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2023 Supreme(Bom) 689
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
SUNIL B. SHUKRE, AVINASH G.GHAROTE, ANIL S. KILOR, JJ.
Gramin Yuvak Vikas Shikshan Mandal Kinhi Naik – Appellant
Versus
Shivnarayan Datta Raut – Respondent
Writ Petition No. 5998 of 2019
Decided on : 30-05-2023
For the Appellant :Shri M.M.Agnihotri, Shri Mayank Agnihotri, Shri P.L.Sagdeo & Shri S.Z.Quazi, Advocates
For the Respondent:Ms Radhika Bajaj, Shri A.D.Mohgaonkar, Shri D.A.Mohgaonkar, Ms Aakansha Mohgaonkar, Ms Ketki Joshi, Shri Uday Dastane, Advocate and Shri S.P.Bhandarkar, Advocate
Only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the management seeks to take action under Section 5(3) of the MEPS Act and not the entire Rule 15 from sub-rule (1) to (6) of the MEPS Rules.
Headnote:
Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?
Fact of the Case:
None
Finding of the Court:
Only sub-Rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the management seeks to take action under Section 5(3) of the MEPS Act and not the entire Rule 15 from sub-rule (1) to (6) of the MEPS Rules.
Issues: 1. Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation? 2. Whether judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act? 3. Whether failure to adhere to requirements of sub-rules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained? 4. Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simpliciter issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”? 5. Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards?
Ratio Decidendi: The plain reading of Rule 15 of the MEPS Rules does not indicate that Rules 15(1) to 15(5) apply to a probationer along with Rule 15(6) of the MEPS Rules. Moreover, considering the language of Section 5(3) of the MEPS Act, it is evident that the requirement of unsatisfactory service referred to in sub-section (3) of Section 5 of the MEPS Act, is a matter of satisfaction of the management and the management has to see not only the satisfaction as regards work of a probationer but also his behaviour during the period of probation.
Final Decision: Matter to be placed before the learned Single Judge for disposal in accordance with law.
Key Points: - Only sub-rule (6) of Rule 15 applies to probationers when action under Section 5(3) is taken, not the entire Rule 15 (1–6) (!) (!) . - Progressive Education Society v. Rajendra supports that termination of a probationer lies with the appointing authority and does not require stigma-free justification, with assessment by the Head and no need for full Rule 15 compliance for probationers (when not stigmatic) (!) (!) . - The Act vests power in management under Section 5(3) to terminate probationers for unsatisfactory work or behaviour; this is a matter of management satisfaction, and Rule 15(6) provides objective assessment and record-keeping, but does not override Section 5(3) (!) (!) (!) . - Definitions: probationer is a category under MEPS Act; Schedule G and Rule 15(1)–(5) applicability to probationers is disputed; the court’s view is that Schedule G does not apply to probationers, and Rule 15(6) is carved out for probationers (!) (!) (!) (!) . - The judgment lists five questions referred and answers: (i) only sub-rule (6) applies; (ii) Progressive Education Society does not hold that entire Rule 15 applies; (iii) non-compliance with sub-rules (3) and (5) does not ipso facto vitiate if sub-rule (6) is satisfied; (iv) non-compliance with sub-rule (5) does not vitiate termination since work/behaviour can be unsatisfactory; (v) compliance with sub-rule (6) may be sufficient; natural justice not required for non-stigmatic terminations (!) (!) (!) (!) (!) . - The three categories of MEPS employees and probationers’ lack of indefeasible right to post are discussed; probationers on probation have limited rights and can be terminated; natural justice protections apply only for stigmatic terminations (!) (!) (!) . - Final conclusion: the rules favor applying only Rule 15(6) to probationers for termination under Section 5(3); entire Rule 15 does not apply to probationers; overview of rights and limitations summarized in the judgment (!) (!) .
What is the scope of Rule 15(6) vs. Rules 15(1) to 15(5) of the MEPS Rules for employees appointed on probation under Section 5(3) of the MEPS Act?
What are the rights and limitations of a probationer under the MEPS Act and MEPS Rules when termination is sought under Section 5(3) of the Act?
What is the controlling interpretation for probationers in termination disputes: whether only sub-rule (6) applies or the entire Rule 15 applies?
JUDGMENT :
Anil S. Kilor, J.
1. Heard.
2. This is a reference made to a Larger Bench by the learned Single Judge on the following questions:
(i) Whether only sub-rule (6) of Rule 15 of the MEPS Rules applies to an employee appointed on probation when the Management seeks to take action under Section 5(3) of the MEPS Act or entire Rule 15 from sub-rules (1) to (6) of the MEPS Rules apply to such an employee appointed on probation?
(ii) Whether judgment of the Hon’ble Supreme Court in the case of Progressive Education Society and another v. Rajendra and another (supra) lays down that entire Rule 15 of the MEPS Rules applies to an employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act?
(iii) Whether failure to adhere to requirements of sub-rules (3) and (5) of Rule 15 of the MEPS Rules would ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act, despite the fact that the Management satisfies requirement of sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that performance of an employee appointed on probation has been objectively assessed by the Head and record of such an assessment has been maintained?
(iv) Whether non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would vitiate an order of termination of service simpliciter issued by the Management under Section 5(3) of the MEPS Act when the said sub-rule deems that “work of an employee is satisfactory”, while Section 5(3) of the MEPS Act gives power to the Management to terminate the service of an employee appointed on probation not only for “unsatisfactory work”, but also for “unsatisfactory behaviour”?
(v) Whether it would be sufficient compliance on the part of the Management while acting under Section 5(3) of the MEPS Act, if it complies with only sub-rule (6) of Rule 15 of the MEPS Rules by ensuring that the performance of an employee appointed on probation is objectively assessed and the Head maintains record of such assessment, and principles of natural justice stand satisfied by issuing notices/warnings for unsatisfactory work to such an employee appointed on probation, considering the limited rights available to such an employee as per law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards?
3. The reference was made by the learned Single Judge in the following backdrop:
The petitioner No.1, Society and petitioner No.2, Head of the School filed the Writ Petition No.5998 of 2019, raising a question to the correctness and legality of the judgment and order dated 06/08/2019 passed by the School Tribunal, Amravati, in Appeal No.49 of 2016, thereby quashing and setting aside the termination order dated 09/07/2016, of the respondent No.1 and directing the petitioners to reinstate the respondent No.1 with back wages.
4. In the appeal before the Tribunal, it was the grievance of the respondent No.1 that he was appointed on the post of Shikshan Sevak in petitioner No.2 school on 30/08/2013 and his appointment was approved by the Assistant Commissioner, Tribal Development, Amravati. The services of the respondent No.1 were terminated on 09/07/2016, which was questioned before the School Tribunal by filing an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 (hereinafter referred to as “the MEPS Act”). The said appeal was allowed. The petitioners, feeling aggrieved by the same, filed instant writ petition raising various questions for determination.
5. One particular question, which according to the learned Single Judge assumes significance in the light of various conflicting judgments, referred by the rival parties, was the question pertaining to Section 5(3) of the MEPS Act and Rule 15 of the Maharashtra Employees of Private Schools (Conditions
