AI Structured Summary
Not yet generated for this judgment
Judgment
This civil revision petition is filed by the management against the Educational Tribunal which set aside the order of termination of the teacher working under them.
It is stated that the petitioner owns and runs several educational institutions including St. Anthony''s Higher Primary School which is recognised by the Government of Karnataka totally unaided by the State. The respondent was appointed as teacher on 18-5-1992 for a period of two years. She was on probation and it was to expire on 1-6-1994. As the probation was not satisfactory to the management, the teacher was discharged and relieved of her duty on 31-3-1994 without any stigma attached in the order of discharge.
The respondent assailed the said order mainly on the ground that she has become permanent as the probationary period cannot be kept beyond one year and six months as per the rules. Without any rule or regulations such contentions are accepted and the order was set aside.
It is now questioned in the above revision petition.
It is contended that though the Rule 7 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 prescribed one year six months probation, there is no prohibition for extension of the period. In fact on the date of discharge, the respondent had put on only one year and ten months service. The term of appointment empowered the management to issue an order of discharge simpliciter during the period of probation. In the absence of a deeming provision in the rule making an employee automatically confirmed as permanent, the employer continued only as a probationer. This legal position settled by the following decisions have not been considered.
State of Maharashtra v Veerappa R. Saboji, AIR 1980 SC 42;
Pratap Singh v Union Territory of Chandigarh, AIR 1980 SC 57;
Manjunath Subba Naik v Karnataka State Road Transport Corporation, ILR 1982 Kar. 13;
Gadekar N.G. v Karnataka State Road Transport Corporation and Another, 1981(2) Kar. L.J. 401.
The decisions relied upon by the respondent are not applicable. State of Punjab v Dharam Singh, AIR 1968 SC 1210, Om Prakash Maurya v Uttar Pradesh Co-operative Sugar Factories Federation, Lucknow, AIR 1986 SC 1844, M.K. Agarwal v Gurgaon Gramin Bank and Others, AIR 1988 SC 286. In the above cases the very rules of probation provided for deemed permanency and that the express prohibition for extension of probation period, whereas, Rule 7 applicable to the present case never provided for such an inference. The alternative conclusion, that even if the case was considered as on probation on the date of termination, the order of termination amounts retrenchment, is not based on any law or rule and under Rule 10, explanation 2(viii) such retrenchment can never be construed as a penalty. Unless the management passes an express order declaring satisfactory completion of probation period and treat the employee as permanent, the employee cannot be treated as having acquired the status of permanency by implication.
Heard the respective Counsels.
The point to be considered in this civil revision petition is:
Whether the termination and non-continuation of the employment is proper and legal?
The facts of the case are practically not in dispute. The petitioner was appointed and she was to complete her probation. The order of appointment Annexure-C, dated 18-5-1992 clearly stipulates that the respondent will be on probation for a period of two years which period may be reduced or extended if found necessary at the discretion of the management. In fact, there is also a provision that during the period of probation the services are liable for termination on without any notice or assigning any reason. This was only contract or offer of employment. The wordings in Annexure-C read, "if the offer is acceptable, you are requested to report for duty. Otherwise this order stands cancelled without notice". The conditions of the employment is a term of the contract. Once the term is accepted it is not open to the respondent to go back on such terms and try to wriggle out of the contract. This aspect has not been considered by the Tribunal at all. In fact in paragraph 12 of the order, the Tribunal comes to the conclusion that "in view of the evidence of P.W. 1 and R.W. 1 coupled with the documents produced by the parties, it is to be seen whether the appellant must be a probationer as on the date of termination or a permanent employee. While considering this question, the Tribunal has embarked upon interpretation of rules. Considering Rule 7, the Tribunal has come to the conclusion that the term of the contract cannot prevail over the rule. Even in the rule there is no prohibition and it gives power of the management to extend the probation. It is also not automatic under the rule that once probation completed the teacher becomes a permanent employee. The time probation having been fixed between the parties, it is not open to either party to wriggle out of the same. In fact the dictum of the Supreme Court in the Veerappan R. Saboji''s case, makes it clear that continuation of a judicial officer in service after period of probation cannot be deemed to be automatic confirmation of the employment. The attempt to distinguish the authority by the Tribunal is incorrect as the principle of law evolved in the above decision and the Tribunal cannot bend such a decision to suit to the needs of the teacher. In fact in Pratap Singh''s case, has held that the probation period is presumed to be extended is not confirmed. This is what the Supreme Court says: "This Court has consistently held that when a first appointment or promotion is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, he should be deemed to continue in his post as a probationer only, in the absence of any indication to the contrary in the original order of appointment or promotion or the service rules".
There cannot be better pronouncement of the situation than the Supreme Court. This again the learned Tribunal tried to distinguish forgetting the principles that is laid down is to be followed. Even the dictum of this Court in Gadekar''s case, to the effect that when the termination is discharge simpliciter the Court cannot interfere with such an order has not been considered by the Court below. The further dictum of the Apex Court in the State of Uttar Pradesh v Km. Premlata Misra, AIR 1994 SC 2411, to the effect that termination of service on grounds of unsatisfactory, unsuitability and unfitness and not by way of punishment cannot be said to be wrong and there is no necessity to conduct department enquiry under the service rules. In the light of the above dictum, the finding of the Tribunal "when the employee has completed the probation period prescribed under the statute, then I feel that his services are deemed to have been completed in the absence of any letter extending the probation period of employee by the institution", is prima facie an error apparent on the face of the record and has to be set aside. Finally the Apex Court''s ruling in Pratap Singh''s case, to the effect "that the employee is governed by the rules and even after probation of three years is over, the officer shall not be deemed to be confirmed, unless there is any rule which provides that in the absence of an order of confirmation at the end of the probation, the employee must be presumed to be confirmed" has to be followed. Admittedly, no such rule is available.
As against this Dharam Singh''s case, is a case of removal without following procedure under the Punjab Civil Service of an employee who was officiating in a permanent post which will not apply to the facts of the case. So also the case in Om Prakash Maurya''s case, is a case of reversion from the promoted post as per rules. The third decision in M.K. Agarwal''s case, is a case where the employee was neither discharged nor confirmed and finally the case reported in Western India Match Company Limited v Workmen, AIR 1973 SC 2650, is a case of probation which is inconsistent with the certified standing order and such order of discharge was held to be invalid.
In the light of the above rulings, which directly governs the situation, I find the order of the Tribunal is not sustainable.
The next question is one of finding out whether any stigma was attached to the order of discharge. It is not the case of the respondent that any stigma was attached.
In the above circumstances, I hold that the order of the Tribunal is not sustainable and the same is set aside, confirming the order of discharge. The revision petition is allowed. No costs.