Bombay High Court
Navjivan Shikshan Sanstha, ... vs Sandhya D/O Kewalram Mendhe (Sandhya ... on 25 September, 2019
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
953-WP-2428-19 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2428 OF 2019
1. Navjivan Shikshan Sanstha
Raka/Padasgaon, Tq. Sadak Arjuni,
District-Gondia
Through its Secretary
2. Navjivan Vidhyalay,
Raka/Padasgaon, Tq. Sadak Arjuni,
District-Gondia
Through its Headmistress ...Petitioners.
-vs-
1. Sandhya d/o Kewalram Mendhe
(Now Sandhya w/o Anilkumar Marwade)
aged Major Occ. Nil, R/o Near Ganesh Temple,
Ganesh Nagar, Gondia
2. The Education Officer (Secondary),
Zilla Parishad, Gondia ... Respondents
Shri H. A. Deshpande, Advocate for petitioners.
Shri A. Z. Jibhkate, Advocate for respondent No.1.
Shri A. M. Kadukar, Assistant Government Pleader for respondent No.2.
CORAM : A. S. CHANDURKAR, J.
DATE : September 25, 2019 Oral Judgment :
In view of notice for final disposal issued earlier the learned counsel for the parties have been heard at length by issuing Rule and making the same returnable forthwith.
The petitioners-Management have challenged the judgment of the School Tribunal dated 08.01.2019 in the appeal filed under Section 9 of the ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 2/10 Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977 (for short the said Act). By the said judgment the learned Presiding Officer of the School Tribunal has set aside the order of termination dated 28.07.2011 that was issued to the respondent No.1 herein and has directed her reinstatement with continuity in service along with back-wages.
2. The facts in brief are that it is the case of the respondent No.1- employee that she being duly qualified to be appointed on the post of Assistant Teacher was initially appointed at the petitioner No.2-School in the academic session 1994-1995. No copy of appointment order was issued to her. She continued on the said post and was made in-charge Headmistress in 2007-2008. After receiving due recognition from the Competent Authority the school run by the Management started issuing advertisements for recruiting teachers. In the meanwhile the employee obtained B.Ed qualification. In response to the advertisement dated 18.07.2009 she applied for being appointed on the post of Assistant Teacher. She was accordingly issued an order of appointment. Her appointment was approved by the Education Officer. It is her case that during the period of probation she was not issued any memorandum nor was any adverse remark communicated to her. However with a view to create false record, allegations used to be made against her by issuing certain letters. On 28.06.2011 a notice was issued to her proposing to terminate her services ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 3/10 after a period of one month. On 20.07.2011 she was informed that her services had been terminated. Being aggrieved the employee filed an appeal under Section 9 of the said Act challenging the order of termination.
3. In the written statement filed by the Management it was pleaded that the services of the employee during the period of probation were unsatisfactory. Reference was made to letters dated 02.09.2009 and 15.12.2009 with regard to her absence from the school without prior intimation. It was further stated that the employee was given an understanding in that regard from time to time but no cognizance of the same was taken. Since her services were not satisfactory, the order of termination was issued to her prior to completion of the period of probation.
4. The learned Presiding Officer while considering the appeal filed by the employee recorded a finding that the said employee was appointed on a clear and permanent post after following the due procedure of law. It was then observed that the Management had issued only two notices to her on 02.09.2009 and 15.12.2009 with regard to her absence. As there was a failure to maintain confidential reports of the employee and thereafter communicate the same, it was presumed that her services were satisfactory. On that count the order of termination was set aside. It was held that she was entitled to be reinstated in service along with continuity and back- ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 4/10 wages. Being aggrieved the Management has challenged the order of reinstatement.
5. Shri H. A. Deshpande, learned counsel for the petitioners submitted that the learned Presiding Officer committed an error in recording a finding that the Management was not justified in terminating services of the employee prior to completion of the period of probation. He submitted that the employee was in the habit of remaining absent from duties without giving prior intimation. Notices dated 02.09.2009 and 15.12.2009 issued in that regard to the employee were duly served but the same were not replied. He submitted that on various occasions it was noticed by the Management that the respondent No.1 was irregular in discharge of her services. Referring to the order of termination issued to the employee on 28.06.2011 it was urged that the same was not punitive in nature. It was merely stated in the order of termination that her services during the period of probation were not satisfactory. Placing reliance on the decisions in Mushtaq Shah s/o Meheboob Shah vs. Haidariya Urdu Education Society, Kapustalani and ors. 2008(4) Mh.L.J. 734 and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of Medical Sciences and anr. (2002) 1 SCC 520 it was submitted that while considering the suitability and satisfactory discharge of duties by a probationer all relevant aspects including the employee's attendance, performance, behaviour etc. have to be assessed collectively. The same was ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 5/10 accordingly done and as the Management had recorded dissatisfaction in that regard it was within its rights in terminating her services. He also referred to the decision in Anand Education Society, Lakhani and anr. vs. Bharti w/o Bhaskarrao Parsodkar and ors. 2009(3) Mh.L.J. 810 to submit that while terminating the services of a probationer on account of unsatisfactory services, holding of an enquiry was not necessary as such termination was not stigmatic.
The learned counsel thereafter submitted that in view of provisions of Rule 15(5) of the Maharashtra Employees of Private Schools Rules, 1981 (for short, the said Rules), necessary assessment had been made by the Management and it was not expected of the Management to give any explanation or reason for terminating the services of a probationer except for informing the probationer that her services were found to be unsatisfactory. Reliance was placed on the decision in Progressive Education Society and anr. vs. Rajendra and anr. 2008(2) Mh.L.J. 715 in that regard. It was further not necessary that there had to be any adverse remark in the confidential reports especially when the employee was a probationer. Even in absence of any such adverse remark, the services of a probationer could still be dispensed with on account of unsatisfactory discharge of duties. Thus after making an objective assessment it was decided by the Management not to confirm the services of the employee after the period of probation. The learned Presiding Officer by misreading the material placed on record erred ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 6/10 in holding that the services of the employee were terminated illegally. The impugned judgment was therefore liable to be set aside.
