Bharat Rambhau Kumbhar vs The State Of Maharashtra And ...
2016 Latest Caselaw 5031 Bom

      This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016




                                                1




                                                                                      
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                              
                            WRIT PETITION NO.7687 OF 2016

    Bharat Rambhau Kumbhar,
    Age-Major, Occu-Service,




                                                             
    R/o At Post : Vanjarvadi, Tq.Bhoom,
    Dist.Osmanabad                                                 --       PETITIONER

    VERSUS




                                               
    1.     The State of Maharashtra,
           Through,           
           School Education Department,
           Mantralaya, Mumbai.
                             
    2.     The Director,
           Maharashtra State Examination 
           Department,
           17, Dr.Ambedkar Road, Pune-1.
      


    3.     Deputy Director of Education,
           Regional Deputy Director of Education 
   



           Department, 
           Latur Division, Latur.

    4.     Education Officer, (Secondary)





           Zilla Parishad, Osmanabad,

    5.     Banganga Charitable Trust, Bhoom
           Through its President/Secretary,
           Bhoom, Tq.Bhoom, Dist.Osmanabad,





    6.     Head Master,
           Banganga High School,
           Bhoom, Tq. Bhoom,
           Dist. Osmanabad                                         --     RESPONDENTS

Mr.N.S.Tekale, Advocate for the petitioner. Mr.P.N.Kutti, AGP for the respondent/State. Mr.Y.B.Bolkar, Advocate for respondent Nos. 5 and 6.

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This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

( CORAM : RAVINDRA V. GHUGE, J.)

DATE : 29/08/2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The only issue raised in this petition is as to whether the

Education Officer has the power to direct the Management to place

an employee under suspension, either under Rule 35 or under Rule

33(5), of the MEPS Rules, 1981.

3. Rule 33(5), 33(6) and 35 of the MEPS Rules, 1981 read as

under :-

"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 an a position to rejoin duty after producing

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This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

documentary proof of his release (otherwise than on bail) or acquittal, as the case may be. An 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.

33(6) After the result of the criminal prosecution, a copy of the judgment shall be obtained by the Management and if the

judgment is one of conviction for the charges and if an inquiry is

also initiated by the Management against the employee on the basis of the same charges, it shall not be necessary to proceed

with the inquiry on the same charges and the Management shall take action to terminate the services of the employee. The Management shall not however pass any order till the period

upto which the employee is entitled to prefer an appeal or

revision application to the higher Court against the conviction by the lower Court is over. If the appeal or revision application is preferred the Management shall not take any action till the

conviction is finally confirmed by the higher Court. When the judgment in the criminal case appeal or revision application is one of acquittal, the Management shall consider in the light of the judgment whether it is necessary to institute or proceed with

the inquiry. If the Management agrees that the acquittal is justified, it may drop the inquiry by certifying that it agrees with the findings of the Court. If the Management does not agree with the findings, it may proceed with the inquiry and inflict proper punishment.

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This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

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."

4. There is no dispute as regards the facts of this case. The

petitioner was arrested on the ground of having committed an offence

punishable u/s 420, 511 of the IPC r/w Section 6 and 7 of the

Maharashtra Prevention of Malpractices at University Board and

Other Specified Examinations Act, 1982. He was arrested and was

under detention from 18/01/2016 till 04/05/2016. He acquired bail

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and was released from jail on 05/05/2016. Respondent No.4 herein

had passed an order dated 19/03/2016 directing the suspension of

the petitioner.

5. Despite the strenuous efforts of the learned AGP, he could not

indicate from any Section of the MEPS Act, 1977 and the 1981 Rules

that the Education Officer can suo-motu or on

representation/complaint from any other person, without the

Management having applied to it for seeking permission to suspend,

could have directed the suspension of an employee.

6. The learned Division Bench of this Court, in the matter of Dilip

Venkatrao Patil Vs. State of Maharashtra and others, [1997(3) Mh..J.

279] dealt with a somewhat similar issue and concluded that an

employee against whom proceedings have been taken on a criminal

charge or has been detained under any Law for the time being in

force providing for preventive detention, would be considered as being

under suspension for the duration for which he is under detention or

is detained in the police or judicial custody. Such detention would

lead to deemed suspension for the period of detention and such

employee would not be entitled for any pay and allowances.

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This Order is modified/corrected by Speaking to Minutes Order dated 02/09/2016

7. The learned Division Bench of this Court in the matter of

Madhukar Namdeo Patil Vs. Chairman, Sudhagad Education Society

and others, [2000(4) Mh.L.J. 206] considered a similar situation, and

concluded that Rule 33(5) is to be interpreted to mean deemed

suspension and which cannot be longer than the period for which the

employee was in judicial or police custody. The sanction accorded by

the Education Officer cannot validate the action which was taken

under Rule 33(5) for a period beyond that which is stipulated in the

said Sub Rule. This Court, therefore, concluded that there is no

necessity to direct the continuance of the petitioner under

suspension on the ground that the criminal case is pending.

8. As such, this petition is allowed by directing that the petitioner

shall now be reinstated in service. He has tendered the copy of the

order granting him bail, by the representation dated 10/05/2016

before respondent Nos.5 and 6 Management. He shall be reinstated

with effect from the date on which he has served the copy of the said

order on the Management and the Head Master. However, considering

the offence charged to have been committed by the petitioner of

leaking the teacher's eligibility test question papers, the respondents

shall ensure that the petitioner is kept away from all examination

work including the work of setting question papers, if any, until the

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decision of the criminal case.

9. With the above directions, the order of suspension dated

18/03/2016 issued by the Education Officer, being without authority,

stands quashed and set aside, however, by placing the petitioner

under deemed suspension from 18/01/2016 till his reinstatement.

10.

Needless to state, the directions to the respondents as set out

in the foregoing paragraphs shall scrupulously be followed. It is

made clear that the period of suspension shall not be treated as

break in service.

11. Rule is made absolute in the above terms.

( RAVINDRA V. GHUGE, J.)

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