JUDGMENT
Dharmadhikari B.P., J.
1. On 27-1-2003, the Hon’ble Apex Court has in Civil Appeals Nos. 624, 625 and 626 of 2003, directed the High Court to decide writ petitions expeditiously. The respondent employees in all these writ petitions accordingly moved applications for grant of fixed date hearing, which were listed before this Court for the first time on 24-1-2005. The applications were considered in presence of both the parties and writ petitions were heard thereafter on merit from 24-2-2005 onwards. Hearing continued for almost six dates.
2. In all these writ petitions under Articles 226 and 227 of the Constitution of India, petitioner No. 1 Institution and petitioner No. 2 school are challenging the judgment of the Presiding Officer, School Tribunal, Nagpur, dated 6-4-1999, whereby the School Tribunal has quashed and set aside the termination of services of employees and has ordered their reinstatement from 29-6-1991 with back wages and costs.
3. The Advocate for the petitioners contends that petitioner No. 1 is a registered society and it runs a school and Junior College by name Gramin Vikas Vidyalaya of which petitioner No. 2 is the Headmaster. It is their case that respondent No. 2 employees in respective writ petitions were appointed on probation on the post of Assistant Teacher in the High School for a period of two years from July, 1989 onwards and the Education Officer accordingly granted approval to their appointment. As the work of employees was not satisfactory during the said period and as there were adverse remarks in their Confidential Reports the Managing Committee of petitioner No. 2 by Resolution dated 15-3-1991 authorised petitioner No. 2 to issue termination order to them. Accordingly, petitioner No. 2 Headmaster gave pre-intimation notice of termination on 6-5-1991 and then issued a letter for handing over charge on 29-6-1991 before the completion of period of probation. It is their case that respondent No. 2 received termination order on 6-5-1991 by which his services were to be terminated with effect from 29-6-1991/11-7-1991. The employees filed appeals before the School Tribunal after expiry of period of 30 days i.e. beyond the period of limitation prescribed thereof under section 9(2) of Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977. No separate application for condonation of delay as required under section 9(3) of the Act was filed and State Government was also not added party respondent in appeals. The appeals were opposed by the petitioners and on 6-4-1999, the School Tribunal allowed the appeals.
4. This Court has admitted the writ petitions on 10-7-2001 and on 28-6-2002, this Court considered the Civil Application No. 1370 of 2002 moved by the petitioners for grant of stay. The stay was granted subject to deposit of entire amount of back wages as directed by the School Tribunal within a period of three months. The said orders were challenged in appeals mentioned above and the Hon’ble Apex Court set aside the direction but the petitioner were directed to pay arrears of salary of two years to respective employees within a period of six weeks by the Hon’ble Apex Court. The employees were permitted to withdraw that amount on furnishing security.
5. Heard Shri Kaptan, Advocate for the petitioner, Shri, A.G.P. for respondents No. 1, 3 and 4 and Shri Bhandarkar, Advocate for respondent No. 2.
6. Shri Kaptan, Advocate for the petitioners contended that the reasoning given by the School Tribunal for quashing and setting aside of termination show total non-application of mind. He contends that adverse remarks are not required to be communicated to the probationers. Her further contends that adverse remarks for the year 1989-90 were communicated to respective employees and the employees were continued in the next session i.e. 1990-91. He states that they were terminated at the end of probation period i.e. on 29-6-1991 or on 11-7-1991 and as this termination was before the month of August, adverse remarks recorded during the year 1991 were not communicated. He contends that therefore, the reason given by the School Tribunal that the adverse remarks were not communicated for the year 1990-91 is even otherwise incorrect. He further contended that the termination orders did not cast any stigma upon respondent No. 2 and it was simple termination and as such when the services of the respondent employees were terminated for non-satisfactory work, the School Tribunal was not justified in interfering in the matter. He has relied upon various cases to which reference will be made little later.
7. As against this, Shri Bhandarkar, Advocate for respondent No. 2 employees contended that adverse remarks are required to be communicated. He further contends that a probationer must be informed about deficiencies found in his working by the management. He states that the School Tribunal itself has found that communication of adverse remarks for the year 1989-90 is also doubtful. He contends that adverse remarks for the year 1990-91 are fabricated and not communicated. It is his argument that termination order has not been passed by exercising powers under Section 5(3) of the Act and as termination does not give any reason for termination, the Management cannot be permitted to place any such reason for the first time in appeal before the School Tribunal. He contends that the pre-intimation notice dated 6-5-1991 was not served upon any employee and the order dated 29-6-1991/11-7-1991 is the order of termination. It is his argument that the management has come up with the case that before the order of termination of services of employees, the Managing Committee has passed a resolution on 15-3-1991 and language of that resolution clearly reveals that the power of termination is exercised with some ulterior motive and arbitrarily. He contends that in fact it shows that the orders of termination are punitive in nature. He further contends that under Articles 226 and 227 of Constitution of India, this Court should not interfere in the findings recorded by the School Tribunal in the matter. He further contends that the assessment of employees placed on record by the management for the period from 1-7-1989 to 30-6-1990 is fabricated. He further contends that pre-intimation notice filed on record is also fabricated. It is his argument that by placing incorrect documents on record, the petitioners have tried to mislead this Court as also the Hon’ble Apex Court and have derived advantage therefrom. He therefore contends that in extraordinary jurisdiction, this Court should not exercise its power in favour of persons. He contends that writ petitions deserve outright dismissal.
