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Judgment
Amit B. Borkar, J
Since the common question of facts and law are involved in this group of petitions, all the petitions are being decided by a common judgment.
The fact and circumstances giving rise to the present petitions are as under:-
The petitioners are the employees of recognized schools whose services are governed by the provisions of The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, "the Act"). None of the petitioners was made permanent, and before the petitioners attained permanency, the services of the petitioners were terminated. The only point involved is whether the instant termination orders are punitive or stigmatic. To adjudicate the said issue, the relevant facts are mentioned in the form of the chart given by the Advocate for Petitioners for the purpose of brevity.
W. P. No.
Name
Dates of appointment
Date of approval by E.O.
Show cause reason
Reason in termination order
320/2009
Shivshakar S/o. Anandrao Ajbale B.A. B.Ed. and belongs to O.B.C. Category
(Untrained at the time of appointment, acquired trained qualification on 21.7.1993) Subsequently Respondent no. 4 came to be appointed
1) 01.07.1988 till further orders.
2) 26.06.1989 to 30.04.1990 (Temporary)
3) 01.07.1990 to 30.04.1991 (Temporary)
4) 01.7.1991 to 30.4.1992 (Temporary)
5) 22.06.1992 to 30.04.1993 (For Fixed period)
6) 25.06.1993 to 30.04.1994 (For fixed period)
01.07.1988
26.6.1989 to 30.4.1990
01.07.1990 to 30.04.1991
01.07.1991 to 30.04.1992
25.06.1993 to 30.04.1994
1) Taking private tuitions without permission
2) Unsatisfactory behavior
Denied allegations in the show cause notice, overall conduct was beneficial to the institute.
Allegation in respect of taking private tuitions; unsatisfactory work, Violation of Rule 4(5) of MEPS Rules.
1703/2008
Mulchand S/o. Manikram Kukade, B.S.C., B.Ed and belongs to O.B.C. category (Untrained at the time of appointment) acquired trained qualification on 16.09.1993
Subsequently Respondent no. 4 came to be appointed.
1) 22.11.1991 to 30.04.1992 (Temporary)
2) 01.06.1992 to 30.04.1993 (Temporary for fixed period)
3) 25.06.1993 to 30.04.1994 (Temporary, for fixed period)
22.11.1991 to 30.04.1992
01.06.1992 to 30.04.1993
25.06.1993 to 30.04.1994
1) Taking Private tuitions without permission.
2) Unsatisfactory behavior
Explanation to show cause Dt. 05.04.94
Denied allegations in the show cause notice, overall conduct was beneficial to the institute
Allegation in respect of private tuitions, violation of Rule 4(5) of MEPS Rules.
3660/2008
Ku. Prena W/o. Yashwantlal Rajabhoj B.S.C. (Bio), B.Ed and belongs to Kalar (O.B.C) category (Untrained at the time of appointment) Acquired trained qualification Oct.1991 Subsequently Respondent no. 4 came to be appointed
1) 01.07.1991 to 30.04.1992 (Temporary, for fixed period)
2) 22.06.1992 to 30.04.1993 (Temporary, for fixed period)
3) 25.06.1993 to 30.06.1994 (Temporary, for fixed period)
01.07.1991 to 30.04.1992
22.06.1992 to 30.04.1993
25.06.1993 to 30.06.1994
No show cause but after termination of service called for the explanation in respect of alleged defamatory statement in the newspaper01.07.1994
No reason mentioned.
3321/2008
Mohan Kewalram Chitriv S.S.C., D. Ed and belongs to O.B.C. category (Trained at the time of appointment) Subsequently Respondent no. 4 came to be appointed
1) 01.07.1992 to 30.04.1993 (Temporary)
2) 05.07.1993 to 30.04.1994 (Temporary)
01.07.1992 to 30.04.1993 and in second
order 05.07.1993 to 30.04.1994
1) Misconduct, dereliction of duty
2) Complaints against the Management
Denied allegations – claimed that demand of monthly salary not amount to misconduct
Allegation that conduct is in nature of defamatory and also in violation of service Rules.
