Bombay High Court
Gramin Shikshan Sanstha, ... vs Sevakram S/O Pundlik Pustode And ... on 28 September, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2435/2020
PETITIONERS : 1. Gramin Shikshan Sanstha,
Navegaon Bandh, Tah. Sadak Arjuni,
Dist. Gondia, through its Secretary
Shri Devaji s/o Maharuji Kapgate,
Aged about 56 Years, R/o At Post,
Navegaon Bandh, Tah. Sadak Arjuni,
Dist. Gondia.
2. Shrikrushna Primary, Secondary and
Higher Secondary Ashram School,
Kokana (Jami) Navegaon Bandh,
Tah. Sadak Arjuni, Dist. Gondia
through its Head Master.
...VERSUS...
RESPONDENTS : 1. Shri Sevakram S/o Pundlik Pustode,
Aged about major, R/o Pragati Colony,
Sakoli, Tah. Sakoli, Dist. Bhandara.
2. Additional Commissioner,
Tribal Development Department,
Giripeth, Nagpur.
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Shri C.S.Kaptan, Senior Advocate assisted by Shri R.S.Kalangiwale and Shri P.S.
Chawhan, Advocates for the petitioners.
Shri P.N. Shende, Advocate for Respondent No.1
Ms M.A. Barbde, AGP for Respondent No.2
-----------------------------------------------------------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
DATE : 24th/28th SEPTEMBER, 2021
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ORAL JUDGMENT
1. Heard Mr. Kaptan, learned Senior Counsel assisted by
Mr. Kalangiwale and Mr. Chavhan and Mr. Shende, learned Counsel
for Respondent No.1 and Ms Barbde, learned Assistant Government
Pleader for Respondent No.2. Rule. Rule made returnable forthwith.
Heard finally with the consent of the learned Counsel for the rival
parties.
2. The facts of the case are as under :
(a) The respondent no.1 was appointed as a Shikshan
Sewak by an order dated 1.4.2013, in Shrikrushna Avdhoot Adiwasi
Ashram School, Kokana Jami, Tq. Sadak Arjuni, Dist.
Gondia/petitioner no.2.
(b) The appointment was for the period 12.4.2013 to
11.4.2016, on probation.
(c) A communication was issued to Respondent no.1,
on 4.3.2016, pointing out to him as much as seven deficiencies in
his working.
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(d) A report in this regard, regarding the functioning of
respondent no.1 was also sent to the petitioner by the Headmaster
on the same day.
(e) On 15.3.2016, a show cause notice was given to the
respondent no.1.
(f) On 7.4.2016, a termination notice was given to
respondent no.1, whereby his services were terminated w.e.f.
11.4.2016.
3. The respondent no.1 being aggrieved by the
termination, approached the School Tribunal by way of an appeal
under Section 9 of the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977 (for short, "the MEPS
Act", hereinafter). It was contended that the termination, without
giving one months notice or one months salary in lieu the notice, as
contemplated under Section 5 (3) of the MEPS Act, was illegal and
therefore, was required to be quashed and set aside. A further
contention was made that the termination was vengeful, as the
demand for illegal gratification by payment of money was not
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satisfied, which demand was made not only to the Respondent No.1
but also to other three employees.
4. The learned School Tribunal held that the requirement
of one months notice as required under Section 5(3) of MEPS Act
was not satisfied and therefore, the termination of Respondent No.1
was illegal. It further directed the reinstatement with continuity in
service and payment of 90% back-wages. It is this judgment of the
School Tribunal, dated 27.7.2020, which is challenged in the present
petition.
5. Mr. Kaptan, learned Senior counsel for the petitioners/
management by inviting my attention to para 28 of the impugned
judgment submits that a finding has been recorded by the learned
School Tribunal, that there was a subjective satisfaction by the
petitioner/management that the work and behavior of the
respondent no.1 was not satisfactory and there being no challenge
to the same, this position has now attained finality. Learned Senior
Counsel submits that the termination is only on the ground that a
notice of one month or salary in lieu of the notice has not been paid,
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placing reliance upon Section 5(3) of the MEPS Act. It is contended
that Section 5(3) of the MEPS Act is not attracted, as the
termination was not during the period of probation, but was at the
end of probation, and therefore, there would be no requirement of
the notice or salary in lieu thereof. Reliance is placed upon
Shivdutta Education Trust and another Vs. Harishchandra Rajabali
Yadav and others, 2011 SCC OnLine Bom 1674 (para 18, 19 and
20).
