wp.787.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 787/2017 Ku. Kunda Motiram Bodalkar (after marriage: Smt.Kunda Arjun Godbole) Aged 52 years, occu: Headmistress Sant Shivram Maharaj Madhyamik Vidyalaya Bhandara, R/o Ramabai Ambedkar Ward Bhandara. ..PETITIONER v e r s u s
1) The Director of Education (Secondary and Higher Secondary) Education Directorate, Maharashtra State, Pune-1.
2) Swami Vivekanand Shikshan Sanstha
Through its so called President
Madhukarrao Amborkar
Apna Nagar, Takia Ward, Bhandara.
3) Swami Vivekanand Shikshan Sanstha
Through Its President:
Shri Kailash Bhayyalal Nashine
R/o Vidya Nagar
Behind Indralok Sabha Gruha
Bhandara.
4) Education Officer (Secondary)
Zilla Parishad, Bhandara.
5) State of Maharashtra
Through its Secretary
Department of Sports and Education
Mantralaya, Mumbai-400 032. ...RESPONDENTS ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:36 ::: wp.787.17 2 ...........................................................................................................................
Mr. R.S.Parsodkar, Adv. for petitioner Ms. Ritu Kalia, AGP for respondent nos.1,4 and 5 Mr. A.Z.Jibhkate, Adv. for respondent no.2 Mr. V.K. Paliwal, Adv. for respondent no.3.
............................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS
. SWAPNA JOSHI, JJ
.
DATED : 21st March,2017
ORAL JUDGMENT: (PER MRS. SWAPNA JOSHI, J.)
1. Rule. Rule made returnable forthwith. Heard by consent of both sides at the stage of admission itself.
2. By this petition, the petitioner seeks a direction to quash and set aside the impugned order of suspension dated 21.01.2017 issued by respondent no.1-Director of Education (Secondary & Higher Secondary Education), Pune.
3. The petitioner was appointed on 05.07.2004 as Headmistress in Sant Shivram Maharaj Madhyamik Vidyalaya, Bhandara. On 14.02.2007 the Deputy Director of Education granted approval to the appointment of the petitioner. It is the case of petitioner that on the complaint of one Ms.Archana Dhok, who was not in good terms with the petitioner, lodged a complaint, alleging that the petitioner demanded an amount of Rs.1,700/- for releasing her salary. Accordingly, a trap was laid ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:36 ::: wp.787.17 3 against the petitioner on 09.05.2011. On 10.05.2011, the petitioner was arrested at 2.20 pm. and was released of bail by an order of Special Judge, Bhandara at 4.45 pm, on the same day. On 25.5.2011, the Education Officer, Zilla Parishad, Bhandara granted permission for suspension of the petitioner by communication dated 01.06.2011. However on 02.06.2011, the Education Officer passed an order whereby permission granted earlier for suspension of the petitioner by communication dated 01.06.2011, was cancelled.
4. The petitioner stated that the State Government has issued a Government Resolution (G.R.) dated 14.07.2016 whereby the State Government delegated power and authority upon the Director of Education to suspend an employee teaching and non-teaching in private aided and unaided schools recognized by the State Government, in respect of the employees who are arrested in an anti-corruption raids and such employees be suspended, dismissed or removed from the service.
5. According to the petitioner, when there is a specific rule regarding suspension of Headmistress, there is no need to apply the G.R. As under the Rules, the power to suspend rests solely with the President of the Society and not with Director of Education, Deputy Director of ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:36 ::: wp.787.17 4 Education or the Education Officer. The petitioner submitted that the order of suspension dated 21.01.2017 issued by respondent no.1- Director of Education is illegal. The said order is challenged in this petition.
6. Mr. R.S.Parsodkar, learned counsel for petitioner contended that the impugned order of suspension issued by the respondent no.1 is absolutely without jurisdiction and therefore non-est, as the same runs counter to Maharashtra Employees of Private Schools Rules, 1981 (henceforth abbreviated to "Rules of 1981"), more particularly Rule 33 sub-rule(5) thereof. He further submitted that as per Rule 33 sub-rule (1), it is the authority of the Management to suspend an employee subject to provisions of sub-rule(5) of Rule 33 of the Rules of 1981. According to him, the Chief Executive Officer is only authorized to execute the decision of the Management for suspension. The legal body is required to pass a resolution of suspension and the said order of suspension is to be issued by the Chief Executive Officer. He submitted that in present case, no suspension order is passed by the Management and therefore, there cannot be any suspension by the Education Officer, Deputy Director of Education or Director of Education. Mr.Parsodkar urged that the impugned order of suspension dated 21.01.2017 is illegal ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:36 ::: wp.787.17 5 and without jurisdiction. He added that the Director of Education is duty-bound to follow rule 35 sub-rule(5) which specifically stipulates that the suspension is permissible only if the employee is detained in police custody exceeding forty-eight hours and then such an employee would not be allowed to draw pay and allowances till termination of such proceedings. He further submitted that the petitioner was in custody only for two-hours and, therefore, she cannot be suspended.