4606/2008
Ku. Shalini D/o. Parasram Meshram H.S.C., D.Ed and belongs to S.C. category (Trained at the time of appointment) Subsequently Respondent no. 4 came to be appointed
1) 01.07.1989 to 30.04.1990 (Temporary)
2) 01.07.1990 to 30.04.1991 (Temporary)
3) 01.07.1991 to 30.04.1992 (Temporary)
4) 05.05.1992 to 30.04.1993 (Temporary)
5) 01.07.1993 to 30.06.1994 (Temporary)
01.07.1989 to 30.04.1990
01.07.1990 to 30.04.1991
01.07.1991 to 30.04.1992
01.07.1992 to 30.04.1993
01.07.1993 to 30.06.1994
1) Dereliction of duty at examination Denied allegationclaimed that demand for monthly salary not amount to misconduct
No reason mentioned. Period of appointment mentioned
5477/2008
Nepal S/o. Dajibaji Chichmalkar B.A., B.P. Ed. And belongs to O.B.C. category (Trained at the time of appointment)
1) 01.09.1986 to 30.04.1987 (Temporary)
2) 01.08.1987 to 30.0.1988 (Temporary)
3) 30.06.1988 to 30.04.1989 (Temporary)
4) 15.09.1990 to 30.04.1991 (Temporary)
5) 01.07.1991 to 30.04.1992 (Temporary)
6) 01.07.1992 to 30.04.1993 (Temporary)
7) 25.06.1993 to 30.06.1994 (Temporary)
01.09.1986 to 30.04.1987
01.08.1987 to 30.04.1988
30.06.1988 to 30.04.1989
15.09.1990 to 30.04.1991
01.07.1991 to 30.04.1992
01.07.1992 to 30.04.1993
25.06.1993 to 30.06.1994
No required qualification for physical education teacher therefore, no eligible for the post
Explained about qualification as B.A., B.P. Ed. Also submitted was wrongly shown in the ST category
Service was terminated on the ground- not qualified for the post of physical education teacher
3306/2008
Nandkishore Tukdudasji Baseshankar (Since dead the petition is through legal heirs as per Court’s order dated 27.08.2019 amendment was carried out) H.S.C., D.Ed and belongs to S.C. category (Trained at the time of appointment)
1) 01.07.1989 to 30.04.1990 (Temporary)
2) 02.07.1990 to 30.04.1991 (Temporary)
3) 05.07.1991 to 30.04.1992 (Temporary)
4) 05.05.1992 to 30.04.1993 (Temporary)
5) 05.07.1993 to 30.04.1994 (Temporary)
01.07.1989 to 30.04.1990
02.07.1990 to 30.04.1991
05.07.1991 to 30.04.1992
05.05.1992 to 30.04.1993
05.07.1993 to 30.04.1994
Allegation that petitioner has complained to the senior officers and the police authority Explanationdemand for salary, even passbook of the petitioner was with management. Signature of the petitioner on blank withdrawal slips of the bank. Rest allegations were denied.
On the ground of misconduct (asking for salary) the service of the petitioner was terminated.
4605/2008
Surekha Ramchandraji Bhajipale S.S.C., D.Ed and belongs to OBC category (Trained at the time of appointment) Subsequently Respondent no. 4 came to be appointed
1) 05.07.1991 to 30.04.1992 (Temporary)
2) 05.05.1992 to 30.06.1993 (Temporary)
3) 05.07.1993 to 30.04.1994 (Temporary)
01.07.1991 to 30.04.1992
01.07.1992 to 30.06.1993
01.07.1993 to 30.06.1994
Allegation that petitioner has complained to the senior officers and the police authority Explanationdemand for salary, even passbook of the petitioner was with management. Signature of the petitioner on blank withdrawal slips of the bank. Rest allegations were denied.
That during period 17.03.1994 to 18.03.1994, the petitioner made complaints therefore service is terminated.
The School Tribunal dismissed the petitioners' appeals, holding that since their services were terminated before the probation period, the termination is legal. The said order of the School Tribunal is the subject matter of the present petitions.
Learned Advocate for the petitioners submitted that orders are stigmatic in nature as the termination was founded on allegations of misconduct against the petitioners. It is submitted that whether the words used in the termination orders can be said to contain stigma depends on the facts and circumstances of each case. He submitted that material which amounts to stigma need not contain in the termination order but might be contained in documents referred to in the termination orders or its annexures. He submitted that in Writ Petition Nos. 320/2009, 3306/2008, 4605/2008 and 4606/2008, the show-cause notices issued to the petitioners contain an allegation of misconduct of acting in violation of Rule 4(5) of the Act. He submitted that in Writ Petition No. 3321/2008, the order of termination refers to the show-cause notice, which contains an allegation of issuing defamatory statements. He further placed reliance upon the judgment of Apex Court in the following cases:-
i) Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta [(1999) 3 SCC 60]
ii) V. P. Ahuja Vs. State of Punjab [(2000) 3 SCC 239]
iii) Usha D/o. Ramchandra Mule Vs. Presiding Officer, Additional
iv) Jeevan Shikshan Mandal Vs. Umesh Gangadharrao Mohod
v) Prakash Khusalrao Dabhade Vs. Zilla Parishad, Aurangabad [2000 (4) Mh.L.J. 609]
Per contra, learned Advocate for Management submitted that undisputedly, the petitioners were not made permanent. The misconduct was not the foundation of orders of termination. There was no full-scale formal enquiry into the allegation involving misconduct, and there are no findings of guilt against the petitioners. She submitted that the termination orders issued, in the facts of the case, would not amount to stigma as the language implemented disclosed only unsuitability for the job. She, therefore, submitted that the School Tribunal has rightly dismissed the petitioners' appeals. She relied on the judgment of the Apex Court in the case of Pavanendra Narayan Verma Vs. Sanjay Gandhi PGI of Medical Sciences [(2002) 1 SCC 520].
