Indian Kanoon - Search engine for Indian Law

12. It is thus clear that the School Tribunal did not refer to the scheme of Rules 14 and 15 of the MEPS Rules and only on the basis of factual position as noted hereinabove, the Tribunal recorded a finding that the termination order dated 1/7/1995 was issued with malice and ulterior motives and, therefore, bad in law. In Writ Petition No.2256 of 2002 the learned Single Judge did not refer to the scheme of Rules 14 and 15 of the MEPS Rules, though he referred to the provisions of Section 5(2) and (3) of the MEPS Act. It was further noted that the teacher was required to be informed about the unsatisfactory performance during the probationary period and the same must be supported by some credible material on record so as to indicate that the performance of the teacher was correctly and properly assessed to come to a bona fide conclusion that the probationary period could not be extended or that her services deserved to be discontinued for unsatisfactory work. Every probationer must be sounded, told and warned that he / she was committing certain mistakes and the areas of improvements. In spite of these efforts and warnings by the management, if the probationer failed to improve the performance, perhaps the management would be justified in terminating the employment of the probationer. Merely because an employee is appointed on probation and since probation is completed, he / she could not be thrown out of the employment arbitrarily and the work and performance was required to be genuinely and properly assessed during the course of the probationary period. Reliance in this regard was placed on the decision in the case of Krishnadevaraya Education Trust and anr. Vs. L.A. Balakrishna [AIR 2001 SC 625], by the Single Bench.

13. It is true that as a general principle in service jurisprudence an employee is appointed on probation to test his/her performance and suitability for the post appointed and if during this period of probation, the performance is found to be unsatisfactory, the employer has the right to discontinue the employee on completion of the probationary period and without assigning any reasons. It is also equally well settled that such an order of termination is not a stigmatic order and as per the contract of service or the terms of appointment, the employer has such a right so that the exercise of such right would not amount to an illegal action on the part of the employer. Such an order will not by itself be a penal order and the period of probation furnishes a valuable opportunity to the master to closely observe the work of the probationer. However, the MEPS Act is a special piece of legislation and Section 5(2) of the said Act states that every person appointed to fill a permanent vacancy shall be on probation for a period of two years and subject to the provisions of Subsections 3 and 4, he shall, on completion of his probation period of two years, be deemed to have been confirmed. As per Subsection 3 of Section 5 of the MEPS Act, 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 of one month in lieu of notice. Thus, the appointment on probation and the termination of the service of the probationer are governed by the provisions of Subsections 2 and 3 of Section 5 of the MEPS Act. In addition, Rules 14 and 15 of the MEPS Rules, 1981, have elaborately set out the procedure for the assessment of the probationer's performance and writing of his confidential reports. When a special statute like the MEPS Act has provided for a specific procedure to be followed while terminating the employment of a probationer on the ground of unsatisfactory performance, the said procedure is mandatory and non compliance thereof would vitiate the order of termination and the School Tribunal will be fully justified to interfere with the same and set it aside by directing reinstatement of the appointee/appellant.

It further held that there ought to be sufficient material to be brought by the school management before the Tribunal so as to support the order of termination passed at the end of the probationary period and such record must also inspire confidence being bona fide. Such material cannot be cooked up material and it must be genuine confidential records maintained from time to time and communicated to the teacher. It is also clear from Sub-rule 5 of Rule 15 of the MEPS Rules, that failure to write and maintain confidential reports and to communicate adverse remarks to the employee within the period prescribed in Sub-rule 3 shall have the effect that the work of the employee concerned was satisfactory during the period under report. In the instant case, there was nothing brought on record to show that in the prescribed form, the confidential reports in respect of respondent no.1 were written and adverse remarks were communicated to her so as to provide her an opportunity to submit her representation against the adverse remarks. In any case, the show cause notice dated 23/6/1995 would not amount to compliance of Sub-rules 1 to 5 of Rule 15 of the MEPS Rules.