8. In reply, Shri Kaptan, Advocate for the petitioners has contended that perusal of appeal memo itself reveals that pre-intimation notice of termination as also the order of termination is received by employees and they have not made any grievance about its non-receipt before the School Tribunal. He contends that the pre-intimation notice originally is in Marathi and its translation is annexed with the petition. He contends that the Marathi document runs into three pages and the translation contains material which appears on its front page i.e. page No. 1 and page thereafter i.e. page No. 3 He contends that, the material which appeared on the reverse of page No. 1 i.e. on page No. 2 has not been translated. He contends that this is only out of sheer inadvertence and there was no intention either to mislead this Court or the Hon’ble Apex Court. He contends that there was no question of misleading the courts or even respondent No. 2 employees as the original Marathi document was already filed before the School Tribunal and respondent No. 2 employees were aware of the same. He, therefore contends that the argument about not approaching this Court with clean hands is misconceived and unsustainable.
9. The learned Member of School Tribunal has in para 10 of its judgment found that the management has filed before it Confidential Reports of employees for the period 1989-90 in which there were so adverse entries. It has thereafter found that the Management preferred to continue the employees in spite of these entries for next session i.e. 1990-91 and there were no Confidential Reports for the subsequent period. It has further found that the documents regarding Confidential Reports for 1989-90 and its communication to employee appear to be doubtful. In this connection, Shri Kaptan, Advocate has invited attention of this Court to provisions of Rule 15(3) of Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 (hereinafter referred to as Rules). He contends that said Rules nowhere contemplates service of adverse remarks upon the employees. He relies upon the judgment of this Court in the case of (S.F.S. Prasarak Mandal v. Dhananjay), reported at 2004(3) Mh.L.J. 18, in support of this contention. He further points out that as per Rule 15(3) of the Rules, the adverse remarks are required to be communicated by August every year and as termination has taken place before August, there was no question of communicating said adverse remarks. The argument of other side is that the adverse remarks must be communicated. The judgment of this Court reported at 2004(3) Mh.L.J. 18 (supra) has considered this issue and in para 8, it is observed that it is not necessary to communicate adverse remarks. The said para 8 reads as under :
“The learned Counsel for respondent No. 1 vehemently contended that adverse remarks or unsatisfactory working, if any, were never communicated to the respondent No. 1. Learned Counsel invited my attention to Rule 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, the “Rules”) and submitted that adverse remarks ought to have been communicated to the respondent No. 1. What is relevant for the present purpose is Sub-rule (6) of Rule 15 of the rules. It is reproduced below for ready reference :
“(6) Performance of an employee appointed on probation shall be objectively assessed by the Head during the period of his probation and a record of such assessment shall be maintained.”
As per Sub-rule (6) of Rule 15, the performance of a probationer shall be objectively assessed by the Head during the period of his probation and record of assessment has to be maintained. Considering the Scheme of the Act and the Rules, it can be said that Sub-rule (6) of Rule 15 is the only relevant rule as far as employees on probation are concerned. On assessment, the Head had to inform to the management for necessary action. It is provided under Sub-section (3) of Section 5 of the Act that it in the opinion of the Management, the work or 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 him one month’s notice or salary of one month in lieu of notice. Therefore, it is the opinion of the Management which weighs with the services of a probationer. If Sub-section (3) of Section 5 of the Act and Sub-rule (6) of Rule 15 of the Rules are read conjointly, it can very well be inferred that adverse remarks need not be communicated to a probationer in order to grant him opportunity to improve upon the same or agitate the same. All that is provided is the assessment of probationer’s work by the Head and decision of the Management whether to continue his services or not. Communication of adverse remarks, holding of enquiry; grant of further chance for improvement etc., in my view, is not contemplated either under Section 5(3) of the Act or Rule 15(6) of the Rules. Therefore, if the management is of the opinion that during the period of probation, the services of a probationer were not satisfactory, it can very well terminate the services of such employee before the probation period comes to an end.”
