Bombay High Court
Smt. Vishranti Rajkumar Dessai vs The Administrative Tribunal & Others on 2 April, 1998
Equivalent citations: 1998(5)BOMCR714
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. The petitioner was appointed as an Assistant Teacher in undergraduate category on probation by Order dated 27th June, 1989 in the School of the respondent No. 2 herein. By a communication dated 13th March, 1990, the petitioner was informed that her services as the teacher would not be required for the next academic year. On representation by the petitioner, however, the said communication was withdrawn by the respondent No. 2 by another letter dated 11th June, 1990. The petitioner thus continued to be on probation as the Assistant Teacher in undergraduate category in the school of the respondent No. 2 for the academic year 1990-91 also. The petitioner was served on 29th May, 1991 with an order dated 10th May, 1991 informing her about the termination of services with the respondent No. 2. It was stated in the Order that the petitioner's services were unsatisfactory and the petitioner had failed to show any improvement in her performance and her termination was approved by the respondent No. 4. This Order of termination of services of the petitioner is being challenged by the present petition on the ground that the same has been issued in contravention of the provisions of law and more particularly of those contained in Rule 83 read with Rule 90 of the Goa, Daman and Diu School Education Rules, 1986, hereinafter called as 'the said Rules'.
2. Shri M.S. Sonak, learned Advocate appearing for the petitioner, while assailing the impugned Order, submitted that in terms of Rule 83 of the said Rules, the petitioner being a probationer, the respondent No. 2 could have terminated the services of the petitioner without holding an inquiry. However, the termination could not have been done totally ignoring the provisions contained in Rule 83 of the said Rules. In terms of said Rule, according to the learned Advocate, a probationer can be terminated without holding an inquiry only if the work and conduct of the said employee during the said period is, in the opinion of the appointing authority, not satisfactory and work can be said to be not satisfactory only when written memos are served on the employee pointing out the defects or acts of misbehaviour and reasonable opportunities are given to the employee to explain and improve. Besides, such deficiencies or shortcomings should necessarily reflect in the confidential report or reports for the respective year or years, as the case may be, and in absence thereof it cannot be said that the work of the employee is unsatisfactory. According to the learned Advocate, the Explanation Clause to Rule 83 has to be read alongwith the provisions contained in Rule 90 of the said Rules. In terms of Rule 90(4), every adverse entry in the confidential report should be communicated to the employee concerned. Sub-rule (5) of Rule 90 further provides that an employee being aggrieved by the adverse entry in his confidential report may within 30 days of which such entry is communicated to him, prefer an appeal against it to the Deputy Education Officer of the Zone/District, who after giving to the Managing Committee reasonable opportunity of showing cause, may make such alterations in the entries in the confidential report as he may think fit and proper. Considering these provisions in Rule 90, according to Shri Sonak, it was necessary for the respondent No. 2 to verify whether the deficiencies or shortcomings of the petitioner were recorded in the confidential report and were communicated to the petitioner before acting upon the alleged deficiencies and shortcomings of the petitioner which have been made sole basis to arrive at the conclusion that the work of the petitioner was not satisfactory. He further submitted that whenever any power under any law is required to be exercised by certain authority in a particular manner then it is to be exercised in that particular manner or not at all. Placing reliance upon the Judgment of the Apex Court in the matter of Hukam Chand Shyam Lal v. Union of India and others, , the learned Advocate submitted that the Apex Court has already held that where a power is required to be exercised by certain authority in a certain way, it should be exercised in that manner or not at all and all other modes are necessarily forbidden. Further placing reliance in the matter of Gurdial Singh Fijji v. State of Punjab and others, , Shri Sonak submitted that undisputedly in this case the adverse entries in the confidential report, If any, were not communicated to the petitioner and being so, the respondent No. 2 was not entitled to rely upon such adverse entries. Drawing our attention to paragraph 17 of the said reported decision, the learned advocate submitted that the Apex Court has already held that an adverse entry in confidential report cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report and that such an opportunity is not an empty formality and its object being to enable the superior authorities to deckle on a consideration of the explanation offered by the person concerned, whether the adverse report is justified or not.
3. Shri S.D. Lotlikar, the learned advocate appearing for the respondents 2 and 3 on the other hand, submitted that the petitioner was time and again informed about the lack of proficiency in her teaching and incompetence observed and enough opportunity was given to the petitioner to improve her performance. According to the learned advocate, this is apparent from various memos issued to the petitioner. The records disclose that the petitioner could not exercise proper control over the students and she was found to be inefficient and incompetent to teach the subject of Hindi, which she was teaching and as such her work was found unsatisfactory. As regards the requirement of intimation of the adverse entries in the confidential report to the employees contemplated in Rule 90 of the said Rules, Shri Lotlikar submitted that the provision in Rule 90(4) are not at all attracted in the case in hand and the management has not placed reliance upon any entries in the confidential report. The fact that the petitioner was served with written memos pointing out her defects and giving her reasonable opportunity to improve being not in dispute, according to the learned Advocate, there is sufficient compliance of the requirements under the provision contained in Rule 83 of the said Rules for the purpose of termination of the petitioner who was admittedly a probationer and as such no case is made out for interference by this Court.
