Bombay High court judgement – Principles of Natural Justice Not Required to Be Followed While Terminating Services of Employee On Probation Unless Stigmatic- Bombay HC
Contents News/Article Date: 1st June 2023
Relating to which Act: The Indian Constitution grants the Central and state governments the powers to enact laws to protect the employees and foster a professional work environment. Based on the industry, nature of the work, number of employees in the company, location, and more, there are various legislations like the Industrial Disputes Act 1947 (ID Act), Factories Act 1948 (Factories Act), and Shops and Establishment Acts in relevant states (S&E Act).
Applicable to which State: Acts and Rules are applicable to all States
Type: Verdictum news desk – Bombay High court judgement on termination of a probationer
Pertains to: Establishments and Employees in all types of Organizations running businesses for profit or non profit
Relevance of this news: Karma Global is in the business of HR Services, Payroll, Outsourcing and Regulatory Compliances right from its inception in 2004 and since then, has brought in a lot of efficiencies and technological upgradations with experts on its roll, to ease the hassles of Payroll Processing, Temp Staffing, On-boarding, Employee Life Cycle, Statutory, Regulatory and Payroll compliances by providing customized solutions to all its elite clients.
Now Karma Global is also fully into labour compliances for nearly 18 years and is helping both establishments and workers for fulfilment of obligations as per the laws of the land. It has over 200 staff, both direct and indirect on its rolls and operates on pan India basis. Recently, it has diversified into foreign shores as well, into countries like US, UK, UAE, Canada, and South East Asia for handling payroll, outsourcing, recruitment, compliance and governance.
Karma Global handles the obligations of all provisions contained in the labour acts and rules. Employees are entitled to several benefits under the Employment Act, including annual paid leave, sick leave, maternity benefits, paid public holidays, etc. Employers must ensure that they meet all of the Act’s standards and that the contract conditions reflect this.
Businesses must comply with the following requirements of the Act in particular:
- Minimum wage
- Maternity benefits
- Revision of wages
- Safer work environment
- Adaptive work culture
- Issuance of employment contracts
- Social contributions
- Health care and insurance
- Holidays and annual leave
- Termination, severance pay, grievance handling, redressal
And in the current instance : A Bombay High Court Bench of Justice Sunil B Shukre, Justice Avinash G Gharot, and Justice Anil S Kilor has clarified the position taken by the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977, and observed that “Having considered that the principles of natural justice are not required to be followed while terminating the services of an employee appointed on probation if the order of termination is innocuous and which does not cast any stigma, it is not necessary to communicate adverse remarks or to facilitate such an employee to make representation”.
Counsel MM Agnihotri, among others, appeared for the petitioners. Counsel Radhika Bajaj, among others, appeared for the respondents. Counsel Uday Dastane, among others, appeared for the proposers.
In this case, the respondent was appointed to the post of the Shikshan Sevak in the petitioner school, and his appointment had been approved by the Assistant Commissioner, Tribal Development. However, his grievance was that his services were terminated.
The decision to terminate had been questioned before the school tribunal by filing an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977. The appeal was allowed. Aggrieved, the petitioners approached the Court through a writ petition.
Subject: Principles of Natural Justice Not Required to Be Followed While Terminating Services of Employee On Probation Unless Stigmatic- Bombay HC
Appended is the complete news item
Principles Of Natural Justice Not Required To Be Followed While Terminating Services Of Employee On Probation Unless Stigmatic- Bombay HC Clarifies
By Verdictum News Desk
A Bombay High Court Bench of Justice Sunil B Shukre, Justice Avinash G Gharot, and Justice Anil S Kilor has clarified the position taken by the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977, and observed that “Having considered that the principles of natural justice are not required to be followed while terminating the services of an employee appointed on probation if the order of termination is innocuous and which does not cast any stigma, it is not necessary to communicate adverse remarks or to facilitate such an employee to make representation”.
Counsel MM Agnihotri, among others, appeared for the petitioners. Counsel Radhika Bajaj, among others, appeared for the respondents. Counsel Uday Dastane, among others, appeared for the proposers.
In this case, the respondent was appointed to the post of the Shikshan Sevak in the petitioner school, and his appointment had been approved by the Assistant Commissioner, Tribal Development. However, his grievance was that his services were terminated.
The decision to terminate had been questioned before the school tribunal by filing an appeal under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977. The appeal was allowed. Aggrieved, the petitioners approached the Court through a writ petition.
A reference was made to a Larger Bench by the Single Judge. The Bench of the High Court answered the questions of law formulated by the Single Judge in the following manner.
(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?
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 and not the entire Rule 15 from sub-rule (1) to (6) of the MEPS Rules.
(ii) Whether judgment of the Supreme Court in the case of Progressive Education Society and another v. Rajendra and another 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?
Progressive Education Society and another vs Rajendra and another does not hold that the entire Rule 15 of the MEPS Rules applies to the employee appointed on probation, particularly in the context of power available to the Management under Section 5(3) of the MEPS Act. The Progressive Education Society (supra) in fact supports the view which we have taken, as it categorically holds that the power of termination of a probationer lies with the appointing authority which is at liberty to terminate the services of a probationer if it finds performance of a probationer unsatisfactory during the period of probation and the assessment has to be made by the appointing authority itself and no explanation or reason for termination is required to be given, except informing the employee that his services were unsatisfactory unless it was astigmatic.
(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 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?
Failure to adhere to the requirement of sub-rule (3) and (5) of Rule 15 of the MEPS Rules will not ipso facto vitiate an action taken by the Management under Section 5(3) of the MEPS Act if the Management satisfies 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 simpliciter 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”? Non-compliance of sub-rule (5) of Rule 15 of the MEPS Rules would not vitiate an order of termination of service simpliciter issued by the Management under Section 5(3) of the MEPS Act as it covers termination of an employee appointed on probation on both the counts i.e. unsatisfactory work and also for unsatisfactory behaviour.
(iv) 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 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 law laid down from the case of Parshotam Lal Dhingra v. Union of India (supra) in the year 1958 and onwards?
As per the law laid down in the case of Parshotam Lal Dhingra (supra) that where a person appointed on probation, the termination of his service during or at the end of the period of probation will not ordinarily or by itself be a punishment because such employee has no right to continue to hold such post, the termination will not operate as forfeiture of right to hold such post. Therefore, 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. Further, as the principles of natural justice do not apply to the probationer unless the termination is stigmatic, issuance of notice/ warnings for unsatisfactory work to such an employee appointed on probation is not contemplated under the MEPS Act or MEPS Rules. Subsequently, the Bench directed that the matter be placed before the Single Judge to be disposed in accordance with law. Parties were left to bear their own costs.
Cause Title: Gramin Yuvak Vikas Shikshan & Anr. v. Shivnarayan Datta Raut & Anr.