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1. By this petition under Articles 226 and 227 of Constitution of India the petitioners i.e. Management and Head Mistress of the School challenge order and judgment dated 30th April, 1991 passed by respondent No. 1 School Tribunal in Appeal No. 143/88-A with further directions. Brief facts giving rise in filing the present petition are as under:

2. Respondent No. 2 was employed as an Assistant Teacher by the petitioners by order dated 01-12-1986 for the period up to 30th April, 1987, During relevant period his qualifications were S.S.C., D.Ed. This order specifically stated that his appointment was purely temporary from 01-12-1986 to 30-04-1987. By order dated 01-05-1987, he was continued up to 30th April, 1988. It appears that by order dated 23-9-1988 his services were terminated with effect from the same day and he was paid an amount of Rs. 1,222/ - by cheque in lieu of one month's notice. This order is issued by Principal of Smt. Ushabai Deshmukh Junior College, Achalpur City. This termination was challenged by respondent No. 2 by filing above mentioned appeal under Section 9 of Maharashtra Employees of Private School (Conditions of Service) Act, 1978 (hereinafter referred to as "MEPS Act") before respondent No. 1 School Tribunal at Amravati and Aurangabad Division, Aurangabad. The respondent No. 2 contended that he was appointed against the permanent post and as such he ought to have been appointed on probation for a period of two years from beginning i.e. from 01-12-1986. He contended that the management demanded certain amount from him and he paid Rs. Eight Thousand to petitioner No. 1 and he was unable to pay further an amount of Rs. Five Thousand demanded from him. He concludes that on account of this failure his services were terminated. He contended that he has served school for 21 months satisfactorily and no adverse remarks were issued to him. He points out that by letter dated 1-9-1988 serious charges of misbehaviour were levelled against him and as such his services could not have been terminated without completing departmental, enquiry as contemplated under Rules 33, 36 and 37 of M.E.P.S. Rules, 1981. He contends that his termination is illegal and against the principles of natural justice. The School Tribunal issued notice to the petitioner management and both the petitioners (respondents before School Tribunal) filed their reply alongwith documents in support of their submission. They stated that respondent No. 2 was appointed as Assistant Teacher in their school from 1-12-1986 and he continued till termination of his service on 23-9-1988. They contended that large number of complaints were received from the students and their parents and also teachers against him. The petitioner No. 2 Head Mistress brought those complaints to the notice of respondents No. 2. It is alleged that respondent No. 2 expressed apology and he was continued with a view to give him chance to improve. But he failed to show any improvement in his behaviour and as such he was not required to be retained in service and came to be terminated. The petitioners contended before the School Tribunal that he was appointed on year to year basis temporarily and his services were liable to be terminated by giving him one month's pay or one month's notice in lieu of such notice. They denied that respondent No. 2 was appointed on probation and that no adverse remarks were communicated or given to him during his tenure of service. They contended that communication dated 1-9-1988 given to respondent No. 2 was itself sufficient to reflect upon his behaviour. It is further alleged that opportunity was given to the respondent No. 2 to explain his stand in relation to various complaints received from guardians of the girl students and his response was not satisfactory. Therefore, decision was taken by the management to terminate his services w.e.f. 23-9-1988. The termination is plain and simple and does not cause any stigma upon him. Holding of departmental enquiry was therefore, not necessary and provisions of Rules 33, 36 and 37 of Maharashtra Private School (Conditions of Service) Rules, 1981 (for short "MEPS Rules, 1981") were therefore, not attracted. It is alleged that the said provisions are attracted only in the case of permanent employee. It is further mentioned that respondent No. 2 was temporary employee and it is also mentioned that being a probationer, as his work and behaviour was found unsatisfactory he came to be terminated by giving him one month's pay in lieu of notice. It is mentioned that the petitioner No. 2 assessed the work of respondent No. 2 employee as required by Rule 15 of M.E.P.S. Rules and it was found that it was unsatisfactory.

4. The writ petition has been admitted on 25-6-1991 and on 1-7-1991 this Court granted interim relief in terms of prayer Clause - 2. On 27-8-1991 the stay has been confirmed.

5. I have heard learned Advocate. R.K. Deshpande for the petitioners, learned Advocate V.A. Kothale for respondent No. 2 and learned A.G.P. for respondent No. 1.