This Court thus concluded that reading of Section 5(3) with Sub-rule 15(6) of the Rules reveal that adverse remarks need not be communicated and all that is necessary is assessment of probationer’s work by Head and decision of management whether to continue his services or not. 10. The other ruling on which respondent No. 2 employees has placed reliance is in Writ Petition No. 2616 of 1983 decided on 5-12-1985. In this ruling the Hon’ble Shri Justice S.P. Kurdukar, in paras 5 and 6 has observed that if decision to terminate services of probationer is based upon Confidential Reports which were not communicated, such decision will have to be held illegal. In para 5, the learned Judge has considered the arguments of the Counsel for the management and the findings recorded are in para 6 which read as under :
“Coming to the confidential reports of the petitioner, it may be stated that for the year from July 1981 to April, 1982, the supervisor of the first respondent on 11-9-1982 made certain adverse remarks and which were communicated to the petitioner :
There is no dispute about this fact. Notwithstanding these adverse remarks, the petitioner was continued for the next academic year and it is common ground that no adverse remarks were communicated to the petitioner for the year 1982-83. Mr. Hussain relying upon the contents of para 18 in the affidavit in reply urged that the adverse remarks for the year 1982-83 were duly communicated to the petitioner orally and the same were recorded in the confidential reports. Relying upon this recital he urged that if the confidential reports of the petitioner for the year 1982-83 were not satisfactory, the management was justified in resolving in its meeting dated 18th March, 1983 to remove the petitioner from the service. The oral communication does not detain me for a minute in view of the requirement of Sub-rule (3) of Rule 15 of the said Rules. In the absence of any written communication of the adverse remarks to the petitioner, the consequence provided in Sub-rule (5) of Rule 15 must follow and it will be deemed that the work of the petitioner was satisfactory during the period 1982-83. If the School Committee in its meeting dated 18th March, 1983 has resolved to remove the petitioner from services and if such decision is based upon confidential report for the year June 1982 to April, 1983 which was not communicated to the petitioner obviously, such decision will have to be held illegal and not consistent with the mandatory provision of the Act and the Rules.”
Shri Bhandarkar, Advocate for respondent No. 2 employee has argued that thus there is conflict between the two judgments and therefore, further necessary action in this respect needs to be taken.
11. Similar issue is considered by the Hon’ble Justice Kochar, in the ruling in the case of (Shri Vinayak Vidyadayini Trust v. Arun T. Prabha)2, reported at 2002(6) Bom.C.R. (O.O.C.J.)9 : 2002(4) All.M.R. 462 and in paras 6 and 7, after considering the provisions of Section 5(2) and 5(3) of the M.E.P.S. Act. this Court has observed that there is no law that the probationer need not be advised orally or even in writing. The relevant observations as contained in paras 6 & 7 read as under :
“6. Under Section 5(2) of the M.E.P.S. Act, a probationer is appointed in a permanent vacant post for a period of 2 years and can be terminated under Section 5(3) if his/her work or behaviour is not satisfactory. On completion of the probationary period of two years, to the satisfaction of the management in respect of the work and behaviour, the probationer shall be deemed to have been confirmed. Every probationer being on the threshold of his career tries to exert himself to put the best of his qualities in his work and behaviour. None would ordinarily shirk his work or would behave improperly. To earn permanency and confirmation in the service, a probationer put his best. He/she, however, certainly expects to get guided or advised in the work by the superiors so that the probationer acquires the bench mark required. He has to learn by experience while working and he expects to be properly taught or told to correct his mistakes, flaws and lapses. That is the purpose of probation period. He needs a parent like treatment to be put on right track. And after closely observing and assessing his work and behaviour the employer takes a bonafide decision either to confirm or not to confirm him in service. If in spite of the best efforts by the employer the probationer does not come upto the expected mark of suitability of that post, he can be terminated from employment without giving him any memo for his unsatisfactory work. There is no law that a probationer need not be advised or guided orally or even in writing. Such things would establish the bonafides of the employer and his good faith. If the order of terminations challenged in the Court of law, such tangible or objective material produced by the employer would substantiate his case that his subjective satisfaction about the suitability of the probationer was based on proper assessment and that in spite of opportunity and advice, there was no improvement in the work and behaviour of the probationer. It would rule out any allegations of malice, mala fides or ulterior motives on the part of the employer.
