Bombay High Court
Anil Dattatraya Ade vs Presiding Officer, School Tribunal And ... on 27 June, 2003
Equivalent citations: 2004(3)BOMCR72, 2003(4)MHLJ866
Author: R. J. Kochar
Bench: R.J. Kochar, S.T. Kharche
JUDGMENT R. J. Kochar, J.
1. The petitioner, a Lecturer by profession, employed in the respondent No. 2 - Institute is aggrieved by the judgment and order passed, by the Presiding Officer, School Tribunal, Amravati, and Aurangabad, on 16th January, 1986 in Appeal No. 43/1984 filed by him under Section 9 of the Maharashtra Employees of Non-Government Schools (Conditions of Service.) Regulation Act, 1977, hereinafter referred to as "the Act". The learned Presiding Officer partly allowed the appeal. The petitioner's challenge to the legality and propriety of the order of termination dated 29-6-1984 was not accepted by the Tribunal, as it recorded a finding that the said order of termination was legal and valid, but the learned Presiding Officer granted relief of one month's salary (pay and allowances) in lieu of the notice to be paid by the respondent No. 2 within a reasonable time of two months, with further direction to the Government to deduct the said amount, if not paid from the grant-in-aid of the respondent No. 2. In effect the petitioner had failed to get any substantial relief in his Appeal and he has, therefore, challenged the impugned judgment and order under Article 226 of the Constitution of India, in this petition. When he filed the present petition, he claimed to be of the age of 37 years in 1986. He had to wait for a period of 17 years and the turn of the 20th Century to get his turn of hearing of the petition at our hands.
2. Before we deal with the facts and the merits of the petition, we may mention that the Full Bench of our High Court headed by The Hon'ble Chief Justice by the Judgment dated 13th March, 2003, ( held that the M.E.P.S. Act is applicable to the Institute of the respondent Nos. 2 and 3. We need not dwell on the point of applicability of the said Act as it has been finally concluded by the Full Bench as far as this Court is concerned. The Full Bench has finally concluded in paragraph 70 of the judgment as under :--
"For the foregoing reasons, we hold that the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 apply to employees working in Pharmacy institutions, and School Tribunals constituted under the Act have jurisdiction to entertain, deal with and decide, disputes in exercise of the power conferred by the Act. The view taken by this Court in P. D. Prabhudesai and Mohd. Israr Siddiqui is erroneous and is overruled and the decision in Abdulla Jameel Ahmed Ansari is approved" (para 70).
3. The facts of the present petition are in a very narrow compass. The petitioner was appointed as a Lecturer in the respondent No. 2 - Institute on 9-5-1981 with effect from 1-7-1981 to teach the subject of "Pharmacy" for the academic year 1981-82. It was mentioned in the said appointment letter that the appointment was temporary for the academic year 1981-82 and that he will have to serve the institution at least for two years and that the same period will be his probation period. Thereafter the Principal of the institute by an office order dated 30-4-1982 informed the petitioner that his services were continued further from the next academic year i.e. 1982-83. It was also stipulated therein that the probation period was to be of two years from the date of joining. The petitioner joined the service from 1-7-1981. By an office order dated 7-10-1983, the petitioner was informed that his probation period was extended by one year. It was further stipulated in the said order that he will be informed as and when he would be confirmed finally by an office order dated 29-6-1984. The petitioner was informed that he would be completing the probation period on 30-6-1984 and that it was decided by the management not to continue his services and, therefore, he was relieved from the services on 30-6-1984. Being aggrieved by the said order of termination, the petitioner approached the School Tribunal by filing an Appeal under Section 9 of the Act and prayed for a declaration that the impugned order of termination should be held to be invalid and inoperative and that the petitioner should be treated as continued in the service as a permanent Lecturer and he should be reinstated on the same post with full backwages and continuity of service. It was the contention of the petitioner that he was appointed in a permanent vacancy of Lecturer and he became permanent after completion of two years' probation period from the date of appointment order dated 30-4-1982 to 30-4-1984. According to the petitioner, under Section 5(2) of the Act, the petitioner was deemed to have become permanent on 29-4-1984 on which date he acquired the status of permanent employee of the institute and, therefore, according to the petitioner, he could not be terminated from the employment except in accordance with the provisions of the Act. He further contended that in view of several good certificates issued by the institute about his satisfactory work, the management could not allege that the work of the petitioner was unsatisfactorily to enable it to terminate him from employment on that ground as a probationer. Alternatively and additionally, it was urged by Shri Deshpande, the learned counsel for the petitioner that the period of probation was, in fact, requires to be computed from the first of appointment namely 9-5-1981, which order was continued by another order dated 30-4-1982. According to the learned counsel the proposed period of the petitioner had, in fact, was completed on 9-5-1983 though it was purportedly tried to be extended by an order dated 7-10-1983. Shri Deshpande