Bombay High Court
Antaji Datta Gonare vs The State Of Maharashtra And ... on 8 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2486 OF 2016
Antaji S/o Datta Gonare,
Age : 42 years, Occu.: Service,
R/o.: C/o. Kai. Prakash Kamble
Primary Ashram School,
Dongarshelki Tanda,
Tq. Udgir, Dist. Latur PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
Social Welfare Department,
Mantralaya, Mumbai - 32
2. The Deputy Commissioner,
Social Welfare, Latur Division,
Latur, Tq. Dist. Latur
3. The Assistant Commissioner,
Social Welfare Office,
Latur, Tq. Dist. Latur
4. Ramdhan Naik Shikshan Sanstha
Bortal Tanda (Nagalgaon),
Tq. Udgir, Dist. Latur,
Through its President
5. Kai. Prakash Kamble Primary
Ashram School, Dongarshelki Tanda,
Tq. Udgir, Dist. Latur,
Through its Headmaster RESPONDENTS
----
Mr. Anand V. Patil (Indrale), Advocate for the
Petitioner
Mr. V. S. Badakh A.G.P. for respondent nos. 1 to 3
Mr. D. B. Rode, Advocate for respondent nos. 4 and 5
----
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CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 18th JULY, 2016
JUDGMENT PRONOUNCED ON : 8th AUGUST, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is heard finally.
2.
The petitioner is working as an Assistant
Teacher in respondent no.5 - Primary Ashram School,
since the year 1999. The said school is run by
respondent no.4 - Education Society. The wife of the
petitioner committed suicide and therefore, an F.I.R.
came to be registered against him for the offences
punishable under sections 302 and 498-A of the Indian
Penal Code, on 30th November, 2011. The petitioner came
to be arrested in connection with that crime on 17 th
December, 2011. He came to be released on bail vide
order dated 12th June, 2012. In the meanwhile, respondent
no.4 - Education Society suspended the petitioner vide
its order dated 1st May, 2012, but revoked the said
suspension vide Resolution dated 27th June, 2012. The
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petitioner was allowed to resume his duty with effect
from 1st July, 2012. Thus, he is performing his duties
as an Assistant Teacher from 1st July, 2012 onwards after
revocation of his suspension.
3. It is the grievance of the petitioner that his
salary has not been paid by respondent nos. 4 and 5 in
respect of the period during which he was under
suspension and even in respect of period after he
resumed his duties on 1st July, 2012. It is stated that
the petitioner has made several representations to
respondent nos. 4 and 5 for releasing the arrears of
salary and for payment of his regular salary. However,
he was informed that his salary bills have not
been accepted by respondent no.3 - the Assistant
Commissioner, Social Welfare Office, Latur.
4. The learned counsel for the petitioner, relying
on the decisions in the cases of Vasant Haribhau Ugale
Vs. State of Maharashtra & others, 2004(4) Bom.C.R.375
and Shri Madhukar Namdeo Patil Vs. Chairman Sudhagad
Education Society & others, 2000(4) Bom.C.R.698, submits
that respondent nos.4 and 5 were not at all justified in
placing the petitioner under suspension after his
detention was over. No departmental enquiry was
4 wp2486-2016
initiated against the petitioner on any count. He
further submits that the arrears of salary as well as
the regular salary of the petitioner cannot be legally
withheld by the respondents. He, therefore, prays that
the respondents may be directed to pay arrears of salary
as well as regular salary of the petitioner with effect
from 1st July, 2012.
5. The learned A.G.P. appearing for respondent
nos.1 to 3, relying on the contents of the affidavit-in-
reply filed on their behalf submits that respondent no.4
had not obtained prior approval of respondent nos.1 to 3
for placing the petitioner under suspension or even for
revoking the said suspension. Therefore,respondent nos.1
to 3 are not liable to pay salary of the petitioner in
respect of the period of his suspension. According to
them, respondent no.4 is liable to pay arrears of salary
to the petitioner in respect of his period of
suspension. So far as payment of regular salary of the
petitioner with effect from 1st July, 2012 is concerned,
nothing has been mentioned in their reply to show as to
how the same can be withheld. Further it is stated that
the petitioner is connected with serious offences and
was in detention for a period of about six months.
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Therefore, respondent no.4 should have initiated
departmental enquiry against the petitioner. It is
stated that respondent no.4 has not complied with the
mandatory provisions and therefore, respondent nos.1 to
3 are not liable to pay salary to the petitioner. On
these grounds, it is prayed that the Writ Petition may
be dismissed.
6. No formal reply has been filed on behalf of
respondent nos.4 and 5 to challenge the claims made in
the petition. However, the learned counsel for
respondent nos.4 and 5 submits that the bills for
payment of salary to the petitioner have been submitted
to respondent no.3 but the same have not been processed
by respondent no.3. He further submits that respondent
nos.1 to 3 are liable to pay arrears of salary as well
as regular salary to the petitioner.
