Writ Petition No.3874 of 2008

9th February, 2009

Petitioner Counsel: Mr. APURV DE
Respondent Counsel: Ms. MUGDHA ATRE,Mr. ANAND PARCHURE

Cases Cited:
Chandra Prakash Shashi Vs. State of U.P., AIR 2000 SC 1706 [Para 7]
Progressive Education Society, Hinganghat Vs. Nitin Krishnarao Nimbalkar, 2006(5) ALL MR 95=2006(4) Mh.L.J. 747 [Para 9]

JUDGMENT

JUDGMENT:- Rule. Rule made returnable forthwith. With consent of learned counsel for the parties, the matter is taken up for final hearing immediately. Heard learned counsel for the parties. Perused the record.

2. Admitted facts are that prior to June-2003 present petitioner was working as Assistant Teacher for some time on temporary basis. However on 20.06.2003, she was appointed as Assistant Teacher on probation of two years by respondent-Management. According to the petitioner, on 29.12.2004, respondents issued an order terminating her services with immediate effect on the ground that her performance during the probation was not satisfactory. This order was challenged before the School Tribunal in Appeal No. 30/2006 by present petitioner on several grounds. One of the grounds was that the provisions of Section 5(3) of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (For short 'the Act') were not followed as neither one month's notice was given to her nor the salary in lieu of this period was given to her along with termination order. On the other hand, it was contended by the Management that along with termination order a cheque of one month's salary was sent to her but she had refused to accept the same and thus the provisions had been followed. After hearing the parties, the School Tribunal dismissed the appeal holding that on the reading of the provisions of Section 5(3) with rule 28(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (For short "the Rules") notice of one month or one month's salary is not mandatory. That order has been challenged in the present petition.

3. On perusal of the pleadings of the parties as well as copy of the order dated 29.12.2004 issued by the Management to the petitioner terminating the services of petitioner, it appears that there was no reference either to one month's notice or payment of salary in lieu of notice. In fact, that order dated 29.12.2004 clearly shows that her services were terminated because her performance was not satisfactory and she was relieved from the School from the date of issuance of that termination order. It further clarified that she was no more employee of the School. From this, it is clear that neither one month's notice was issued nor salary in lieu of the notice was given to her along with order dated 29.12.2004. The School Tribunal, after referring to the provisions of Section 5(3) and Rule 28(1) came to the conclusion that issuance of one month's notice or payment of salary in lieu of notice is not mandatory and, therefore, merely because one months' notice was not given or salary in lieu of the notice period was not given, termination cannot be invalidated, particularly when the services were terminated during the probation period on the ground that her performance was not satisfactory.

4. Section 5(1) of the Act provides that the Management shall as soon as possible fill in the manner prescribed every permanent vacancy in the private school by appointment of persons duly qualified to fill in the said vacancy. There is no doubt that petitioner was duly qualified and she was appointed on probation of two years with effect from 26.03.2003 against a permanent vacancy. Her appointment was also approved by the Education Officer with effect from 26.03.2003. Section 5(2) (2A) and (3) of the Act read as follows:-

"5. (1) .....

(2) Every person appointed to fill a permanent vacancy except shikshan sevak shall be on probation for a period of two years. Subject to the provisions of sub-section (3) and (4), he shall on completion of this probation period of two years be deemed to have been confirmed.

Provided that, every person appointed as shikshan sevak shall be on probation for a period of three years.

2(A) Subject to the provisions of sub-section (3) and (4), Shikshan sevak shall, on completion of the probation period of three years, be deemed to have been appointed and confirmed as a teacher.

(3) If in the opinion of the Management the work or behavior 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 or honorarium of one month in lieu of notice."

From this it is clear that an Assistant Teacher appointed to fill in permanent vacancy shall be on probation for a period of two years and as per sub-section (3) if in the opinion of the Management, the work and 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 one month's notice or salary of one month in lieu of notice.

5. There is no doubt that in the present case, services of the petitioner were terminated before completion of the probation period on the ground that her service performance was not found satisfactory. The only question involved in this case is whether the procedure for the purpose of termination of services of a probationer as required under Sub-Section (3) has been followed or not. On careful reading of sub-section (3) it becomes clear that discretion has been given to the Management to terminate services at any time during the probation period if the Management is of the opinion that the work or behaviour of the probationer is not satisfactory. Having come to this conclusion that the Management can terminate the services by giving one month's notice or salary of one month in lieu of this notice. That is the part of procedure and that part is mandatory. Sub-Section (3) does not give any discretion to the Management about issuance of the notice or payment of salary. Discretion is only between two options, first is to give one months notice before termination and if the Management does not want to give one month's notice, the second option is to pay salary in lieu of one month's notice. It cannot be said that the Management has discretion to terminate the services without issuing the notice as well as without paying one month's salary in lieu of notice.

6. Learned School Tribunal referred to Rule 28(1) in support of his observation that this provision is discretionary and not mandatory. Rule 28(1) reads as follows:-

"28. Removal or Termination of Service:

(1) The services of a temporary employee other than on probation may be terminated by the Management at any time without assigning any reason after giving one calendar month's notice or by paying one month's salary (pay and allowances, if any) in lieu of notice.

In the case of an employee entitled to vacation, the notice shall not be given during the vacation or so as to cover any part of the vacation or within one month after vacation."