submitted that the aforesaid purported extension of probation period by one year was to be ignored as redundant. The petitioner was deemed to have been completed his probation period on the basis of appointment order dated 9-5-1981 on 9-5-1983 and, therefore, the aforesaid letter dated 7-10-1983 was only a clever attempt to deny the petitioner from the benefit of permanency and regularization in service. Even assuming, says the learned counsel, that the continuation order dated 30-4-1982 is to be treated as an appointment order even from that date the petitioner had completed two years of probation period of service on 30th April, 1984. He became a regular permanent employee under Section 5 of the Act on 30-4-1984. He was purportedly terminated from the employment by an order dated 29-6-1984 with effect from 30-6-1984 when he had acquired the status of permanent and regular employee of the institute. It was further urged by Shri Deshpande that the service record of the petitioner was satisfactory and nothing adverse was ever communicated to him by the respondent Nos. 2 and 3 of the institute. Shri Deshpande, therefore, concluded that the impugned judgment and order of the School Tribunal deserves to be quashed and set aside, and the petitioner should be held to be illegally terminated from the employment and that he was entitled to be reinstated with full back wages and continuity of service with effect from 30-6-1984. According to Shri Deshpande, the School Tribunal committed an error of law in applying the Maharashtra Civil Services Rules to the institute and the servants employed by it including the petitioner. The learned School Tribunal erred in holding that under the said Rules, which were made applicable to the institute the probation period of the petitioner could be extended beyond two years, as the Management had such power to do. According to the School Tribunal, until an order of confirmation was issued, the petitioner continued in service as an unconfirmed employee, and that there was no deeming fiction of becoming permanent and regular in service under MCS Rules automatically. The learned counsel further assailed the finding of the Tribunal that until the probation period was specifically ended and the petitioner was specifically ordered to be confirmed in service, the management had every right to terminate such an employee during the period of his probation.
4. Shri Bhangde, the learned counsel for the respondent Nos. 2 and 3 -Institute very vehemently contended that though by the judgment of the Full Bench of this Court, the Act is made applicable to the respondent Nos. 2 and 3 Institute and that the School Tribunal was held to have jurisdiction to entertain and try the appeals of the employees of such institutions, the present case will not fall within the framework of the provisions of the Act. Shri Bhangde pointed out that this Act was brought into force by a Notification dated 15-7-1981. The appointment of the petitioner was prior to that date namely on 9-5-1981 and, therefore, according to the learned counsel the relationship of the master and servant between the petitioner and respondent Nos. 2 and 3 as employee-employer could not be governed by the provisions of the Act as on the date of the appointment of petitioner, the Act was not in force, and that such relationship, submits Shri Bhangde, was governed and regulated by the common law and the Contract Act. The respondent Nos. 2 and 3 therefore, had every right to terminate the petitioner and, therefore, he was rightly terminated, submits Shri Bhangde. The learned counsel further submits that since the Act was not in force on 9-5-1981 the deeming provision of Section 5(2) of the Act, will not be attracted to the case of the petitioner. Shri Bhangde further pointed out that the petitioner could not have been permanently appointed as the recognition of the institute was of temporary and provisional nature and as the institute itself was not permanent its employees could not be deemed to have become permanent. He also refuted the submissions on behalf of the petitioner that the case was also governed by Section 5(4) of the Act. Shri Bhangde further submitted that the School Tribunal has held on facts that the work of the petitioner was not satisfactory during the probation period. The School Tribunal has dealt with a number of incidents which established that his service record during the probation period was not satisfactory and, therefore, the management was empowered to dispense with the services of the petitioner without anything more or further such as disciplinary proceedings etc., contends Shri Bhangde. The learned counsel further countered the submissions of Shri Deshpande that the probation period of the petitioner had come to an end on 30-4-1984, from the date of order of appointment dated 30-4-1982. According to Shri Bhangde, the probation of the petitioner would commence from academic year i.e. 1-7-1982 though the date of the order issued to the petitioner was 30-4-1982. The work of the petitioner was to be observed after he actually started working on the commencement of the academic year from 1-7-1982. He submitted the period of actual performance and not the period of Summer Vacation preceding 1st July 1982 is to be considered for probation of the petitioner. From the day of 1st July, 1982 the probation period would be completed on 30th June, 1984. The order of termination dated 29-6-1984 terminating the petitioner from the employment with effect from 30-6-1984, therefore, was legal and valid as till that date the petitioner could not be said to have become regular or permanent employee under the provisions of Section 5(2) of the Act, strenuously submits the learned counsel.