4. Upon hearing the learned Advocates and on perusal of the entire records, it is seen that Rule 83 of the said Rules provides that every employee shall on initial appointment be on probation for a period of two years which may be extended by the appointing authority by another year. The said Rule also provides that the services of such employee may be terminated with one month's notice without holding any inquiry during the period of probation. The condition imposed for termination of a probationer in the said Rule is that the work and conduct of such employee during the period of probation should be unsatisfactory in the opinion of the appointing authority. The proviso to the said Rule further states that no termination from the service of an employee on probation shall be made by a recognised non-minority school except with the previous approval of the Director of Education. The said Rule contains an Explanation Clause and it states that the work is said to be unsatisfactory only when the written memos are served on the employee pointing out the defects or acts of misbehaviour and reasonable opportunity is given to the employee to explain and improve. The Explanation Clause further provides that the deficiencies/shortcomings are to be reflected in the confidential report/reports of the respective year/years. As against this Rule 90 deals with Confidential Reports. Sub-Rule (1) thereof provides that the confidential reports in relation to the teachers of the recognised school, whether aided or not, shall be maintained in the form specified by the Administrator in that behalf to the employees of the corresponding status in Government schools. Sub-Rule (4) thereof provides that every adverse entry in the confidential report in relation to any employee shall be communicated to him by the Chairman of the Managing Committee and every such communication shall be made in accordance with the instructions issued by the Administrator in respect of the Government employees. The sub-rule (5) of Rule 90 provides that any employee of aided school who is aggrieved by any adverse entry in his confidential report may, within 30 days from the date on which such adverse entry is communicated to him, prefer an appeal against such entry to the Deputy Education Officer of the Zone/District and such Officer may, after giving to the Managing Committee the reasonable opportunity of showing cause, make such alterations in the entries in the confidential report as he may think fit and may, for that purpose require the Managing Committee to produce the concerned confidential report.
5. Plain reading of Rule 83 discloses that it deals with the employees on probations. The main body of the said Rule speaks about the period of probation and the manner of termination of services of a probationer. Accordingly the first part of the Rule deals with the initial appointment of every employee on probation and the period thereof to be two years which can be extended for another one year by the appointing authority. The second part thereof deals with the termination of such employees appointed on probation. Accordingly, an employee on probation can be terminated without holding any inquiry. Only requirement is that it should be with one month's notice. However, the termination can be only on two grounds, one is that the work of such employees is unsatisfactory and the second is that the conduct of such employee is not satisfactory in the opinion of the appointing authority. The proviso to the said Rule makes the previous approval of the Director of Education for such termination mandatory when the action of termination is in respect of employee employed in a recognized non-minority school. In other words, in case of teacher employed on probation in a recognised non-minority school, the termination of a teacher cannot take effect unless there is prior approval of the Director of Education for such termination. The Rule, however, in the main body does not disclose as to under what circumstances and in what cases the work or the conduct of a teacher can be said to be unsatisfactory in the opinion of the appointing authority. In that regard in the Explanation Clause under the said Rule, certain restrictions are prescribed by explaining the situation in which cases the work and conduct of a teacher can be said to be unsatisfactory which can give rise for action of termination of services of such teacher. In fact it is worth reproducing the said Explanation Clause. It reads thus:-
"Explanation: The work is said to be unsatisfactory only when written memos are served on the employee pointing out the defects or acts of misbehaviour and reasonable opportunities are given to the employees to explain and improve; and provided further that those deficiencies/shortcomings are reflected in the confidential report/reports of the respective year/years."
Indeed plain reading of section 83 alongwith the Explanation Clause discloses that since the main body of the Rule 83 does not disclose elaborately as to the circumstances in which the work and conduct of a teacher can be said to be unsatisfactory, the said deficiency in the main body of the Rule is sought to be made good by the Explanation Clause. Even otherwise as has been already held by the Apex Court in the matter of S. Sundaram Pillai, etc. v. V.R. Pattabiraman, the main object of an Explanation Clause to a statutory provision is to explain the meaning and intendment of the section and to wipe out the obscurity and vagueness in the main body of the section or rule. Their Lordships of the Supreme Court have in fact held thus:-
"Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is:-
(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful.
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set as naught the working of an Act by becoming an hindrance in the interpretation of the same."
