Prabhakar Shrikrishna Kokade vs Adivasi Magaswarg Shikshan Mandal, Sindewahi and another

S.M. Daud, J.—This petition under Article 226 of the Constitution is aimed against the verdict of the School Tribunal in an appeal u/s 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - hereinafter referred to as the Act.

The respondent No. 1 runs a Secondary School at Wasera, Tahsil Sindewahi, District Chandrapur. The post of Head Master of the said school fell vacant and applications were invited to fill up the vacancy. The petitioner was one of the applicants and his application was given on 20th June, 1983. The first respondent by Annexure ''A'' dated 25-6-1983, informed the petitioner that he had been appointed as the Head Master and that his appointment was to be on probation. Academic Session 1983-84 concluded, the petitioner appears to have been continued for the next academic term i.e. 1984-85. On 10-9-1984, he was served with Annexure ''B'', which is in the nature of a notice informing the petitioner that his services were no longer required and that he was being relieved with immediate effect with one month''s pay being given to him in accordance with the Rules. The petitioner contends that one month''s pay promised in Annexure ''B'' was not then given or ever given. Impugning the termination by an appeal u/s 9 of the Act, the petitioner approached the Tribunal which has been impleaded as respondent No. 2 to this petition. The Tribunal rejected the appeal and the reasons in support given by the Tribunal are as follows:

''''The Management has taken action under Rule 28 of the Rules framed under the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - hereinafter referred to as the Rules. The appellant was unable to show that he was a permanent employee of the respondent. As a matter of fact, he served the institution from 27-6-1983 to 10-9-1984 and thus he Was a temporary employee. Thus his services could be terminated under Rule 28 and the order of termination must be held to be legal and valid."

The petitioner impugns the decision of the Tribunal and we allow the petition for the reasons given below:

Rule 28 of the Rules to the extent relevant, is worded thus:

''�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."

Annexure ''A'' shows that the petitioner was on probation. Therefore, Rule 28 was not applicable to the petitioner. He was a temporary employee, but on probation and, therefore, not governable by Rule 28. Once this conclusion is reached, the termination order at Annexure ''B'' becomes vulnerable. The petitioner was appointed to fill up a permanent vacancy and he was, by Annexure-''A'' placed on probation. Section 5(3) of the Act permits the termination of a probationer''s services, but only for one reason, namely, that his work or behaviour is not satisfactory. Annexure ''B'' does not say that petitioner''s services were being dispensed with because of anything unsatisfactory in his working or behaviour. From this, it follows that the management was not taking recourse to the power conferred by section 5(3) of the Act. According to the learned counsel representing the respondent No. 1, instances of unsatisfactory working and behaviour of the petitioner had come to the notice of the management. Despite this, the management did not want to inflict a stigma upon the petitioner. Therefore, instead of taking recourse to the power conferred by section 5(3) of the Act, the respondent No. 1 passed an order of termination simpliciter. But, that was not the case made out by the respondent No. 1 before the Tribunal. Even in this Court, the stand taken by the respondent No. I in its return is that Annexures ''A'' and ''B'' speak for themselves. In Annexure ''B'' is a correct depiction of the position, it cannot be said that the management preferred to take an indulgent view of the shortcomings of the petitioner. Even if it did take such a lenient attitude, the result would not be different. Of its own volition, it has foregone the right to exercise the power conferred by section 5(3) of the Act and it cannot now turn back to plead that its omission was inspired by a laudable motive, for which reason the petitioner should not be given his entitlement under the law. The termination is defensible neither under Rule 28 nor u/s 5(3) of the Act. In the result, the petitioner is entitled to the relief claimed by him. The verdict of the second respondent is hereby quashed and a declaration is made that the petitioner continues to be in service with the entitlement to full back wages. Rule in these terms is made absolute with parties being left to bear their own costs.