6. Mr. Shende, learned Counsel for Respondent No.1, on
the other hand contends that since the appointment of the
respondent was on probation and there was an absence of the
compliance of Section 5(3) of the MEPS Act, which requires notice
of one month or salary in lieu thereof, before any termination could
take effect during the period of probation, in view of the mandate of
Section 5 (2A) of the MEPS Act, the services of Respondent No.1
stood deemed confirmed, consequent to the completion of the
period of probation. He further contends that the requirement of
Section 5(3) of the MEPS Act, having not been satisfied, the learned
School Tribunal has rightly held the termination to be illegal. He
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places reliance upon Ram Avadh Mahel Pal Vs. Shivdutta Education
Trust, 2007 (6) Mh.L.J. 659 (para 4 and 5); Progressive Education
Society, Hinghanghat and others Vs. Nitin Krishnarao Nimbalkar and
others, 2006 (4) Mh.L.J. 747 (para 5); Progressive Education
Society and another Vs. Rajendra and another, (2008) 3 SCC 310
(para 2); Deepak T. Kaul vrs. Chairman, Sanjeevani Vidhyalaya
Trust, Pune and others, 2020 (2) Mh.,L.J. 523 (para 3), to contend
that even if the termination is on the last date of probation, the
requirement of Section 5(3) of the MEPS Act is required to be
complied with. No other argument was canvassed.
7. The relevant portions of Section 5 of the MEPS Act
being material, are quoted as under :
"Section 5. Certain obligations of Management of private
Schools :
(1).....
(2) Every person appointed to fill a permanent
vacancy except Assistant Teacher (Probationary) shall be
on probation for a period of two years. Subject to the
provisions of sub-sections (4) and (5), he shall on
completion of this probation period of two years, be
deemed to have been confirmed.
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Provided that, every person appointed as Assistant
Teacher (probationary) shall be on probation for a period
of thee years.
(2A) Subject to the provisions of sub-sections (3) and
(4), Assistant Teacher (Probationary) shall, on
completion of the probation period of three years, be
deemed to have been appointed and confirmed as a
teacher.
(3) 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 or
honorarium of one month in lieu of notice.
(4) If the services of any probationer are terminated
under sub-section 3 and he is reappointed by the
Management in the same school or any other school
belonging to it within a period of one year from the date
on which his services were terminated, then the period of
probation undergone by him previously shall be taken
into consideration in calculating the required period of
probation for the purposes of sub-section (2).
(4A) Nothing in sub-section (2), (3) or (4) shall apply to
a person appointed to fill a permanent vacancy by
promotion or by absorption as provided under the
proviso to sub-section (1).
(5) The Management may fill in every temporary
vacancy by appointing a person duly qualified to fill such
vacancy. The order of appointment shall be drawn up in
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the form prescribed in that behalf, and shall state the
period of appointment of such person."
8. The basic question which is required to be considered is
the expression as occurring in Section 5(3) of the MEPS Act "during
the said period", and whether a termination on the last day of the
probation would be included in the above phrase so as to require
issuance of a notice of one month or salary in lieu thereof.
9. The further question raised is when such notice is not
given in case the termination is with the ending of the period of
probation, whether the employee would be entitled to be
compensated with the salary of one month and cannot claim
permanency.
10. At the outset, it is necessary to record that the
expression "Shikshan Sevak", as occurring in Section 5 of the MEPS
Act has been substituted by the expression "Assistant Teacher
(Probationary)", by the Maharashtra Act No.9 of 2012.
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11. The very purpose of appointing a person on probation,
is to test the suitability of such person in respect of the post for
which the appointment is being made. The law therefore reserves a
right in the employer to terminate an employee, appointed on
probation, if dis-satisfied with the performance of the employee, as
the continuation of such an employee, would not be conducive to
the employer. The provisions of Section 5(3) of the MEPS Act, have
to be considered in the above background. The provision requires a
harmonious construction to be made considering the right of the
employee for one month notice or salary in lieu of notice to be
given, if the termination is during the period of probation vis-a-vis
the right of the employer not to continue the employee, being
dissatisfied with the services rendered and the engagement, with
the expiry of the period of probation.
