Narayan S/O Baliram Patil vs Presiding Officer, School ...
2005 Latest Caselaw 97 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard Shri Prashant Thakre, Advocate holding for Shri Anand Parchure, Advocate for the petitioner, Shri Haq. Advocate for respondents No. 2, 3 and 4 and Shri Loney, AGP for respondent No. 5.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner - an ex-employee of respondent No. 4 - Junior College, challenges the judgment of School Tribunal dated 1-9-1992 whereby the School Tribunal has dismissed his appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, holding that the order of termination from service dated 31-1-1989 does not require any interference on the ground that he was only a probationer and his services have been terminated as per provisions of section 5(3) of the said Act.

3. Advocate for the petitioner states that the petitioner joined the employment with respondent No. 4 - Junior College on 29-6-1987 and he was appointed on probation for a period of two years. He states that the Deputy Director of Education has also approved the appointment by communication dated 8-10-1987. He further makes a grievance that a demand of Rs. 25,000/-was made from him by respondents No. 2 and 3 who run and manage respondent No. 4 - Junior College and as he did not comply with their demand dated 10-5-1988, he was terminated before the end of second year of his probation by communication dated 31-1-1989. He challenged the said order by filing appeal on 7-2-1989 before the School Tribunal and the appeal came to be dismissed by the impugned judgment on 1-9-1992. It is his contention that the said termination cannot have been ordered without constituting Committee as required by Rule 33 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, and without conducting regular departmental enquiry as per said rule. He contends that the order of termination itself is stigmatic and the learned School Tribunal has refused to exercise jurisdiction available to it by ignoring this aspect of the matter.

4. As against this, Shri Haq, Advocate for respondent Nos. 2, 3 and 4 contends that the order of termination is not stigmatic at all and it only shows that performance of the petitioner was not satisfactory. He further contends that the School Tribunal has correctly appreciated this position in the light of provisions of Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rule 15(6) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, and thereafter has found that the management has objectively assessed the work of the petitioner and maintained the record thereof and as such his services were terminated because his performance was found to be unsatisfactory. He contends that there is nothing stigmatic in the process. He relies upon the judgment of the Apex Court in the case of High Court of Patna v. Pandey Madan Mohan, reported at (1997)10 SCC 409; Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. reported at AIR 2003 SC 1789 and State of Haryana v. Jagdish Chander, reported at (1995)2 SCC 567 in support of his contention. The last ruling has been relied upon to contend that in appropriate cases the Courts can permit the employer to complete Departmental Enquiry and in the present case if the order of termination is found to be stigmatic, respondents No. 2, 3 and 4 should be permitted to hold departmental enquiry against the petitioner. He has further pointed out that on 27-1-2005 the respondents have placed on record the affidavit showing that the petitioner is gainfully employed and is not in need of any service.

5. The advocate for the petitioner has stated that the petitioner is in gainful employment since 1996 and therefore, the petitioner is not insisting upon relief of reinstatement in this petition. He states that the petitioner should be allowed wages only for the period from 1994 to 1996 as for the rest of the period, the petitioner was gainfully employed elsewhere.

6. The order of termination dated 31-1-1989 is produced on record by the petitioner as Annexure-V along with his petition. In this order, in the opening part, there is mention of resolution No. 1 of Managing Committee of the respondents. It is mentioned therein that the petitioner was constantly making complaints to superiors by pointing out that he was a probationer and belonged to Backward Class and hence there was conspiracy to terminate him. It is alleged that by such complaints, he has defamed the Principal, the Institution and the Junior College constantly. It is further mentioned that because of this, the work of education and administration had come to stand-still and the institution as also students would be put to educational as also financial loss. It is mentioned that he had shown the students, who were his relatives, as present in the class though they were absent and he marked absent those students, who belonged to other religion and castes, though they were present in the class. He prepared false attendance of the class. It is further mentioned that during Unit tests, he gave questions to the students and asked them to write the answers thereof at their homes. It is further mentioned that he wrote false daily report and he has indulged in correspondence whereby he had levelled false charges against Principal and had also defamed the Institution. It is further mentioned that the name of one student was not recorded in attendance sheet though she was admitted in the College. In last but one para, it is mentioned that he had breached Rules 4(1), 4(2), 4(3), 4(4), 4(6), 4(9), 4(11), 4(13), 4(14), 4(15) and 4(16) of Schedule 1 of M.E.P.S. Rules, 1981, and because of provisions of Rule 23(2)(a) and 2(d) and (3), he was liable to be punished under Clauses 5(a), 5(c) and 5(d) of Rule 28. In other paras, it is also mentioned that he did not complete his syllabus within time. He failed to inculcate discipline in students. He had not filled in the valuation chart for the Unit test and annual examination within time and he had not obeyed instructions issued to him after inspection of his class.

