Savitribai Fule Shikshan ... vs Dhananjay Deoraoji Diwate And ...
2003 Latest Caselaw 1131 Bom

JUDGMENT

S.B. Deshmukh, J.

1. Heard. Rule. Rule made returnable forthwith by consent of parties.

2. This writ petition is directed against the judgment dated 26th August 2003 passed by respondent No. 3 in Appeal No. STN/195/1996.

3. The admitted facts are that the respondent No. 1 was appointed as Assistant Teacher vide order dated 12th August 1993 for academic session 1993-94 on temporary basis. At the time of appointment, the respondent No. 1 was graduate only and had not obtained professional qualification and thus was not qualified for appointment to the post of Assistant Teacher. Thereafter, it seems that the petitioner has acquired necessary qualification of B.Ed. By appointment order dated 15-7-1994 the respondent No. 1 was appointed as Assistant Teacher for the sessions 1994-95 and 1995-96 on probation. A perusal of the said appointment order which is placed on record shows that the respondent No. 1 was B.Sc. B.Ed, and the appointment on probation for the aforesaid period is subject to approval of the Education Officer (Sec), Zilla Parishad, Wardha. Respondent No. 1 has signed the appointment order acknowledging receipt and acceptance of the said order which, according to the petitioners, was delivered by hand. The respondent No. 1 joined his duties on 16th July 1994.

4. Respondent No. 1 filed appeal before the Tribunal challenging the order of termination dated 7-4-1996. The said order placed on record informed the respondent No. 1 that he was appointed upto the end of session 1995-96 on purely temporary basis and his services will be terminated from the last working day of the said session. The appeal was filed on 17-7-1996 after expiration of the period of limitation. However, the delay was condoned by the respondent No. 3. Respondent No. 1's contention is that though he was appointed on probation for a period of two years, his services have been terminated vide order dated 7-4-1996 showing his appointment on purely temporary basis.

5. In their written statement filed before the Tribunal, the petitioners contended that the termination order dated 7-4-1996 was in fact withdrawn by the management as the same was issued through inadvertence and the petitioners clarified that the termination was effected vide order dated 9-4-1996 in accordance with the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Rules framed thereunder. The petitioners contended that the respondent No. 1 suppressed the order dated 9-4-1996 and was trying to take undue advantage of the order dated 7-4-1996 which was issued through inadvertence and which was withdrawn. The petitioners contended that before completion of probation period and acquiring status of permanency, the services of the respondent No. 1 have been terminated with due observance to law. The petitioners have placed on record written communication addressed by the Head-master of its school complaining about the misbehaviour and unsatisfactory work and conduct on the part of the respondent No. 1. Thus, according to the petitioners, the termination was proper and justified.

6. The Tribunal by the impugned judgment and order allowed the appeal of respondent No. 1. The Tribunal found that the report of the Head-master was manipulated and was prepared with mala fide intention in order to remove the petitioner from service. The Tribunal directed reinstatement of respondent No. 1 and has granted other ancillary reliefs.

7. As aforesaid, the petitioners in their Written Statement itself contended that the termination order dated 7-4-1996 was withdrawn and subsequent order dated 9-4-1996. was issued. Despite this position, the respondent No. 1 did not choose to amend his pleadings and proceeded with the appeal as was framed and filed impugning the order dated 7-4-1996. The Tribunal conveniently quashed the order dated 7-4-1996 or 9-4-1996. In my view, the Tribunal could not have quashed and set aside the order dated 9-4-1996 as the same was neither challenged at the time of filing the appeal nor made a subject-matter of challenge by the appellant/ respondent No. 1 after Written Statement was filed by the petitioners. In absence of specific challenge to the order dated 9-4-1996, the impugned judgment cannot be sustained.

8. The learned counsel for respondent No. 1 vehemently contended that adverse remarks or unsatisfactory working, if any, were never communicated to the respondent No. 1. Learned counsel invited my attention to Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, the "Rules") and submitted that adverse remarks ought to have been communicated to the respondent No. 1. What is relevant for the present purpose is Sub-rule (6) of Rule 15 of the Rules. It is reproduced below for ready reference:--

"(6) Performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained."

As per Sub-rule (6) of Rule 15, the performance of a probationer shall be objectively assessed by the Head during the period of his probation and record of assessment has to be maintained. Considering the scheme of the Act and the Rules, it can be said that Sub-rule (6) of Rule 15 is the only relevant rule as far as employees on probation are concerned. On assessment, the Head has to inform to the management for necessary action. It is provided under Sub-section (3) of section 5 of the Act that if in the opinion of the Management, 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. Therefore, it is the opinion of the Management which weighs with the services of a probationer. If Sub-section (3) of section 5 of the Act and Sub-rule (6) of Rule 15 of the Rules are read conjointly, it can very well be inferred that adverse remarks need not be communicated to a probationer in order to grant him opportunity to improve upon the same or agitate the same. All that is provided is the assessment of probationer's work by the Head and decision of the Management whether to continue his services or not. Communication of adverse remarks; holding of enquiry; grant of further chance for improvement etc., in my view, is not contemplated either under Section 5(3) of the Act or Rule 15(6) of the Rules. Therefore, if the management is of the opinion that during the period of probation, the services of a probationer were not satisfactory, it can very well terminate the services of such employee before the probation period comes to an end.

9. Learned counsel for respondent No. 1 contended that the termination order dated 9-4-1996 is not in accordance with the provisions of Section 5 of the Act. Section 5(3) makes it obligatory for the management either to give one month's notice or salary of one month in lieu of notice. Respondent No. 1 prayed for quashing of termination order dated 9-4-1996, with effect from 11-5-1996. Paragraph 1 of the appeal memo filed before the Tribunal shows that the last day of the session was 11-5-1996. That being the position, the contention of the learned counsel for respondent No. 1 that the notice of termination does not grant one month's notice, is absolutely out of place. The notice of termination in question thus observes the condition imposed on the Management while terminating the services of a probationer.

10. Learned counsel for petitioners has invited my attention to a judgment in the case of High Court of Judicature at Patna v. Pande Madan Mohan Prasad Sinha and Ors., . It is held by the Apex Court in the said case that a probationer does not have a right to hold the post during the period of probation. The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has a right to hold that post. It is further held that an order terminating the services of a probationer can be questioned only if it is shown that it has been passed arbitrarily or has been passed by way of punishment without complying with the requirement of Article 311(2) of the Constitution. In the present case, the respondent No. 1 had not acquired permanency and moreover, he has not challenged the order of termination dated 9-4-1996.

11. Learned counsel for respondent No. 1 then contended that there is no endorsement on the order dated 9-4-1996 that the same was received by the respondent No. 1. Copy of order dated 9-4-1996 placed, on record indicates that the respondent No. 1 refused to accept the order and there are signatures of witnesses also. When the learned counsel for respondent No. 1 was asked as to whether any other mode for service was adopted, he replied that the usual course of service by registered post with A/d must have been adopted by the Management. Refusal to receive, amounts to service in law and moreover, the respondent No. 1 did not raise any demur as against the order dated 9-4-1996; its non-receipt and challenge thereto, in the appeal filed by him before the Tribunal. He is, therefore, estopped from saying that there was no receipt of this order by him.

12. For the discussion made above, the impugned order cannot be sustained. Rule made absolute in terms of prayer Clause (1) of the petition. No costs.