5. Shri Bhangde has relied on the following judgments in support of his contentions:--
(i) 1988 Mh.L.J. Page 894 Bombay, Premier Education Society and Ors. v. T. K. Kripalani and Anr. on the point that the termination of probationer on ground of unsatisfactory work before the expiry period of probation was not invalid for want of inquiry.
(ii) He has also relied on the following two judgments of our High Court, rendered by two learned Single Judges reported in 1988 Mh.LJ. 530, P.D.LC. of Com. and Eco., Bom v. A. M. Rangapariya and , Bal Shikshan Mandal v. Poonam Rameshwar Joshi and Ors. on the point that if the management did not hold any inquiry before terminating the services of the probationer or a permanent employee, the matter should be remitted back to the Tribunal for recording evidence and to come to the conclusion in respect of the legality and validity of the order of the termination or dismissal. This law laid down by the two learned Single Judges was on the principles laid down in the Industrial jurisprudence that the employer has right to justify his action before the Labour Court - Tribunal if he had not held inquiry before imposing punishment of dismissal for the alleged acts of misconducts committed by the delinquent workman without holding a domestic inquiry or if such domestic inquiry has been held to be not fair and proper by the Labour Court - Tribunal in both these contingencies the employer has a right to lead evidence to justify his action to prove the misconduct before the Labour Court Tribunal and thereafter the delinquent employee had also a right to adduce evidence in rebuttal. This principle of Industrial jurisprudence was imported for the first time in the service matters of the teachers governed by the Bombay University Act or M.E.P.S. Act.
6. Having exhaustively laid down the factual matrix of the lis between the parties, we would now appreciate the contentions of the learned counsel on both the sides in the light of the judgment and order of the learned Presiding Officer of the School Tribunal. We must at the outset observe that the learned Presiding Officer has dealt with the subject matter very exhaustively and has given reasons for his conclusions and has discussed the material on record. We do not wish to enter into the area of controversy as to whether the petitioner was governed on 9-5-1981 - the first date of appointment by the common law or by the law of master and servant or the Contract Act or the M.C.S. Rules. According to us, it would be a futile exercise. We must, however, at once observe that though on 9-5-1981 the Act was not in force and though it was brought in force from 15-7-1981, the petitioner's right came to be governed and determined under the provisions of the said Act as on that date he was already in employment. It cannot be said that all those employees, who were employed prior thereto would not be governed by the Act only because it was brought in force from 15-7-1981. The rights and liabilities of the parties would be regulated from the date of the Notification bringing the Act into force by the provisions of the Act. It cannot be construed in any other manner so as to lead to absurd result. If an employee who was employed prior to 15-7-1981 was dismissed from employment after the Act came into force, can it be said that he has no right to file an Appeal against the said order of dismissal - termination under Section 9 of the Act merely because on the date on which he was employed the Act was not in force? On the date of his termination the Act gave him protection and gave him legal remedy and legal fora and therefore, he would be entitled to challenge the impugned action of the School Management under the Act. This legal position is no more res integra. If we accept the contention of Shri Bhangde, it would further logically mean that those employees, who were employed prior to the enforcement of the payment of Gratuity Act, then they will not be entitled to get gratuity for the period prior to the said Act even though they were in employment after the said Act was brought into force. What we have to consider is the date of occurrence of the dispute or the cause of action and the law, which was in force on that date would govern and regulate the relationship of the parties. The relevant date is not the date of the first employment in the present case for the purpose of deciding the legality and validity of the order of the termination, which was passed after the enforcement of the present Act, We have to test the legality and validity of the impugned order of termination on the touchstone of the law which existed on the said date of termination. The cause of action is not the date of first appointment but it is the date of termination of the petitioner from the employment. He would be entitled to the remedy and Forum