Bombay High Court
Fakroddin Gaibisab Jamadar vs The State Of Maharashtra And ... on 29 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 963 OF 2016
Fakroddin s/o Gaibisab Jamadar,
Age : 46 years, Occu. Service
as Headmaster, R/o Wadhona (Bk.),
Tq. Udgir, District Latur PETITIONER
VERSUS
1. The State of Maharashtra,
through its Secretary,
School Education Department,
Mantralaya, Mumbai-32
2. The Education Officer (Primary)
(Satishkumar B. Rathod),
Zilla Parishad, Latur,
District Latur
3. Dr. Zakir Husain Shikshan
Prasarak Mandal, Udgir,
Tq. Udgir, District Latur
through its Secretary RESPONDENTS
----
Mr. S.C. Swami, Advocate holding for Mr. V.D. Gunale,
Advocate for the Petitioner
Mr. V.S. Badakh, A.G.P. for respondent No. 1/State
Mr. D.S. Mali, Advocate for respondent No. 2
None appears for respondent No. 3 though served
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 12th AUGUST, 2016
JUDGMENT PRONOUNCED ON : 29th AUUGUST, 2016
::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:47:51 :::
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JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the parties,
heard finally.
2. The petitioner was working as an Assistant
Teacher with respondent No. 3 since 1988. He came to be
promoted to the post of Headmaster in the year 1997.
According to the learned counsel for the petitioner,
because of some dispute with the Secretary of respondent
No. 3, one Mohammad Jubair Momin complained against the
Secretary with the Anti Corruption Bureau for the
offence of demanding and accepting bribe. The said
complainant falsely implicated the petitioner also in
that case. The petitioner came to be arrested on the
allegations of committing the offences under the
Prevention of Corruption Act on 9 th January, 2015 and on
the same day, he came to be released on bail by the
Special Judge, Udgir.
3. Respondent No. 2 - the Education Officer, vide
his communication dated 7th March, 2015, directed
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respondent No. 3 to suspend the petitioner on the ground
that he was arrested in connection with the crime
registered against him for the offence under the
Prevention of Corruption Act. Accordingly, respondent
No. 3 Institution suspended the petitioner vide order
dated 23rd March, 2015 with effect from 9 th January, 2015.
Respondent No. 2 granted ex post facto sanction for
suspension of the petitioner vide communication dated
27th March, 2015.
4. No disciplinary enquiry has been initiated
against the petitioner.
5. Respondent No. 3 passed a resolution on 16th
July, 2015 and decided to reinstate the petitioner.
Accordingly, an order dated 24th July, 2015 came to be
issued, reinstating the petitioner as the Headmaster of
the school run by respondent No. 3. Accordingly, the
petitioner resumed his duty on 24th July, 2015. The said
fact was communicated by respondent No. 3 to respondent
No. 2 vide letter dated 10th August, 2015.
6. The learned counsel for the petitioner submits
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that the petitioner has not been paid either subsistence
allowance in respect of the period of his suspension
from 9th January, 2015 to 23rd July, 2015 or his regular
salary from 24th July, 2015 though the petitioner is
discharging his duty as the Headmaster. The learned
counsel for the petitioner, therefore, submits that the
directions may be given to respondent No.2 to pay the
subsistence allowance to the petitioner as per the Rules
in respect of the period from 9th January, 2015 to 23rd
July, 2015 and further pay his regular salary from 24th
July, 2015 onwards.
7. Respondent No. 3 - Institution supports the
claim of the petitioner.
8. Respondent No. 2 opposed the petition by filing
reply. On the basis of the contents of the said reply,
the learned A.G.P. submits that as per Rule 33 of the
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981, after suspending the petitioner,
it was binding on respondent No. 3 to initiate
disciplinary enquiry against the petitioner and complete
it within 120 days by appointing the Enquiry Committee.
