Shri Ashok S/O Pandurang Janjal vs The Secretary, Tulsabai Kawal ...
2006 Latest Caselaw 632 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

Page 2398

1. In this appeal notice was issued for final disposal of the matter at the admission stage and accordingly the matter was heard and is being disposed of finally at the admission stage itself. We have heard at length the Advocates for the appellant and the respondent Nos. 1 and 2. The respondent No. 3 is a formal party.

2. The appeal arises from the order dated 16-9-2005 passed in Writ Petition No. 3368 of 1993. By the impugned order, the learned single Judge has set aside the Judgment of the School Tribunal dated 1-10-1993 in Appeal No. 38 of 1989. The School Tribunal had set aside the order of the Management dated 6-4-1988 terminating the services of the appellant/petitioner and the petitioner was directed to be reinstated in the post of peon as a probationer within 40 days. During the pendency of the Writ Petition, the said order was stayed.

3. The order of termination of services of the petitioner was set aside by the Tribunal on the ground of failure on the part of the Management to comply with the requirements of Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, hereinafter called as "the said Rules" whereas the learned single Judge, considering the materials on record, has held the said finding of the Tribunal to be contrary to the records and has confirmed about due compliance of the said provision of law by the Management.

4. Only point which is sought to be canvassed in this petition relates to interpretation of Rule 15 of the said Rules read with Section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, hereinafter called as "the said Act".

5. The Section 5(3) of the said Act provides thus:

If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Page 2399 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.

6. The sub-rule (6) of the Rule provides thus: "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.

7. Plain reading of the provisions comprised under Rule 15(6) would disclose that as regards the employees on probation, the question of recording of confidential reports in terms of Rule 15, sub-rules (1) to (5), does not arise. The sub-rule (6) specifically provides that in the case of such type of an employee his performance should be objectively assessed by the Head during the period of his probation and of course the records of such assessment shall be maintained by the Management.

8. In Shri Vitthal Pandharinath Dhere v. Shree Kedarnath Shikshan Sanstha and Ors. reported (1) Bom.C.R. 592, the Division Bench of this Court while interpreting the said Section 5(3) and the said Rule 15(6), held that even if the work of a probationer is found to be satisfactory on the basis of non-production of any confidential record, as provided under Rule 15(6), the Management would be free to come to a conclusion about the behaviour of such employee to be not satisfactory. It further ruled that the Management is the best judge of the situation as to whom to continue.

9. In the case in hand, the appellant's services came to be terminated by the order dated 6-4-1988 informing him that his performance being not satisfactory, he was not required to be continued in the employment. The records produced before the School Tribunal apparently disclosed various complaints received from other employees including the Head Master and teachers about the objectionable conduct on the part of the appellant. The complaints disclosed that the appellant used to avoid to be regular in performing his duties and used to spend the duty hours either in the canteen or hotel and also was found to have developed a quarrelsome attitude towards co-employees. The appellant was also used to refuse to comply the orders from the superiors on one pretext or the other, as well as was found using abusive and offensive language towards the superiors. It is true that no disciplinary action as such was initiated against the appellant on account of any of such incidents which came to the knowledge of the Management through the complaints received from different persons; however, some of the complaints, considering the seriousness involved in the matter, were brought to the notice of the appellant and he had submitted his say on those complaints. The Management on taking stock of all the materials and the appellant's performance and conduct, had arrived at the conclusion that the appellant was not fit to continue to be in service and, therefore, had terminated his services.

10. It is undisputed fact that the appellant was a probationer. The Section 5(3) of the said Act, quoted above, clearly empowers the Management to terminate the services of a probationer in case his work or his behaviour is found to be unsatisfactory. Of course, the same should be on giving prior one month's Page 2400 notice or salary of one month in lieu of notice. No doubt, that one month's notice was issued in the case in hand to the appellant. Admittedly, the appellant was a probationer. It was a termination simpliciter. No stigma was attached.

11. The learned Advocate appearing for the appellant has sought to rely on various judgments. However, none of those judgments are of any help to the appellant.

