NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  10661    OF 2010 (Arising out of SLP(C) No.10369 of 2005)

PARAMJIT SINGH .....APPELLANT.

        VERSUS

DIRECTOR, PUBLIC  INSTRUCTIONS & ORS. .....RESPONDENTS.

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being aggrieved by the Judgment and Order dated 7th February,  

2005 in CWP No.3267 of 2004 passed by the High Court of Punjab and  

Haryana  at  Chandigarh,  this  appeal  has  been  filed  by  Khalsa  High  

School, Mansa, District Mansa, Punjab, through its Manager.

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3. The facts giving rise to the present litigation in a nutshell are as  

under:

4. Respondent nos. 3 to 7 were appointed on probation as teachers  

by the management of the appellant’s school.  They were appointed on  

probation   with  a  clear  understanding  that  they  were  to  remain  on  

probation  for a period of  one year and if during the said period of  

probation, their work was not found to be satisfactory,  their services  

would be terminated.    The said fact  had been incorporated in their  

appointment orders and the said understanding was also in consonance  

with  the  provisions  of  Rule  8  of  the  Punjab  Privately-Managed  

Recognized  Schools  Employees  (Security  of  Services)  Rules,  1981  

(hereinafter referred to as ‘the Rules’).  As work of the said teachers  

was not found to be satisfactory,  the period of probation was extended  

by a further period of six months,  but even during the extended period,  

their work was not  found to be satisfactory and, therefore, services of  

the said teachers had been terminated without stigmatizing them in the  

orders,  whereby their services were terminated.   

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5. Being aggrieved by the order of termination,  the said respondents  

had approached the Director Public Instructions (Schools) Punjab  by  

way of  a representation and even before the representation could be  

decided, they approached the Punjab State School Tribunal by filing an  

appeal  against the orders of termination.  The Tribunal had passed an  

interim order  dated  13th February,  2003  whereby  the  appellant  was  

restrained from terminating services of the respondent-teachers.

6. Ultimately, the Tribunal by an order dated 27th January, 2004 had  

allowed the appeal  and had directed the appellant-school to reinstate  

the teachers with back-wages.  The said order was  challenged by the  

appellant by filing CWP No.3267 of 2004 in the High Court of Punjab  

and  Haryana  and  the  said  petition  was  rejected  by  an  order  dated  

February 7, 2005.    

7. The  Tribunal  had  allowed  the  appeal  by  considering  the  

termination as the penal.    According to the Tribunal,  departmental  

inquiry ought to have been held before termination of services of the  

teachers.   Moreover,  no  approval  of  the  Director  was  obtained  as  

required   under  the  Provisions  of  Section  4  of  the  Punjab Privately  

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Managed Recognized Schools Employees (Security of Service) Act, 1979  

(hereinafter  referred  to  ‘the  Act’)  and,  therefore,  also  the  orders  of  

termination were bad in law.

8. The aforestated order passed by the Tribunal  was confirmed by  

the High Court.

9. We have heard  the learned counsel and have also gone through  

the relevant  rules and the judgments referred to by the learned counsel.

10. It is a settled legal position that termination of a probationer on  

account  of  his  non-satisfactory  performance  can never  be  treated  as  

‘penal’.   In  spite  of   the  said  settled  legal  position,   the  Tribunal  

considered termination as ‘penal’ and the said view was confirmed by  

the  High  Court.    In  the  circumstances,   we  do  not  approve  the  

reasoning  of  the  Tribunal  confirmed  by  the  High  Court  that  the  

termination of  the aforestated teachers  was penal  in  nature.   As the  

termination  was  not  penal  in  nature,  no  departmental  inquiry  was  

required to be conducted before the termination.

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11. However,  we are of the view that prior  approval under Section 4  

of  the  Act  ought  to  have  been  obtained  from  the  Director  as  it  is  

mandatory.    Even in case of termination of service of a probationer,  

prior approval is  must.    

12. We, therefore,  hold that the termination was not in accordance  

with law because no prior approval of the Director was obtained by the  

appellant-management  before terminating services of  the respondent-

teachers.   We,  however,  quash  the  direction  regarding  payment  of  

arrears of salary to the teachers.

13.   In  the  circumstances,  we  confirm  the  order  with  regard  to  

reinstatement of the respondent-teachers.   If the respondent-teachers  

have already been relieved,  they shall be reinstated but without arrears  

of salary in view of the fact that  they have not worked and, therefore,  

principle of “no work, no pay” should be applied.  However, so as to  

compensate  them,  if  the  said  respondent-teachers  have  already  been  

relieved,  they would be paid compensation of  Rs.25,000/-  each because  

the  order  of  termination  was  not  just  and  legal.    They   shall  be  

reinstated immediately.

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14. Needless  to  say,  that  it  would  be  open  to  the  appellant-

management to take approval of the Director as required by law,  if the  

management  desires  to  terminate  services  of  the  respondent-teachers  

for their non-satisfactory performance.  We also clarify that we have  

not gone into correctness of the decision of the appellant-employer with  

regard to quality of performance of the teachers.

15. The appeal is partly allowed and disposed of with the aforestated  

directions but without any order as to costs.   

………………......................J.                                                                 (Dr. MUKUNDAKAM SHARMA)

                          ……...........................................J.                                                                        (ANIL R. DAVE)

New Delhi December  16,  2010.  

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