Bombay High Court
Sunita Baburao Bhangire vs The State Of Maharashtra And ... on 21 December, 2016
Bench: S.V. Gangapurwala
WP 10905/15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10905/2015
Sunita Baburao Bhangire,
aged 47 yrs., occu.service as
Assistant Teacher in Sardar Vallabhbhai
ig Patel Primary School, Mudkhed,
Tq.Mudkhed Dist.Nanded.
r/o Mudkhed Dist.Nanded.
...Petitioner..
Versus
1] The State of Maharashtra,
through its Principal Secretary to the
Government of Maharashtra in
Education and Sports Department,
Maharashtra State, Mantralaya,
Mumbai-32.
2] The Education Officer (Primary),
Zilla Parishad, Nanded.
3] Shikshan Prasarak Mandal,
Mudkhed, Tq.Mudkhed Dist.Nanded.
Through its Director
Baliram s/o Pandurangrao Unhale.
4] Madhukar s/o Pandurangrao Unhale,
aged 45 yrs., occu.service,
r/o Mudkhed, Maratha Galli,
Tq.Mudkhed Dist.Nanded.
...Respondents...
.....
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Shri N.P. Patil Jamalpurkar, Advocate for petitioner.
Smt.Vaishali Patil, AGP for respondent no.1.
Shri S.B. Pulkundwar, Advocate for respondent no.2.
Shri R.R. Mantri, Advocate for respondent nos.3 & 4.
.....
CORAM: S.V. GANGAPURWALA &
K.L. WADANE, JJ.
JUDGMENT RESERVED ON 13.12.2016
JUDGMENT PRONOUNCED ON 20.12.2016
JUDGMENT (Per K.L. Wadane, J.):ig
1] Heard learned counsel for the parties. Rule.
Rule made returnable forthwith and with the consent of
learned counsel for the parties, the petition is taken up
for final hearing at this stage.
2] The case of the petitioner is that the
petitioner is serving as an Assistant Teacher in a school
run by the respondent no.3 since 14.6.1988. The
petitioner is a senior most teacher. Therefore, the then
management of the respondent no.3 forwarded a proposal to
the respondent no.2 for grant of approval to the
appointment of the petitioner as a Head Mistress. The
respondent no.2 granted temporary approval to the
appointment of the petitioner as in-charge Head Master
from time to time.
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3] There is dispute in the management going on
between two groups of the trustees of the respondent
no.3. Taking disadvantage of the situation, one group of
the management by exerting pressure on the respondent
no.2 obtained an order dated 20.10.2014 granting approval
to the appointment of another teacher, who is junior to
the petitioner on the post of Head Master. Being
aggrieved by that order, the petitioner filed Writ
Petition No.907/2015. During the hearing of said writ
petition, a statement was made on behalf of the
respondent nos.3 and 4 on 7.10.2015 that they will submit
the proposal for appointment of the petitioner on the
post of Head Mistress within a week. However, in spite
of the statement before this Court, they have not sent
such a proposal. The respondent nos.3 and 4 only with a
view to circumvent the orders passed by this Court in
Writ Petition No.907/2015, issued an order on 21.10.2015
by which the petitioner is placed under suspension.
Hence, this writ petition.
4] We have heard the arguments of Shri N.P. Patil
Jamalpurkar, learned counsel for the petitioner,
Smt.Vaishali Patil, learned AGP for the respondent no.1,
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Shri S.B. Pulkundwar, learned counsel for the respondent
no.2 and Shri R.R. Mantri, learned counsel for the
respondent nos.3 & 4; and also perused the record.
5] The affidavit in reply on behalf of the
respondent nos.3 and 4 is sworn by the President of
respondent no.3 namely Balasaheb Deshmukh and thereby he
contended that the petitioner was engaged in
misappropriation and, therefore, she has committed
serious mis-conduct. Hence, notices were issued to the
petitioner, however, the petitioner is not responding to
such notices. The respondent no.4 is acting as a trustee
and Deputy Director of the trust as per the constitution
of the trust. He further stated that the proposal to
appoint the petitioner was submitted on 13.10.2015 to the
respondent no.2. It has acknowledged the same. After
initiation of the departmental proceedings, the
respondent no.3 solicited the permission of the
respondent no.2 to suspend the petitioner. On
21.10.2015, the management of the respondent no.3 took
the decision to suspend the petitioner. Such decision is
taken since the respondent no.2 has not passed any order
regarding grant or refusal to suspend the petitioner and
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such decision was taken in the interest of justice and in
the interest of the trust. The petitioner is not
appearing in the departmental proceedings and considering
her mis-conduct, the management has taken the decision to
suspend her.