7. The facts of the present case, and that of
Vasant Haribhau Ugale (supra), are almost identical. In
that case, the petitioner was arrested in connection
with the offences punishable under Sections 147, 148,
142, 452, 302 and read with Section 34 of Indian Penal
Code. He was detained in custody for the period from 29 th
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January, 2002 to 3rd February, 2002 (five days). He came
to be released on 3rd February, 2002. The Principal of
the school placed him under suspension with effect from
12th February, 2002 on the ground that the petitioner was
detained in custody for a period of more than 48 hours.
The School Management moved the Education Officer on 24 th
April, 2002 seeking approval to the suspension of the
petitioner. The said proposal was subsequently withdrawn
and, therefore, suspension came to be revoked by the
Management with effect from 19th June, 2002. The
petitioner was allowed to resume his duties on 21 st June,
2002. Since then, the petitioner continued to work as a
Laboratory Assistant. The salary of the petitioner in
respect of the period of suspension as well as regular
salary after his resuming duties from 21 st June, 2002 was
not paid to him on the ground that it was permissible
for the Education Officer to direct that the salary
payable to the petitioner ought to be kept in the joint
account of the School and Head Master, and only after
termination of criminal proceedings against the
petitioner in acquittal, the said amount ought to be
released to the petitioner. The petitioner therein gave-
up his claim for arrears of salary in respect of period
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of his suspension. It was held that the Education
Officer does not have any sanction of law to withhold
the salary of the petitioner after his resuming his
duties with effect from 21st June, 2002. Therefore, the
Education Officer was directed to approve the salary
bills of the petitioner therein regularly and was
advised that he should not refuse the same for the
reason of pendency of the criminal proceedings.
8.
In the case of Shri Madhukar Namdeo Patil,
(supra), it has been held that the suspension of the
employee under Rule 33(5) of the Maharashtra Employees
of Private Schools (Conditions of Service) Rules, 1981
(for short, "MEPS Rules"), where the employee has been
detained in police custody or judicial custody, cannot
exceed the duration of the detention of the employee in
such custody.
9. In view of the above stated settled legal
position, the petitioner in the present case is entitled
to get regular salary after resuming his duties with
effect from 1st July, 2012. Respondent nos.1 to 3 would
not at all be justified in withholding the payment of
salary of the petitioner with effect from 1st July, 2012.
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10. The petitioner was under detention in
connection with the above referred crime from 17 th
December, 2011 till 12th June, 2012. He will be deemed to
be under suspension during the said period in view of
the provisions of Rule 35(5) of the MEPS Rules. However,
before the petitioner was released on bail, respondent
no.4 suspended him from services by the order dated 1 st
May, 2012 without obtaining approval from respondent
no.3 and further revoked that suspension vide Resolution
dated 27th June, 2012.
11. The learned A.G.P. submits that the suspension
of the petitioner from 1st May, 2012 to 27th June, 2012
was effected by respondent no.4 without approval of
respondent no.3 and, therefore, respondent no.4 would be
liable to pay salary to the petitioner in respect of the
said period. We are not inclined to accept this
contention fully. However, there is some substance in
the said submission. So far as the period of detention
of the petitioner from 17th December, 2011 to 12th June,
2012 is concerned, he will be deemed to be under
suspension vide Rule 33(5) of the MEPS Rules, as held
herein-above. The order passed by respondent no.4 on
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1st May, 2012, suspending the petitioner actually would
have the effect during the period from 13 th June, 2012
(i.e. the date on which the petitioner was released on
bail) to 27th June, 2012, when it was revoked by
respondent no.4. Since the suspension of the petitioner
in respect of the period from 13 th June, 2012 to 27th
June, 2012 was not having prior approval of respondent
no.3, respondent no.4 would be liable to pay the salary
in respect of the said period to the petitioner.
However, so far as the period of suspension from 17th
December, 2011 to 12th June, 2012 and 28th June, 2012 till
1st July, 2012 is concerned, respondent nos.1 to 3 cannot
deny their liability to pay the salary to the
petitioner. Respondent nos.1 to 3 further are liable to
pay regular salary of the petitioner from 1 st July, 2012
onwards. In view of the above facts and circumstances of
the case, we allow the Writ Petition with the following
order.
(i) The Writ Petition is allowed.
(ii) Respondent nos.4 and 5 shall submit the salary
bills of the petitioner in respect of the
period from 17th December, 2011 to 12th June,
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2012 and 28th June, 2012 till July, 2016 to
respondent no.3, and respondent no.3 shall
approve the said bills and release the salary
of the petitioner without refusing the same for
the reason of pendency of the criminal
proceedings against him.
(iii) Respondent no.4 shall pay salary of the
petitioner in respect of the period from 13th
June, 2012 to 27th June, 2012 at its own.
(iv) Respondent nos.1 to 3 shall pay salary to the
petitioner regularly from 1st August, 2016
onwards.
(v) Rule made absolute in the above terms.
(vi) The Writ Petition is accordingly disposed of.
(vii) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
mandawgad_sa/wp2486-2016
