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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.723 OF 2013
PETITIONERS: 1. The Teachers Education Society, a
Registered Public Trust, through its
President, & President of School
Committee of Gurudeo Ravindranath
Tagor Vidyalaya, Shelu, Tq. Arni, Dist.
Yavatmal.
2. The Headmaster, Gurudeo Ravindranath
Tagor Vidyalaya, Shelu & Secretary of
ig School Committee R/o Shelu Tq. Arni,
Dist. Yavatmal.
-VERSUS-
RESPONDENTS: 1. Subhash Tulsiram Narnaware, Aged
about 46 years, Occ. Service as Clerk,
R/o Anjankhed, Post Shelu, Tq. Arni,
Dist. Yavatmal.
2. The Education Officer (Secondary) Zilla
Parishad, Yavatmal Tq. & Dist.
Yavatmal.
3. Superintendent Pay Unit Zilla Parishad,
Yavatmal.
4. Presiding Officer School Tribunal,
Amravati Division, Amravati.
Dr. Anjan De, Advocate for the petitioners.
Shri V. A. Kothale, Advocate for the respondent No.1.
Shri S. B. Ahirkar, Asstt. Government Pleader for respondent
Nos. 2 to 4.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 17-12-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 26-02-2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. The petitioners have challenged the judgment dated 31-8-2012 passed by the learned Presiding Officer, School Tribunal, Amravati only to the extent it directs the petitioners to pay subsistence allowance to the respondent No.1 till the completion of the enquiry proceedings.
3. The facts relevant for considering the challenges raised to the impugned judgment are that the respondent No.1 was appointed on the post of clerk at the petitioner No.2 - School.
After completion of period of probation, his services came to be confirmed. During the course of service, the First Information Report came to be registered against the respondent No.1 and anther employee under provisions of Section 420, 468, 471 read with Section 34 of the Indian Penal Code. The management placed the respondent No.1 under suspension by order dated 3-4-
2010. The Management thereafter held the enquiry against the respondent No.2 and terminated his services by order dated 25-10-
2010. The respondent No.1 challenged the said order of ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 3/13 termination by filing an appeal under Section 9(1) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 (for short, the said Act). The appeal was opposed by the petitioners on the ground that the action of terminating the services of the respondent No.1 had been done in accordance with law. The learned Presiding Officer by the impugned judgment held that enquiry proceedings had been conducted by the Management without complying with the provisions of Rules 33 to 37 of the Maharashtra Employees of Private Schools (Conditions of Services) Rules 1981 (for short, the said Rules). The School Tribunal, therefore, set aside the order of termination and held that as criminal proceedings were pending against the respondent No.1 he would remain under suspension till a fresh enquiry with regard to those charges in respect of which the criminal proceedings were pending was completed by the Management. The respondent No.1 was held entitled to receive subsistence allowance from 3-4-2010 onwards. Liberty was given to the Management to reinstate the respondent No.1 if it so desired.
4. During pendency of the writ petition, the petitioners have filed pursis dated 18-2-2014 wherein it has been stated as under:
::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 :::wp723.13.odt 4/13 "The petitioner is ready to pay the suspension allowance to the Respondent No.1 from the date of expiry of 4 months of the earlier suspension of the respondent No.1 till the date of order of the School Tribunal. The petitioner would continue with the enquiry against the respondent No.1 after the result in the Criminal Proceeding against the Respondent no.1 or the appellate or revisional proceedings filed against such order.
Hence this pursis."
By an order dated 29-6-2015, the petitioners were directed to deposit an amount equivalent to the full salary receivable by the respondent No.1. This interim order dated 29-6-2015 was challenged by the petitioners before the Hon'ble Supreme Court, but the Special Leave Petition was dismissed on 14-8-2015.
Thereafter this amount came to be deposited on 1-9-2015. The respondent No.1 thereafter moved Civil Application No.1934/2015 seeking permission to withdraw the amount of subsistence allowance that was deposited by the petitioners. It was submitted by the learned Counsel for the petitioners and the respondent No.1 that the writ petition itself could be decided finally instead of considering and deciding Civil Application No.1934/2015. It is in that background that the learned Counsel for the parties have been heard on merits at length.
5. Dr. Anjan De, the learned Counsel for the petitioners submitted that the petitioners were aggrieved only by the direction issued by the School Tribunal to pay suspension allowance to the ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 5/13 respondent No.1 from 3-4-2010. It was submitted that the petitioners could have been directed to pay subsistence allowance only for the period after four months from 3-4-2010 when the respondent No.1 was placed under suspension till 31-8-2012 when the order of termination was set aside by the School Tribunal. By referring to the provisions of Rule 33 of the said Rules, it was submitted that as criminal proceedings against the respondent No.1 were pending, the respondent No.1 had been placed under suspension. The action of suspending the services of the respondent No.1 after the judgment of the School Tribunal was in obedience with the the directions issued by the School Tribunal.