For the adjudication of the issue involved as to whether the orders of termination are punitive or stigmatic, it is necessary to consider the judgment of the Apex Court relied upon by the parties. In the case of Pavanendra Narayan Verma (supra), the Apex Court, after considering the earlier judgment of the Apex Court, including Dipti Prakash Banerjee (supra) relied upon by the petitioners, in para nos.
21, 28 and 29, has held as under:-
“21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry
(b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order. Conversely, if any one of the three factors is missing, the termination has been upheld.
* * * *
Therefore, whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out.
Before considering the facts of the case before us, one further, seemingly intractable, area relating to the first test needs to be cleared, viz. what language in a termination order would amount to a stigma ? Generally speaking, when a probationers appointment is terminated, it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationers appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.”
In light of the position of law laid down by the Apex Court, the petitioners’ case needs to be scrutinized. In Writ Petition Nos. 320/2009, 3306/2008, 3660/2008 and 4606/2008, the termination orders do not give any reason. According to the petitioners, in the show-cause notice issued to the petitioners, the Management alleged misconduct and violation of Rule 4(5) of the Act and therefore, according to the petitioners, the misconduct under Rule 4(5) of the Act was the foundation of the orders of termination. Therefore, the order of termination is stigmatic in nature. In my opinion, the facts of the present case issue is covered by the Apex Court's judgment in the case of Pavanendra Narayan Verma (supra). The Apex Court, in the said judgment, laid down the test to determine whether, in substance, the order of termination is punitive or stigmatic, it is necessary that there must be:-
i) full-scale formal enquiry;
ii) into allegations involving moral turpitude or misconduct which;
iii) culminated of findings of guilt.
The Apex Court holds that if all the three factors are present, the order of termination can be held to be punitive irrespective of the form of the termination order. However, it is also held that if one of the three factors is missing, the termination needs to be upheld.
To consider whether the termination orders were founded on the allegation of misconduct, I have scrutinized the material in the form of a show-cause notice issued to the petitioners and an explanation submitted by the petitioners. It needs to be noted that in the termination orders, there is no reference to the show-cause notice or explanation by the petitioners. Therefore, the show-cause notice or explanation by the petitioners need not be within the knowledge of future employers of the probationers. In the absence of show-cause notice or explanation by the petitioners annexed to the order of termination, I am of the opinion that in the facts of the case, it cannot be said that termination was founded on misconduct. Of course, the employer is entitled to satisfy himself about the competence of the probationer before confirming him in the service, and for this purpose, he is entitled to satisfy the truth of any allegations against the employee. However, in the absence of three factors referred to above, namely (a) full-scale formal enquiry; (b) allegation involving misconduct; (c) finding of guilt; it cannot be held that termination was in substance punitive or stigmatic.
In Writ Petition No. 3660/2008, no show-cause notice was issued to the petitioner, but after the termination order, the petitioner was called upon to explain the alleged defamatory statements in the newspaper. Therefore, the event of calling for an explanation in relation to the alleged defamatory statement occurred after the order of termination. Thus, in the absence of the three factors referred above, it cannot be held that the termination was in substance, either punitive or stigmatic.