7. As far as the performance of the respondent teacher is concerned during the period of probation, she ought to have been at least sounded about her performance. There is hardly any credible material on record to indicate that the performance of the teacher was correctly and properly assessed to come to a bona fide conclusion that the probation period of the teacher could not be extended or she deserved to be discontinued from employment, on the ground of unsatisfactory work. The services of every probationer must be seriously and properly assessed as the probationer is new entrant in the career and at the very threshold he or she cannot be scuttled from rise of the career. That is a very delicate period in every entrant in the service. The purpose of the probation period is well known. Every probationer must be sounded, told, warned that he was committing certain mistakes and where he or she should improve. If. the probationer in spite of the efforts and warning of the Management fails to improve the performance then perhaps the management would be justified in terminating the employment of the probationer. Merely because an employee is appointed on probation period and as soon as the probation period is completed, he or she cannot be thrown out of employment arbitrarily. The work and performance has to be genuinely and properly assessed during the course of the probation period as was done in the case before the Supreme Court relied upon by Shri Panicker i.e. (Krishnadevaraya Education Trust and Anr. v. L.A. Balakrishana), . In that case the performance of the probationary teacher was assessed by a committee which was constituted to opine about the job proficiency of the probationer. The Committee on the basis of material came to a conclusion that the job proficiency of the probationer was not upon the mark. This was held to be a valid reason for terminating the services of the probationer in the case before the Supreme Court. This is a genuine and bonafide effort on the part of the employer to assess the services or the work performances of the probationer. The aforesaid ratio of the judgment of the Supreme Court is not helpful to Shri Panicker. He has also relied upon a judgment of the Supreme Court in the case of (Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences and Anr.), . Even in this case the facts are totally different. In that case, the performance of the probationer was totally unsatisfactory as his probation period was extended twice and that there were several allegations made against him and he challenged that order of termination as punitive. The Supreme Court in the aforesaid circumstances, held that the order of termination of a probationer in the circumstances in that case was not punitive. Shri Panicker has also relied upon a judgment of the Division of this Court in Writ Petition No. 1094 of 1985 in the case of (Mohammed Haji Saboo Siddik and Ors. v. State of Maharashtra and Ors.), in support of his contention that it was not necessary for the management to issue any memo to the probationer for his unsatisfactory performance. The learned Judges have held that unless there is material to show that the order of termination was actuated by malice or with ulterior motives, it was not for the Court to interfere with the assessment of the work of the probationer. They have referred to the memo of unsatisfactory work of the probationer but they have not said that the probationer need not be guided, advised or corrected at appropriate times. Timely caution or warning would keep the probationer away from any pitfalls. In the present case the School Tribunal has positively come to a conclusion that there was enough material to show that the order of termination was issued with ulterior motives and the same speaks of malice. The Division Bench has not laid down any ratio that in each and every case a probationer need not be issued any memo or need not be told where and how he should improve his performance. If that is so, the entire purpose of appointment of a new entrant on probation would be defeated and destroyed. In the present case, there is nothing on record to show that her performance was bad and that her teaching was not upto the mark. Her work was not assessed by any committee or independent persons. Whatever points were raised by the school management in the show cause memo have been satisfactory explained by the teacher. We can take judicial note of a fact that it is very difficult to bring up the level and standard of the pupils who are living in slum area. The present school is situated in a slum area where the pupils from Adivasi and backward communities come for education. It takes tremendous pains to teach such pupils who and whose parents have no doubt suffer from inherent disabilities which required to be removed by the teachers. The involvement of the students which the head mistress talked of is not that easy and it cannot be achieved in a short span of period. It would take perhaps a generation to create a sense of involvement in that class and to bring them upto the present mark of civilisation. I, therefore, do not find any draw backs in the efforts which the respondent teacher might have taken which appears from her explanation.”
Thus, this Court has taken the view that the probationer needs to be guided during the period of his probation and employer in order to show his bona fides and good faith must show that assessment of work of probationer was based proper material and inspite of opportunity, there was no improvement in the work and behaviour of the probationer.
12. In this case as already observed, the School Tribunal has expressed doubt whether adverse remarks were communicated to the respondents employees or not. In fact, the School Tribunal has also expressed doubt about the very document incorporating Confidential Reports for the period 1989-90. The said documents is annexed by the petitioner as Annexure II with their petition. Respondent No. 2 in Writ Petition No. 1873 of 1999 states that the said document is again a fabricated document. He has produced the xerox copy of the document as maintained in original, containing entries made by the petitioners in handwriting. He points out from that in Para II i.e. form of Confidential reports for Head or Teacher of the School, below Clause 10 dealing with subjects taught, there are certain interpolations. He points out that in column 1-A dealing with knowledge and preparation of subject, word used initially was fair and later on words “un” are placed before the said word fair to make it “unfair”. He further points out that similarly in subject Clause 3(e) dealing with Class control and discipline “not so” are added before the word “far” to make it “not so fair”. He further states that same words are added in relation to General remarks and clauses Sincerity, loyality etc., fidelity in carrying out instructions issued by the Head of the School, Obedience, Penalties. He states that similarly, words “un” are added before the remarks “fair” appearing in Clause pertaining to Extra class activities, Inclination to Cooperate with the colleagues. Thus, he contends that these words have been added later on to convert otherwise positive report into an adverse report. He states that from typed copy produced as Annexure II with the petition, these things do not become apparent. He further points out that in respect of column in relation to fitness to continue in present post. It is mentioned that employee fit to continue for the next year. The addition of words as mentioned above can be seen with naked eyes and the first letter or word fair is capital and it could not be altered though the other words are added before it. The reading of the report with these additions reveal that there are some contradictions in it. In spite of all this, the management has found him fit to continue for the next year. Thus, the doubt expressed by the School Tribunal, therefore, appears to be correct.
13. Respondent No. 2 employee has been thus continued in the next year 1990-91. No form of assessment or any adverse material is produced before the School Tribunal in relation to said period by the petitioners. No such material is produced even before this Court by them. In their reply before the School Tribunal, the management has not pointed out as to how any why the management found behaviour and services of respondent No. 2 unsatisfactory for the period 1990-91. It is thus apparent that when management found it fit to continue employee for next year, it was obligatory for the management to show that it was having some material with it to arrive at a finding that performances of probationer during the year 1990-91 was not satisfactory. As observed in all above judgments, said performance is required to be judged objectively. The employee is required to be guided and also warned in case it is necessary. No such instances are pleaded by the petitioners. Under the circumstances, it cannot be said that the School Tribunal was not justified in not accepting the arguments of management. As in this case, very existence of said adverse material for the year 1990-91 is doubtful, there is no question of communicating it to respondent No. 2 employee. Thus, the issue of alleged contradiction between two judgments of this Court or correctness of view taken by the Court need not be gone into present circumstance.