provided under the Act on that date and he would also be subjected to the rights and liabilities or responsibilities on the date of cause of action in accordance with the prevalent law. Even the respondents would be bound by the provisions of the Act, which was in force on the date of termination of the petitioner. There is no duality of the legal position in the sense that one set of employees, who were employed prior to 15-7-1981 would be governed by the law of master or servant or M.C.S. Rules and those who were employed thereafter would be governed by the M.E.P.S. Act. Such a situation would create chaos and confusion resulting into uncertainty. We therefore, hold that the question of legality and validity of the termination order of the petitioner would be tested in accordance with the provisions of the Act and not in accordance with the position that might have prevailed prior to first date of the appointment of the petitioner i.e. 9-5-1981. We are fortified in our view by the following case law which arose in similar circumstances under the Industrial Law. The very same line of argument was adopted by the employers in the Industrial Disputes Act relating to the orders of dismissal, discharge, termination and retrenchment, which occurred prior to the enforcement of the Industrial Disputes Act, 1947 or the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (I.D. Act for short and M.R.T.U. and P. U.L. P. Act).
7. The first judgment on the point raised by the respondents was considered and answered by the learned Single Judge of the Calcutta High Court as under:--
"Held, also, that, although the dispute originated prior to the date when the Act came into force, since it was in existence and continuing at the date, the Act applies to such disputes without any question arising of giving the Act any retrospective effect."
The facts before the learned Judge were that the workmen were dismissed from the employment before the enforcement of the Industrial Disputes Act, 1947. They raised an Industrial Dispute after the Act was brought into force. It was argued on behalf of the employer that the cause of the action of dismissal had taken place prior to the enforcement of the Industrial Disputes Act, 1947 and hence the reference was not tenable. The learned Judge answered the issue as above.
8. The employer carried the matter in Appeal before the Division Bench of the Calcutta High Court. The learned Chief Justice confirmed the order passed by the learned Single Judge reported in 1948 Vol. II. The Indian Law Reports Calcutta Series Page 209 and held as under:--
"In my judgment, the Act of 1947 clearly applies to the present dispute without any question arising of giving the Act any retrospective effect. It is true the dispute arose before the Act was passed, but on April 1, 1947, when the Act came into force, the dispute was in existence and continuing. The employees were on strike and the strike actually continued until May 19, that is, five days after the Government made the order referring the dispute to arbitration. In my judgment, the Act must apply to any dispute to arbitration. In my judgment, the Act must apply to any dispute existing after it came into force, no matter when that dispute commenced. There is nothing in the Act to suggest that it should apply only to disputes which originated after the passing of the Act. On the contrary, the opening words of Section 10 of the Act make it clear that the Act would apply to all disputes existing when it came into force. The opening words of Section 10(1) are :--
If any industrial dispute exists or is apprehended, the appropriate Government may, by order in writing, etc. It seems to me that these words make it abundantly clear that the Act applies to any industrial dispute existing when it came into force and. therefore, the Act applies to this dispute."
9. Justice dough in his separate judgment agreeing with the view of the learned Chief Justice Harries, C.J. opined as under:--
"That, in my view, is not the right way of looking at the case. It is true that the dispute originated before the date when the Industrial Disputes Act came into force; but it was still a live dispute on April 1, and also on the date when the orders of appointment and of reference were made. The union's demands had not been complied with and they had not been withdrawn. The circumstance that the strike when it came was only a partial strike and that the employees who absented themselves were dismissed and that the strike was not persisted in or was called off, do not by any means establish that the dispute was dead. A strike is not an essential feature to the existence of a dispute. The materials which we have and in particular the statement of its case furnished by the union before the tribunal show that there was a dispute capable of being referred."
