Principles Of Natural Justice Not Required To Be Followed While Terminating Services Of Employee On Probation Unless Stigmatic- Bombay HC Clarifies

A Bombay High Court Bench of Justice Sunil B Shukre, Justice Avinash G Gharot, and Justice Anil S Kilor has clarified the position taken by the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977, and observed that "Having considered that the principles of natural justice are not required to be followed while terminating the services of an employee appointed on probation if the order of termination is innocuous and which does not cast any stigma, it is not necessary to communicate adverse remarks or to facilitate such an employee to make representation".

Counsel MM Agnihotri, among others, appeared for the petitioners. Counsel Radhika Bajaj, among others, appeared for the respondents. Counsel Uday Dastane, among others, appeared for the proposers.

In this case, the respondent was appointed to the post of the Shikshan Sevak in the petitioner school, and his appointment had been approved by the Assistant Commissioner, Tribal Development. However, his grievance was that his services were terminated.

The decision to terminate had been 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. The appeal was allowed. Aggrieved, the petitioners approached the Court through a writ petition.

A reference was made to a Larger Bench by the Single Judge. The Bench of the High Court answered the questions of law formulated by the Single Judge in the following manner.

(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?

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.

(ii) Whether judgment of the Supreme Court in the case of Progressive Education Society and another v. Rajendra and another 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?

Progressive Education Society and another vs Rajendra and another does not hold that the entire Rule 15 of the MEPS Rules applies to the employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act. The Progressive Education Society (supra) in fact supports the view which we have taken, as it categorically holds that the power of termination of a probationer lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds performance of a probationer unsatisfactory during the period of probation and the assessment has to be made by the appointing authority itself and no explanation or reason for termination is required to be given, except informing the employee that his services were unsatisfactory unless it was astigmatic.

(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?

Failure to adhere to the requirement of sub-rule (3) and (5) of Rule 15 of the MEPS Rules will not ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act if 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”?

Non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would not vitiate an order of termination of service simpliciter issued by the Management under Section 5(3) of the MEPS Act as it covers termination of an employee appointed on probation on both the counts i.e. unsatisfactory work and 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? 

As per the law laid down in the case of Parshotam Lal Dhingra (supra) that where a person appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily or by itself be a punishment because such employee has no right to continue to hold such post, the termination will not operate as forfeiture of right to hold such post. Therefore, 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. Further, as the principles of natural justice do not apply to the probationer unless the termination is stigmatic, issuance of notice/ warnings for unsatisfactory work to such an employee appointed on probation is not contemplated under the MEPS Act or MEPS Rules.

Subsequently, the Bench directed that the matter be placed before the Single Judge to be disposed in accordance with law. Parties were left to bear their own costs.

Cause Title: Gramin Yuvak Vikas Shikshan & Anr. v. Shivnarayan Datta Raut & Anr.

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