14. The provisions of Section 5(3) of the M.E.P.S. Act, permit the petitioners to terminate the services of a probationer it in its opinion the work of behaviour of such probationer during the period of his probation was not satisfactory. Said sub-section reads as under :
“If in the opinion of the Management, the work or behaviour of any probationer, during the period of his probation, is not satisfactory, the Management any terminate his services at any time during the said period after giving him one month’s notice, or salary of one month in lieu of notice.”
Bare reading of said sub-section reveals that the management has been empowered to terminate the services at any time even during the period of probation after giving the employee one month’s notice or salary of one month in lieu thereof. There is dispute between parties about the service of termination order upon the employee. The same will be considered later on. The petitioners have come up with the case that they have initially issued a pre-intimation notice regarding termination on 6-5-1991. The said document at its end contends signatures of respondent No. 2 employee with date below it. In this pre-intimation notice, it is mentioned that the employees are terminated on specified noted dates and pre-intimation is to be considered as order of termination. It is further mentioned that willing teachers who intend to serve further should apply as per advertisement published in the month of June. It is further clarified that no assurance to give any chance to said teachers again will be given as more qualified teachers would be selected in the process. This notice is thereafter followed by another communication which is dated 29-6-1991. It is styled as termination order and it mentions that as per pre-intimation notice dated 6-5-1991, services of respondent No. 2 are terminated with effect from a particular date. The said date is 29-6-1991 in case of employee in Writ Petition No. 1873 of 1999, 29-6-1991 in case of employee in Writ Petition No. 1874 of 1999 and date 11-7-1991 in case of employee in Writ Petition No. 1877 of 1999. The pre-intimation notice does not. contain any reason. The School Tribunal has in para 7 of its judgment observed that the management has taken before it a ground of limitation contending that appeals ought have been filed within 30 days of the pre-intimation notice dated 6-5-1991. If further mentions that the stand of employees before it was that no such pre intimation notice was served upon employees but their signatures only were obtained even without, permitting them to read it. It is further mentioned that respondent No. 2 employee before the School Tribunal states that he was assured by the Secretary of the institution that he would be continued in service in next year and therefore, he has waited. The School Tribunal has thereafter concluded that since in fact no order of termination was received by the appellant before it and he only put his signatures upon it, the management’s contention that it was served upon him on 6-5-1991 is not accepted. The School Tribunal has observed that section 9(2) of the M.E.P.S. Act contemplates receipt of order and not mere signature of employee. The School Tribunal has thereafter observed that therefore, the appellant before it did not receive order of termination dated 29-6-1991. It had thereafter considered the provisions of Section 5(2) and 5(3) of the M.E.P.S. Act as mentioned above and it found that the management failed to show that services and work of respondent employee was unsatisfactory during the period of probation.
15. Shri Kaptan, Advocate for the petitioners has relied upon the judgment of the Hon’ble Apex Court in the case of Kriskandevaraya Education Trust v. L.A. Balkrishna, reported at A.I.R. 2001 S.C. 625, to contend that the reason need not be mentioned in the order of termination. A perusal of this judgment reveals that if the order of termination itself mentions that services are being terminated because performance of the probationer was not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. The Hon’ble Apex Court has further observed that normally, therefore, the employer does not mention that services are being terminated and when such order is challenged, the employer has to indicate the grounds on which services of probationer were terminated and when in response to such challenge the employer states that services were not satisfactory, that would not ipso facto mean that the services of the probationer were being terminated by way of punishment.
16. As against this Shri Bhandarkar, Advocate has relied upon the judgment of the Hon’ble Apex Court in the case of (Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences), reported at , more particularly, paras 27 and 28. In para 27, the Hon’ble Apex Court has considered the meaning of the word “stigma” and in para 28, after placing reliance upon its earlier judgment in the case of (State of Orissa v. Ram Narayandas), reported at , the Hon’ble Apex Court has held that use of word ‘unsatisfactory work and conduct” in termination order will not constitute stigma. In this connection, Section 5(3) of the M.E.P.S. Act reproduced above clearly empowers the management to terminate the services of the probationer if work or behaviour of any probationer during the period of probation is not satisfactory. In view of this provision, use of phrase “work or behaviour not satisfactory” in termination order will not amount to stigma.