According to the petitioner in Writ Petition No. 5477/2008, the petitioner's services were terminated because he was not qualified to hold the post of Physical Education Teacher. On going through the record, it appears that initially, the petitioner was appointed for one season, i.e. 01.09.1986 to 30.04.1987 and thereafter, again, the petitioner was appointed from 01.08.1987 to 30.04.1988, 30.06.1988 to 30.04.1989. The appointment order shows that the petitioner was appointed temporarily from 15.09.1990 to 30.04.1991, and thereafter he was again appointed from 01.07.1991 to 30.04.1992. Thereafter, from 01.07.1992 to 30.04.1993 and 25.06.1993 to 30.06.1994. All the appointment orders show that the petitioner's appointment was temporary and contained a clause that his services would be terminated without notice. The record does not disclose that the petitioner was appointed after following due procedure. In that view of the matter, the petitioner's case is covered by the judgment of the Division Bench of the Court in the case of
Priyadarshini Education Trust Vs. Ratis (Rafia) Bano [2007 (6) Mh.L.J. 667], wherein the Division Bench has held that a Teacher is entitled to deem permanency only in case they are appointed against permanent vacancy after following due procedure, and they are qualified for being appointed for the post. In the absence of material to show that the petitioner was appointed against permanent vacancy or after following due procedure, the School Tribunal was justified in dismissing the appeal.
In Writ Petition Nos. 3321/2008 and 4605/2008, the order of termination contains a reference to the petitioner's conduct of sending an explanation of show-cause notice to 17 persons. It was stated that said conduct of sending a copy of the explanation to the outsiders amounted to a violation of service conditions and was defamatory in nature. The reason for termination, as contained in the last para, wherein it is stated that on overall consideration of the circumstances and the performance and behaviour of the petitioner, it was unanimously decided not to confirm the petitioner. Therefore, the order of termination was passed. Therefore, in my opinion, three tests, as laid down in the case of Pavanendra Narayan Verma (supra) to determine the punitive nature of the termination order are not fulfilled. The termination order references misconduct as historical facts, and such acts, at best, are termed as the motive of termination and not the foundation. Therefore, I am satisfied that, as held in the case of Pavanendra Narayan Verma (supra), the language in the order of termination that the petitioner’s “work and conduct is not being found satisfactory" does not render the said order stigmatic.
On overall view of the matter, it appears that the termination of each petitioner is neither punitive nor stigmatic. Considering the test laid down by the Apex Court in the case of Pavanendra Narayan Verma (supra), the finding recorded by the School Tribunal cannot be termed as perverse. Moreover, the appointments, as has been rightly held by the School Tribunal, were purely on a temporary basis which did not confer any right upon the petitioners for continuation on the post. Hence, no interference is called for in the decision of the School Tribunal.
In Writ Petition No. 1703/2009, the termination order is dated 30.04.1994. The Management had issued a show-cause notice dated 31.03.1994 seeking an explanation regarding the petitioner's alleged misconduct. The Management conducted a preliminary enquiry granting the opportunity of hearing to the petitioner on 15.04.1994. Based on the preliminary enquiry report, a finding of guilt was recorded in the termination order. A perusal of the termination order shows that misconduct was the foundation of it. Therefore, in my opinion, three test criteria laid down in para no. 21 of the case of Pavanendra Narayan Verma (supra) are satisfied. Therefore the termination order is punitive and stigmatic. Therefore, I hold that, in the absence of full-fledged enquiry under the MEPS Rules, the petitioner's services could not have been terminated.
Once it is held that the termination order is punitive and stigmatic, the order of reinstatement is ordinarily followed. Whether the petitioner should be granted back-wages and other benefits by placing him under suspension is a matter to be decided by the Management in accordance with the law. I do not intend to issue any direction in that regard keeping in mind the principle laid down by the Constitution Bench of the Apex Court in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar [(1993) 4 SCC 727]. In that case, the Apex Court had occasion to consider what should be the incidental order to be passed by the Court/Tribunal to set aside the order of punishment. The Apex Court, in para no. 31, observed thus:-
“31. ……………………………... Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.”
In view of the authoritative pronouncement of the Constitution Bench of the Apex Court, I hold that even though the impugned order dated 30.04.1994 is set aside, the petitioner would be reinstated but, at the same time, the entitlement of back-wages and other benefits is a matter which will be subject to the final outcome of further action taken by the Management as per the MEPS Rules.
Accordingly, Writ Petition No. 1703/2009 partly succeeds.
The impugned order dated 25.01.2008 passed by the School Tribunal, Nagpur in Appeal No. 338/1996 and the order of termination dated 30.04.1994 passed by respondent no. 1, is set aside.
The petitioner in writ petition No. 1703/2009 shall be reinstated in service by keeping the question regarding the back-wages subject to the outcome of regular enquiry to be conducted by the Management under the MEPS Rules by placing the petitioner under suspension in accordance with the law.
The Writ Petition Nos. 3306/2008, 3321/2008, 3660/2008, 4605/2008, 4606/2008, 5477/2008 and 320/2009 are dismissed.
Pending application, if any, stands disposed of accordingly.