Bom HC | Applicability of appropriate rules to employee on probation: Questions framed for referral to larger bench

Bombay High Court: Manish Pitale, J., referred questions of seminal importance for consideration of a larger bench.

One significant question in the present petition is as follows:

Question pertains to Section 5 (3) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 [MEPS Act] and Rule 15 of the Maharashtra Employees of Private School (Conditions of Service) Regulation Rules, 1981 [MEPS Rules].

Controversy

Whether entire sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to an employee appointed on probation or only sub-rule (6) of Rule 15 of MEPS Rules applies to such an employee appointed on probation, when read with Section 5(3) of the MEPS Act.

M.M. Agnihotri, Petitioners Counsel submitted that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to an employee appointed on probation.

Termination of Service

In the present case, the service of respondent 1 was terminated during the period of probation by stating that his service was found to be unsatisfactory during such a period.

Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, held that where a person was appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment and a person so appointed had no right to continue to hold such post.

Supreme Court in High Court of Judicature, Patna v. Pandey Madan Mohan Prasad, (1997) 10 SCC 409, considered the validity of the termination of service of a Munsif appointed on probation in the context of non- communication of adverse remarks in confidential reports to the employee.

In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3 SCC 60, in the context of when an order of termination of service of an employee appointed on probation could be said to be stigmatic, the Supreme Court specifically held that use of words ‘unsatisfactory work and conduct’ in the termination order will not amount to a stigma.

The above-mentioned decisions clearly distinguish the rights that an employee appointed on probation can claim, as compared to a confirmed employee. This is particularly so when the order of termination of service cannot be said to be stigmatic in nature.

Crux of the controversy

While taking action of termination of service under Section 5(3) of the MEPS Act for unsatisfactory work or behaviour of an employee appointed on probation, only sub-rule (6) of Rule 15 of the MEPS Rules applies or all the sub-rules i.e. sub-rules (1) to (6) of Rule 15 of the MEPS Rules apply to such an employee?

In the Supreme Court’s decision in Progressive Education Society v. Rajendra, (2008) 3 SCC 310 Court had an occasion to refer to Section 5(3) of the MEPS Act and Rules 14 and 15 of the MEPS Rules.

In the above-stated decision, the Supreme Court specifically found that the documents upon which the Management was placing reliance were not above suspicion and that the requirement of Rule 15(6) and 14 of the MEPS Rules had not been complied with prior to the invocation of powers under Section 5(3) of the MEPS Act.

In the said case, it has been interpreted that failure to communicate adverse remarks would mean that the work of the probationer was satisfactory.

Analysis

A perusal of the various judgments clearly shows that there are two sets of views on the same material.

There cannot be any doubt about the fact that only sub-rule (6) of Rule 15 of the MEPS Rules refers to “an employee appointed on probation”. This has some significance.

Whether, the position of law laid down by the Supreme Court and this Court in series of judgments as regards the rights of an employee appointed on probation, while challenging a non-stigmatic order of termination of service issued during or on completion of probation, enjoins that only sub-rule (6) of Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply to the case of an employee governed by the said Act and Rules, or that entire Rule 15 of the MEPS Rules read with Section 5(3) of the MEPS Act would apply?

Supreme Court has specifically observed that the rights of an employee appointed on probation under the said Act and Rules create a different situation.

In the decision of Progressive Education Society v. Rajendra, (2008) 3 SCC 310, it was stated that although Rules 14 and 15 of the MEPS Rules have been specifically referred to, particular emphasis has been placed by the Supreme Court only on sub-rule (6) of Rule 15 of the MEPS Rules.

While Rules 14 and 15 of the MEPS Rules cannot override Section 5(3) of the MEPS Act, the requirements of sub-rule (6) of Rule 15 of the MEPS Rules would be a factor which the School Management has to take into consideration while exercising power, which it undoubtedly has and is recognized under Section 5(3) of the MEPS Act.

In the case of High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 Supreme Court specifically held that non-communication of adverse remarks cannot be a ground to hold that an order simplicitor terminating the service of a probationer stands vitiated.

Bench in view of the above decisions found substance in the contention raised on behalf of the petitioners that only sub-rule(6) of Rule 15 of the MEPS Rule would apply to an employee appointed on probation under the aforesaid Act and Rules and it is the requirement of only the said sub-rule that needs to be satisfied in the context of the action that the Management can take under Section 5(3) of the MEPS Act.

Section 5(3) of the MEPS Act, the Management can terminate the service of an employee appointed on probation not only for unsatisfactory work, but also for unsatisfactory behaviour.

Rule 15 (6) of the MEPS Rules, refers to an employee appointed on probation and it requires the Head only to objectively assess an employee appointed on probation and to maintain a record of such assessment.

This, coupled with the decisions of the Division Bench of this Court and followed by Single Judges of this Court held that only Rule 15 (6) of the MEPS Rules applies to an employee appointed on probation, shows that there is a clear conflict of opinions in this matter.

Hence, the bench held that the above-stated controversy needs to be put to rest by an authoritative pronouncement of a larger bench of this Court.

Court stated that papers be placed before the Chief Justice to consider whether the present writ petition can be more advantageously heard by a Larger Bench of this Court 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 the 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 the 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 simplicitor 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 a 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 the law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards? [Gramin Yuvak Vikas Shikshan Mandal, Kinhi Naik v. Shivnarayan Datta Raut, 2020 SCC OnLine Bom 966, decided on 22-09-2020]

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