17. By placing reliance upon the judgment of the Hon’ble Apex Court in the case of (Central Inland Water Transport Corporation Limited v. Brojo Nath), reported at , Shri Bhandarkar, Advocate has contended that the order of termination here did not contain any reason and if the reasons are allowed to be supplemented later on, it would permit the employer to fill in lacuna and as such it would permit employers to terminate the services arbitrarily. He contends that in such circumstances, services of the probationer would be at the pleasure of the management. However, in the facts of present case, in view of Section 5(3) of the Act, it cannot be said that services of probationer are at the pleasure of management. It is to be noticed that the petitioner management has, before the School Tribunal, come up with the defence that services of employees were terminated because of their non satisfactory work and behaviour during the period of probation. The situation considered by the Hon’ble Apex Court in the above case was totally different. The Hon’ble Apex Court has considered the provisions of Rule 9(1) of Central Inland Water Transport Corporation Limited Service Discipline and Appeal Rules, 1979, which permitted the employer to terminate the services of employee without assigning any reason. The ruling therefore, has no application in the facts and circumstances of the present case.
18. Shri Bhandarkar, Advocate for respondent employee has also relied upon the judgment of the Hon’ble Apex Court in the case of (Express Newspapers (P) Ltd. v. Labour Court), reported at , particularly para 12 in which the Hon’ble Apex Court has held that without anything more an appointment on probation for six months gives the employer no right to terminate the service of an employee before six months had expired-except on the ground of misconduct or other sufficient reasons in which case even the services of a permanent employee can be terminated. It is the argument of Shri Bhandarkar, Advocate that services have been terminated one day before the expiry of period of probation i.e. on 29-6-1991 and as there is no misconduct alleged or proved, such termination is bad and the petitioners did not possess power to terminate respondent No. 2 employees before the expiry of period of probation. He has also relied upon the judgment of this Court in the case of (Shikshan Prasarak Mandal v. Presiding Officer and Ors.), reported at 1995(1) C.L.R. 459, for the same purpose. Here again, the Division Bench of this Court has considered the above mentioned ruling and has found that the management did not possess power to terminate services of the probationer before expiry of period of probation. However, the case pertains to the employee of college and was regulated by totally different law and has been decided by the College Tribunal. The said ruling, therefore, has no application in the facts and circumstances of the case. The perusal of Section 5(3) reproduced above clearly shows that if management finds that work or behaviour of the probationer is not satisfactory, it is empowered to terminate him even during the period of probation.
19. Shri Bhandarkar, Advocate for respondent No. 2 employee has further argued that the resolution dated 15-3-1991 which is the cause of termination of services of respondent No. 2 itself shows that the services are terminated as the management found that behaviour of teachers was not satisfactory and there was no change in their teaching. He contends that this constitute stigma and as there was no Departmental Enquiry held, the termination is liable to be quashed and set aside. In support of his contention, he has relied upon unreported judgment of this Court in Writ Petition No. 3994 of 2003 dated 16-7-2004. However, the said ruling has no application because in para 7 thereof, this Court has considered the reply filed by the employer before respondent No. 1 Tribunal and said reply reveals that there were several complaints of parents and students against the employee and allegation was also about his misbehaviour with girl students and there were complaints in relation thereto by parents. It was further found that he used to remain absent and still use to sign for those dates. The management in its reply further disclosed that he was also involved in an incident of theft. It is in this view of the reply that this Court concluded that the unsuitability was not the real reason for terminating the services of employee. It has thereafter found that the foundation of the termination was alleged misconduct and therefore, it was not termination simpliciter. The facts in present case are totally different. There is no such allegation made by the petitioners against respondent No. 2 employee. The perusal of judgment of the Hon’ble Apex Court reported at (supra) particularly paras 33, 34 and 35 reveals that there the Resolution of Committee was part of termination order an enclosure to it. The offensive material was not contained in the order of termination nor in the resolution which was enclosed. It was in manager’s report which was mentioned in enclosure. That report of manager was placed before the Court along with counter affidavit and allegations in that report were the basis for termination and said report contained words “amounting to a stigama”. The termination order was, therefore, set aside. In the case supra, the Hon’ble Apex Court has held that this material which amounts to stigma need not be contained in termination order of a probationer but might be contained in documents referred to in the termination order or in its annexures. The Hon’ble Apex Court has thereafter clarified that such a document could be asked for, or called for, by any future employer of the probationer and such order of termination would stand vitiated on the ground that no regular enquiry was conducted. In the facts of present case, it is apparent that there was no such mention in resolution dated 15-3-1991 either in pre intimation of termination or in termination order. It is to be noticed that the resolution, therefore, could not have been called for any future employer of probationer. As such, it cannot be said that there was stigmatic termination of probationers in this case. Not only this, Section 5(3) permits employer to terminate the services of probationer for his unsatisfactory work or behaviour and hence use of those words do not cast stigma. The cases on which reliance is placed are not relevant here. 20. Shri Bhandarkar, Advocate for respondent No. 2 employee has also relied upon the judgment of Delhi High Court in the case of (Pankaj K. Jain v. Government of NCT of Delhi and Ors.)”, reported at. 2000(1) C.L.R. 149, to contend that if no reasons are disclosed in