10. The above precedent on the point has been followed since then. In the case of Jahiruddin and Ors. v. Model Mills. Ltd., Nagpur and Ors., reported in 7966 ILLJ Page 4030; the Supreme Court approved the law laid down by the Calcutta High Court. The Supreme Court has observed as under:--
"The order dismissing the employees was passed on 6 January 1961 when the notification was in force. The employees filed applications before the Commissioner of Labour on 25 April 1961. On the date of their applications, the exemption granted to the mills by the State Government was no longer in operation. The decision in Birla Brothers Ltd. v. Modak [LLR (1948) 2 Cal. 200] has firmly established the principle that for a dispute which originated before the Industrial Disputes Act came into force but was in existence on the date when that Act became law, the Act applied to the dispute since it was in existence and continuing on that date and no question of giving retrospective effect to the Act arose. At p. 221. The learned Chief Justice, Harries, who spoke for the Court, stated thus:"
11. Again in the case of Ruston & Hornsby (I) Ltd. v. T. B. Kadam, , the Supreme Court has in paragraph 6 observed as under:--
"The only question for consideration in considering the validity of a reference is whether there was or apprehended an industrial dispute when the reference was made. If there was an industrial dispute or an industrial dispute was apprehended, even though the facts giving rise to that dispute might have arisen before the reference was made the reference would still be valid. It is to be borne in mind that every reference would be made only sometime after the dispute has arisen. In Birla Brothers Ltd. v. Modak it was pointed out that though the Industrial Disputes Act came into force in 1947, reference of an industrial dispute based on the facts which arose before that Act came into force is a valid reference. The same reasoning would apply to a reference of a dispute falling under Section 2A even though the facts giving rise to that dispute arose before that section came into force. The decision in Birla Brothers' case (supra) was approved by this Court in its decision in Jahiruddin v. Model Mills, Nagpur. These two decisions clearly establish that the test for the validity of a reference under Section 10 is whether there was in existence a dispute on the day the reference was made and there was no question of giving retrospective effect to the Act. We find that that is the view taken by the Delhi High Court in National Productivity Council v. S. N. Kaul. by the Punjab and Haryana High Court in Shree Gopal Paper Mills Ltd. v. State of Haryana. The view of the High Court of Mysore in. P. Janardhana Shetty v. Union or India to the contrary is not correct."
12. We do not multiply the decisions on this point. The unshakable principle laid down in an umpteen number of judgments is the date on which the cause of action arises and not the date of employment has been held to be relevant or material date to determine the rights of the parties. Even if the dispute which originated prior to the coming into force of an enactment the provisions of the said enactment will apply if the dispute still subsists and such dispute will have to be resolved in accordance with the provisions of the current legislation. The learned Single Judge of our High Court (Pendse, J.) reported in 1984 (48) L F.L. Reports 184 Narang Hotels Pvt. Ltd. v. N. K. Nandapurkar and Ors. has taken the same view in the case of a complaint of Unfair Labour Practices under the M.R.T.U. and P.U.L.P. Act, 1971. In that case, the complaint of unfair labour practice was filed under the Act after, it was brought into force challenging the unfair labour practice, which was engaged by the employer prior to the date of the Act coming into force.