7. Mr. Parsodkar placed reliance upon the judgment in the case of Dilip Patil vs. State of Maharashtra, reported in 1997 (3) Mh.L.J. 279, wherein it has been held that Rule 33(5) of the Rules of 1981 does not contemplate automatic suspension pending criminal proceedings and the order of suspension has to be passed by the Management with prior approval of the Education Officer.
8. Learned AGP Ms. Ritu Kalia, for respondent nos.1, 4 and 5 submitted that in case of corruption charges, the Management under which the employee is working, has to initiate action against such employee and if the Management is not initiating action within stipulated period, the Director of Education, being competent authority, is empowered to initiate action against the erring employee facing charges of corruption, initiate disciplinary action and suspend him/her ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:37 ::: wp.787.17 6 on charges of corruption. She submitted that as per Government Resolution dated 14.07.2016, the respondents have initiated action against the present petitioner.
9. Learned counsel for respondent no.2-Mr.Jibhkate, urged that he represents the real employer in Management. The Managing Committee of the respondent no.2 initiated enquiry against the petitioner through legally constituted Inquiry Committee as per Rule 36 of Rules of 1981 for her serious misconduct and misbehaviour. He further submitted that the President of the respondent no.2-Management intended to initiate enquiry against the petitioner and to place her under suspension. However, permission was not granted to suspend her inasmuch as her illegal activities were sheltered by the then Secretary. He further submitted that the respondent no.1 is justified in placing the petitioner under suspension by the impugned order.
10. Learned counsel appearing for respondent no.3-Sanstha, Mr.Paliwal, supported the case of the petitioner and contended that the respondent no.1 was not justified in passing the impugned order. He asserts that his clients are legally and factually in Management and have neither moved any disciplinary proceedings nor suspended the petitioner.
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11. We are not inclined to go into the rival contentions of both the Managements. Instead, we would like to go through the legal provisions which bolster the case of the petitioner.
12. Heard rival submissions of both sides and on a perusal of the records, it is apparent that the petitioner was arrested on 10.05.2011 at 2.30 pm. After the arrest, she was released on bail at 4.35 p.m. which means that the petitioner was in custody for less than forty-eight hours.
13. At this stage, it would be useful to go through the provisions of the Rules of 1981. Rule 33 sub-rule (5) reads thus :
"33(5): An employee against whom proceeding have been taken on criminal charge or who is detained under any law for the time being in force providing for preventive detention shall be considered as under suspension for any period during which he is under such detention or he is detained in police or judicial custody for a period exceeding forty eight hours or is undergoing imprisonment, and he shall not be allowed to draw any pay and allowances for such period until the termination of the proceedings taken against him or until he is relieved from detention and is in a position to rejoin duty after producing documentary proof of his release (otherwise than on bail) or acquittal, as the case may be. An ::: Uploaded on - 31/03/2017 ::: Downloaded on - 27/08/2017 20:28:37 ::: wp.787.17 8 adjustment of his pay and allowances for such periods shall be made according to the circumstances of the case, the full amount being given only in the event of the employee being acquitted of charge or detention being held by the Court to be unjustified."
14. As per provisions of Rule 33 (5) of the Rules of 1981 if an employee is in custody for more than forty-eight hours it would be a deemed suspension. Significantly, the suspension lasts for the period in which the employee is in custody. The deemed suspension cannot continue after the employee is enlarged on bail. In the instant case, the order of suspension is issued after six years of cessation of police custody and it stipulates interim suspension prospectively, from 21.01.2017.
15. Rule 33 sub-rule (5) of the Rules of 1981 does not empower the employer to order suspension, in view of the fact that the suspension order was not issued during the period in which the petitioner was in custody. In these circumstances, when the employer was not entitled to issue the order of suspension to the petitioner, the respondent no.1-Director of Education is also not empowered to issue the impugned order of suspension.
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16. So far as the G.R. dated 14th July, 2016 is concerned, it stipulates that the State Government delegated powers and authority to the Director of Education to suspend an employee,teaching and non- teaching in private aided and unaided schools recognized by the State Government in respect of the employees who are arrested in anti corruption raid and such employees be suspended, dismissed or removed from service. This delegation is on account of omission to act on part of employer to act. When employer himself cannot "act", the Scheme in G.R. Cannot apply. In this regard,it is to be noted that the statutory provisions prevail over the G.R. The order dated 21.01.2017 runs counter to the mandate of statutory Rules of 1981 so far as Rule 33 sub-rule (5)is concerned.
17. As per the provisions contemplated under Rule 33 sub-rule (5) of Rules of 1981, the respondent no.1 is not empowered to suspend the petitioner and as such, order dated 21.01.2017 is rather indefensible and cannot be sustained inasmuch as it is without jurisdiction.
18. In this view of the matter, we quash and set aside the impugned order of suspension dated 21.01.2017.
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19. Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE JUDGE
sahare
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