Private School Not Required To Communicate Adverse Remarks To Probationer For Terminating Services Unless Stigmatic: Bombay High Court Full Bench

A full bench of Justices Sunil B Shukre, Avinash G Gharote, and Anil S Kilor held that maintaining a record of objective assessment of the probationer’s service is sufficient compliance before terminating him under section 5(3) of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977.

“in the case of probationer, he has no right to his post and whose termination of service does not amount to a dismissal or removal by way of punishment, there is no requirement to initiate disciplinary proceedings or departmental enquiry to terminate the service of a probationer on the ground of unsatisfactory behaviour or performance…therefore, the objective assessment of performance, during the period of his probation by maintaining the record of such assessment under Rule 15(6) of the MEPS Rules, is sufficient. Hence, there is no requirement to write and maintain confidential report of the probationer”, the court held.

The court said that principles of natural justice are not required to be followed while terminating a probationer if the termination order is not stigmatic. There is no necessity to communicate any adverse remarks or to facilitate a probationer to make a representation under Rule 15(4) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, the court said.

The court was answering a reference made by a Single Judge who found contradictory observations in various division bench judgements on whether school management has to write and communicate confidential report to an employee appointed on probation.

One Shivnarayan Raut was appointed as a Shikshan Sevak at Adiwasi Madhyamik Wa Uchmadhyamik Ashram Shala Kinhi Naik, District Buldhana. He was terminated on July 9, 2016. The School Tribunal allowed his appeal and directed the school to reinstate him with back wages. Thus, the school filed the present writ petition against the tribunal’s decision.

The Single Judge found that there are two contradictory views on the question of whether sub-rules (1) to (5) of Rule 15 of the MEPS Rules are applicable to a probationer.

According to Raut, the Supreme Court has held that Rule 14 and Rules 15(1) to 15(6) of the MEPS Rules apply when a probationer’s service is terminated on grounds of unsatisfactory work or behaviour.

However, the school argued that only sub rule (6) of Rule 15 of the MEPS Rules applies to a probationer it specifically refers to an employee appointed on probation.

Under section 5(3) of the MEPS Act, management can terminate any probationer anytime during the probation period if his work or behaviour is not found satisfactory.

Rules 15(1) to (5) of the MEPS Rules provide for management’s obligation to write and communicate annual confidential reports to employees. An employee can also make a representation against adverse remarks in the CR to be decided by the school committee. Failure to maintain and communicate CR to an employee would result in the employee’s work deemed to be satisfactory.

Rule 15(6) of the MEPS Rules provides that the management shall assess the performance of a probationer objectively and maintain a record.

The court noted that as per section 2 of the MEPS Act, definition of employee includes a probationer. The court noted that Schedule G i.e., the format of the confidential report, does not include probationer as it refers only to the permanent and temporary employees.

The court noted that the definition clause of the MEPS Act starts with the qualifying words “in this act unless the context otherwise requires…” Thus, the meaning of the word ‘employee’ has to be interpreted in the context of Rules 14 (assessment of employee’s work) and 15 (writing of CR) of the MEPS Rules in the present case, the court said.

The court said that if Rules 14(2) and Rules 15(1) to 15(5) are interpreted to be applicable to a probationer, it would amount to equating the probationer with permanent and temporary employees. This is not the legislature’s intent as an exception has been carved out by providing a separate provision in Rule 15(6) for the probationer, the court opined.

Therefore, the defined meaning under section 2 cannot be assigned to the expression ‘employee’ occurring in Rule 14(2) and Rule 15 of the MEPS Rules, the court held.

The court said that the probationer has no right to his post and his termination does not amount to dismissal or removal as a punishment. Further, the purpose of any probation is to ensure, before one attains the status of confirmed employee, that he can satisfactorily perform his duties and functions and is suitable for the post, the court added.

Thus, the court said that if the termination of a probationer is stigmatic or causes prejudice against future prospects or violates constitutional rights, the principles of natural justice are applicable.

The court noted that in case of a permanent employee, the confidential report can form a part of any disciplinary proceedings or departmental enquiry. However, since probationer’s end of service does not amount to dismissal by way of punishment, there is no requirement to initiate disciplinary proceedings to terminate the probationer’s service, the court stated.

The court said that principles of natural justice are not required to be followed while terminating a probationer if the termination order is not stigmatic. There is no necessity to communicate any adverse remarks or to facilitate a probationer to make a representation under Rule 15(4) of the MEPS Rules, the court said.

Thus, the court concluded that an objective assessment of probationer’s performance during the probation period and maintaining its record under Rule 15(6) of MEPS Rules is sufficient for termination and there is no requirement to write a confidential report.

The court held that non-compliance of Rules 15(1) to (6) does not vitiate a simple termination of a probationer if management satisfies Rule 15(6) (assessing performance of a probationer and maintaining records).

Case no. – Writ Petition No. 5998 of 2019

Case Title – Gramin Yuvak Vikas Shikshan Mandal Kinhi Naik and Anr. v. Shivnarayan Datta Raut and Anr.