VISHRANTI RAJKUMAR DESSAI Vs. ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) THE petitioner was appointed as an Assistant Teacher in undergraduate category on probation by Order dated 27th June, 1989 in the School of the respondent No. 2 herein. By a communication dated 13th March, 1990, the petitioner was informed that her services as the teacher would not be required for the next academic year. On representation by the petitioner, however, the said communication was withdrawn by the respondent No. 2 by another letter dated 11th June, 1990. The petitioner thus continued to be on probation as the Assistant Teacher in undergraduate category in the school of the respondent No. 2 for the academic year 1990-91 also. The petitioner was served on 29th May, 1991 with an order dated 10th May, 1991 informing her about the termination of services with the respondent No. 2. It was stated in the Order that the petitioners services were unsatisfactory and the petitioner had failed to show any improvement in her performance and her termination was approved by the respondent No. 4. This Order of termination of services of the petitioner is being challenged by the present petition on the ground that the same has been issued in contravention of the provisions of law and more particularly of those contained in Rule 83 read with Rule 90 of the Goa, Daman and Diu School Education Rules, 1986, hereinafter called as the said Rules.

(2.) SHRI M. S. Sonak, learned Advocate appearing for the petitioner, while assailing the impugned Order, submitted that in terms of Rule 83 of the said Rules, the petitioner being a probationer, the respondent No. 2 could have terminated the services of the petitioner without holding an inquiry. However, the termination could not have been done totally ignoring the provisions contained in Rule 83 of the said Rules. In terms of said Rule, according to the learned Advocate, a probationer can be terminated without holding an inquiry only if the work and conduct of the said employee during the said period is, in the opinion of the appointing authority, not satisfactory and work can be said to be not satisfactory only when written memos are served on the employee pointing out the defects or acts of misbehaviour and reasonable opportunities are given to the employee to explain and improve. Besides, such deficiencies or shortcomings should necessarily reflect in the confidential report or reports for the respective year or years, as the case may be, and in absence thereof it cannot be said that the work of the employee is unsatisfactory. According to the learned Advocate, the Explanation Clause to Rule 83 has to be read alongwith the provisions contained in Rule 90 of the said Rules. In terms of Rule 90 (4), every adverse entry in the confidential report should be communicated to the employee concerned. Sub-rule (5) of Rule 90 further provides that an employee being aggrieved by the adverse entry in his confidential report may within 30 days of which such entry is communicated to him, prefer an appeal against it to the Deputy Education Officer of the Zone/district, who after giving to the Managing Committee reasonable opportunity of showing cause, may make such alterations in the entries in the confidential report as he may think fit and proper. Considering these provisions in Rule 90, according to Shri Sonak, it was necessary for the respondent No. 2 to verify whether the deficiencies or shortcomings of the petitioner were recorded in the confidential report and were communicated to the petitioner before acting upon the alleged deficiencies and shortcomings of the petitioner which have been made sole basis to arrive at the conclusion that the work of the petitioner was not satisfactory. He further submitted that whenever any power under any law is required to be exercised by certain authority in a particular manner then it is to be exercised in that particular manner or not at all. Placing reliance upon the Judgment of the Apex Court in the matter of (Hukam Chand Shyam Lal v. Union of India and others) reported in A. I. R. 1976 S. C. 789, the learned Advocate submitted that the Apex Court has already held that where a power is required to be exercised by certain authority in a certain way, it should be exercised in that manner or not at all and all other modes are necessarily forbidden. Further placing reliance in the matter of (Gurdial Singh Fijji v. State of Punjab and others) reported in A. I. R. 1979 S. C. 1622, Shri Sonak submitted that undisputedly in this case the adverse entries in the confidential report, If any, were not communicated to the petitioner and being so, the respondent No. 2 was not entitled to rely upon such adverse entries. Drawing our attention to paragraph 17 of the said reported decision, the learned advocate submitted that the Apex Court has already held that an adverse entry in confidential report cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report and that such an opportunity is not an empty formality and its object being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified or not.

(3.) SHRI S. D. Lotlikar, the learned advocate appearing for the respondents 2 and 3 on the other hand, submitted that the petitioner was time and again informed about the lack of proficiency in her teaching and incompetence observed and enough opportunity was given to the petitioner to improve her performance. According to the learned advocate, this is apparent from various memos issued to the petitioner. The records disclose that the petitioner could not exercise proper control over the students and she was found to be inefficient and incompetent to teach the subject of Hindi, which she was teaching and as such her work was found unsatisfactory. As regards the requirement of intimation of the adverse entries in the confidential report to the employees contemplated in Rule 90 of the said Rules, Shri Lotlikar submitted that the provision in Rule 90 (4) are not at all attracted in the case in hand and the management has not placed reliance upon any entries in the confidential report. The fact that the petitioner was served with written memos pointing out her defects and giving her reasonable opportunity to improve being not in dispute, according to the learned Advocate, there is sufficient compliance of the requirements under the provision contained in Rule 83 of the said Rules for the purpose of termination of the petitioner who was admittedly a probationer and as such no case is made out for interference by this Court.