Principal And Secretary, K.J. ... vs Ravindra Y. Barve And Ors.
2003 Latest Caselaw 818 Bom

JUDGMENT

Khandeparkar R.M.S., J.

1. Heard. Perused the records.

2. The petitioner challenges the judgment and order dated 6-4-1994, passed by the College Tribunal in Appeal No. 21 of 1992. The challenge is on four grounds. Firstly, that no appeal was maintainable against the order dated 8-2-1992 as the respondent (No. 1) was only a probationer and not a regular employee. Secondly, there was no sufficient cause disclosed for the condonation of delay in filing the appeal. Thirdly, the Tribunal erred in placing reliance upon various rulings without ascertaining whether they are applicable to the facts of the case and, fourthly, that merely because the employee was asked to hold additional charge, it could not have been construed as a promotion to the employee. On the other hand, the impugned order is sought to be justified on the ground that the petitioner never disclosed the reason for termination of the services of the respondent and it was never the case of the petitioner, either in the appeal or in the petition that the services of the respondent, while on probation were not satisfactory. Referring to the Clause 9 of the appointment letter, it is contended that in case of termination of service during the academic year, the notice period could not have been made to expire prior to the last date of the academic term in the absence of payment of the salary for the entire remaining period of the academic term at the time of issuance of the notice of termination of the services of the respondent. Reliance is placed by the respondent in the decisions of the Apex Court in the matters of Dr. Mrs. Sumati P. Shere v. Union of India and others, reported in 1990(1) Bom.C.R. 97 : A.I.R. 1989 S.C.C. 1431 and Chandra Prakash Shahi v. State of U.P. & others, reported in 2000(II) C.L.R. 347.

3. Undisputedly, the respondent herein was regularly appointed on probation to a full time post of Assistant Professor in the petitioner's engineering college by appointment order dated 24-4-1991. The probation period was to be of two years. The selection and the appointment to the said post was duly approved by the University of Bombay, and the same was communicated by the University by its letter dated 24-9-1991 and was accordingly communicated by the Principal of the College to the respondent by his letter dated 4-10-1991. Further, by order dated 30-1-1992, consequent to disapproval of the appointment of one Dr. K.C. Arora as the Professor of Mechanical Engineering by the University of Bombay, the respondent was given charge of the head of the Production/Machine Tool Department, till further orders. However, by the order dated 8-2-1992, the respondent was informed that his services as the Assistant Professor were terminated with immediate effect and he was asked to collect his dues in lieu of the notice period of one month on submission of a no-due certificate from the concerned department and also a certificate of having handed over the charge to Dr. Munshi Srinivas. Immediately, he was relived from the services of the petitioner's college. By letter dated 23-2-1992, the respondent, through his Advocate, called upon the petitioner to disclose the reason for the termination of his services. The said letter was followed by another letter dated 21-3-1992 by the Advocate for the respondent, addressed to the petitioner. The petitioner, however, did not reply the said letters. The respondent thereafter on 2-7-1992 filed the Appeal No. 21 of 1992 before the College Tribunal challenging the order of termination while contending that the services rendered by the respondent as the probationer were satisfactory. The petitioner disputed the claim of the respondent that the services rendered by the respondent were satisfactory. The Tribunal by the impugned order allowed the appeal and held that the order of termination was illegal and the same was set aside and the respondent was held to be entitled for reinstatement in the same post in the petitioner's college. The respondent was directed to express his willingness to join the duties and on such communication by the respondent to the petitioner, the latter was directed to reinstate the former within a fortnight from the date of receipt of such letter from the respondent. The respondent was held entitled to his salary from the date of his reinstatement, as indicated in the order of the Tribunal, and further that his salary should be fixed after taking into account the services which he has already rendered. Being aggrieved by the said order, the petitioner has filed the present petition.

4. There is no doubt that the order dated 8-2-1992, terminating the services of the respondent, did not disclose any reason for termination of his services. At the same time, it is well-settled that in the case of a probationer, it is not necessary for the management to disclose the reason for termination of the services when the performance of such a probationer is unsatisfactory and on that count the services of the probationer is terminated. However, when the matter is brought before the Court or the Tribunal, it cannot be disputed that the management has to disclose the reason for the termination. The rule of hire and fire is no more tolerated and being so, once a person is selected for the appointment to a post after following the procedure prescribed for the selection, and the post being of a permanent nature, the person so selected is issued the order of appointment on probation, if his services are to be abruptly terminated, it is necessary for the management, once the matter is placed before the Court or the Tribunal, to disclose the reason for the termination. It may not be the right of the probationer to know the reason for his termination, nevertheless, it is necessary for the Court or the Tribunal to apply its mind to ascertain whether there was any justification for termination of the services of the employee, who is regularly appointed on probation. Viewed from this angle, it is always necessary for the management to disclose the reason for the termination of a probationer once the matter is placed before the Court or the Tribunal. Merely because such disclosure is made in the reply to the appeal filed before the Tribunal, it would not enable the employee to contend that the termination was in the nature of penalty as such which would warrant the procedure otherwise applicable in case of termination of a regularly appointed employee. The law in this regard is well-settled vide Union of India and others v. A.P. Bajpai and others, and Krishnadevaraya Education Trust and another v. L.A. Balakrishna, .

