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Judgment
This writ petition has been filed by the petitioner - Institution aggrieved against the judgment dated 9.8.2018 (Annex.8) passed by the Rajasthan Non-Government Educational Institution Tribunal, Jaipur ('the Tribunal'), whereby, the appeal filed by respondent No.2 has been allowed and the order dated 29.2.2008, whereby, services of the respondent No.2 were terminated, has been set aside with all consequential benefits.
The respondent No.2 was appointed on the post of Hindi Teacher by order dated 11.4.1994 (Annex.1).
The relevant terms of appointment read as under:-
"2. You will be on probation for a period of one year, which is liable to be extended at the discretion of Management. You will be confirmed only after you will complete your probation period to the satisfaction of Management. Your services are liable to be terminated at any time during or at the end of the probationary period without assigning any reason whatsoever.
After confirmation your services are liable to be terminated by giving two months notice or two months pay in lieu thereof similarly, if you desire to resign from service, you are liable to give two months notice to Management at its discretion reserves the right not to accept the resignation.
If at any time during the tenure of your service with this school you are found guilty of any misconduct, you will be liable for immediate dismissal/removal."
Whereafter, the order dated 1.4.2000 (Annex.3) was issued, whereby, the petitioner was promoted on the post of TGT. In the order of promotion, it was indicated that he would be on probation for a period of one year from the date of assuming charge of the post promoted post and the probation period is liable to be extended at the sole discretion of the Management.
By order dated 29.2.2008 (Annex.5), the services of the petitioner were terminated indicating as under:-
"Dear Mr. Pandey,
With great displeasure I am to inform you that Your services as a teacher are no longer needed in the Hindi Zinc School. As such the management of the school has decided to terminate your services with immediate effect.
Hence your services stand terminated w.e.f. tomorrow i.e. 1st March, 2008 and your name shall be struck off from the Rulls of the School a cheque in the amount of Rs.28,455/- (equivalent to your two months salary is enclosed herewith For any amount due to your from the school you may contract the accounts branch of the school).
Feeling aggrieved, the respondent No.2 approached the Tribunal by way of appeal. The appeal was contested by the petitioner - Institution.
Whereafter, by the impugned order dated 9.8.2018 (Annex.8), the Tribunal came to the conclusion that services of the respondent No.2 were terminated in violation of provisions of Section 18 of the Rajasthan Non-Government Educational Institutions Act, 1989 ('the Act of 1989') and Rule 39 of the Rajasthan Non-Government Educational Institutions Rules, 1993 ('the Rules of 1993') and, therefore, the order impugned could not be sustained and consequently set aside the said order and ordered for reinstatement of respondent No.2 with all consequential benefits.
It is submitted by learned counsel for the petitioner-Institution that the order passed by the Tribunal is ex-facie erroneous inasmuch as, the respondent No.2 was on probation when the order impugned was passed terminating his services and in terms of the order of appointment, the services of the respondent No.2 could be terminated at any time without issuing any notice.
It was submitted that once the order of appointment provided for such an eventuality, the respondent No.2 was bound by the said contract and once the petitioner - Institution has followed the stipulation in the contract, there was no reason for the Tribunal to have interfered with the order impugned and, therefore, the same deserves to be quashed and set aside.
Reliance was placed on M. Venugopal v. The Division Manager, LIC: (1994) 2 SCC 323.
Learned counsel appearing for the respondent No.2 appearing on caveat opposed the submissions made by learned counsel for the petitioner - Institution.
It was submitted that the very fact that petitioner accorded promotion to respondent No.2, the entire plea based on the fact that the respondent No.2 was on probation is baseless and, therefore, the writ petition deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the order dated 11.4.1994 (Annex.1), quoted hereinbefore, would reveal that the period of probation was indicated as one year liable to be extended at the discretion of the Management and it was also stipulated that on satisfactory completion of period of probation, the services of respondent No.2 would be confirmed and during the period of probation, services were liable to be terminated at any time without assigning any reason whatsoever.
The petitioner - Institution except for a bald assertion in the reply before the Tribunal and before this Court, has not produced any material, whatsoever, to indicate that after completion of period of probation after the respondent No.2 was appointed on 11.4.1994, the same was extended by the petitioner.
Further, the respondent No.2 was accorded promotion by order dated 1.4.2000 to the post of TGT, wherein also, it was indicated that he would be on probation for a period of one year, which can be extended, however, pursuant to the order dated 1.4.2000 also, nothing has been placed on record to indicate that even on promotion the period of probation was extended though while granting promotion placing a person on probation is by itself contradictory and unheard of.
In any case, once the period of probation of respondent No.2 was not extended either pursuant to the order dated 11.4.1994 (Annex.1) or order dated 1.4.2000 (Annex.3), the plea sought to be raised that respondent No.2 was on probation at the time when the order impugned was passed, cannot be sustained.
It is not in dispute that the order passed by the petitioner terminating the services of the respondent No.2 is in violation of provisions of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993. Section 18 of the Act of 1989 requires grant of reasonable opportunity of being heard before any order of removal, dismissal or reduction in rank of the employee is passed and admittedly no notice was issued to the respondent No.2. Rule 39 of the Rules of 1993 prescribes procedure to be adopted for removal or dismissal of the employee, which procedure has not even been adverted to.
The applicability of the provisions of Act of 1989 and Rules of 1993 to the petitioner - Institution is settled in view of the Full Bench Judgment of this Court in Central Academy Society v. Rajasthan Non-Government Educational Institutions Tribunal, Jaipur & Ors.: (2010) 3 RLW 2326, wherein it was held as under:-
"45. In view of what has been discussed above, our answer to this reference is that the first proviso to Section 18 of the Act of 1989 does not apply in relation to the disciplinary action by private unaided recognised institution but the other provisions of Section 18 including the second proviso do apply to such unaided private recognised educational institution too."
So far as the judgment in the case of M. Venugopal (supra) is concerned, the same has no application to the facts of the present case as in the case of M. Venugopal (supra), the order was passed during period of extended probation, which is not the case here.
In view of the fact that plea raised by the petitioner - Institution regarding respondent No.2 being on probation at the time of termination of service is factually baseless and as the order dated 29.2.2008 terminating his services, has been passed in violation of Section 18 of the Act of 1989 and Rule 39 of the Rules of 1993, the judgment passed by the Tribunal quashing the order impugned does not call for any interference.
There is no substance in the writ petition. The same is, therefore, dismissed.