6] During the course of arguments, Mr.N.P. Patil
Jamalpurkar, learned counsel appearing for the
petitioner, by relying upon the provisions of Rules 33
and 35 of th Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, has argued that it
is for the management to decide first whether the
departmental enquiry is to be initiated and the
petitioner was to be suspended or not. However, such a
decision was taken by the management after about one year
and four months, which is contrary to the provisions of
Rule 33. According to Mr.Patil, such a decision was to
be taken by the management at the initiation of the
departmental proceedings and that too with the prior
permission of the respondent no.2. As per provisions of
Rule 35, it is mandatory to obtain prior permission of
the respondent no.2 and admittedly such a permission is
not obtained by the respondent no.3 from the respondent
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no.2.
7] It is useful to quote the relevant provisions of
Rule 33(1) and Rule 35 as under:-
"33. Procedure for inflicting major penalties -
(1) If an employee is alleged to be guilty of
any of the grounds specified in sub-rule (5) of
rule 28 and if there is reason to believe that
in the event of the guilt being proved against
him, he is likely to be reduced in rank or
removed from service, the Management shall first
decide whether to hold an enquiry and also to
place the employees under suspension and if it
decides to suspend the employee, it shall
authorise the Chief Executive Officer to do so
after obtaining the permission of the Education
Officer or, in the case of the Junior College of
Educational and Technical High Schools, of the
Deputy Director. Suspension shall not be
ordered unless there is a prima facie case for
his removal or there is reason to believe that
his continuance in active service is likely to
cause embarrassment or to hamper the
investigation of the case. If the Management
decides to suspend the employee, such employee
shall, subject to the provisions of sub-rule (5)
stand suspended with effect from the date of
such orders.
35. Conditions of suspension -
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(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
Cooperative 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."
8] Looking to the above provisions, it appears that
before suspension of an employee, prior permission of the
appropriate authority mentioned in Rule 33 is required
and looking to the provisions of Rule 33, it appears that
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the management shall first decide whether to hold an
enquiry and also to place the employee under suspension
and if it decides to suspend the employee, it shall
authorise the Chief Executive Officer to do so after
obtaining the permission of the Education Officer.
9] According to the respondent nos.3 & 4, they have
requested the respondent no.2 to grant permission to
suspend the petitioner, however, no orders are passed by
the respondent no.2 in that behalf. Therefore, in the
interest of the institution, they have taken decision to
suspend the petitioner. Further, it appears from the
record that the departmental proceedings are initiated
against the petitioner in the month of June, 2014, and
the petitioner was suspended on 21.10.2015 i.e. after
about one year and four months and there is no
explanation offered by the respondent no.3 as to why such
decision of suspension was not taken at the time of
initiation of departmental enquiry and what are the
extraordinary circumstances and emergent situation by
which the respondent no.3 was compelled to suspend the
petitioner. Normally, an employee of the recognized
school may be placed under suspension by the management
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after obtaining prior permission of the authority in view
of the provisions of sub-rule (1) of Rule 33 and Rule 35
of the Rules. In extraordinary circumstances and in
emergent situation, employee can be placed under
suspension without obtaining prior permission of the
Education Officer. The institution may place the employee
under suspension and in that event, it is required to pay
subsistence allowance. In the present case, no such
circumstances are pleaded or stated by the respondent
no.3. It would be seen that enquiry has been initiated
against the petitioner in June 2014, the said enquiry is
not yet completed. The petitioner is placed under
suspension on 21.10.2015 i.e. more than one year after
commencement of enquiry. Further, more than one year has
also lapsed after her suspension, still enquiry is not
completed. There was no prohibitory order against
institution from proceeding with the enquiry.
Considering the totality of the facts, it would be
improper to allow continuation of suspension of the
petitioner. In such circumstances, we are of the opinion
that the suspension order dated 21.10.2015 seem to be
improper.
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10] In view of above, the writ petition is allowed.
The order dated 21.10.2015 passed by the respondent no.3
is quashed and set aside. Rule is made absolute in above
terms. No order as to costs.
(K.L. WADANE, J.) (S.V. GANGAPURWALA, J.)
ndk/sbb.doc
