REHANA BEGUM Vs. KHWAJI BABA URDU EDUCATION SOCIETY

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. With consent of learned counsel for the parties, the matter is taken up for final hearing immediately. Heard learned counsel for the parties. Perused the record.

(2.) Admitted facts are that prior to June, 2003 present petitioner was working as Assistant Teacher for some time on temporary basis. However on 20-6-2003, she was appointed as Assistant Teacher on probation of two years by respondent-Management. According to the petitioner, on 29-12-2004, respondents issued an order terminating her services with immediate effect on the ground that her performance during the probation was not satisfactory. This order was challenged before the School Tribunal in Appeal No. 30/2006 by present petitioner on several grounds. One of the grounds was that the provisions of section 5 (3) of Maharashtra Employees of Private Schools (Conditions of service) Regulation Act, 1977 (For short "the Act") were not followed as neither one month's notice was given to her nor the salary in lieu of this period was given to her along with termination order. On the other hand, it was contended by the Management that along with termination order a cheque of one month's salary was sent to her but she had refused to accept the same and thus the provisions had been followed. After hearing the parties, the School Tribunal dismissed the appeal holding that on the reading of the provisions of section 5 (3)with Rule 28 (1) of the Maharashtra Employees of Private Schools (Conditions of service) Rules, 1981 (For short "the Rules") notice of one month or one month's salary is not mandatory. That order has been challenged in the present petition.

(3.) There is no doubt that in the present case, services of the petitioner were terminated before completion of the probation period on the ground that her service performance was not found satisfactory. The only question involved in this case is whether the procedure for the purpose of termination of services of a probationer as required under sub-section (3) has been followed or not. On careful reading of sub-section (3) it becomes clear that discretion has been given to the Management to terminate services at any time during the probation period if the Management is of the opinion that the work or behaviour of the probationer is not satisfactory. Having come to this conclusion that the Management can terminate the services by giving one month's notice or salary of one month in lieu of this notice. That is the part of procedure and that part is mandatory. Sub-section (3) does not give any discretion to the Management about issuance of the notice or payment of salary. Discretion is only between two options, first is to give one months notice before termination and if the Management does not want to give one month's notice, the second option is to pay salary in lieu of one month's notice. It cannot be said that the Management has discretion to terminate the services without issuing the notice as well as without paying one month's salary in lieu of notice.