It is, thus, clear that the Explanation Clause is never a substantive provision in a section or rule and it is merely meant to explain or clarify certain ambiguity which may creep in a statutory provision. It is indeed to understand the real meaning of certain words in the main provision itself, but certainly it cannot enlarge the scope of the main provision in respect of which the Explanation is provided for. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it and thus an explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain. The Explanation is meant to explain and not vice versa. In short, the Explanation only explains and does not expand or add to the scope of the original provision.
6. Bearing in mind the scope of Explanation as has been laid down by the Apex Court, the Explanation Clause in Rule 83 only explains the meaning of the expression 'work and conduct being unsatisfactory'. In other words it explains the circumstances in which the work of a teacher on probation can be said to be unsatisfactory or his conduct can be said to be unsatisfactory for the purpose of termination of his/her services. The Explanation Clause does not provide for additional requirements or conditions for the purpose of termination of a teacher on probation. It does not expand the scope of Rule 83 which clearly provides only two conditions for termination of a teacher on probation, and they relate to unsatisfactory work and unsatisfactory conduct. The reference to the notings regarding deficiencies and shortcomings in the Confidential Report in the Explanation Clause has to be understood bearing in mind that the Explanation Clause cannot expand the scope of Rule 83. If the argument of the petitioner to the effect that the provisions contained in Rule 90(4) are to be read in the Explanation is to be accepted then it would certainly expand the scope of Rule 83. It will mean that work or conduct being unsatisfactory would not be sufficient for termination of a teacher on probation and in addition thereto it would be necessary for the Management to comply with the provisions contained in sub-rule (4) of Rule 90 prior to termination of a probationer. In other words, the compliance of Rule 90(4) would be an additional precondition for the termination of a teacher on probation. Rule 83 nowhere discloses any such intention to make compliance of Rule 90(4) to be a precondition for taking an action for termination of a teacher on probation.
7. The decision of the Apex Court relied upon by the petitioner in the matter of Hukam Chand Shyam Lal (supra) can be of no assistance as it lays down a general proposition that when a power is to be exercised by a certain authority in a certain way it should be exercised in that manner or not at all. There can be no quarrel about this well established proposition of law. However, the Rule 83 nowhere provides that the compliance of Rule 90(4) to be a precondition for the termination of a teacher and as such it cannot be said that the respondent No. 2 was required to comply with the provisions contained in Rule 90(4) before terminating the services of the petitioner. So also the decision in the matter of Gurdial Singh Fijji (supra) is of no assistance in the case in hand. The law laid down by the Apex Court in the said case is that an adverse report in the confidential report cannot be acted upon to deny the promotional opportunities unless it is communicated to the person concerned. Undisputedly the Apex Court was dealing with a matter concerning an employee who was confirmed in the cadre and he was earning good reports all along and was even allowed to pass the first efficiency bar and even the second efficiency bar. His claim for issuance of integrity certificate was rejected without considering the explanation tendered by him as regards the adverse report in the confidential roll. In that regard, the Apex Court has held that the opportunity to tender explanation regarding the adverse entries is not an empty formality but it is to enable the superior authorities to consider the explanation offered by the person while taking any decision in relation to such employee.
8. Undisputedly in the instant case the petitioner was served with various written memos pointing out the defects in her performance as a teacher and giving her reasonable opportunity to improve. This is evident from copies of various memos and documents placed before us. Indeed various memos issued to the petitioner disclose that the petitioner was unable to control the students and the students were not respectful to her. Further memo dated 30th January, 1991 as well as 31st January, 1991, 31st June, 1991 and 7th July, 1990 alt disclose that the petitioner lacked proficiency in teaching and did not know how to make the students to understand the lessons as well as she had no control over the students. The report submitted by Nirmala Institute of Education regarding the assessment of knowledge of Hindi of the petitioner really makes interesting reading. The report discloses that the petitioner was very weak in Hindi Grammar and the opinion expressed in the said report clearly shows that the petitioner was unable to teach Hindi correctly. It clearly discloses that the petitioner was weak in 'Vibhakti ka prayog" 'Ekvachan Ka Prayog" and 'Kal and it has been opined therein that if the language is not properly taught in lower classes, then the performance of students in higher classes would be unsatisfactory and it would be very difficult for students to unlearn the wrong usage learnt in the previous years. Considering this report regarding the knowledge of Hindi of the petitioner of which the petitioner claims to be a teacher, no fault can be found with the decision of the management regarding unsatisfactory work of the petitioner for the purpose of termination of her services in the school of the respondent No. 2.
9. In the result, therefore, the petitioner has not made out any case for interference in the impugned Order of termination of her services and as such, the petition is liable to be rejected and is, accordingly, rejected. There shall be no order as to costs.
10. Petition rejected.