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CASE NO.: Appeal (civil)  1318 of 2008

PETITIONER: PROGRESSIVE EDUCATION SOCIETY & ANR

RESPONDENT: RAJENDRA & ANR

DATE OF JUDGMENT: 15/02/2008

BENCH: A.K. Mathur & Altamas Kabir

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 1318 OF 2008 [ARISING OUT OF SLP (CIVIL) NO.7006 OF 2007]

Altamas Kabir, J.

1.      Leave granted.

2.      The Appellant No.1 herein is a Society which runs a school wherein  the Respondent No.1 herein was appointed on probation on 4th August,  1992.  Pursuant to the order of appointment, the Respondent No.1 joined his  duties in the school on 8th August, 1992 and his appointment was approved  by the Respondent No.2, The Education Officer (Secondary) Zilla Parishad,  District Wardha, Bombay, on probation for a period of two years from 8th  August, 1992.  Ordinarily, the period of probation would have come to an  end on 7th August, 1994, but before completion of the said period, the  service of the Respondent No.1 was terminated by the Management of the  Appellant-Society with effect from 31st July, 1994, although the order of  termination was dated 1st August, 1994, on the ground that his work was  found to be unsatisfactory during the period of probation.  While terminating  his services, the Appellant-Society also paid a sum of Rs.3076/- to the  Respondent No.1 as notice pay.   

3.      The Respondent No.1 challenged the order of termination of his  service before the School Tribunal under Section 9 of The Maharashtra  Employees of Private Schools (Conditions of Service) Regulation Act, 1977  (hereinafter referred to as the "MEPS, Act").  The basic ground of challenge  taken by the Respondent No.1 was that there was nothing wrong with his  performance or conduct and that the results in Mathematics, which was his  subject, was cent percent.  The Respondent No.1 also contended that his  termination was in contravention of Section 5(3) of the MEPS Act and the  Management did not have any material before it to justify the termination  order.   

4.      The aforesaid appeal preferred by the Respondent No.1 was strongly  opposed by the Management and it was reiterated that the services of the  Respondent No.1 had to be terminated on account of the fact that his  performance was not satisfactory.  

5.      The School Tribunal, however, found in favour of the Respondent  No.1 mainly on two grounds.  It came to a finding that as required under  Rules 14 and 15 of The Maharashtra Employees of Private Schools  (Conditions of Service) Rules, 1981 (hereinafter referred to as the " MEPS  Rules, 1981"), no assessment of the work of Respondent No.1 had been  done by the Appellant-Society and that what had been produced on behalf of  the Management had been prepared later on.  The Tribunal also found that  the Society had not taken any resolution to terminate the services of the

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Respondent No.1 and that the document on which the Management is said to  have relied, reached the Management only on 6th August, 1994 when the  services of the Respondent No.1 had already been terminated.  On account  of the above, and in particular violation of Rule 15(6) of the MEPS Rules,  1981, the Tribunal allowed the appeal and set aside the order of termination  with a direction on the Appellant-Society to reinstate the Respondent No.1  in the same post from 1st April, 1997 and to pay him his arrears of salary  from 1st August, 1994 till the date of re-joining his duties in the school.  

6.      The said order of the School Tribunal was challenged by the Society  before the Nagpur Bench of the Bombay High Court by way of Writ Petition  No.939 of 1997.  Affirming the view taken by the School Tribunal, the High  Court dismissed the Writ Petition against which the instant appeal has been  filed.  

7.      Notwithstanding the findings of the School Tribunal, the High Court  also went into the matter in some detail and had occasion to consider the  effect of the provisions of Section 5(3) of the MEPS Act, Rules 14 and 15  and in particular sub-Rule (6) of Rule 15 of the MEPS Rules, 1981.  The  High Court found that the power to terminate the services of a Probationer  was available to the Management under sub-Section (3) of Section 5, but  that sub-Rule (6) of Rule 15 had also to be taken into consideration while  exercising power under sub-Section (3) of Section 5 of the MEPS Act.  

8.      Basing its decision on the manner in which the services of Respondent  No.1 had been terminated without a proper assessment of his work during  the probation period and also in view of the fact that the Management did  not, in fact, have any occasion to consider the documents which were  alleged to have been prepared by the Head Mistress of the School, the High  Court affirmed the findings of the School Tribunal and dismissed the Writ  Petition.  

9.      On behalf of the Management of the Society, which is in appeal  before us, it has been urged that both the School Tribunal as well as the High  Court had misconstrued the materials which had been prepared by the Head  Mistress and produced on behalf of the School and had been relied upon by  the Management of the Appellant-Society to terminate the services of the  Respondent No.1. It was submitted that the Annual Confidential Report  along with all its Annexures had been duly shown to the Respondent No.1  on 7th July, 1994 which would be evident from his signature and the date  against it on the form itself.  It was submitted that the Respondent No.1 had  been duly informed of his performance and the assessment made on the  basis thereof which would clearly disprove the case of the Respondent No.1  that no assessment had been made of his performance during his period of  probation or that he was not informed of the same before his services were  terminated.  It was urged that the requirement of Rules 14 and 15, and, in  particular 15(6) of the MEPS Rules, had been strictly complied with, which  enabled the Society, which was in Management of the School, to take a  decision to terminate the services of the Respondent No.1.  It was also  submitted that both the Tribunal and the High Court had erred in holding  otherwise and that if the interpretation sought to be given both by the  Tribunal and the High Court is to be accepted, it would result in the Rules  having an overriding effect over the statute itself which vested the authority  with powers to terminate the services of a Probationer if in its opinion the  performance of the Probationer during the period of probation was found to  be unsatisfactory.  