5. It is the contention of the petitioner, that the claim of the respondent that his performance was satisfactory during the tenure of probation was specifically denied by the petitioner in the written statement filed before the Tribunal. There is no doubt that copy of the written statement placed on record discloses denial of the claim of the respondent regarding satisfactory performance during his tenure as a probationer. However, as rightly submitted by the learned Advocate for the respondent, there is no positive assertion on the part of the petitioner either in the written statement before the Tribunal or even the memo of the petition before this Court that the services rendered by the respondent were unsatisfactory during the period of his probation. On the contrary, the relevant contents in para 10 of the written statement in that regard reads thus:--

"The respondent also denies that the appellant could be removed only if his services were not found satisfactory during the probation, as alleged in paragraph 8 of the memo of his appeal."

Undisputedly, the said statement was in reply to the contention of the respondent in the memo of the appeal to the effect that:--

"The appellant therefore says that the order of termination is illegal and liable to be set aside. The appellant was appointed on probation and he could be removed only if his services are not found satisfactory. The appellant says that very fact that he was promoted to the temporary post of head of the department shows that his services were satisfactory." Denial of the claim of the respondent that the services could not have been terminated as they were satisfactory, in the manner it has been done by the petitioner, leaves no room for the doubt that it was the contention of the petitioner throughout that the services of the respondent could have been terminated even if they were found satisfactory, as is rightly sought to be contended on behalf of the respondent. Certainly, this is nothing but rule of hire and fire on the part of the management. As already held above, it is well-settled that such a conduct on the part of the management is no more tolerable.

6. The appointment letter which was issued to the respondent, undoubtedly discloses as already stated above, that the appointment of the respondent was on probation for a period of two years. However, it also enumerated the manner in which the services of the respondent could have been terminated during the said period of probation and in that regard the Clause 9(a) of the appointment letter read thus:--

"9(a) The service of a member of the staff shall not be terminated without three months notice if he/she is confirmed or one month's notice if he she is on probation, provided always that the date of expiry of such notice shall not fall within either academic and that when such notice is not given the college authorities shall pay to him/her an amount equal to the salary for the period of notice or for the period till the end of the term which ever is longer." Plain reading of the said clause would, therefore, disclose that an employee on probation, can be terminated by issuing a one month's notice but the period of one month has to expire on the last date of the academic term and in case such notice is not issued, then by offering the salary for the period of notice or for the period till the end of the term, which ever is longer. In other words, the termination of services can only be with the expiry of the academic term, otherwise, only on payment of salary for the period ending with the academic term. This is, however, subject to issuance of notice prior to expiry of thirty days before the last date of academic term, otherwise the payment of salary to extend till the date of notice of thirty days when such thirtieth day happens to be after the last date of the academic term. Considering the said provision relating to termination of services, it is apparent that the termination by the notice dated 8-2-1992 was not by issuing one month's notice ending with the last date of the academic term but rather offering salary in lieu of one month's notice. Since the termination was effected on 8-2-1992, without issuing one month's notice as above, considering the Clause 9, it ought to have been by offering salary in lieu of the period of notice up to the last date of the academic term and, admittedly, no such offer was made by the petitioner to the respondent.

7. The Statute 418 of the University of Bombay deals with the subject of probation and confirmation. The Clause (1) of the Statute 418 provides that:--

"A teacher shall, subject to the procedure prescribed for selection and appointment, be appointed, in the first instance, on probation for a period not exceeding 24 months from the date on which he joins duties after the expiry of which he shall be confirmed and informed accordingly in writing; or his services shall be terminated provided that at least one month's notice is served on him prior to the expiry of the period of probation or one month's pay, D.A. and C.L.A. in lieu thereof, is paid to him. It shall not be necessary to assign any reason for terminating the services of a teacher on probation if it is held that he has not completed his probation satisfactorily. The Governing Body of the College may, in exceptional cases and for reasons to be recorded, reduce the period of probation and shall have the right to assess the suitability of a teacher for confirmation even before the expiry of the period of 24 months from the date of joining but not earlier than 9 months from that date on the basis of the assessment report justifying special consideration."