From this rule, it is clear that services of temporary employee, other than a probationer, may be terminated by the Management anytime without assigning any reason after giving one Calendar months notice or by paying one month's salary in lieu of notice. In fact Rule 28(1) is not applicable to an employee who is appointed on probation. The difference between the provision under rule 28(1) and under Section 5(3) is that under Section 5(3) the Management has to form an opinion that the work and behaviour of the probationer, during the period of probation, is not satisfactory and on that ground only services may be terminated before completion of probation. While under Rule 28(1), in case a temporary employee, other than a probationer, service may be terminated by the Management without assigning any reason. However, in both the cases, the Management is required to issue one month's notice or to pay one month's salary in lieu of the notice. In that respect, there is no difference in the two provisions. Learned counsel for the respondent-Management could not point out any provision, whereby the Management is also given discretion not follow either of the two options of giving notice or paying salary in lieu of notice. Therefore, in my opinion, learned School Tribunal was not right in holding that the issuance of notice or payment of salary in lieu of notice is not mandatory under the law.

7. Learned counsel for the petitioner contended that when the services of a probationer are required to be terminated and a particular procedure is prescribed for that purpose, the termination can take effect only by following that procedure and not otherwise. In support of this, he placed reliance on Chandra Prakash Shashi Vs. State of U.P. and others, AIR 2000 Supreme Court 1706. In that case, services of a probationer Constable were terminated without assigning any reason. The Utter Pradesh Public Services Tribunal set aside the termination order and that was challenged before the High Court. The High Court set aside the order of the Tribunal. That order was challenged by the Employee before the Supreme Court. Their Lordships observed in para 33 as under:-

"33. Where, therefore, the services of a probationer are proposed to be terminated and a particular procedure is prescribed by the Regulations for that purpose, then the termination has to be brought about in that manner. The probationer/constable has to be informed of the grounds on which his services are proposed to be terminated and he is required to explain his position. The reply is to be considered by the Superintendent of Police so that if the reply is found to be convincing, he may not be deprived of his services."

With these observations, the Supreme Court allowed the appeal and restored the order passed by the Tribunal and thus, the termination order came to be set aside. In the present case Section 5(3) provides that the services of probationer may be terminated if work or behaviour is not satisfactory, by giving one month's notice or salary in lieu of notice period. That has not been done.

8. During the arguments before this Court, learned counsel for the Management contended that a cheque towards the payment of salary of one month in lieu of notice was issued to the petitioner and she had refused to accept the same. No such material was produced before the School Tribunal. However, in the interest of justice, this Court, by an order dated 15.01.2009 gave an opportunity to the Management to produce relevant record in support of their contention. The Management has filed an affidavit of one Mohd. Zainulabedin Inamdar, Secretary of the Education Society, wherein he contended that the notice of termination was issued on 27.11.2004 with a cheuqe of the salary and it was refused by her. Along with that affidavit, a notice purporting to be dated 27.11.2004 along with Xerox copy of the cheque dated 27.11.2004 are produced. By this notice dated 27.11.2004, the Management claims to have given her one month's notice as well as issued a cheque towards salary in lieu of notice. However, the Management has not produced the postal receipt to show that the said notice was actually issued nor the envelope is produced to show endorsement from the postal authority that same was refused to be accepted by the petitioner. Thus, there is no material to show that the notice and the cheque towards salary of one month were actually sent to the petitioner by registered post acknowledgment due and she had refused to accept it. Prima facie, it appears that both these documents have been prepared later on, just to support their contention. If notice was issued on 27.11.2004 terminating the services after one month, there was no need to issue a cheque of the salary of one month along with that notice. The Management could not be so generous towards her as to give her one month's salary without any reason, when it was not required, if one month's notice was being given. In view of this, I am unable to find any material to support the contention of respondents that one month's notice or a cheque in lieu of notice period was sent to her and she had refused to accept the same.

9. In Progressive Education Society Hinganghat and ors. Vs. Nitin Krishnarao Nimbalkar & Ors, 2006(4) Mh.L.J. 747 : [2006(5) ALL MR 95], in Letters Patent Appeal against the judgment of the Single Judge, the Division Bench of this Court observed as follows:-

"5. Obviously in spite of clear requirement under section 5(3) of the said Act that the notice is required to be given one month in advance of the date of termination or at least salary of one month in lieu of such notice is to be paid to the probationer whose services are terminated in exercise of powers under the said section, and in spite of the fact that the respondent was a probationer, neither one month's advance notice was issued nor the salary of one month in lieu of such notice was paid or tendered along with the order of termination to the respondent. The contention that such amount was offered by way of Money Order subsequent to the issuance of the order of termination, cannot amount to compliance of the mandatory requirement under section 5(3) of the said Act. Subsequent offer of payment does not amount to payment of salary of one month in lieu of such notice and this issue is well-settled by catena of decisions of this Court."

From above observations, it is clear that the issuance of notice or payment of salary in lieu of notice is mandatory provision under Section 5(3). As that procedure has not been followed, order of termination passed by the respondent-Management with effect from 29.12.2004 is invalid and is liable to be set aside.

10. At this stage, after taking instructions from the petitioner, learned counsel for the petitioner makes statement that the petitioner will not claim back wages and she would be satisfied only with order of reinstatement with continuity of service.

11. For the aforesaid reasons the writ petition is allowed. Impugned order passed by School Tribunal is hereby set aside. Order dated 29.12.2004 passed by the respondent Management terminating services of the petitioner with immediate effect is hereby quashed and set aside. The petitioner shall be reinstated to the post of Assistant Teacher with continuity of service from 29.12.2004 within four weeks from this date. However, as the petitioner has waived right to back wages, the Management shall not be required to pay back-wages till the date of her reinstatement within four weeks.

Rule is made absolute in the above terms. No order as to costs.

Petition allowed.