12. Unlike provisions in other statutes, Section 5 (2) of the
MEPS Act, contains a deeming provision regarding the confirmation
of an employee appointed on probation, which says that subject to
the provisions of Sub Sections 4 and 5 of Section 5 of the MEPS Act,
on completion of the period of probation he shall be deemed to have
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been confirmed. The expression "on completion of this period of two
years", which in the case of the petitioner, will have to be read as
three years, in view of the applicability of the proviso to Section 5
(2) of the MEPS Act, would indicate, that the deeming provision for
confirmation, would apply only after the period of three years of
probation, is completed and would not step into the picture, if the
said period is not completed. This would mean that any plea
regarding deemed confirmation, could only be raised after the last
day of the period of three years, of probation, is over and not
before.
13. The expression "during the said period", as contained in
Section 5 (3) of the MEPS Act will therefore have to be understood
to be a period commencing from the date of appointment on
probation, and the last date of the period of three years, for which
duration the employee is on probation. The prefix "at any time"
before the expression "during the said period" thus has to be
construed as meaning a termination during the said period. The
word "during", means and indicates "in between". This has to be
juxtaposed, with the expression "ending with". There is nothing in
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the provisions of Section 5 of the MEPS Act to indicate, that the
termination of a probationer, cannot be with the ending of the
probation, in which case, it would not be a termination within the
meaning of the expression "during the said period" as occurring in
Section 5 (3) of the MEPS Act, requiring the compliance of the pre-
condition for termination of a probationary employee, as in this
case, there is no completion of the probation period, as
contemplated in the proviso to Section 5 (2) of the MEPS Act. In
this view of the matter, the question of giving one month's notice or
salary of one month in lieu notice would not arise.
14. The expression "completion of this probation period" as
occurring in Section 5 (2) and "completion of probation period" as
occurring in Section 5 (2A) of the MEPS Act, would necessarily
mean that the entire period of probation, stands fully completed and
is over with. It does not contemplate, any situation prior thereto, so
as to invite the application of the deeming provision, so as to confer
permanency on the employee, appointed on probation.
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15. In Shivdutta Education Trust (supra) relied upon by
Shri C.S. Kaptan, learned Senior Counsel for the petitioner a similar
issue fell for consideration, in which placing reliance upon an earlier
judgment of this Court in Akbar Peerbhoy College Vs. Mrs. Pramila
N. Kutty, 1997 (3) Mh.L.J. 195 it has been held as under :-
"20. The question is whether at the end of probation
period the management is entitled to inform a Shikshan
Sevak that due to the opinion of the management his
services would no longer be required? In other words,
whether at the end of probation period, the management
can stop the Shikshan Sevak getting benefit of deeming
provisions of sub-section (2A)? The answer, in my view,
is in affirmative. If the management is entitled to
terminate the services of Shikshan Sevak during the
period of probation as provided in sub-section (3), one
has to accept the possibility of the management deciding
to express such opinion at the end of the probation
period and deny such Shikshan Sevak the advantage of
deeming provisions. The question would still arise as to
whether at such occasion, the management is required to
give one month's notice or salary/honorarium in lieu of
such notice. The answer of this is in the negative. The
probation period comes to an end by efflux of time. If
management forms an opinion that performance of
Shikshan Sevak was not satisfactory, they are at liberty to
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say so even at the end of probation. At such time, there
is no need to give either a notice or salary of one month.
The need to give one month notice or salary would arise
only if termination takes place during the period of
probation. A similar situation arose in the case of Akbar
Peerbhoy College v. Mrs. Pramila N. Kutty, 1997 (3)
Mh.L.J. 195. The learned single Judge considered similar
provision from MEPS Rules. The relevant paragraphs of
the judgment would suffice the purpose:
"12. Rule 28(1) of the Rules of 1981 reads
thus:
"28. Removal or Termination of Service (1)
The service of a temporary employee other
than on probation may be terminated by the
Management at any time without assigning
any reason after giving one calendar month's
notice or by passing one moth's salary (pay
and allowances, if any) in lieu of notice.
In the case of an employee entitled to
vacation, the notice shall not be given
during the vacation or so as to cover any
part of the vacation or within one month
after vacation."