The Clause (2) of the said Statute 418 provides that:--

"The Principal of the College shall maintain assessment report of a teacher on probation, in the form prescribed for the purpose by the University, as shown in Appendix 'D-1' for every six months and complete it at the end of each term of the academic year. The Principal shall send to the Chairman of the Governing Body, at least two months before the date of expiry of the period of probation, his assessment report with a definite recommendation. If a teacher is not to be confirmed at the end of the probationary period a confidential report justifying the recommendation should be attached and such cases be referred to the Chairman of the Governing Body for further action. The Governing Body shall be the deciding authority in such cases." As rightly submitted by the learned Advocate for the respondent, plain reading of the said clauses of the Statute 418 reveal that the management shall maintain the necessary records, regarding the performance of the employee appointed on probation and the same has to be taken into consideration while arriving at any decision regarding the termination or continuation of the services of the probationer. Apparently, when the matter is brought before the Court disputing the decision of the management relating to the termination of the services of a teacher, it would be necessary for the management to disclose those materials to the Court or the Tribunal. Besides, when the provision relating to termination of a probationer requires certain procedure to be followed under the statute, the management would not be entitled to by pass such procedure. Indeed, the Apex Court in Chandra Prakash Shashi v. State of U.P. & others (supra), referring to the provision in para 541 of the U.P. Police Regulations, which requires certain procedure to be followed for the purpose of putting an end to the period of probation of an employee in the department, had ruled that:--- "Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the regulations for that purpose, then the termination has to be brought about in that manner."

8. The learned Advocate for the respondent has also drawn attention to the decision of the Apex Court in Dr. Mrs. Sumati P. Shere v. Union of India and others (supra), wherein the Apex Court had held that, in the relationship of master and servant there is a moral obligation to act fairly, and an informal, if not formal give and take, on the assessment of work of the employee should be there and the employee should be made aware of the defect in his work and deficiency in his performance. Defects or deficiencies, indifference or indiscretion may be with the employee by inadvertence and not by incapacity to work and timely communication of the assessment of work in such cases may put the employee on the right track and therefore without any such communication, it would be arbitrary to give a movement order to the employee on the ground of unsuitability. Undoubtedly, those observations were made in the facts of a case where the employee was appointed on ad hoc basis for six months or till a regular candidate from the Union Public Service Commission became available, whichever was earlier. However, the employee was continued in service by giving her successive extensions from time to time, the initial appointment was in February, 1982, whereas the extension continued till January, 1985, when her services were sought to be abruptly terminated. The Apex Court therein has also held that "We are not laying down the rule that there should be a regular enquiry in this case and all that we wish to state is that if she is to be discontinued, it is proper and necessary that she should be told in advance that her work and performance are not up to the mark." The observations having been made in the peculiar set of facts, it cannot be disputed that the same will not apply to the facts of the case in hand. Nevertheless, the fact remains that the petitioner finds it shy even to disclose at this stage the reason for the termination of the services of the respondent, apparently the respondent would be justified in contending that there was no reason for the termination of his services and bare denial of the claim of the respondent that his services were satisfactory would not have been a justification for the Tribunal to refuse to interfere in the said order of termination.

9. In the facts and circumstances of the case disclosed from the records and the undisputed facts narrated above, mere delay of few days in filing the appeal could not have been a justification to refuse the relief to the respondent in the matter. The Tribunal, in the facts and circumstances of the case, therefore, has exercised its discretion judiciously in condoning the delay of few days in filing the appeal and therefore, there is no substance in the grievance of the petitioner that there was no sufficient cause disclosed in filing the appeal beyond the period of limitation of thirty days and on that count itself the appeal ought to have been rejected.

10. The contention that a probationer has no right to file an appeal, is absolutely devoid of substance. The Statute 42-B(1) provides that:--

"Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any affiliated College or Recognised Institution (other than that managed and maintained by the State Government or the University) who is dismissed or removed, or whose services are otherwise terminated, or who is reduced in rank, by the Management and who is aggrieved, shall have a right of appeal and any appeal against such order to the Tribunal constituted under section 42-A." Apparently, every employee whether he/she is a teacher or not in any affiliated college or recognised institution other than those managed by the State Government or the University are entitled to file appeal against the order of termination of his/her services. A probationer is also an employee of the employer. In fact, the Clause (xxii) of the Statute 409 of the University defines the term "probation" to mean an appointment made on specified conditions for a stipulated period to a post for determining one's fitness for eventual confirmation in the post. Being so, there is absolutely no substance in this contention.

11. In the circumstances, therefore, there is no case made out for interference in the impugned order and hence the petition fails and is hereby dismissed. The rule is discharged with costs.