However, respondent No. 3 neither appointed the Enquiry
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Committee nor initiated disciplinary enquiry against the
petitioner. Therefore, respondent No. 3 would be
liable to pay subsistence allowance and regular salary
of the petitioner. He submits that respondent No. 2 got
enquired the allegations made against the petitioner
through an Enquiry Committee comprising of Block
Education Officer, Panchayat Samiti, Renapur and
Education Extension Officers, Panchayat Samiti, Udgir
and Ahmedpur. The enquiry report submitted by the said
Committee shows that there are a number of
irregularities committed by the petitioner. He submits
that since respondent No. 3 did not initiate any
disciplinary enquiry against the petitioner,
irrespective of the fact that the petitioner committed a
number of irregularities, respondent No. 3 would be
liable to pay the subsistence allowance and regular
payment of salary to the petitioner. He, therefore,
submits that the directions as sought against respondent
No. 2 may not be issued.
9. Admittedly, the petitioner was under suspension
from 9th January, 2015 to 23rd July, 2015 with the
approval of respondent No.2. No disciplinary enquiry has
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been initiated against the petitioner. Here, it would
be worthwhile to reproduce Rule 35, which runs as
under:-
35. Conditions of suspension
(1) In cases where the Management desires to
suspend an employee, he shall be suspended only
with the prior approval of the appropriate
authority mentioned in rule 33.
(2) The period of suspension shall not exceed
four months except with the prior permission of
such appropriate authority.
(3) In case where the employee is suspended
with prior approval he shall be paid
subsistence allowance under the scheme of
payment through Co-operative Banks for a period
of four months only and thereafter, the payment
shall be made by the Management concerned.
(4) In case where the employee is suspended by
the Management without obtaining prior approval
of the appropriate authority as aforesaid, the
payment of subsistence allowance even during
the first four months of suspension and for
further period thereafter till the completion
of inquiry shall be made by the Management
itself.
(5) The subsistence allowance shall not be
withheld except in cases of breach of
provisions of sub-rules (3) or (4) of rule 33.
10. As seen from the documents produced on record
and the specific contention of respondent No. 2 that
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after the period of suspension for 120 days, no approval
for continuation of suspension of the petitioner was
obtained by respondent No. 3. In view of the provisions
of sub-rule (3) of Rule 35, mentioned above, since the
petitioner was placed under suspension with the approval
of respondent No. 2, the subsistence allowance of the
petitioner for the initial period of four months, which
was permissible under sub-rule (2) of Rule 35 above, is
liable to be paid by respondent No. 2. After expiry of
the period of four months till 23 rd July, 2015,
respondent No. 3 would be liable to pay the same, since
no approval of respondent No. 2 was obtained for
extension of the period of suspension of the petitioner.
11. The petitioner has been reinstated to work as
the Headmaster of respondent No. 3 with effect from 24th
July, 2015. Accordingly, he has resumed his duty. He
is discharging the said duty continuously from 24th July,
2015 onwards. The said fact has been informed by
respondent No. 3 to respondent No. 2 vide letters dated
24th July, 2015 and 10th August, 2015. The petitioner has
not been held guilty for any misconduct. He has not
been penalised. Only because a criminal case is pending
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against him, that cannot be a ground for withholding
regular salary of the petitioner, when he is discharging
his duty as the Headmaster. Consequently, respondent
No. 2 would be liable to pay regular salary of the
petitioner from 24th July, 2015 onwards. In the
circumstances, we pass the following order:-
O R D E R
The Writ Petition is allowed.
(2) Respondent No. 2 shall pay to the petitioner
the subsistence allowance as per the M.E.P.S.
Rules, 1981 in respect of the period of four
months i.e. from 9th January, 2015 to 8th May,
2015 and further pay him regular salary from
24th July, 2015 onwards.
(3) Respondent No. 3 shall pay to the petitioner
the subsistence allowance as per the M.E.P.S.
Rules from 9th May, 2015 to 23rd July, 2015.
(4) Rule is made absolute on the above terms.
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(5) The Writ Petition is accordingly allowed and
disposed of.
(6) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp963-2016
