Dismissal in probation period

This query is : Resolved 

Online (Querist)
14 September 2009

A was working in an un-aided school affiliated with CBSE. As per appointment letter, he had to complete his probation period on 31.03.2009 and it was also spefically written in that letter that on successful completion of his probation, he shall be confirmed. A term was also therein which provided that if either of the party wants to relinquish the job, one month notice/notice pay is mandatory. A was suddenly provided a letter intimating him that as per terms of appointment, he is being releived on 31.03.2009. A filed a civil suit for injunction and a stay was also granted in his favour on 29.03.2009 vide which respondent management was directed not to relieve him till next date of hearing but despite of this A was releived on 31.03.2009.

Contemp of court petition is pending. Suit was also amended and dismissal was challenged.

My quarry is:

1. whether the court can re-instate A with all terminal benefits in service even if impugned order is found illegal?

2. Is a contract of service in private unaided recognised school is not enforceable, if yes, any citation?

3. Whether knowledge to counsel of the party is not sufficient to establish that the respondents were in the knowledge of the court order?

4. Whether admission of some of the facts by respondents either in written statement or in their evidence is needed to be proved by plaintiff?riven

14 September 2009

Dear Mr.Rajkumar

The reply to your query No.1 would depend on the relief claimed in the suit. It is advisable to get the compensation than to get orders for reinstatement as even after reinstatement the management would try in all possible ways to make the life miserable

(2).Any contract whether oral or written is enforceable

(3).Yes. The knowledge of the counsel is the knowledge of the respondent and their pleading on the ground of not being aware is probably with a view to escape with lighter sentence in the contempt case
(4)NO.The written statement or the record of their evidence may be cited against them


Raj Kumar MakkadOnline (Querist)
15 September 2009

thnx Mr. Kumarriven

Guest (Expert)
15 September 2009

Answer question wise:

1. In most of the States, school tribunals are set up to decide the termination cases of school employees including teachers. If it is there, then civil court's jurisdiction is barred. If not so, then also personal contract of service is not enforceable by civil decree. Hence, people prefer to seek damages (compensation) in civil courts.

2. Personal contract of service is not enforceable in civil courts. Exception is writ court and labour court and similar tribunals, where the Act provides those tribunals, such power of reinstatement.

3. Knowledge of counsel is sufficient.

4. No need.riven

R.R. KRISHNAA (Expert)
15 September 2009

The querry is rightly answered by Mr. Prabhakar.

I would like to say that termination during period of probation cannot be challenged in courts. The employer is entitled to terminate the probationer on account of non satisfactory performance as had been held by supreme court and high courts in such kind of matters.riven

Raj Kumar MakkadOnline (Querist)
15 September 2009

One point was left to be mentioned and it is very important that the employee was intimated on 12.03.2009 that he is going to be relieved on 31.03.2003 whereas one month notice is mandatory. What is remedy in such matters and now the suit for declaration seeking the order of dismissal as null and void and seeking reinstatement with full back wages is at argument stage. Should I amend and seek damages if yes, how much and what is its criteria and how much court fee is required to be deposited. Also keep in mind that employee is unemployed these days. there is no education board to deal with such cases in Haryana.riven

H. S. ThukralOnline (Expert)
22 September 2009

Mr. Prabhakar has correctly replied to your query. You can amend the pleadings now and claim damages. Ad-valorem court fee has to be paid on the compensation claimed. Damages usually are claimed on the basis of salary and remaining year of service.riven

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