13. A look at the said rule would show
that it provides that services of temporary
employee who is not on probation may be
terminated by the management at any time
without assigning any reason provided one
calendar month's notice or one month's
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salary (pay and allowances, if any) in view
of such notice has been given. In the said
rule it cannot be read that where the service
of a temporary employee comes to an end
automatically by efflux of time as stated in
the appointment order yet the management
is obliged to give one calendar month's
notice or to pay one month's salary to such
temporary employee in lieu of notice. Rule
28(1) is attracted in a situation where either
there is no period stated in the appointment
order of such temporary employee and his
services are sought to be brought to an end
or where the period is stated in the
appointment order of such temporary
employee and the management intends to
terminate the services of such temporary
employee earlier than the period stated in
the appointment order. Rule 28(1) does not
contemplate nor does it envisage a situation
of its compliance where the services of the
temporary employee other than on
probation comes to an end on the date
stated in the appointment order. In other
words, in a case where appointment of
temporary employee is for a fixed period
and the services of such a temporary
employee comes to an end on the expiry of
that fixed period, giving of the notice as
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contemplated under Rule 28(1) is not
required nor any specific termination order
is required to be passed because in the
appointment order itself the period of
appointment is fixed and on expiry of that
period the appointment comes to an end
automatically. It would be relevant to
mention here that Schedule 'D' appended to
the Rules of 1981 provides for format of
order of appointment of a temporary
employee and in terms of such format the
management is required to mention in the
order of appointment that appointment of
such employee was purely temporary for a
period of particular period and after expiry
of the said period the services of such
employee shall stand terminated without
any notice."
16. In the instant case, the order of appointment, dated
2.4.2013, indicates that the appointment of the respondent no.1, as
a Shikshan Sevak, was for the duration 12.4.2013 to 11.4.2016, on
honorarium, with the condition, that if the service was satisfactory
the same after the period of three years would be confirmed
(Clause -3 ?k). The termination order dated 7.4.2016, indicates that
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the Management had found the services of the respondent no.1
unsatisfactory and therefore, his services, were being terminated
from 11.4.2016, afternoon hours. The learned School Tribunal, in
the impugned order, has held, that there was a subjective
satisfaction by the Management that the work and behaviour of the
respondent no.1 was not satisfactory. Thus, the dissatisfaction of the
Management, regarding the non-satisfactory completion of the
period of employment, has been found to be correct, by the learned
School Tribunal. The only reason on which the termination has been
set aside, is the absence of notice or one month's salary in lieu of
notice. As indicated above, since the termination was ending with
the probation, the question of giving one month's notice or
honorarium of one month in lieu of notice did not arise at all.
17. In Ram Avadh Mahel Pal (supra) which was a reference
before the Full Bench, considering the insertion of the proviso to
Section 5 (2) of the MEPS Act by the MEPS (Conditions of Service)
Regulations (Amendment) Act, 2007, it was held that the question
in reference stood covered by the amendments as made and subject
to the provisions of Sub Sections 3 and 4 of Section 5 of the MEPS
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Act, a Shikshan Sevak shall, on completion of the probation period
of three years be deemed to have been appointed and confirmed as
a teacher. The issue raised in present petition, did not fall for
consideration therein. In Nitin Krishnarao Nimbalkar (supra), the
termination was on 12.1.1991, whereas the appointment of the
petitioner therein on probation was on 14.4.1989 and the period of
two years was to expire on 13.4.1991, thus, on facts, the case is
totally different. In Rajendra (supra), the appointment was for two
years on 8.8.1992, and was to expire on 7.8.1994. The termination
was by the communication dated 1.8.1994 w.e.f. 31.7.1994 and
therefore was during the period of probation and not otherwise and
is equally not applicable in view of this position. In Deepak T. Kaul
(supra), the petitioner therein, was appointed on probation for a
period of two years on 1.5.1998, which ended on 30.4.2000. By a
communication dated 1.3.2000, the Management indicated that it
was decided not to continue with his services w.e.f. 1.5.2000, in
which background, finding that the probation period of two years,
stood completed on 30.4.2000 itself, the deeming provisions of
Section 5 (2) of the MEPS Act were held to be attracted as the
probation stood successfully completed, in view of which the
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termination was set aside. The situation as extant in the present
matter regarding the interpretation of the expression "during the
period" as occurring in Section 5 (3) and "completion of this
probation period" as occurring in Section 5 (2) of the MEPS Act, did
not fall for consideration in Deepak T. Kaul (supra).
18. In view of the above position and since the learned
Tribunal has maintained the finding regarding dissatisfaction of the
Management regarding the work and behaviour of the respondent
no.1, the impugned judgment, setting aside the termination on the
ground of non-compliance of Section 5 (3) of the MEPS Act, cannot
be sustained and is accordingly quashed and set aside. The writ
petition is allowed, the appeal filed by the respondent no.1 is
dismissed.
Rule is made absolute in the aforesaid terms. There
shall be no order as to costs.
(AVINASH G. GHAROTE, J.)
rvjalit
