Bombay High Court
Panchsheel Shikshan Prasarak ... vs The Presiding Officer, Amravati ... on 29 August, 2017
Bench: S.C. Gupte
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6704 OF 2013
Panchsheel Shikshan Prasarak
Samiti, Nandepera.
Through its President
Dilip Jagannath Peche
Aged about 46 years,
Occupation - Service.
Resident of Nandepera,
Tah-Wani, District-Yavatmal. .....PETITIONER
...V E R S U S...
1] The Presiding Officer,
School Tribunal, Amravati.
2] Ku. Tai D/o. Uddhavrao Tonge
(Maiden Name)
Sau. Mrunal W/o Ashok Peche
Aged about 41 years.
R/o. C/o. Shri Ashok Nanaji
Peche. Rangari Pura, Ganeshpur
Road Wani, Tah-Wani, Dist-Yavatmal.
3] Panchsheel High School
Nandepera, Tah-Wani,
District - Yavatmal.
Through its Head Master.
4] Ramkrishna Jagannath Peche,
Resident of Warora,
Tah. Warora, District-Chandrapur.
5] The Education Officer (Secondary)
Zilla Parishad, Yavatmal. ...... RESPONDENTS.
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Shri S. D. Abhankar, Advocate for the Petitioner.
Shri S. J. Kadu, AGP for Respondent No.1.
Shri P. B. Patil, Advocate for the Respondent No.2.
Shri Lalit Limey, Advocate for Respondent No.3.
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CORAM : S. C. GUPTE, J.
th
DATE : 29
AUGUST, 2017.
ORAL JUDGMENT :
This petition challenges an appellate order passed by the
Presiding Officer of School Tribunal, Amravati.
02] The short facts of the case may be stated as follows :
The petitioner is a Public Charitable Trust registered
under the Bombay Public Trust Act, 1950, impleaded through its
President. The trust run a School known as Panchasheel High
School at Nandepara, Tahsil Wani, District - Yavatmal. Respondent
No.2 was appointed as "Shikshan Sevak" in the school run by the
trust. The appointment was made by a communication dated 29 th
April, 2010 and was said to be in pursuance of Government
Circular dated 13th October, 2000. The appellant holds
qualifications of B. A., B. P. Ed., M. A. and B. Ed.. She joined the
services of the petitioner-school on the date of her appointment and
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taught the subjects of Marathi, Hindi, History and Geography
alongwith physical education to 8th, 9th and 10th standards of the
school. Respondent No.2 was terminated vide order dated 28 th
December, 2011 passed by the petitioner trust. This order was
challenged by respondent No.2 by filling an appeal (Appeal
No.01/2012) before the School Tribunal, Amravati. The School
Tribunal allowed the application of respondent No.2 for stay
pending hearing and final disposal of the appeal. This interim order
was challenged by the petitioner before this Court by filing Writ
Petition No.6033 of 2012. This Court vide its order dated 2 nd May,
2013 was pleased to stay the impugned stay order passed by the
School Tribunal and direct the School Tribunal to decide the appeal
as expeditiously as possible. The School Tribunal, thereafter,
proceeded to hear the appeal and by its impugned order dated 13 th
November, 2013, partly allowed the appeal, and quashed and set
aside the impugned termination order of 28 th December, 2011,
directing the petitioner to reinstate respondent No.2 in her post of
"Shikshan Sevak" within a period of 40 days. The reinstatement
was with continuity of service but without back wages. This order
is challenged by the petitioner in the present petition.
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03] It is mainly contended by learned counsel for the
petitioner that respondent No.2 was on probation; her services, not
having been found satisfactory, were duly terminated by the order
of the petitioner trust; and such order did not cast any stigma on
respondent No.2 for her future career and, being an order
simpliciter for termination on account of unsatisfactory services
during the period of probation, did not envisage any enquiry.
Learned counsel relies on several documents in this behalf
including the memos addressed by the headmaster of the school to
respondent No.2. Learned counsel submits that the School
Tribunal erred in holding that prior permission of Deputy Director
of Education was necessary for termination of respondent No.2.
Learned counsel also submits that the School Tribunal erred in
holding that the headmaster of the school did not submit any
report regarding unsatisfactory work of respondent No.2. Learned
counsel relies on several judgments of our Court as well as the
Hon'ble Supreme Court in support of his case that the termination
of respondent No.2 was legal and proper and ought not to have
been interfered with by the School Tribunal in the appeal.
04] There is no serious dispute between the parties that
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though respondent No.2 was appointed on the basis of the State
Government Circular of 13th October, 2000, the appointment itself
and all its incidents are governed by the provisions of Maharashtra
Employees of Private Schools (Conditions of Services) Regulation
Act ("Act"). This Court in the case of Shivdutta Education
Trust..vs..Harishchandra Rajabali Yadav, 2012 (4) ALL MR 664
has unequivocally held that after the amendment of the Act, the
appointment of "Shikshan Sevak" was no longer to be treated as
contractual but as a probationary appointment governed by the
provisions of the Act and that all contrary provisions concerning
such appointment contained in the government circular would have
to be ignored.
05] The cases of Ashok s/o Pandurang Janjal ..vs..
Secretary, Tulsabai Kawale Vidyalaya Patur and Others,
2006(4) Mh. L. J. 759, Niraj Singh (Ms.) ..vs.. Shishu Vihar
Mandal and Others, 2007(2) Mh. L. J. and Principal, B. K. M.
