JUDGMENT :

R.B. Deo, J.

1. This petition questions the legality of the judgment dated 15.04.2017 rendered by the School Tribunal, Nagpur in Appeal 37 of 2011 by and under which the termination order dated 27.09.2007 is set aside and the petitioner is directed to reinstate the respondent 1 - employee with 50% back wages.

2. It is undisputed that the employee is issued the termination order one day prior to the completion of the probation period. The Tribunal has recorded a finding that the employee was appointed as Physical Training Instructor by following the procedure under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 ("Act" for short) and the appointment is duly approved by the Education Officer. While it is averred in the petition that the respondent 1 - employee was appointed purely on temporarily basis, and that the post was not clear nor permanent, in fairness to the learned counsel for the petitioner Shri Akshay Naik, such submission is not advanced.

3. The seminal issue which needs consideration is whether the termination of the employee is founded on misconduct or is only motivated by misconduct. The petitioner contends that if the termination order is subjected to the form and substance test, it is clear that the order of termination is not stigmatic. The exercise undertaken by the petitioner to assess the suitability of the employee to continue in service and the observations in the order of termination made in the context of the issue of suitability would not render the order of termination vulnerable, is the submission. In rebuttal, Shri A.D. Mohgaonkar, the learned counsel for the employee would submit that only if the order of termination survives the form test that there would be an occasion to apply the substance test. Shri Mohgaonkar, would submit that applying the form test, it is obvious that the termination is stigmatic and that the employee is punished for an alleged misconduct. Shri Mohgaonkar, the learned counsel would submit that there is no occasion to apply the substance test and even if it is assumed argue do that the substance of the order of termination needs determination, the irresistible conclusion is that the order is punitive and stigmatic. Shri Mohagaonkar concedes that the settled position of law is that the employer is entitled to assess the suitability of a probationer and that an inquiry or evaluation which is undertaken to asses the suitability of the probationer would not render the termination order stigmatic or punitive. Shri Mohgaonkar, the learned counsel would however submit that the employee is punished for misconduct is writ large on the face of the order and no further inquiry or the application of the substance test is necessary to discern the nature of the order, which can not survive the form test.

4. In the context of the submissions, it would be necessary to minutely scrutinize the termination order dated 27.09.2007. The termination order dated 27.09.2007 reads thus:

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The termination order begins with recital that during the tenure of three years of service the employee has committed misconduct like breach of disciplinary rules, insubordination and improper behaviour with colleagues and parents of the students for which misconduct the employee was cautioned from time to time. The next paragraph (paragraphs are not numbered) records that the employee is imposed the punishment of "severe reprimand" in accordance with the provisions of Rules 28 and 29 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981 ("Rules" for short). A reference is made to the meeting of the School Committee held on 29.06.2007. The next paragraph adverts to the failure of the employee to improve his conduct notwithstanding the advice and caution and the opportunities extended by the management from time to time. The further recital is that the employee continued to behave arrogantly with senior colleagues and parents