12. In Krishnadevaraya Education Trust and Anr. v. L.A.L.A.L.A. Balakrishna , the Apex Court had held that when an order of termination simpliciter is challenged, the employer will have to indicate the grounds on which the services of the probationer are terminated. However, mere fact that the employer states that the services of the employee were not satisfactory, would not ipso facto mean that the services of the probationer are terminated by way of punishment. The probationers are always on test and if their services are found not to be satisfactory, the employer has right to terminate their services.

13. In V.P. Ahuja v. State of Punjab and Ors. , the Apex Court had held that a probationer like a temporary servant is also entitled to certain protection and his services cannot be terminated arbitrarily nor can those services be terminated in a punitive manner, without complying with the principles of natural justice. That was a case where the order of termination clearly specified that the employee had failed in the performance of his duties administratively and technically and, therefore, his services were terminated. That was a case where the services of Chief Executive in the establishment of the Punjab Co-operative Cotton Marketing & Spinning Mills Federation Limited were terminated. The order was stigmatic as also punitive and there is a clear observation by the Apex Court to that effect in the said judgment and, therefore, it is clearly distinguishable from the case in hand.

14. In Shailaja Shivajirao Patil v. President, Hon'ble Khasdar UGS Sanstha and Ors. reported in (2002) SCC 394, the Apex Court had held that an employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee concerned. This judgment, rather than assisting the appellant, justifies the order passed by the learned single Judge. In the case in hand, the complaints received against the appellant were brought to his notice and he was heard on those complaints. Only thereafter, the Management had formed its opinion about the unfitness of the appellant to continue in the service.

15. In Dr. Mrs. Sumati P. Shere v. Union of India and Ors. , it was held by the Apex Court that termination of Page 2401 the services on the ground that the work had never been satisfactory and that the employee was not found suitable for being retained in the service does not attract Article 311(2) of the Constitution. At the same time, it was held that there is no need of any regular inquiry in such cases and that what is necessary to be done is that before termination of services the employee should be told in advance about his work and performance. In the case in hand, the appellant was sufficiently informed about the deficiency in his performance when the complaints were brought to his notice. Besides, the Apex Court was dealing with a matter relating to an employee occupying the post of Assistant Surgeon Grade-I in the Naval Headquarters.

16. In Sant Lahanuji Maharaj Ashram v. Shri Subhash Tulshiramji Shingane reported in 2004 LAB.I.C. 1794, the learned single Judge of this Court after relying upon the decision of the Apex Court in Krishnadevaraya Education Trust v. L.A. Balakrishna (2001) 9 SCC has held that even though the order does not expressly disclose the reason for termination of the services, it did refer to Clause 68.3(a) of the Secondary School Code and therefore it was clear that it was on account of non-satisfactory performance of the work by the employee.

17. In Savitribai Fule Shikshan Prasarak Mandal, Wardha and Anr. v. Dhananjay Deoraoji Diwate and Ors. , the learned single Judge of this Court relying upon the decision in the matter of High Court of Judicature at Patna v. Pande Madan Mohan Prasad Sinha and Ors. (1997) 10 SCC 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 it has been passed by way of punishment.

18. In Susanta Kumar Pathy v. State rep. by Secy., Ministry of Fertilizer, Central Secretariat, New Delhi and Ors. reported in 2005 I CLR 458, the Division Bench of the Orissa High Court had held that if on an assessment of the work of a probationer as well as his conduct during the period of probation it is found that he is not suitable for the post, it is open to the employer to terminate his services and such service cannot be equated with that of a permanent employee.

19. In Ajit Kr. Singh v. Donyi Polo Ashok Hotel Corporation and Ors. reported in 2005 I CLR 455, the learned single Judge of the Gauhati High Court had held that the probationer's services cannot be terminated on account of his performance being unsatisfactory without issuing show cause notice and without affording the opportunity of being heard. With utmost respect, we are unable to persuade ourselves to agree to the said ruling as the same is contrary to the well-settled law and catena of decisions of this Court as well as of the Apex Court.

20. In the circumstances, therefore, there is no case for interference in the impugned order and hence the appeal fails and is dismissed. No order as to costs.