7. The perusal of Clauses 23(2)(a) and (b) of M.E.P.S. Rules, 1981, show that the said provisions have got bearing upon the number of hours spent by a part time teacher in teaching one or more schools as also the number of hours spent by him in tuitions and a part-time teacher has to intimate the Head before undertaking any tuition. Rule 28(5) states that an employee shall be liable to be punished on the grounds which are specified in it and those grounds are misconduct, moral turpitude, wilful and persistent negligence of duty and incompetence. The meaning of misconduct, moral turpitude, wilful persistent negligence of duty and incompetence is also given in the said Sub-rule (5) of Rule 28 of the Rules. Perusal of order of termination reveals that the management has stated that the petitioner is liable to be punished for misconduct, for wilful and persistent negligence of duty and for incompetence. Rule 29 provides for penalties to be imposed on the employees who are found guilty of misconduct or wilful or persistent neglect of duty as specified in Rule 28. Thus, the order of termination per se reveals that the petitioner was charged with misconduct, wilful and persistent negligence of duty and with incompetence and it has been further observed therein that he is liable to be punished.

8. The Advocate for the respondents has stated that Rule 28 has no application in the case of the petitioner as he was only a probationer. However, it is to be noticed that the Heads under which the management has sought to take action against the petitioner, which are described above, are themselves casting a stigma upon the petitioner. It is not that it is a plain and simple appraisal of his service record which is reflected in this order. He has been charged with preparing false records, favouring his relatives, permitting students to write answer papers at their residence, making false and defamatory allegations against Principal and Institution and by mentioning all these, the order of termination has been passed. In such circumstances, it is not possible to hold that this is an order which is not stigmatic or it is an order of simple termination.

9. Insofar as alleged demand of donation of Rs. 25,000/- is concerned, the said demand is produced by the petitioner as Annexure - IV with his petition and in very first para, it is mentioned by the management that the petitioner is appointed in Junior College on probation for two years and its further continuation is totally upon the discretion of Managing Committee/Executive. Thereafter, it is mentioned that the society is in need of certain amount and the petitioner should pay the donation of Rs. 25,000/- and if he fail to pay Rs. 25,000/- within 10 days the Society will be required to think over the issue of his continuation in the service. If this is so, it is clear that the respondents threatened the petitioner with termination if he failed to give donation.

10. The advocate for the respondents states that this letter is produced for the first time along with written notes of arguments before the School Tribunal and it was not supported by any affidavit and as such the letter cannot be used in this petition against the respondents. The perusal of records reveal that the letter has been annexed as part of petition by the petitioner and the respondents have not filed any reply on affidavit denying said letter till recently. Moreover, said letter was also produced before the School Tribunal along with written notes of arguments and after considering the language of the order of termination mentioned above. It is not necessary for this Court to decide the question whether any such letter was in fact written by the respondents and whether any such letter was received by the petitioner. The advocate for the respondents point out that the letter has been denied in the affidavit which has been filed before this Court on 27-1-2005 pointing out that the petitioner has secured alternate employment. However, as already stated above, as it is not necessary for this Court to consider the controversy and to adjudicate upon it in this petition, that point need not be gone into.

11. The reliance upon the ruling i.e. (1997)10 SCC 409, placed by these respondents reveals that the services of the employee were terminated on 19-6-1985 by High Court on the ground that he was not fit for retention in service. The adverse reports were only a material to substantiate the stand that the employee was not fit for retention. The controversy was considered in this background by the Hon'ble Apex Court and it has found that the said adverse reports were not the foundation of order against the employee. The said decision of the High Court was not founded on any misconduct. About the earlier letter dated 5-3-1986 in which there was reference about the integrity of said employee, it was observed that it does not lead to the inference that the order was passed by way of punishment for particular acts or misconduct and reports were taken into account for assessing his performance. The position before this Court is entirely different. As is apparent from the language of the termination order dated 31-1-1989, the said termination order was infact for specific misconduct and the Sub-clause (a), (c) and (d) of Rule 28(5) of the Rules are specifically mentioned in it.