High School Mumbai and another..vs..Keshab Achari, 2008(1)
Mh. L. J. 438, do make it clear that if the probationer's work or
behavior was found to be unsatisfactory, the services could be
terminated under the provisions of Section 5(3) of the Act by
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tendering one month's wages in lieu of notice at the time of such
termination; such termination does not have to be preceded by any
domestic enquiry.
06] Any order passed in the case of a probationer, which is a
termination simpliciter and not punitive or in any way jeopardizing
the employee's future career prospects, must satisfy two tests before
it passes muster. The first is the test of form. It must be shown that
as a matter of form, the order does not cast any stigma on the
employee. The second is the substance test. It needs to be seen
whether, prior to the termination, there was (i) a full scale formal
enquiry in (ii) allegations of moral turpitude or misconduct which
culminated in (iii) a finding of guilt. If all three factors are present,
the termination would be held to be punitive, irrespective of the
form of the termination. Conversely, if any one of the three factors
is absent, the termination order would be upheld. These tests have
been succinctly laid down in the judgment of the Hon'ble Supreme
Court in the case of Pavanendra Narayan Verma ..vs.. Sanjay
Gandhi PGI of Medical Sciences and Another, (2002) 1
Supreme Court Cases 520. It is submitted by learned counsel for
respondent No.2 that though in the present case, the form test is
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satisfied, the substance test is not. It is submitted that considering
the fact that there were memos issued to the employee proposing to
hold a disciplinary enquiry, the termination is in effect for acts of
misconduct, though termed as a termination simpliciter based on
assessment of performance during the probation period. The
substance test laid down by the Hon'ble Supreme Court in the case
of Pavanendra Narayan Verma, requires the presence of all three
factors, namely, a full scale formal enquiry; involvement of
allegations of misconduct in such inquiry; and culmination of such
inquiry in the finding of guilt. It is only when all three factors are
present that the termination can be held to be punitive as a matter
of substance, whatever to be the form in which the termination
order is expressed. Having regard to these dicta, it cannot be said
that the termination in the present case fails the substance test.
07] What, however, is important in the present case is that
the appointment on probation and termination of service of the
probationer in the present case are governed by the provisions of
the Act and Rules framed thereunder. In particular, Sub Sections
(2) and (3) of Section 5 of the Act and Rules 14 and 15 of the
Rules elaborately set out the procedure for assessment of the
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probationer's performance. They provide for writing of a
confidential report, review of that confidential report by the Chief
Executive Officer and communication of the confidential report
containing adverse remarks to the employee, opportunity to the
employee to make representation against the adverse remarks and
decision thereon by the school committee. When a special statute
like the Act provides for a specific procedure to be followed for
termination of employment of a probationer on the ground of
unsatisfactory performance, that procedure is mandatory and non-
compliance thereof would vitiate an order of termination. In such a
case, the School Tribunal would be perfectly justified to interfere
with the termination order and set it aside by directing
reinstatement of the employee. A Division Bench of our Court, in
the case of Shri. Vinayak Vidhyadayini Trust & Anr. ..vs.. Smt.
Aruna T. Prabhu & Ors. 2010(5) ALL MR 200, has clearly laid
down this proposition of law. Our Court in that case has held that
though as a matter of general principles in service jurisprudence,
when an employee appointed on probation, it is with a view to test
his or her performance and suitability for the post, and, if during
the period of probation, the performance is found to be
unsatisfactory, the employer has every right to discontinue the
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employee during, or after completion of, the probationary period
without assigning any reason; if such order is not a stigmatic order,
it ought not to be interfered with; the Act being a special piece of
legislation providing for a specific procedure to be followed for
termination of the employment of a probationer on the ground of
unsatisfactory performance, it is mandatory to follow that
procedure and any non-compliance would vitiate the termination.
08] The School Tribunal, in the present case, has found that
there was no confidential report of respondent No.2 placed on
record for the year 2010-11; that there was nothing to show that
respondent No.2 was put to notice of the adverse remarks against
her, if any, or was given any opportunity for improvement. Insofar
as the memos issued to respondent No.2 are concerned, there was
nothing to show that her explanations to the memos were not
found to be satisfactory or were rejected. The School Tribunal, in
the premises, found that the power of termination during the
probationary period was exercised arbitrarily and in breach of
various provisions of law referred to above.
09] No fault really can be found with either the approach of
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the School Tribunal or the findings arrived at by it. It is not
brought on record either that the confidential reports containing
any adverse remarks were brought to the notice of respondent No.2
or that any explanation was called for or any representation of
respondent No.2 in that behalf was considered or decided against
her by the School Committee. Insofar as the year 2010-11 is
concerned, admittedly there is no confidential report. Failure to
write or maintain such confidential report and failure to
communicate adverse remarks, if any, to the employee before the
end of August of 2011, would have the effect of treating her work
up to that period as satisfactory. There is also nothing to show that
any confidential report for the subsequent period upto 28 th
December, 2011 was ever communicated to respondent No.2 prior
to her termination or her explanation on such report was called for.
In the absence of this material, it is clear that the impugned order
of termination passed on account of unsatisfactory work on the part
of respondent No.2 was without following the mandatory
procedure laid down in the provisions of the Act and the Rules.
10] The impugned order of the School Tribunal, accordingly,
cannot be faulted. This Court is informed that in pursuance of the
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impugned order, respondent No.2 has been working in her original
post till date without any blemish.
11] There is, accordingly, no merit in the petition. The
petition is dismissed. No order as to cost.
JUDGE
PBP
