Bhagwan Damaji Dongre vs The State Of Maharashtra And ...
2016 Latest Caselaw 4626 Bom

                                                                  10219.15WP
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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY 




                                              
                           BENCH AT AURANGABAD

                           WRIT PETITION NO. 10219 OF 2015 




                                             
              Bhagwan S/o Damaji Dongre 
              Age : 58 years, Occ : Retired, 
              Rashid Colony, M.S.E.B. Road, 
              Pathri, Tq. Pathri, Dist. Parbhani. 
                                              ..PETITIONER




                                     
                      VERSUS

              1.
                             
                       The State of Maharashtra
                       School Education Department, 
                       Mantralaya, Mumbai 
                            
                       Through it's Secretary. 

              2.       The Education Officer (Secondary), 
                       Zilla Parishad, Parbhani. 
      


              3.       Ankush Nivrutti Kachve 
                       Self Declared President of Netaji
   



                       Subhash Shikshan Sanstha, Manwat, 
                       Tq. Manwat, Dist. Parbhani. 

              4.       The Head Master, 





                       Netaji Subhash Vidyalaya, 
                       Pathri, Tq. Pathri, Dist. Parbhani. 

              5.   The Accountant General, 
                   Office of the Accountant General 





                   (Accountant and Entitlement)-II, 
                   Maharashtra, Nagpur. 
                                              RESPONDENTS
                                    ...
              Mr. M.C. Syed, Advocate for petitioner. 
              Mr. A.V. Deshmukh, A.G.P. Respondent Nos.1, 2 
              and 5. 
              Mr. K.J. Suryawanshi, Advocate for Respondent 
              no.3.   




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                                                                             10219.15WP
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                                        CORAM : S.S. SHINDE & 




                                                        
                                                SANGITRAO S. PATIL, JJ.

RESERVED ON : 1st August, 2016 PRONOUNCED ON: 11th August, 2016

JUDGMENT : (S.S. SHINDE, J)

Rule. Rule made returnable

forthwith. Heard finally with the consent of

the learned counsel appearing for the

parties.

2. It is the case of the petitioner

that he was appointed as Assistant Teacher in

Respondent No.4 - school on 15th July, 1983

and promoted to the post of Headmaster on 18 th

September, 2013. Crime No.3041/2015 came to

be registered against him at Police Station,

Pathri for the offences under sections 7, 12

r/w 13(2) of the Prevention of Corruption

Act, 1988. He was arrested on 30 th April, 2015

and was released on bail on 2nd May, 2015 by

the Competent Court. Respondent No.3 by

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letter dated 2nd May, 2015 sought permission

from Respondent No.2 to place the petitioner

under suspension. The said permission was

granted on 14th July, 2015 on the condition of

conducting departmental enquiry. However,

respondent no.3 placed the petitioner under

suspension on 15th May, 2015 i.e. two months

prior to granting of such permission by

Respondent No.2.

3. It is further the case of the

petitioner that he retired on superannuation

from the service on 31st May, 2015. He was on

leave for the period from 28th April, 2015 to

30th May, 2015. Respondent No.3 has not even

constituted enquiry committee till date for

conducting departmental enquiry against the

petitioner. It is further the case of the

petitioner that the concerned Respondents

have not sanctioned pension to the petitioner

since he is placed under suspension. It is

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the specific contention of the petitioner

that law does not permit conducting of the

departmental enquiry of the retired employee

and employee cannot be placed under

suspension for more than the period for which

he was in custody of the Police or the Jail

Authority.

4. The learned counsel appearing for

the petitioner in support of his contention

that the departmental enquiry against the

employee, who is retired from services,

cannot be continued after retirement, placed

reliance on the reported judgment of the

learned Single Judge of Bombay High Court

bench at Nagpur in the case of Shah Babu

Education Society, Patur and another V/s

Presiding Officer, School Tribunal, Amravati

and Aurangabad Divisions, Aurangabad and

another1. Therefore, relying upon the

1 2006(6)Mh.L.J. 547

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pleadings and grounds taken in the Petition,

the learned counsel appearing for the

petitioner submits that the Petition deserves

to be allowed.

5. On the other hand, the learned

counsel appearing for Respondent No.3,

relying upon the averments in the affidavit

in reply, made the following submissions.