the order of termination, the same cannot be allowed to be disclosed for the first time before any Tribunal or Court. The perusal of paras 3, 4, and 5 of said judgment reveal that there the order of termination did not disclose any reason but in counter affidavit filed by the management. The point raised was that it is minority institution and hence the impugned order could have been passed without obtaining approval of Director of Education. It was further mentioned that the employee concerned failed to produce the required certificate showing his qualification as typist from a recognised agency and he did not disclose his real financial position and secured the appointment on compassionate grounds. It was further mentioned that employee was running an offset printing press, owned a car and was paying income tax. It was thereafter added that his work was not satisfactory and inspite of opportunity to him, he failed to improve. The Delhi High Court has in this back ground in para 5 concluded that the order of termination has been passed on extraneous considerations and management cannot seek to sustain the order of termination by supplying reasons in counter affidavit. The position here is entirely different. The management has passed simple order of termination at the end of period of probation and has mentioned the reason therefore as required in Section 5(3) of the Act, in reply. 21. Shri Bhandarkar, Advocate has also placed reliance upon the Division Bench Judgment of this Court in the case of (Prabhakar v. Adivasi Magaswarg Shikshan Mandal Sindewahi), reported at 1993(1) Mh.L.J. 375, in support of same submission. However, perusal of said judgment reveals that the School Tribunal found that the management before it has taken action under Section 28 of the M.E.P.S. Rules 1981. The Hon’ble Division Bench has found that employee was on probation and Rule 28 was, therefore, not applicable. If found that therefore, the order of termination became vulnerable. Thereafter, it is recorded that services of probationer could be terminated only for one reason i.e. his work or behaviour was not satisfactory and termination order does not disclose any such reason. The Division Bench has concluded that the management was not taking recourse to power by Section 5(3) of the Act. The Division Bench has found that the management noticed instances of unsatisfactory working and behaviour of employee but management did not want to inflict a stigma upon him and therefore instead of taking recourse to the powers conferred by Section 5(3) of the Act. Management passed an order of termination simplicitor. The Division Bench found that this was not the case of management before the School Tribunal. It will thus be seen that the Division Bench found that the management did not exercise powers under Section 5(3) of the Act and therefore, the findings have been arrived at. The facts in the present case are entirely different. The petitioners have come up with the case that they have terminated services of respondent No. 2 employee under Section 5(3) of the Act. This ruling, therefore, has no application. 22. Shri Kaptan, Advocate for the petitioners has relied upon the judgment of the Hon’ble Apex Court in the case of (Chandra Prakash Shahi v. State of U.P.), to contend that though no procedure prescribed by Act of Rules is followed and services of probationer are terminated, there is no stigma. He has relied upon paras 32, 33 and 34 of this judgment in support of his contention. However, for the reasons already discussed above, it is not necessary for this Court to consider the present judgment. Shri Kaptan, Advocate has further relied upon the Division Bench ruling of this Court in the case of (P. Education Society, Chiplum v. U.V. Pathak), reported at 1996(1) M.L.R. 557, to contend that management is empowered to terminate the services of probationer teacher at any time during the period of probation and even on last day thereof if his work is not satisfactory. I do not find that there is any debate called for in present case on this issue. He has further relied upon the Division Bench judgment of this Court in the case of (Abdul Marian Azmi v. Sayed Mohammad Askari and Ors.), reported at 1989(1) C.L.R. 428, to contend that stand of petitioners that the services of probationer were unsatisfactory is sufficient. He further relies upon the judgment of this Court in the case of (Vitthal Pandharinath v. Kedamath Shikshan)16, reported at , to contend that management is the best judge in the matter. Insofar first ruling is concerned, the perusal of paras 5, 6 and 7 of this judgment reveal that the management produced before thee Tribunal, memos and warnings issued to the employee during the period of service and what was required to be communicated was only the adverse remarks and not merely the fact that employee’s work was not satisfactory. The Division Bench has found that in many cases there may be no adverse remarks against the employee but still work may be found unsatisfactory. It has observed that the fact about behaviour was brought to the attention of the Tribunal only with a view to sustain the action of management. It has found that there was material on record to show behaviour of said employee with lady teachers and in respect of handling of funds of management to highlight that the management acted bona fide in the matter. As already observed above, there is no such material produced before the School Tribunal and therefore, this ruling has no application. The ruling reported at (supra) states that if the record as required by Rule 15 of the MEPS Rules is not maintained then the only conclusion which could be drawn would be that work of employee was satisfactory. Again para 6 of this ruling reveals that there was material before the Tribunal which permitted management to pass resolution. It was found that according to management, the complaints were found to be true by the management and the management felt that presence of employee was not in the interest of school. The Division Bench further found that there was material which justified the action of management and in this back ground it was observed that the management was the best Judge of situation and as the employee was on probation, the satisfaction of management which decided the issue was unquestionable. It has also negatived the argument of employee that there was stigmatic termination in view of the fact that the order of termination was plain and simple. Again, it will be seen that in view of the availability of material on record to show bona fides for the action taken by the management, the Division Bench has taken the view against employee. In the facts of present case, such a course is not possible.