6. Shri Deshpande relied upon the appointment orders and contended that it was a temporary appointment and therefore, there was no right to post. He contended that order dated 23-9-1988 is order of simple termination. He also invited attention to the confidential reports maintained by the petitioners in relation to services of respondent No. 2 for the period 1986-87 (1-12-1986 onwards), 1987-88 and the last report is for the period thereafter relying upon this reports he points out that services of respondent No. 2 are not satisfactory and therefore, he was rightly terminated by order of simple termination. He also invites attention to various complaints which are annexed with the petition. First complaint is dated 30th August, 1988 and it is addressed to petitioner No. 2 Head Mistress. It is signed by 13 persons but only names are appearing on this annexure. In it, it is mentioned that the singatories have learnt about various complaints of the girl students about respondent Shri Bhange. Next document is dated 14-9-1988 and it is stated to be sent by Municipal Council, Achalpur. The annexure does not bear any signature but it is mentioned that the niece of signatory is studying in Vth Standard and she is always complaining about respondent No. 2 teacher. It is mentioned that the conduct of the teacher is not good and it is dirty. It is mentioned that in class or even out side the class his conduct is same. It is alleged that he calls students near table and touch them by his foot. It is mentioned by the signatory that therefore, his niece is reluctant to go to the school. The signatory has prayed that such teacher should be removed. Next document is complaint dated 17-9-1988 the signatory or sender of this complaint is not appearing on this annexure. It is addressed to petitioner No. 2 and in relation to respondent No. 2 teacher it is mentioned that the entire village speaks ill of the respondent No. 2 and the signatories did not find it convenient. They regretted that the conduct of teacher working in the girls school should be like this. It is mentioned that the signatories are working since last 15 years but there are no complaints against any of them. It is mentioned that looking to the interest of the girls students the signatories felt that respondent No. 2 should not work in the school. It is further mentioned that respondent No. 2 constantly makes phone calls from school. The signatories state that if he is asked anything he behaves arrogantly. These is letter dated 18-9-1988 written by Head Master petitioner No. 2 to President of petitioner No. 1. She has mentioned that on 9-9-1988 some relatives of respondent No. 2 from his "in laws side", had been to her office. One of them was Shri Ingale and he told the Head Mistress several bad things about respondent No. 2. The Head Mistress states that she has asked Mr. Ingale to contact the President of the Society but the President was out of station he could not be contacted. She further states that on 18-9-1988 she received one complaint from Ruprao Sarode and it is being forwarded with this letter. The next document is again letter written by the Supervisor on 21-9-1988 to the Head Master and in it, it is mentioned that there are complaints against Mr. Bhange some times. It is mentioned that initially he used to touch girls but after admonition there is reduction in such instances. It is further mentioned that there were complaints about pulling hands of girls or touching their legs by his leg. It is further mentioned that previously for mathematics examination he has collected Rs. 2/- from each student. It is further contended that for work book and Graph copies he collects some amount and perhaps earns commission in this process, The supervisor has stated generally his behaviour is objectionable. On 21-9-1988 teacher's representative has also given complaint about touching girl students by respondent No. 2. On 22-9-1988 the petitioner No. 2 has given complaint to the President of the petitioner No. 1 institution on the same lines. It is mentioned that he has collected amount for mathematics examination and after Head Mistress learnt she took that amount and distributed prizes to the girl students. It is mentioned that he is selling graph copy worth Rs. 1/- for Rs. 1.40 It is mentioned that last year for photograph he collected amount of Rs. 44/- from students of Class VI(C) but he did not give photograph and also did not refund the amount. A complaint on these lines is revised from the students of VII(C) who were in VI(C) last year. It is mentioned that another complaint is dated 9th September, 1988. It is mentioned that though Mr. Bhange has denied in his reply all such instances, grand daughter of the person with whom respondent No. 2 is residing as a tenant studying in standard X(A) has stopped coming to school on account of this behaviour of respondent No. 2. She has also repeated previous complaints and stated that she is working since last 25 year in this institution and because of efforts of all teaching staff the school got grant of Rs. 10,000/- as ideal school. She has expressed regret that on account of such a conduct on the part of one member of the teaching staff reputation of the school is being spoiled. She has also forwarded with this representation a communication dated 28-09-1988 from one Sarode Mr. Sarode in the communication addressed to the President of petitioner No. 1 institution has stated that respondent No. 2 teacher has vacated the room belonging to him on 17-09-1988 and went to reside at another place. He has stated that motive of his earlier complaint dated 12-9-1988 was not to get his room vacated and he has maintained that grievance made by him are true and still survive. He has further stated that because of his bad conduct he was required to send his grand daughters studying in Xth Standard out of town by keeping her away from the school. On 13-10-1988 same person has sought transfer certificate for his two daughters studying in X(A) and Standard VIII. He has mentioned that respondent No. 2 has threatened to kidnap both these girls. Relying upon all these communications Advocate Deshpande contended that all these communications clearly show that it was not possible to retain respondent No. 2 in service. He contends that instead of holding any enquiry into the matter and as the respondent No. 2 was purely temporary employee, the management thought it fit to simply terminate him and accordingly he was terminated on 23-9-1988 by order of simple termination. He contends that there was no stigma cast against him.

