(1) WP No.1506/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 1506 OF 2012
Surekha Bhila Thakare
Age : major, occu.: service
R/o 7/A, Anmol Nagar,
Deopur, Dhule,
District Dhule Petitioner.
Versus
1. The State of Maharashtra
Through its Secretary,
Education Department,
Mantralaya, Mumbai.
2. The Deputy Director of Education,
Nashik Division, Nashik.
3. The Education Officer (Primary),
Zilla Parishad, Dhule.
4. The President,
Public Education Society,
Deopur, District Dhule.
A Public Trust having its office at
Professor Colony, Deopur, Dhule,
Taluka and District Dhule.
5. The President,
Rashtramata Jijau Sevabhavi Sanstha,
Rami, Taluka Sindkheda,
District Dhule.
6. The Head Master,
Prathmik Vidya Mandir, Gondur Road,
Walwadi, Dhule. Respondents.
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(2) WP No.1506/2012
***
Shri Yogesh Bolkar, Advocate for petitioners.
Smt. V.S. Chaudhary, A.G.P. for respondent Nos.1 and 2.
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CORAM : RAVINDRA V. GHUGE
AND
SUNIL K. KOTWAL, JJ.
Dated : 16-11-2017.
JUDGMENT (PER RAVINDRA V. GHUGE) :-
1. By this Petition, the petitioner has put-forth prayer Clauses 'C' and 'D' below paragraph No.37, which read as under :-
C. By way of writ of Mandamus or any other appropriate writ, order or direction in the like nature, this Hon'ble High Court may please be directed to the respondent authorities to pay the salary / subsistence allowance in accordance with law to the present petitioner for the period October 2005 to May 2006.
D. By way of writ of Mandamus or any other appropriate writ, order or direction in the like nature, the respondent Nos.2 and 3 may please be directed to decide the issue of payment of salary / subsistence allowance in accordance with law of the present petitioner for the period October 2005 to May 2006.
2. After this Court had issued notices to the respondents on 04.01.2013, all the respondents have been served. The learned A.G.P. has caused an appearance on behalf of respondent Nos.1 and 2. Shri Desale, learned Advocate appearing for respondent No.-5-Rashtramata Jijau Sevabhavi Sanstha, is absent. Though respondent No.3-Education Officer (Primary) and respondent Nos.4 and 6, which are the Educational Trust and Headmaster of the School have been served, they have not caused an appearance either through an Advocate or in-person. ::: Uploaded on - 21/11/2017 ::: Downloaded on - 24/11/2017 13:16:26 :::
(3) WP No.1506/2012
3. The contention of the petitioner is that though the Management - respondent No.4 has placed the petitioner under suspension from 29.09.2005, the Education Officer, by an order dated 17.02.2006, has refused sanction to the request made by the Management to suspend the petitioner.
4. We find that under Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 read with Maharashtra Employees of Private Schools Rules, 1981, a specific scheme is devised for conducting disciplinary proceedings against the employees who are facing charges levelled by the Management. Rule 33 deals with the procedure for inflicting major penalties and in doing so, the employer is legally bound to conduct an inquiry. If an employee is sought to be suspended, the Management has to seek permission for suspending an employee and which permission is to be granted by the Education Officer.
5. Rule 35 (3) of the M.E.P.S. Rules provides for payment of subsistence allowance if an employee is suspended with the prior approval of the Education Officer. If an employee is suspended without prior approval, Rule 34 (4) provides for the payment of subsistence allowance by the Management, during the first four months of suspension and for further period till completion of the inquiry as per the rules applicable. ::: Uploaded on - 21/11/2017 ::: Downloaded on - 24/11/2017 13:16:26 :::
(4) WP No.1506/2012 Beyond four months, the Rule prescribes the payment of 75% of the salary as suspension allowance.
6. The learned Division Bench of this Court, in the matter of Geeta Shridhar Gadre Shramadham Vs. Brahman Shikshan Mandal and others [2007 (114) FLR 278], has concluded that any suspension beyond four months, would render the suspension illegal.
7. In the instant case, the Education Officer has specifically refused sanction to the Management to suspend the petitioner. We find from the Petition Paper Book that the learned Single Judge of this Court, by an order dated 26.09.2011 in Contempt Petition No. 11 of 2011 filed by the present petitioner, had directed payment of suspension allowance after termination of the petitioner, keeping in view that the petitioner had approached the Tribunal and a denovo inquiry was directed.
8. Considering the contentions before us in this Petition and the prayer put-forth by the petitioner, we find that the prayers of the petitioner can be granted in the light of Rule 33 (1) and Rule 35 (3) and (4) of the M.E.P.S. Rules.
9. As such, this Petition is allowed. We direct respondent No.3- Education Officer to calculate the subsistence allowance which the ::: Uploaded on - 21/11/2017 ::: Downloaded on - 24/11/2017 13:16:26 ::: (5) WP No.1506/2012 Management has to pay from its accounts, keeping in view Rule 35 (3) and (4) of the M.E.P.S. Rules. After calculating the said amounts within a period of four weeks from today, the Education Officer shall direct respondent No.4-Management to pay the said subsistence allowance within a period of four weeks after passing of the order. If the Management does not comply with his order, the Education Officer can initiate coercive steps to ensure compliance.
( SUNIL K. KOTWAL) ( RAVINDRA V. GHUGE)
JUDGE JUDGE
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