12. The advocate for the respondents has placed reliance upon the judgment of the Apex Court reported at AIR 2003 SC 1789. In this judgment, the perusal of show cause notice dated 12-12-1996 reveals that it contained two clauses i.e. Clauses (4) and (5) which charged the employee of collusion with the suppliers to secure pecuniary benefits and betrayal of confidence reposed on him. Thereafter termination order was issued to a probationer and the Hon'ble Apex Court has found that paras 1 to 3 of this Show cause notice revealed his unsatisfactory performance of duty. A finding has been recorded that the specific instance of collusion with suppliers and betrayal of confidence as contained in paras 4 and 5 of said show cause notice were not taken into consideration by the employer in passing order of termination of services though said termination order contains reference to show cause notice. It is further found that in the last para of show cause notice, the reference was made to the order of appointment and term therein about the termination of service of probationer after probationary period. The order of termination also made reference to relevance clause (2) as contained in the order of appointment and explanation given by the petitioner to the show cause notice. The Apex Court has found that the order of removal of probationer from service was of termination simpliciter and not punitive. It appears that before the High Court paras 4 and 5 of said show cause notice were withdrawn by the employer. On facts, the position in the case before the Apex Court were entirely different and this ruling has no application in the facts of the present case.

13. The last ruling on which reliance has been placed is reported at (1995)2 SCC 567, In this case, it appears that Rule 12.21 of the Punjab Police Rules, 1934, permitted the Superintendent of Police to discharge a Constable, who is found unlikely to prove an efficient Police Officer within three years of his enrolment. In exercise of this power, services of respondent Jagdish Chander were terminated without affording him any opportunity. The Hon'ble Apex Court has found that for recording such finding, the Superintendent of Police must objectively consider the record and thereafter reach to a conclusion in that behalf. It is further observed that if he records a finding after considering record, it would be a stigma on the career of discharged Police Officer and it is settled law that principles of natural justice require that an opportunity should be given to him before recording any such adverse finding. In para 5, the Apex Court has held that the order of discharge of Jagish Chander was not an order of discharge simpliciter. It has thereafter made a reference to the observations made by the Superintendent of Police wherein the said authority has found that Jagdish Chander was habitual absentee, negligent to his duty and undisciplined. It has, therefore, held that the order of discharge is vitiated. The present order of termination dated 31-1-1989 is on the same lines and is, therefore, liable to be vitiated.

14. Thereafter, in above case of Jagdish Chander the Apex Court has placed reliance upon the judgment of Constitution Bench in the case of Managing Director, ECIL v. B. Karunakar, reported at (1993)4 SCC 727, wherein the Constitution Bench has permitted opening of enquiry by employer by giving of opportunity to the Officer concerned to defend himself even after holding that his dismissal is vitiated for not serving copy of enquiry report upon him. However, it is to be noticed that such a view is taken by the Apex Court in the case of Managing Director, ECIL v. B. Karunakar (supra) because of peculiar situation. The question was of requirement of giving opportunity to show cause against the findings recorded by the Enquiry Officer and deletion of clause of issuance of 2nd show cause notice under Article 311 by the 42nd Amendment of Constitution of India. The Apex Court for the first time in the case of Union of India v. Mohd. Ramzan Khan, reported at AIR 1991 SC 471, held that deletion of said clauses from Article 311 did not make any difference and it was the principle of natural justice to give an opportunity to the delinquent employee to submit his say on the findings recorded by the Enquiry Officer. Departmental enquiry otherwise conducted validly was found to be vitiated only for not supplying copy of enquiry report to the delinquent employee and for not giving him an opportunity to meet the findings reached. This was made applicable prospectively. This controversy has been finally settled by the above referred Constitutional Bench judgment. Thus, the prospective application of granting opportunity was found to be necessary and an ingredient of principles of natural justice as explained and laid down by the Hon'ble Apex Court. Again Jagdish Chander was a Constable working in police force where the requirements of discipline are more rigorous.

15. In the facts and circumstances of the present case where the services of petitioner were terminated on 31-1-1989, without even serving a charge sheet, grant of such an opportunity after 16 years will not be expedient. The petitioner was thereafter also employed elsewhere and he is seeking wages only for two years i.e. from 1994 to 1996, during which period he could not get any employment. He is not seeking any relief of reinstatement. Under the circumstances, the initiation of departmental enquiry against him will not be of any importance insofar as the controversy in question is concerned.

16. Under the circumstances, I find that the Presiding Officer, School Tribunal, has not considered the language of termination order and the allegations made thereunder in the light of service conditions of the employees of private schools and thus has refused to exercise jurisdiction available to him in the matter. Therefore, the impugned judgment dated 1-9-1992 and orders of termination dated 31-1-1989 are hereby quashed and set aside. However in view of the specific statement made by the advocate for the petitioner, the relief of reinstatement is not granted to the petitioner and he is held eligible for the backwages from 1-7-1994 to 30-4-1996 only. Respondents No. 2, 3 and 4 are granted time of four months to pay the same to the petitioner.

17. Writ petition is disposed of accordingly. Rule is made absolute in the above terms. There shall be no order as to costs.