7. He also relies upon the confidential reports mentioned above in which the same opinion is expressed by the petitioner No. 2 Head Mistress. First Confidential Report is for the period from 01-12-1986 and it is maintained as per Rule 14(2) read with 15(1). It is in the form prescribed in Schedule G. As per Rule 14(2) every employee, teaching or non-teaching has to submit report of self assessment in form mentioned is Schedule 'G' within one month after the end of year. As per Rule 15(1) the confidential report are then required to be written only in Form-G. It is the contention of Advocate Deshpande that these confidential reports are maintained accordingly. He points out that in first confidential report for the period of six months, in most of the columns word "average" has been used and in last column it is mentioned that if appropriate improvements are made in his work he can be permitted to work. In next confidential report which is for the period 1987-88, it is mentioned that he has been orally informed about lacuna in his service and again so far as his service is concerned, the remarks would show that it is either average or on still lower side i.e. on adverse side to respondent No. 2. In last column it is mentioned that his teaching procedure is good but he is in a habit of supplying copy on examination centre. It is mentioned that he was informed about this in writing and thereafter he was not seen at the examination centre. In last confidential report for the year 1988-89 again same type of remarks are put. It is mentioned that his relations in the society are not good and written complaints dated 17-09-1988 and 20-9-1988 are received. It is further mentioned that he has no command over the students and he has no moral. The said entry about character and integrity is made on the basis of complaints received from the guardians. Again it is mentioned that he is not fit to be retained and is not fit to be promoted. It is mentioned that there are written complaints from parents and he is not fit for working in girl school. It is mentioned that because of his conduct the school is being defamed. The nature of remarks put against each head are mostly on lower side i.e. either average or belated or bad or nil. By relying upon these confidential reports the Counsel for the petitioners has argued that his work and behaviour was found to be unsatisfactory. He contends that the observations of the School Tribunal that no records as required by Rule 15(6) have been produced or maintained is incorrect. He contends that order of termination dated 23-9-1988 is worded in plain and simple language and no misconduct is alleged against him. He contends that therefore, it was not necessary to hold any departmental enquiry against him.

Smt. Ushabai Deshmukh Junior collect, Achalpur City".

Thus, if one peruses this order, apparently it does not carry any stigma and appears to be an order of simple termination. The case law cited by the Advocate for the respondent No. 2 needs to be considered in this light. In A.I.R. 1999 S.C. 609, Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., the employee was working as Senior Accountant from 27-7-1970 and he was appointed as Branch Manager on 17-7-1973. He was posted at Faizabad in the same capacity on 3rd October, 1975 and thereafter, he received communication dated 12-1-1976 from the Managing Director mentioning that one person by name Jai Chandra Lal complained that the employee had fraudulently taken Rs. 2000/- from him and therefore, his explanation was called. The employee submitted his explanation on 22-1-1976 and no departmental enquiry was held. On 23-1 -1976 simple order of termination was passed stating that employee was appointed as Branch Manger by order dated 17-7-1973 and as per condition No. 3 of his appointment order he can be terminated at any time after giving one month's notice or one month's pay. It is in this background that the Hon'ble Apex Court has considered this grievance. In paragraph. No. 35 the Hon'ble Apex Court has held that in cases where termination is preceded by an enquiry and evidece is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish the employee and not merely to gather evidence for a future regular departmental enquiry. The Apex Court has held that in such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. The Apex Court says that in cases of such nature employer does not feel that there is a mere cloud against the employees conduct but are cases where the employer virtually finds to the prejudice of the employee, even though such acceptance of findings is not recorded in the order of termination. The Apex Court has concluded that, therefore the misconduct is the foundation and not merely the motive, in such cases. In the facts of the case the Apex Court has found that on 22-1-1976 report was submitted by General Manager (Fertiliser) without issuing any charge memo or without giving any hearing to the employee and copy of report was also not given to the employee and thereafter on 22-1-1976 a simple order of termination was passed stating that it is in terms of condition No. 3 of the appointment order. In this background in paragraph No. 37 the Apex Court holds that here Enquiry Officer examined witnesses, recorded their statements and gave clear finding about acceptance of bribe by the employee and even recommended his termination and all this was done behind the back of the employee. The Managing Director passed order of termination on the very next day. The Apex Court says that it was not preliminary enquiry report and therefore, these findings are the foundation of termination order and not merely the motive. The Apex Court therefore, granted relief to the employee by quashing the order of termination and by upholding the order of Tribunal in favour of such an employee.