Sou. Sunita Chandrakant Kalekar vs The Zilla Parishad, Kolhapur ...
2016 Latest Caselaw 7057 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION




                                                                                  
                            WRIT PETITION NO.11361 OF 2016




                                                          
             Sunita Chandrakant Kalekar                            ...Petitioner
                         vs.
             The Zilla Parishad, Kolhapur and Others               ...Respondents




                                                         
    Mr. Suresh Pakale a/w. Mr. Prashant Bhavake, for the Petitioner.
    Mr. R.D. Rane, for Respondent Nos. 1 to 5. 




                                              
                       ORDER RESERVED ON    :  1st DECEMBER, 2016
                       ORDER PRONOUNCED ON  :  8th DECEMBER, 2016
                             CORAM 
                                     ig   : SHANTANU KEMKAR &
                                            PRAKASH NAIK, JJ.

ORDER: (Per Shantanu Kemkar, J.)

. The Petitioner is working on the post of "Assistant Teacher"

in the Primary School run by Zilla Parishad, Kolhapur. A notice dated

28th June, 2016 (Exhibit G) was issued to her alleging therein that she

had acted in violation of Rule 3 and 19 of Maharashtra Zilla Parishad

District Services (Conduct) Rules, 1967 (for short "Rules of 1967")

asking her to show cause as to why she be not suspended and

departmental inquiry be not initiated against her.

2. The Petitioner submitted a reply to the said show cause

notice on 2nd July, 2016 (Exhibit H). After considering the reply, the

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Respondent - Zilla Parishad passed an order dated 30 th August, 2016

(Exhibit I) by which the Petitioner has been put to suspension. Feeling

aggrieved by the order of her suspension the Petitioner has filed this

Petition.

3. The case of the Petitioner is that while passing the

impugned suspension order, there is gross violation of the Rule 3 of

Maharashtra Zilla Parishad District Services (Discipline and Appeal)

Rules, 1964 (for short "Rules of 1964"). It is stated that in the

impugned order there is no mention that disciplinary proceeding is

contemplated and is pending against the Petitioner and therefore the

impugned order is liable to be quashed. It is further stated that the

allegations levelled in the show cause notice and the impugned

suspension order are false and fabricated and are made only to harass

the Petitioner on account of political pressure of local politicians at

the instance of one Mr. Devekar.

4. On the other hand, Respondent - Zilla Parishad has

supported the impugned order. It has been stated that the action of

suspension which has been taken against the Petitioner is in

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conformity of Rule 3 of Rules 1964. According to the Respondents a

close reading of the notice as also the suspension order would clearly

indicate that for the various allegations mentioned therein, a

departmental inquiry against the Petitioner was in contemplation. It is

also stated that recently in November, 2016, chargesheet has also

been issued against the petitioner.

5.

We have heard learned counsel for the parties and

perused the record.

6. The controversy in the matter revolves around Rule 3 of

the Rules of 1964 which deals with the powers of suspension. It reads

as under :

3. Suspension :- The Appointing Authority or any other

Officer of the Zilla Parishad to whom such Appointing Authority is subordinate or any other officer of the Zilla Parishad empowered by the Chief Executie Officer in that behalf may place a Parishad servant under suspension -

(a) where a disciplinary proceeding against him is

contemplated or is pending, or

(b) where a case against him in respect of any criminal offence is under investigation or trial :

Provided that, where the orders of suspension are made by an authority lower in rank than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.

    Vishal Parekar                                                                                     3/7




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                     (2)        A   Parishad   servant   who   is   detained   in   custody,  

whether on a criminal charge or otherwise, for a period

exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Appointing Authority and shall remain under

suspension until further orders.

(3) Whether a penalty of dismissal, removal or compulsory retirement from service imposed upon a Parishad

servant under suspension is set aside in appeal or revision under these rules, and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on an

from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further

orders.

(4) Where a penalty of dismissal, removal or

compulsory retirement from service imposed upon a Parishad servant is set aside or declared or rendered void in consequence of, or by, decision of a Court of law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry

against him on the allegations on which the penalty of

dismissal, removal or compulsory retirement was originally imposed, the Parishad servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or

compulsory retirement and shall continue to remain under suspension until further orders.

(5) An order of suspension made or deemed to have been made under this rule may, at any time, be revoked by

the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

7. In the present case the impugned order of suspension has

been passed invoking the powers under Section 3(a) of the Rules of

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1964 which makes it clear that suspension can be made where

disciplinary proceeding against the servant is either contemplated or

is pending.

8. The case of the Petitioner is that in the impugned order,

there is no mention that Zilla Parishad has contemplated disciplinary

proceeding against the Petitioner and therefore, the order of

suspension is unsustainable.

9. In order to appreciate these contention, it would be

appropriate to refer the relevant portion of impugned suspension

order. In the said order, we find that serious allegations were levelled

against the Petitioner. There is also reference of show cause notice

dated 28th June, 2016 in which there was clear mention that, if the

reply is not found satisfactory, a disciplinary inquiry will be initiated

against the Petitioner and the Petitioner will be suspended. In the

suspension order a further reference has been made that the

Petitioner's alleged conduct as mentioned in the suspension order is

contrary to Rule 3 of the Rules of 1967 which is regarding the "Duty

of Parishad servants to maintain integrity". It provides that "every

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Parishad servant have at all time maintain absolute integrity and

devotion to duty". The order further mentions that the Petitioner's

conduct is in violation of Rule 19 of the Rules of 1967 which provides

that "No Parishad servant shall, except with the previous sanction

of the Chief Executive Officer have recourse to any Court or to the

press for the vindication of any official act which has been the

subject matter of adverse criticism or an attack or defamatory

character".

10. In view of the reasons as mentioned in the suspension

order, the contention of the Petitioner that the inquiry was not in

contemplation, cannot be accepted. Merely because in the impugned

order of suspension it is not mentioned that inquiry is in

contemplation will not vitiate the impugned order, as the order of

suspension is to be seen as a whole in the totality of the background

facts. On reading of the order, as described above, it can

be easily gathered that when the Petitioner was ordered to be

suspended the disciplinary proceeding against her was in

contemplation.

    Vishal Parekar                                                                            6/7




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11. It is further to be noted that after issuance of impugned

suspension order, the Petitioner has now already been issued a charge

sheet in November, 2016.

12. Having regard to the aforesaid, we are of the view that the

contention of the Petitioner that the impugned order is violative of

Rule 3(a) of the Rules of 1964 cannot be accepted. Thus, we find no

merit in this Petition. The Petition fails and is hereby dismissed.

                                   
             (PRAKASH D. NAIK, J.)                 (SHANTANU S. KEMKAR, J.)
         
      






    Vishal Parekar                                                                     7/7