Without prejudice to the aforesaid, it was urged that the petitioners had forwarded the pay bills of the respondent No.1 for the period from 1-10-2010 to 31-10-2012 to the respondent No.2. However, by the communication dated 15-12-2012, the respondent No.3 had refused to release the amount of subsistence allowance on the ground that the Education Officer had given such directions on 1-11-2012. It was submitted that in the impugned judgment the School Tribunal had not held the petitioners disentitled for reimbursement of the subsistence allowance. It is submitted that the petitioners are entitled for being reimbursed the amount of subsistence allowance. It was, therefore, submitted that ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 6/13 appropriate directions in that regard deserve to be issued for reimbursing the amount of subsistence allowance.
6. Shri V. A. Kothale, the learned Counsel for the respondent No.1 supported the impugned judgment. It was submitted that the respondent No.1 could not be denied subsistence allowance inasmuch as the relationship of master and servant between the petitioners and the respondent No.1 continued to subsist. The respondent No.1 could not be kept without payment of subsistence allowance till the completion of the enquiry proceedings. He submitted that in fact, there was an option given to the petitioners to either reinstate the respondent No.1 in service or to pay subsistence allowance to him. He referred to the provisions of Rule 37(2)(f) of the said Rules and submitted that the petitioner was entitled to receive full salary from the Management after completion of period of 120 days of the enquiry. It was, therefore, submitted that the interests of the respondent No.1 could not be prejudiced if the petitioners desire to await the outcome of the criminal proceedings. In support of his submissions, the learned Counsel placed reliance upon the judgment of the Hon'ble Supreme Court in Vidya Vikas Mandal Vs. Education Officer 2007(3) Mh.L.J. 801 and the judgment of the Division Bench in Hamid Khan Nayyar S/o Habib Khan, 2004(4) ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 7/13 Mh.L.J. 513.
7. Shri S. B. Ahirkar, the learned Assistant Government Pleader for the respondent Nos.2 to 4 submitted by referring to the affidavits filed on behalf of the respondent Nos.2 & 3 that as per the impugned judgment, it was the liability of the petitioners to pay the amount of subsistence allowance. It was submitted that the respondent no.2 had not permitted extension of the period of suspension beyond four months. Therefore, it was the liability of the petitioners to pay subsistence allowance. It was also submitted that as the petitioners had placed the respondent No.1 under suspension, the liability to pay subsistence allowance was on the petitioners.
8. As noted above, the petitioners are aggrieved only by that part of the order by which they have been directed to pay subsistence allowance to the respondent No.1. Further, by filing pursis dated 18-2-2014 the petitioners have stated that they are ready to pay the suspension allowance to the respondent No.1 from the date of expiry of four months of the order of suspension dated 03-04-2010 till 31-8-2012. Thus, the only aspect that requires consideration is the liability of the petitioners to pay subsistence allowance from 1-9-2012 onwards till the culmination of the enquiry proceedings. The further question is with regard to ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 8/13 the entitlement of the petitioners to be reimbursed said amount of subsistence allowance by the respondent No.2.
9. In the present case, the petitioners have resolved to adopt the course prescribed by provisions of Rule 33(6) of the said Rules. According to the Rule 33(6) of the said Rules, after the criminal prosecution comes to an end and the employee is convicted then in an enquiry initiated by the Management on the basis of the same charges, it would not be necessary to proceed with the enquiry and necessary action can be taken by the Management to terminate the services of the employee. In case of acquittal of the employee, the Management can drop the enquiry by agreeing with the findings of the Court. Rule 34(1) of the said Rules stipulates the manner in which the subsistence allowance has to be paid. The same is equal to amount of leave salary which the employee would have drawn if he had been on half pay leave in addition to dearness allowance. Under Rule 34(1)(b) where the period of suspension exceeds four months, the amount of subsistence allowance can either be increased or reduced by a suitable amount not exceeding 50% of the subsistence allowance.
Rule 35 of the said Rules lays down various conditions of suspension and where the suspension is with prior approval of the Competent Authority, the Management has to pay subsistence ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 9/13 allowance after expiry of four months from the date of suspension.
Under Rule 35(5) of the said Rules, subsistence allowance cannot be withheld except in cases of breach of provisions of Rule 33(4) or (4) of the said Rules. The aforesaid is, therefore, the scheme relating to payment of subsistence allowance. The provisions of Rule 37(2)(f) of the said Rules would not be attracted in the facts of the present case as completion of the enquiry at this stage would not be possible within a period of 120 days from the date of the first meeting of the Enquiry Committee as the Management has sought to resort to the provisions of Rule 33(6) of the said Rules and has decided to await the result of the criminal prosecution.