"4. Shri Damania, learned counsel appearing on behalf of the petitioner relied upon the provisions of sections 26, 27 and 28 Chapter VI of the Act, and submitted that the Act for the first time provided for a new concept of unfair labour practice, and therefore, whatever was done by the employer prior to coming into operation of the Act, cannot be a cause of action for filing the complaint. Section 26 provides that unfair labour practice means any of the practices listed "in Schedule II, III and IV, and Section 27 lays down that no employer or union and no employee shall engage in any unfair labour practice. Shri Damania submits that the fait is issued by the Legislature not to engage in any unfair labour practice as understood by the provisions of Section 26 of the Act and the concept of unfair labour practice being a new one. It could not be held, that the action of the employer was subsequent to coming into operation of the Act. It is not possible to accept this submission, because provisions of Sub-section (1) of Section 28 provides for the procedure for dealing with complaints relating to unfair labour practice and permits failing of a complaint before the competent Court against any person who "has engaged in or is engaging in any unfair labour practice." These words clearly indicate that the complaint can be filed if the unfair labour practice is a recurring practice and in such case even if the commencement of the unfair labour practice is of a date prior to coming into operation of the Act, still the continuance of the same subsequent to the date of the Act, enables the aggrieved party to file a complaint. This is a clear indication that the Legislature wanted to bring in the sweep of Sub-section (1) of Section 28 not only unfair labour practice committed subsequent to the date of the Act but even those which were committed earlier. In other words the practice which is an unfair labour practice as contemplated by Section 26 of the Act, whether committed prior to the Act or subsequent to the Act, gives a remedy to the aggrieved party. The legislation was enacted to give a redress to the person who suffers because of unfair labour practice committed by the employer or the employee and while construing such legislation a construction which would advance cause of justice is required to be drawn."
The learned Judge concluded the reliance by Dr. Kulkarni on this decision is appropriate and this decision does indicate that even though the unfair labour practice is committed earlier, still complaint can be filed after coming into operation of the Act.
In all these cases the cause of action had arisen prior to coming into force of the enactments but still it was held that the remedy provided under the said Acts can be availed of. Our case is better in the sense that the cause of action arose after the Act came into force. What is material is of the fact whether the cause of action continued and was in existence even after the enforcement of the enactments. The real cause of action is the termination and not the appointment.
13. We are, therefore, not able to agree with the contentions of Shri Bhangde that on the date of termination, the provisions of the Act cannot be made applicable as the petitioner was employed much prior thereto. We are on better footing as the Act was brought in force much prior to the date of cause of action and, therefore, on the date of cause of action the provisions of M.E.P.S. Act will have to be applied in full force and in every respect.
14. We are, therefore, not able to agree with the submissions of the learned counsel for the respondents that relationship between the petitioner and the respondents as on 9-5-1981 was governed by either the common law or by the law of Contract or even by the M.C.S. Rules. In fact, we are not concerned with the law that might have existed on that date as we are concerned with the crucial date of termination, which took place on 30th June, 1984. The first date of appointment is not relevant or material to test the legality and validity of the order of termination which took place after the enforcement of the Act. The learned Presiding Officer of the School Tribunal was also not right in holding that the relationship was governed by the M.C.S. Rules 1981, and therefore, the probation period of the petitioner could be extended and therefore, till the specific order of confirmation was passed, the petitioner continued to be on probation. As soon as the Act was brought in force on 15-7-1981 the relationship between the parties was governed by the Act and not by any other law or rules including the M.C.S. Rules as erroneously held by the learned Presiding Officer of the School Tribunal. After the judgment of the Full Bench, this position has become beyond any pale of doubt. The entire basis of the learned Tribunal was, therefore, erroneous which has led him to an erroneous finding and conclusion in respect of the right of the petitioner on the question of his probation and confirmation in service. The conclusion of the learned Presiding Officer that there was no automatic confirmation by mere passage of time and that confirmation does not depend on passage of time but it depends on positive order of confirmation and that mere expiry of probation period does not lead to an inference of fitness of the employee for confirmation and that the specific order of confirmation is essential and that till that time he continues to be a probationer is erroneous. Applying this line of arguments, the learned Tribunal has come to a wrong decision which is directly in contravention of the mandatory Section 5(2) of the Act, which specifically lays down that after expiry of two years probation period, the employee automatically acquires the status of permanency. On this crucial issue the Tribunal has committed grave error of law and therefore, the finding deserves to be quashed and set aside. The Tribunal has, however, rightly held that it had proper jurisdiction to entertain and try the appeal of the petitioner under Section 9 of the Act. The Tribunal has also rightly held that the petitioner was holding the required qualifications as per prevalent Rules on the date of the appointment. The Tribunal has, however, gone wrong in holding that the issue of probation and confirmation was governed by M.C.S. Rules and not by the provisions of the Act.
