Hon'ble Supreme Court in V. P. Ahujais squarely applicable to the case at hand. 12 WP.5651-08.odt20.So far, the termination of the employee for non-approvalof the appointment is concerned, it is well settled that it is nota ground for termination of service. Bombay High Court, in thecase of Arti (supra) has held that the School Tribunal hasjurisdiction to decide the correctness of the impugned order ofthe Education Officer as an incidental question.21.The Education Officer did not approve the appointmentas there was no workload and there were excess teachers. Thelearned Tribunal on facts recorded the findings that thepetitioner was appointed prior to the appointment of anotheremployee Mr. Sonkamble from S.C. Category. The approval ofthe teaching staff was 1+4. The appellant was at serial No.4 inthe teaching staff. He was appointed on 23.06.2003, andSonkamble was appointed after him on 10.06.2004. Theappellant was appointed against the vacant, clear andpermanent post. He was appointed as a physical educationteacher. The Government has a resolution dated 14.05.1987mandating the school to appoint one physical educationteacher in a school. The criteria for appointing such a teacherwas that there shall be a strength of up to 200 to 250, and theappointment shall be made from the sanctioned post. It hasalso been provided therein that such a teacher should be given 13 WP.5651-08.odtat least 50% of the workload of physical education, and if thephysical education teacher has a workload of 9 Clock hours ormore than that, one more teacher may be appointed asphysical education teacher. The Tribunal examined theteaching timetable and believed that he was also teachingMarathi and geography subjects. In 2004-2005, the strength ofthe pupil was 234. Interpreting the said GovernmentResolution, the Tribunal has correctly discarded the argumentof the respondent that there must be one physical teacher thereshould a strength of 250 pupils. He correctly interpreted theresolution that there should be one physical education teacherfor the strength of pupils up to 250. He has correctly exercisedthe powers to examine the legality of not approving theappointment as an incidental question.22.Learned counsel for the respondent has vehementlyargued that there was no pleading at all about the back wages.Therefore, the impugned order is bad in law awarding the backwages.23.Normally, the back wages are denied. If the employeewas gainfully employed during the period from the date oftermination of his services and the date of the order by the 14 WP.5651-08.odtTribunal awarding him compensation/back wages. Therespondent has no case that from the date of his terminationtill the conclusion of the appeal, the appellant was in gainfulemployment. Therefore, the learned Tribunal is correct ingranting him back wages as provided under Section 11(2)(c)of the Act of 1977.24.For the above reasons, the writ petition stands dismissed.25.Rule made discharged. 26.No order as to costs.(S. G. MEHARE, J.)...vmk/-27.Learned counsel for the petitioners submits that thepetitioners wanted to impugn the order before the Apex Court.Hence, the order may be stayed for further three (3) weeks asthe summer vacation of the Hon’ble Supreme Court is ensuing.28.Learned counsel for the respondent strongly opposed theprayer of the petitioners on the ground that the petitioners 15 WP.5651-08.odthave been terminated in the year 2005. Thereafter, the learnedTribunal passed the order in his favour. Instead of reinstatinghim, the management has secured the stay since 2008. Theemployee is out of job. Hence, it would be unjustifiable to staythe matter. The petitioners have no good case on merit. 29.Considering the issue involved in this case and the age oflitigation, this Court find substance in the submissions of thelearned counsel for the employee. It would be unjustifiable tokeep the matter stayed for further period. Hence, the request ofthe petitioners to stay the petition could not be accepted. (S. G. MEHARE, J.)...vmk/-