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IN THE HIGH COURT OF BOMBAY
RAMCHANDAR RAMADHAR YADAV
VERSUS
HYDERABAD (SIND) NATIONAL COLLEGIATE BOARD
Decided no: DECEMBER 23, 2005
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (3 of 1978) - Section 5(2) and (3) - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 10 - Petitioner was appointed against clear permanent vacancy of ’peon’ - No duration of period of employment mentioned in appointment order - Held, petitioner’s appointment will have to be treated as non-permanent but on probation. - The petitioner was never appointed for a fixed period. No duration of the period of employment was mentioned in the appointment order. In this view of the matter, considering sub-rule (1) of Rule 10 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, petitioner’s appointment will have to be treated as non-permanent but on probation. Notice of termination given to the petitioner nowhere contemplates or records any dissatisfaction of the management so far as the work or behaviour of the petitioner during the probation period is concerned. In absence of any imputation of unsatisfactory work or behaviour or any indication indicating dissatisfaction of the management, it was not open for the School management to terminate services of the petitioner merely by issuing one month’s notice. The services of the person, who is on probation, can only be terminated if his work or behaviour is found to be unsatisfactory or the management is dissatisfied with his work. No material in this behalf is available either in the termination order or on record. No counter affidavit or return has been filed to answer the allegations made in the petition. In the circumstances, the termination of the petitioner without justifiable reason cannot be said to be legal and valid.
Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (3 of 1978) - Sections 9 and 15 - M.E.P.S. Rules, Rules 10, 13 and 28 - Termination of services. - In absence of any imputation as to unsatisfactory work of petitioner, a peon temporarily employed for one year in clear vacancy, Management cannot terminate his services by issuing one month notice.
( 2 ) THE factual matrix of the case reveals that the petitioner came to be appointed as Peon, pursuant to the application made by him, with effect from 3rd december, 1992. The relevant term of the appointment order reads as under : to shri Ramchander R. Yadav. "with reference to your application. . . . . . . . . . . . . . . from time to time. 2. Your appointment is temporary for a period of in clear vacancy of Shri shejwal Shivram who in the leave vacancy has resigned. After expiry of the above period, your services shall stand terminated without any notice.
( 3 ) PURSUANT to the aforesaid order, petitioner reported on duty with effect from 3rd December, 1992. His appointment was approved by the Education officer vide order dated 19th March, 1993 for the current academic year. The petitioner was also informed by the school management vide its letter dated 10th may, 1993 that his appointment has been approved up to the last working day of the academic year 1992-93 i. e. up to 13th June, 1993 by the Education department, Thane. He was further informed by the very same letter that he would stand relieved with effect from 13th June, 1993. However, no effect was given to this order. On the expiry, he was asked to report on duty on 14th June, 1993. Accordingly, petitioner claims to have reported on 14th June, 1993 but he was asked to work as Sweeper, which he refused. Thus on the next day, i. e. 15th june, 1993, when he reported on duty, he was not allowed to resume his duty since he refused to work as Sweeper. This action of oral termination was the subject matter of challenge in the appeal filed before the School Tribunal under section 9 of the Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977 ("m. E. P. S. Act" for short ).
( 4 ) THE petitioner had contended before the Tribunal that he was appointed as Peon on clear vacancy from 3rd December, 1992. That his appointment was approved by the Education Officer. In turn, he was, accordingly, informed by the principal of the respondents Junior College and High School, vide letter dated 10th May, 1993. That he was orally told that letter dated 10th May, 1993 was nothing but a routine letter and that he need not take cognisance of the said letter. He, thus, did not challenge the action of the management. However, as directed, he resumed his duty on 14th June, 1993. On that day he was told by the Principal that his continuation shall be subject to his working as a Sweeper. The petitioner declined to work as a Sweeper. The Principal, therefore, did not permit him to resume his duty from 15th June, 1993.
( 5 ) THE petitioner claimed that he worked on 14th June, 1993. He, therefore, preferred appeal against the act of oral termination dated 15th June, 1993.
( 6 ) ON being noticed, the respondents appeared and filed their written statement to oppose the claim set up by the appellant (petitioner herein) contending that his services were terminated vide notice dated 10th May, 1993 with effect from 13th June, 1993. It was further contended that after receipt of the notice of termination dated 10th May, 1993, the petitioner/ appellant never turned up on 14th June, 1993 as such question of oral termination of his services with effect from 15th June, 1993 did not arise.
( 7 ) THE respondents had produced muster-roll in support of their contention before the Tribunal to show that the petitioner/appellant never resumed his duty on 14th June, 1993. It was, thus, contended that the appeal was not maintainable since it was barred by limitation.
( 8 ) IN order to jus
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