15. We therefore, have to examine the facts of the present case on the touchstone of Section 5 of the M.E.P.S. Act. The Section 5 reads as under :--
"Section 5 (1) The Management shall, as soon as possible, fill in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy; [Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Education Inspector, Greater Bombay, [the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absorption in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.] (2) Every person appointed to fill a permanent vacancy shall be on probation for a period of two years. Subject to the provisions of subsections (3) and (4), he shall, on completion of this probation period of two years, be deemed to have been confirmed.
(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 notice [or salary 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 purpose of subsection (2).
(4-A) 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 the form prescribed in that behalf, and shall state the period of appointment of such person."
16. From a bare look at this provision, it becomes crystal clear that the employee gets automatic confirmation after expiry of two years probation period. Under this provision, if an employee, who is appointed in a permanent vacancy on probation and he completes two years he acquires the status of permanency automatically without any specific confirmation order passed by the employer. We cannot forget that this provision is in the enactment and not an administrative rule framed by the Executive in a form of delegated legislation. The mandate is issued by the Legislature that on completion of two years' probation period, the employee gets automatically confirmed in the post. There is no escape from the clutches of Section 5(2) of the Act.
17. The first order of appointment is dated 9-5-1981, which clearly reads that the petitioner was appointed on probation for two years though the appointment order in its first Clause mentions that the appointment was temporary for academic year 1981-82. The second Clause, however, stipulates a compulsory condition that the petitioner will have to serve the institution at least for two years and that period will be the probation period. Clause 3 also contemplates the probation period. In Clause 4 also the probation period is contemplated. The reading of the entire appointment letter, and construing the same, it is crystal clear that the petitioner was appointed to serve institution for two years on probation period. He was also put in regular pay-scale with increments and usual other allowances. By a subsequent order dated 30-4-1982, the aforesaid order is continued further for the next year of 1982-83. Clause I of this letter also contemplates the probation period of two years from the date of joining. It was a continuation sheet of the first order and not the fresh or first order of appointment. Since the petitioner was already in employment and he was put on a condition of minimum service for two years, the management has continued the said letter in the present renewal or continuing letter of appointment. The probation period was directed to be computed from the date of joining which was as per the earlier letter of appointment dated 9-5-1981 i.e. with effect from 1-7-1981. It is, therefore, clear that the petitioner had joined the service on 1-7-1981 and he had completed one year of service when the present office order dated 30-4-1982 was issued to him. Applying the provisions of Section 5(2) of the Act, the petitioner had completed two years of probation period on 30th June, 1983. There is no doubt that the management had issued one letter dated 7-3-1983 purporting the extension of the probation period of one year. In the eyes of law, this letter has no meaning and has to be ignored and the same is to be construed as under misconception of legal provision. Since the petitioner had completed the two years probation period on 30th June 1983, he was deemed to have been regularized and he was deemed to have acquired permanent, status of an employee of the institution. The order of termination dated 29-6-1984 purporting to terminate the services of the petitioner on 30-6-1984 is ex facie illegal and contrary to the provisions of the Act, which prescribes mandatory provisions to be followed before terminating the permanent employee from the employment. The impugned order of termination dated 29-6-1984, therefore, was passed wholly under the misconceived legal position that the petitioner did not acquire the status of permanent employee and that he still continued to be on probation merely because the respondents fancifully thought so regardless of the legal provision under the Act, which was binding on them. The Impugned order of termination is simpliciter termination order and not on the ground that during the probation period the work of the petitioner was unsatisfactory. There is not even a whisper of unsatisfactory work of the petitioner. On the contrary the petitioner has relied on good service certificates, issued by the management.
