2016 Supreme(Bom) 485

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
RAVINDRA V. GHUGE, J.
Magasvargiya Shikshan Sanstha, Talegoan, Tq. Bhokardan, District Jalna through its President, Shri Kailas Manikrao Gavhad – Appellant
Versus
Bhausaheb Sonaji Kakade – Respondent
WRIT PETITION NO. 10845 OF 2015
Decided on : 6-05-2016

An employer, before presuming that the employee has abandoned employment under Rule 16(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, shall issue a notice to the employee calling upon him to explain as to why the employer should not form an opinion that the employee has abandoned employment.

Headnote:

RULE 16(2) OF THE MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981 - WHETHER ISSUANCE OF A NOTICE TO THE TEMPORARY / PROBATIONER EMPLOYEE BEFORE ARRIVING AT A CONCLUSION THAT HE/SHE HAS VOLUNTARILY ABANDONED EMPLOYMENT WOULD BE A NECESSITY?

Fact of the Case:

The employee was appointed as an Assistant Teacher on probation for two years from 2.8.2008. The Education Officer accorded approval to his appointment on probation by order dated 20.2.2009 with effect from 2.8.2008. The appellant was absent from 20.4.2010. The last working day, prior to commencement of the vacation was 27.4.2010. The management has mentioned on the muster roll that the appellant was treated as being on leave from 20.4.2010 till 27.4.2010. The opening day after vacation was 14.6.2010. The appellant alleged oral termination on 2.9.2010. The appellant preferred an Appeal under Section 9 of the said Act, on 28.4.2011 for challenging his oral termination with effect from 2.9.2010. The petitioners averred that the appellant has abandoned employment. By the impugned judgment of the School Tribunal, the appeal was allowed and by setting aside the oral termination dated 2.9.2010, the appellant was granted reinstatement with continuity of service and all consequential benefits. The appellant has waived the back-wages till the filing of the appeal and the claim for back-wages till reinstatement has been rejected.

Finding of the Court:

The Court held that Rule 16(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which provides that a non-permanent employee shall be deemed to have abandoned his service if he fails to apply for leave within seven days from the date of absence, is not compatible with the intent and object of the Act, as it gives no protection to such non-permanent employee, who are left to the unmerciful decision of the management which is shrouded in secrecy. The Court further held that an employer, before presuming that the employee has abandoned employment under Rule 16(2), shall issue a notice to the employee calling upon him to explain as to why the employer should not form an opinion that the employee has abandoned employment. Upon receiving the explanation of the employee, the Management may then proceed to pass an appropriate order.

Issues: Whether under Rule 16(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, issuance of a notice to the temporary / probationer employee before arriving at a conclusion that he/she has voluntarily abandoned employment would be a necessity?

Ratio Decidendi: The Court held that Rule 16(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, which provides that a non-permanent employee shall be deemed to have abandoned his service if he fails to apply for leave within seven days from the date of absence, is not compatible with the intent and object of the Act, as it gives no protection to such non-permanent employee, who are left to the unmerciful decision of the management which is shrouded in secrecy. The Court further held that an employer, before presuming that the employee has abandoned employment under Rule 16(2), shall issue a notice to the employee calling upon him to explain as to why the employer should not form an opinion that the employee has abandoned employment. Upon receiving the explanation of the employee, the Management may then proceed to pass an appropriate order.

Final Decision: The Court partly allowed the petition and quashed and set aside the impugned judgment and order dated 24/09/2015 only to the extent of the direction by the Tribunal granting continuity of service and other consequential benefits to the appellant/employee. The Court directed the petitioners to reinstate the appellant/employee as an Assistant Teacher on probation, so as to discharge his duties as a Probationer for the remainder period of 2 months from the date he is reinstated. After the completion of the 2 months of probation, the petitioner/management shall take a decision considering the overall performance of the appellant /employee of 2 years as a probationer in accordance with the requirements of the 1977 Act and 1981 Rules and pass, necessarily, a reasoned order with regard to whether the appellant employee deserves to be confirmed in service.