The petitioner was promoted to the

post of Headmaster by passing a resolution on

15th September, 2013 and the proposal for

approval of his appointment as Headmaster was

forwarded to the Education Officer. The

approval was also granted to his appointment

by the Education Officer as Headmaster. The

petitioner illegally demanded the amount of

Rs.50,000/- from one Shri Parmeshwar Sakharam

Karpe. Therefore, F.I.R. was lodged against

the petitioner at Police Station, Pathri on

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30th April, 2015 and crime No.3041/2015 was

registered against him for the offences under

Sections 7, 12 r/w 13(2) of the Prevention of

Corruption Act, 1988. The said fact was

communicated to Respondent No.3 by the

concerned Police Inspector, Anti Corruption

Bureau. The Managing Committee upon receiving

that information passed a Resolution in the

meeting dated 2nd May, 2015 and decided to

place the petitioner under suspension and

accordingly, the letter was written to

Respondent No.2 seeking permission. The

petitioner was placed under suspension on 14 th

May, 2015. It is submitted that the

petitioner filed an application on 4th June,

2015 to respondent no.3 and warned that he

would lodge report against Respondent no.3

under the provisions of the Scheduled Castes

and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The petitioner is

involved in serious crime. After decision of

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the criminal case, pending against the

petitioner and his acquittal, Respondent No.3

- management would take appropriate steps as

per Rules to forward the pension papers of

the petitioner. However, till the said case

is pending, the petitioner's request to pay

him pension cannot be considered.

6. We have carefully considered the

submissions of the learned counsel appearing

for the petitioner, the learned A.G.P.

appearing for the Respondent/State and that

of the learned counsel appearing for

Respondent No.3. With their able assistance,

we have perused the pleadings in the

Petition, grounds taken therein, annexures

thereto and reply filed by Respondent No.3.

7. The fact that the petitioner stood

retired on superannuation from the services

on 31st May, 2015 is not in dispute. The

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petitioner was arrested on 30th April, 2015

and released on bail on 2nd May, 2015 also is

not in dispute. Admittedly, the petitioner's

services are governed by the Employees

Private Schools (Conditions of Service)

Regulation Act, 1977 and the Rules, 1981. In

the case of Shah Babu Education Society,

Patur and another (supra), the learned Single

Judge, while interpreting the provisions of

Section 9 of the said Act and also Rules held

that the provisions of the said Act and the

Rules do not enable employer to continue with

departmental enquiry after superannuation of

employee. The Supreme Court in the case of

Bhagirathi Jena V. Board of Directors,

O.S.F.C. and others2 also has taken a view

that in the absence of any specific provision

to continue the departmental enquiry after

retirement, the enquiry cannot be continued

and would stand lapsed after retirement.

2 (1999) 3 S.C.C.666

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8. The Division Bench of this Court in

the case of Antaji S/o Datta Gonare V/s The

State of Maharashtra, in Writ Petition

No.2486 of 2016, decided on 8th August, 2016,

in paras 7 and 8 has held thus :-

"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 read with

Section 34 of Indian Penal Code. He was detained in custody for the period from 29th 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 24th April, 2002 seeking

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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 21st 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 21st 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 of his suspension. It was held that the Education

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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

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case is entitled for the reliefs claimed in

the present Petition. The petitioner was

under detention with the abovereferred crime

from 30th April, 2015 to 2nd May, 2015. He will

be deemed to be under suspension during the

said period in view of the provisions of the

Rule 35(5) of the MEPS Rules. However,

Respondent No.3 placed the petitioner under

suspension on 15th May, 2015 i.e. after he was

released on bail on 2nd May, 2015. So far as,

the period of detention of the petitioner

from 30th April, 2015 to 2nd May, 2015 is

concerned, he will be deemed to be under

suspension during the said period, as held

hereinabove. Since the petitioner was placed

under suspension on 15th May, 2015 and the

permission was granted by Respondent no.3 on

14th July, 2015 in respect of the said period

of suspension, Respondent No.3 will be liable

to pay the salary to the petitioner.

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10. In the light of discussion

hereinabove, the Petition deserves to be

allowed in terms of prayer clause `B'. So far

as the prayer clause `C' is concerned, since

criminal case is pending the Respondents are

directed to take appropriate steps to pay the

provisional pension/pension to the petitioner

in accordance with the relevant Rules and in

that respect take necessary steps, as

expeditiously as possible, and preferably

within 12 weeks from today.

11. The Petition is partly allowed and

the same stands disposed of. No costs.

                       Sd/-                                  Sd/-
              (SANGITRAO S. PATIL, J.)                (S.S. SHINDE, J.)





              SGA