23. Shri Bhandarkar, Advocate has argued that here the petitioners have acted with mala fides. They have issued an advertisement for fresh recruitment on 18-6-1991 and interviews were held on 24-6-1991. He contends that the termination order was not served upon the employees prior to 29-6-1991. He further contends that there is no pre-intimation notice and it is fabricated document. It is therefore, his argument that management, has not approached the School Tribunal and this Court in Writ Petition with clean stands. He contends that insofar pre intimation notice is concerned the deliberate wrong translation has been filed to mislead this Court and the Hon’ble Apex Court. He has also relied upon the judgment in the case of (Ram Phal Singh v. Chandra Datt Sharma), reported at Allahabad High Court reported at 1992 A.I.E.C. 383, in support of his contention. He states that Regulation 25 which is considered by the Division Bench of Allahabad High Court in para 2 is para materia with Section 5(3) of the Act and as no one month’s notice or salary in lieu thereof has been paid to respondent No. 2-employees, the termination is bad. He contends that as condition precedent of paying, one month’s salary in lieu of notice is not complied with, termination is illegal and the view taken by the School Tribunal should not be interfered with. He also relies upon the observations as contained in para 38 of the Division Bench of this Court in the case of Shikshan Prasarak Mandal v. Presiding Officers and Ors., reported at 1995(1) C.L.R. 459, in support of his contention. The perusal of Allahabad High Court judgment reveals that after considering the facts in paras 2 and 3 thereof, the Division Bench has found that the services of probationers were terminated with immediate effect without complying with condition precedent viz. of giving one month’s pay in lieu of notice. By drawing support from the judgment of the Hon’ble Apex Court reported at (Senior Superintendent R.M. S., Cochin v. K.V. Gopinath Sorter), , the Allahabad High Court has held that said termination is clearly illegal.
24. In order to consider said issue, it will have to be found out whether Respondent No. 2 employee was served with pre intimation notice dated 6-5-1991 or he was served with termination order dated 29-6-1991. In this connection, when memo of appeal as filed before the School Tribunal by Respondent No. 2 is seen, in said memo of appeal employee nowhere states that he has not received the order of termination dated 29-6-1991. In fact Respondent No. 2 in Writ Petition No. 1874 of 1999 and in his appeal before the School Tribunal, in para 3 has stated that his services came to be terminated by notice of termination dated 6-5-1991 with effect from 29-6-1991. He further states that said notice of termination has been issued during vacation period and therefore, same was illegal. In prayer clause, he has prayed for quashing and setting aside the order of termination dated 6-5-1991. It is to be seen that the vacation mentioned in para 3 of appeal memo by said Respondent No. 2 is Summer Vacation which begins in last week of April and continues up to 3rd week of June in each summer. Under the circumstances, Respondent No. 2 has expressly admitted service of pre intimation of termination dated 6-5-1991. The arguments of Shri Bhandarkar, Advocate will not be applicable in his case.
25. Insofar as the other two respondents in other two writ petitions are concerned, though the order of termination expressly mentions that it is issued in response to pre intimation of termination dated 6-5-1991, both these employees have not stated in their appeal memo that they are not aware of any such pre intimation notice. Under the circumstances, the arguments of learned Counsel for the employees that they were not served with pre intimation notice dated 6-5-1991 cannot be accepted. Said pre intimation notice dated 6-5-1991 clearly informed the employees that their services would come to an end after the periods specified therein and said period is the period for which their services are approved by the Education department. The said period is up to 30-6-1991 in relation to two employees and up to 11-7-1991 in relation to one employee. Once it is held that pre intimation of termination order is already served, the termination order dated 29-6-1991 only becomes a relieving order. Thus, the argument that the respondents were not paid salary in view of one month’s notice is not open in this case. The argument that there is any mischief by the petitioners in not supplying correct translation of pre intimation termination notice as annexure with the petition also must, fall to ground. The perusal of document in Marathi and its translation reveals that, portion which appears on reverse of front page of Marathi document has not been translated into English. No prejudice could have been caused thereby in the respondents. The respondents have not demonstrated as to how consideration of matter by this Court or by the Hon’ble Apex Court is adversely affected thereby. When the original Marathi document was filed before the School Tribunal and the said document was also served upon the respondents, such defect or mistake in translation cannot, be made a ground by concerned respondents to contend that the petitioners have not approached this Court with clean hands.
26. Shri Bhandarkar, Advocate has pointed out para 38 of the ruling reported at. 1995(1) C.L.R. 459 (supra) to contend that as findings reached by the School Tribunal are not perverse, the same cannot be interfered with by this Court. As discussed above, this Court has found that there was no material produced by the petitioners to show that services of Respondent No. 2 -employees or their work or conduct during the period of probation was not satisfactory. In the absence of said material, in view of findings reached by the School Tribunal in paras 10 and 11 of its judgment, it is clear that the termination of Respondent No. 2 employees from services could not have been upheld. No jurisdictional error or any error apparent on record has been demonstrated in these findings recorded by the School Tribunal. Writ petitions therefore, fail and are dismissed accordingly. Rule is discharged. There shall be no order as to costs.