18. From the judgment of the School Tribunal, it appears that the management has tried to give several instances which would partake the character of misconducts committed by the petitioner while in employment. Since we have held that he completed the probation period of two years and thereafter he was in employment for two years till 30th June, 1984, he could not have been terminated on the ground of alleged unsatisfactory work for the instances which are enumerated by the management on which the learned Presiding Officer of Tribunal has relied on. If the petitioner was to be terminated during the employment for any acts of misdemeanor, the Act prescribes mandatory procedure of forming an Inquiry Committee to decide the allegations or charges of misconducts levelled against the delinquent employee. If the petitioner had committed any acts of misconduct, he ought to have been served with a charge-sheet and he ought to have been called upon to furnish his written explanation and thereafter it was for the management to have proved the allegations levelled against the petitioner. The petitioner would have got an opportunity of cross-examination of the witnesses and to submit his own defence in the matter. There is minute and elaborate procedure under the Act to be followed before a Permanent employee is to be terminated for any act of misconduct. The order, therefore, is ex facie illegal and cannot be sustained. We, therefore, hold and declare the impugned order of termination dated 29-6-1984 terminating the petitioner from employment with effect from 30-6-1984 to be illegal and invalid and it deserves to be quashed and set aside. We therefore, hold that the petitioner is entitled to get reinstatement with continuity of service with effect from 30-6-1984 but not with full back wages.
19. Though Shri Deshpande has prayed for the whole relief of full back wages from 1984 till the date of reinstatement. We are not inclined to grant that relief to the petitioner. Since the petitioner was a Lecturer, we were sure that he was employed somewhere else gainfully. Shri Deshpande fairly accepted the position that the petitioner is in employment of an institution which is not receiving any grant-in-aid and, therefore, he gets much lesser emoluments than he would have got in the respondents-institution. We are, however, not inclined to grant the whole relief of full backwages to the petitioner. We also cannot lose sight of the fact that the institution is an education institution receiving grant-maid from the Government. We have to balance the equities. According to us, if we were to accept the contention of Shri Deshpande to award full back wages, the burden on the institution would be unbearable as Shri Deshpande discloses to us that the quantum of full back wages is to the tune of 25 lakhs of rupees approximately. At the same time, the respondent institution has acted highhandedly by illegally terminating the petitioner, who got the present employment in his prime age with a hope that he would make a good career in the institution. The hope and ambition of the petitioner was destroyed by arbitrary action of the respondents. There is no doubt in our mind that injustice was done to the petitioner and therefore, he cannot be left without any substantial relief in the form of monetary benefits. In the facts and circumstances, we award 40% of back wages from 30th June, 1984 till 30th June, 2003 would meet the ends of justice. The respondent-management shall reinstate the petitioner with effect from 1st July, 2003 and he will be placed in the regular pay-scale of a Lecturer as if he continued in the employment and as if he would have earned regular increments and other benefits. The petitioner will get 40% of the total emoluments, which he would have earned had he not been terminated from the service. The management shall compute 40% of the back wages, as aforesaid and shall pay the same to the petitioner within a period of three months from 1st July, 2003. If there is any dispute in respect of computation of the emoluments, both the parties will be at liberty to approach the Competent Authority under the Act for computation of the 40% of back wages. We clarify that the petitioner will not get any other benefits to be computed in terms of money. He will not claim other benefits such as privilege leave etc., for the intervening period. He, however, will be entitled to get the continuity of service for the retiral benefits.
20. Shri Bhangde had suggested that if we do not agree with his submission in respect of unsatisfactory work. In that case, we should remit the matter back to the Tribunal where the management would adduce evidence to prove the allegations of unsatisfactory work. We are not inclined to follow that course after lapse of eighteen years. If we do so, we are sure that the litigation would take another ten years and the relief which the petitioner might get would be only illusory. Secondly, since in the order of termination, there is no mention of the fact that the petitioner was being terminated on the ground of unsatisfactory work, the management cannot be allowed now to plead and prove the alleged acts of misconduct and thirdly, we have not granted the whole relief of back wages which is normal rule after the order of termination is held to be illegal and improper. We have made the petitioner to suffer loss of 60%. According to us, we have tried to balance the equities and to meet the ends of justice in this petition, which is pending in this Court from 1986.
Since the burden of 40% backwages ordered by us payable to the petitioner is on account of unlawful action taken by the respondent Nos. 2 and 3, they alone will be liable to pay the said amount to the petitioner and the respondent No. 4-State shall not be liable to bear the said burden.
21. Petition, therefore, succeeds. Rule is made absolute as above, with no order as to costs. Certified Copy is expedited