6. Shri A. Z. Jibhkate, learned counsel for the respondent No.1 supported the impugned order. He submitted that the Management was not justified in terminating the services of the employee on the ground that the services were not satisfactory. No notice was ever given to the employee indicating unsatisfactory discharge of duties. It was denied that the employee had admitted at any point of time that she had accepted the allegations made by the Management with regard to her absence from duties. Despite working diligently and functioning as in-charge Headmistress, her services had been terminated without there being any justifiable reason. It was submitted that on false and incorrect grounds the services of the respondent No.1 were sought to be terminated. She was infact victimised in the matter. Placing reliance on the decision in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and ors. (1999) 3 SCC 60 and Rajani Wamanrao Hemke vs. Vidya Vikas Mandal, Lakhandur and ors. 2015(4) Mh.L.J. 319 it was submitted that termination of services during the period of probation was stigmatic and hence that order was rightly set aside by the learned Presiding Officer. Her services were rightly directed to be reinstated along with back-wages and for said purpose the learned counsel relied upon the decision in Deepali Gundu ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 7/10 Surwase vs. Kranti Junior Adhyapak Mahavidyalaya 2014(2) Mh.L.J. 480. It was thus submitted that the impugned judgment was liable to be maintained.
7. I have heard the learned counsel for the parties at length and I have perused the material on record. After giving due consideration to the respective submissions it is found that the judgment of the School Tribunal dated 08.01.2019 is liable to be set aside.
8. It is undisputed that the respondent No.1-employee was appointed on probation for a period of two years. It is further not in dispute that on account of absence of the employee without prior intimation, notices were issued to her on 2/3.09.2009 and 15.12.2009. The employee had received both the said notices and there is no reply to the same. Reference to these notices can be found in paragraph 34 of the judgment of the School Tribunal. In these notices it was informed to the employee that she should explain her absence from duty without prior intimation. It is further undisputed that the services of the employee have been terminated on the ground that the same were not found to be satisfactory. Except for stating that services during the period of probation were not satisfactory, nothing further has been stated in the termination order. Under provisions of Section 5(3) of the said Act, if in the opinion of the Management the work or behaviour of any probationer during the period of probation is not ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 8/10 satisfactory the Management can terminate the services at any time during the said period after giving one month's notice.
The expression "satisfactory performance" as contemplated by Section 5(3) of the said Act has been considered in Mushtaq Shah (supra) wherein it has been observed that it is the sum effect of the employee's attendance, performance, behaviour etc. collectively. Irrespective of whether the employee concerned has been communicated any deficiencies with regard to performance of services, it would be permissible and within the powers of Management to dispense with the services of the probationer if on overall assessment the Management finds that the employee's performance is not satisfactory. It is further observed that the discretion of Management as to such satisfaction has to be respected as absolute unless it is exercised in an arbitrary and illegal manner so as to render the order of termination stigmatic.
9. In Savitribai Fule Shikshan Prasarak Mandal (supra) it has been observed that on a conjoint reading of Section 5(3) of the said Act and Rule 15(6) of the said Rules it can be inferred that adverse remarks need not be communicated to a probationer so as to grant him opportunity to improve. All that is necessary is assessment of petitioner's work followed by the decision of the Management whether to continue his services or not. When the facts of the present case are considered in the aforesaid legal backdrop, ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 9/10 it becomes clear that during the period of probation it was found by the Management that the employee used to remain absent without prior intimation and hence notices were issued to her on two occasions. Prior to completion of the period of probation it was open for the Management to consider her suitability and thereafter take a decision as to whether her services were liable to be confirmed. It was not necessary to conduct any enquiry nor was it necessary to convey any adverse remark. Even in absence of there being any adverse remark in the matter of the discharge of duties, it is possible that the employee may not be rendering services satisfactorily. Thus before completion of the period of probation, it was open for the Management to consider the entire matter and take a decision in that regard. As observed herein above such discretion of the Management as to its satisfaction has to be respected unless it is arbitrary or illegal. It is thus found that the Management was within its rights in deciding not to confirm the services of the employee prior to completion of the period of probation.
The learned Presiding Officer however failed to give due weightage to the notices issued by the Management to the employee with regard to her absence without prior intimation. On the contrary it was observed that the confidential reports of the employee were not maintained nor was any adverse confidential report communicated to her. It was not necessary to communicate any such adverse remark and as observed herein ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 ::: 953-WP-2428-19 10/10 above even if there is no adverse remark/entry in the service record, the rendering of services could still be unsatisfactory. The learned Presiding Officer applied the wrong tests while interfering with the discretion exercised by the Management of not confirming the services of the emplyoee due to unsatisfactory discharge of duties. The services of the probationer having been put to an end in accordance with the order of appointment and prior to completion of period of probation merely by stating that the discharge of services was not satisfactory, it cannot be said that the order of termination was stigmatic in any manner whatsoever. Hence, the ratio of the decision in Dipti Prakash Banerjee (supra) does not apply to the facts of the present case.
10. It is thus found that the learned Presiding Officer committed an error in allowing the appeal filed by the respondent No.1 herein. The judgment dated 08/01/2019 passed by the School Tribunal in Appeal No.88/2012 is accordingly set aside. The said appeal stands dismissed.
The Writ Petition is accordingly allowed. Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE Asmita ::: Uploaded on - 01/10/2019 ::: Downloaded on - 19/04/2020 23:01:54 :::