10.     Opposing the submissions made on behalf of the Appellant-Society,  the learned counsel for both the Respondent No.1 and the Respondent No.2  contended that no interference was called for with the judgment both of the  School Tribunal as also the High Court on account of the suspicious nature  of the documents which had been produced before the Tribunal and the High  Court on behalf of the School Management and in particular the Annual  Confidential Report for teaching staff, which under sub-Rule (6) of Rule 15,  the Management was under an obligation to maintain.  It was reiterated by

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learned counsel appearing for the Respondent No.1 that the said Report  itself, as has been discussed both by the School Tribunal as well as the High  Court, would go to show that the same had been prepared only for the  purposes of documentation and that the same had not been considered by the  Management when the order of termination of the services of the  Respondent No.1 was passed.  It was pointed out that the letter addressed by  the Head Mistress of the School to the Secretary of the Progressive  Education Society, the Appellant herein, enclosing a copy of the  Confidential Report, is dated 24th June, 1994, whereas the Report itself is  dated 4th July, 1994, which, in no uncertain terms, established that the  forwarding letter of the Head Mistress alleged to have been sent on 24th  June, 1994 was an afterthought or had been prepared when the Report itself  was not ready. In addition to the above, it was also pointed out that at the  end of the Assessment Form the signature of the Reviewing Authority did  not indicate any date on which it had been signed, once again giving rise to  the suspicion that the document had been prepared only for the purposes of  the record but not for the purpose indicated in sub-Rule (6) of Rule 15 of  MEPS Rules, 1981 read with sub-Section (3) of Section 5 of the MEPS Act.  

11.     It was lastly pointed out that the first page of the Confidential Report  bears a date on the right top hand corner, namely, 6th August, 1994 which  has been tried to be explained as being the date of official dispatch of the  records of the School Management.  It has been submitted that the said date  could also indicate that the said document was not before the Management  of the School when the order of termination had been passed earlier on 1st  August, 1994.   

12.     Similar submissions were advanced on behalf of Respondent No.2 and  it was urged that neither the order of the School Tribunal nor the order of the  High Court warranted any interference.

13.     On a consideration of the submissions made on behalf of the  respective parties, the main issue which, in our view, requires determination  in this appeal is whether the provisions of Rules 14 and 15, and, in particular  sub-Rule (6) of Rule 15 of the MEPS Rules, 1981, would control the powers  vested in the Management of the School under Sub-Section (3) of Section 5  of the MEPS Act.  The law with regard to termination of the services of a  Probationer is well established and it has been repeatedly held that such a  power lies with the Appointing Authority which is at liberty to terminate the  services of a Probationer if it finds the performance of the Probationer to be  unsatisfactory during the period of probation.  The assessment has to be  made by the Appointing Authority itself and the satisfaction is that of the  Appointing Authority as well.  Unless a stigma is attached to the termination  or the Probationer is called upon to show cause for any shortcoming which  may subsequently be the cause for termination of the Probationer’s service,  the Management or the Appointing Authority is not required to give any  explanation or reason for terminating the services except informing him that  his services have been found to be unsatisfactory.   

14.     The facts of this case are a little different from the normal cases  relating to probation and the termination of the services of a Probationer in  that the satisfaction required to be arrived at under sub-Section (3) of  Section 5 of the MEPS Act has to be read along with Rule 15 of the MEPS  Rules, 1981 with particular reference to sub-Rule (6) which provides that the  performance of an employee appointed on probation is to be objectively  assessed by the Head during the period of his probation and a record of such  assessment is to be maintained.  If the two provisions are read together, it  would mean that before taking recourse to the powers vested under sub- Section (3) of Section 5 of the MEPS Act, the performance of an employee  appointed on probation would have to be taken into consideration by the  School Management before terminating his services.   

15.     Accordingly, while Rules 14 and 15 of the MEPS Rules, 1981 cannot  override the provisions of sub-Section (3) of Section 5 of the MEPS Act, it  has to be said that the requirements of sub-Rule (6) of Rule 15 would be a

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factor which the School Management has to take into consideration while  exercising the powers which it undoubtedly has and is recognised under sub- Section (3) of Section 5 of the Act.  

16.     This brings us to the next question regarding the sufficiency of the  materials before the School Management while purporting to pass the order  of termination on 1st August, 1994.  As has been discussed, both by the  School Tribunal and the High Court, the Confidential Report which has been  produced on behalf of the School Management does not inspire confidence  on account of the different dates which appear both on Part-I and Part-II of  the said Report.  Part-I of the Self-Assessment Form gives the particulars of  the concerned teacher and the remarks of the Reporting Authority, namely,  the Head Mistress of the School.  The date in the said Part is shown as 4th  July, 1994, whereas the date at the end of Part-II, which is the form of the  Confidential Report giving details of the teacher’s performance, is dated 24th  June, 1994, which appears to be in line with the date given of the forwarding  letter written by the Head Mistress to the Secretary of the Society.  To add to  the confusion created by the different dates on the form, there is a third date  which appears on Part-I of the Self-Assessment Form which shows that the  documents were presumably forwarded to the Management of the School on  6th August, 1994, which is a date which is prior to the date of termination of  the services of the Respondent No.1, namely, 1st August, 1994.  

17.     This merely goes to show that the said documents are not above  suspicion and that the requirements of Rule 15(6) and Rule 14 had not been  complied with prior to invocation by the School Management of the powers  under sub-Section (3) of Section 5 of the MEPS Act.  

18.     In such circumstances, we are inclined to agree with the views  expressed by the School Tribunal as well as the High Court and we see no  grounds to interfere with the order impugned in this appeal.  

19.     The appeal, therefore, stands rejected.   There will be no order as to  costs.