10. Thus, from the aforesaid Rules, it can be seen that it is open for the Management to await the result of the criminal prosecution especially when an enquiry is also initiated against the employee on the basis of the same charges that are the subject matter of the criminal prosecution. The subsistence allowance has been limited to the amount equal to leave salary if the employee would have been on half pay leave. Even where the period of suspension exceeds four months, the subsistence allowance does not exceed 50% of the amount that is admissible during the period of first four months. The liability to pay subsistence allowance after a period of four months is that of the Management.
::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 :::wp723.13.odt 10/13 Similarly, subsistence allowance can be withheld only if the employee accepts private employment or if he leaves the headquarters during the period of suspension without prior approval of the Chief Executive Officer.
11. The provisions of Rule 33(5) of the said Rules on which much emphasis was laid by the learned Counsel for the petitioners, contemplates suspension of an employee who has been detained under any law for the time being in force provided for preventive detention or if he is detained in police or judicial custody for a period exceed 48 hours or is undergoing imprisonment. In the present case, the respondent No.1 had secured anticipatory bail and, therefore, he was not detained in custody. In the facts of the present case, aforesaid Rule cannot assist the case of the petitioners.
12. The School Tribunal while allowing the appeal filed by the respondent No.1 permitted the petitioners to adopt the course prescribed by Rule 33(6) of the said Rules. While granting permission to the Management to initiate fresh enquiry, it directed payment of subsistence allowance to the extent of half salary with further liberty to the Management to reinstate the respondent No.1 in service if it so desired. This course adopted by the learned Presiding Officer is according to the provisions of Rules 33 to 36 of ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 11/13 the said Rules. By restricting the amount of subsistence allowance to half salary, the learned Presiding Officer has taken into consideration provisions of Rule 34(1) of the said Rules. The petitioners cannot be permitted to avoid their liability of paying subsistence allowance even while keeping the respondent No.1 under suspension and also awaiting the outcome of the criminal prosecution in terms of Rule 33(6) of the said Rules. The course as adopted by the learned Presiding Officer is in accordance with law and the same does not call for any interference whatsoever.
The judgment of the Division Bench relied upon by the learned Counsel for the respondent No.1 in Hamid Khan (supra) cannot apply to the facts of the present case inasmuch as the enquiry has to commenced after the criminal proceedings against the respondent No.1 comes to an end. For the same reason also, the judgment of the Hon'ble Supreme Court in Vidya Vikas Mandal and another (supra) cannot apply to the facts of the present case.
13. Having found that the petitioners are liable to pay subsistence allowance to the respondent No.1, the alternate prayer as regards reimbursement can be considered. As per the provisions of Rule 35 of the said Rules even where the employee is suspended with prior approval of the Competent Authority, it is the liability of the Management to pay subsistence allowance after ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 12/13 a period of four months from the date of suspension. There is no statutory provision in said Rules that enables the petitioner to be reimbursed the amount of subsistence allowance after the period of four months from the date of initial suspension. In that background therefore the communication dated 15-12-2012 issued by the respondent No.3 refusing to entertain the pay bills pertaining to the suspension allowance of the respondent No.1 cannot be said to be contrary to law. The liability to pay subsistence allowance after the period of four months from the date of the suspension would be of the petitioners and they cannot be held entitled for reimbursement from the respondent Nos.2 & 3.
Hence, the alternate prayer made by the petitioners also cannot be granted.
14. In view of aforesaid discussion, there being no jurisdictional error committed by the School Tribunal there is no case to interfere in writ jurisdiction. The writ petition is, therefore, dismissed with no order as to costs.
15. By the order dated 29-6-2015, the petitioners had been directed to deposit an amount equivalent to full salary receivable by the respondent No.1. Accordingly, the petitioners have deposited an amount of Rs.4,85,897/- in this Court. As the impugned order passed by the School Tribunal has been ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 ::: wp723.13.odt 13/13 maintained, the respondent No.1 would be entitled to subsistence allowance as per clause (iv) of the impugned order. The same would be 50% of the salary payable to the respondent No.1. The respondent Nos.2 & 3 shall calculate the amount of suspension allowance receivable by the respondent No.1 from 03-08-2010 onwards within a period of three weeks from today and file on record a statement to that effect. Thereafter, the respondent No.1 would be at liberty to withdraw said amount as adjudicated by the respondent No.2 & 3. The balance amount, if any, shall be refunded to the petitioners. Order accordingly.
JUDGE //MULEY// ::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 06:45:21 :::