Bombay High Court
The Teachers Education Soc. Thr. ... vs Subhash Tulsiram Narnaware And ... on 26 February, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.723 OF 2013
PETITIONERS: 1. The Teachers Education Society, a
Registered Public Trust, through its
President, & President of School
Committee of Gurudeo Ravindranath
Tagor Vidyalaya, Shelu, Tq. Arni, Dist.
Yavatmal.
2. The Headmaster, Gurudeo Ravindranath
Tagor Vidyalaya, Shelu & Secretary of
ig School Committee R/o Shelu Tq. Arni,
Dist. Yavatmal.
-VERSUS-
RESPONDENTS: 1. Subhash Tulsiram Narnaware, Aged
about 46 years, Occ. Service as Clerk,
R/o Anjankhed, Post Shelu, Tq. Arni,
Dist. Yavatmal.
2. The Education Officer (Secondary) Zilla
Parishad, Yavatmal Tq. & Dist.
Yavatmal.
3. Superintendent Pay Unit Zilla Parishad,
Yavatmal.
4. Presiding Officer School Tribunal,
Amravati Division, Amravati.
Dr. Anjan De, Advocate for the petitioners.
Shri V. A. Kothale, Advocate for the respondent No.1.
Shri S. B. Ahirkar, Asstt. Government Pleader for respondent
Nos. 2 to 4.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 17-12-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 26-02-2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioners have challenged the judgment dated
31-8-2012 passed by the learned Presiding Officer, School
Tribunal, Amravati only to the extent it directs the petitioners to
pay subsistence allowance to the respondent No.1 till the
completion of the enquiry proceedings.
3. The facts relevant for considering the challenges raised
to the impugned judgment are that the respondent No.1 was
appointed on the post of clerk at the petitioner No.2 - School.
After completion of period of probation, his services came to be
confirmed. During the course of service, the First Information
Report came to be registered against the respondent No.1 and
anther employee under provisions of Section 420, 468, 471 read
with Section 34 of the Indian Penal Code. The management
placed the respondent No.1 under suspension by order dated 3-4-
2010. The Management thereafter held the enquiry against the
respondent No.2 and terminated his services by order dated 25-10-
2010. The respondent No.1 challenged the said order of
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termination by filing an appeal under Section 9(1) of the
Maharashtra Employees of Private School (Conditions of Service)
Regulation Act, 1977 (for short, the said Act). The appeal was
opposed by the petitioners on the ground that the action of
terminating the services of the respondent No.1 had been done in
accordance with law. The learned Presiding Officer by the
impugned judgment held that enquiry proceedings had been
conducted by the Management without complying with the
provisions of Rules 33 to 37 of the Maharashtra Employees of
Private Schools (Conditions of Services) Rules 1981 (for short, the
said Rules). The School Tribunal, therefore, set aside the order of
termination and held that as criminal proceedings were pending
against the respondent No.1 he would remain under suspension till
a fresh enquiry with regard to those charges in respect of which
the criminal proceedings were pending was completed by the
Management. The respondent No.1 was held entitled to receive
subsistence allowance from 3-4-2010 onwards. Liberty was given
to the Management to reinstate the respondent No.1 if it so
desired.
4. During pendency of the writ petition, the petitioners
have filed pursis dated 18-2-2014 wherein it has been stated as
under:
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"The petitioner is ready to pay the suspension
allowance to the Respondent No.1 from the date
of expiry of 4 months of the earlier suspension of
the respondent No.1 till the date of order of the
School Tribunal. The petitioner would continue
with the enquiry against the respondent No.1
after the result in the Criminal Proceeding
against the Respondent no.1 or the appellate or
revisional proceedings filed against such order.
Hence this pursis."
By an order dated 29-6-2015, the petitioners were directed to
deposit an amount equivalent to the full salary receivable by the
respondent No.1. This interim order dated 29-6-2015 was
challenged by the petitioners before the Hon'ble Supreme Court,
but the Special Leave Petition was dismissed on 14-8-2015.
Thereafter this amount came to be deposited on 1-9-2015. The
respondent No.1 thereafter moved Civil Application No.1934/2015
seeking permission to withdraw the amount of subsistence
allowance that was deposited by the petitioners. It was submitted
by the learned Counsel for the petitioners and the respondent No.1
that the writ petition itself could be decided finally instead of
considering and deciding Civil Application No.1934/2015. It is in
that background that the learned Counsel for the parties have been
heard on merits at length.
5. Dr. Anjan De, the learned Counsel for the petitioners
submitted that the petitioners were aggrieved only by the direction
issued by the School Tribunal to pay suspension allowance to the
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respondent No.1 from 3-4-2010. It was submitted that the
petitioners could have been directed to pay subsistence allowance
only for the period after four months from 3-4-2010 when the
respondent No.1 was placed under suspension till 31-8-2012 when
the order of termination was set aside by the School Tribunal. By
referring to the provisions of Rule 33 of the said Rules, it was
submitted that as criminal proceedings against the respondent
No.1 were pending, the respondent No.1 had been placed under
suspension. The action of suspending the services of the
respondent No.1 after the judgment of the School Tribunal was in
obedience with the the directions issued by the School Tribunal.
Without prejudice to the aforesaid, it was urged that
the petitioners had forwarded the pay bills of the respondent No.1
for the period from 1-10-2010 to 31-10-2012 to the respondent
No.2. However, by the communication dated 15-12-2012, the
respondent No.3 had refused to release the amount of subsistence
allowance on the ground that the Education Officer had given such
directions on 1-11-2012. It was submitted that in the impugned
judgment the School Tribunal had not held the petitioners
disentitled for reimbursement of the subsistence allowance. It is
submitted that the petitioners are entitled for being reimbursed the
amount of subsistence allowance. It was, therefore, submitted that
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appropriate directions in that regard deserve to be issued for
reimbursing the amount of subsistence allowance.
6. Shri V. A. Kothale, the learned Counsel for the
respondent No.1 supported the impugned judgment. It was
submitted that the respondent No.1 could not be denied
subsistence allowance inasmuch as the relationship of master and
servant between the petitioners and the respondent No.1
continued to subsist. The respondent No.1 could not be kept
without payment of subsistence allowance till the completion of
the enquiry proceedings. He submitted that in fact, there was an
option given to the petitioners to either reinstate the respondent
No.1 in service or to pay subsistence allowance to him. He referred
to the provisions of Rule 37(2)(f) of the said Rules and submitted
that the petitioner was entitled to receive full salary from the
Management after completion of period of 120 days of the
enquiry. It was, therefore, submitted that the interests of the
respondent No.1 could not be prejudiced if the petitioners desire to
await the outcome of the criminal proceedings. In support of his
submissions, the learned Counsel placed reliance upon the
judgment of the Hon'ble Supreme Court in Vidya Vikas Mandal Vs.
Education Officer 2007(3) Mh.L.J. 801 and the judgment of the
Division Bench in Hamid Khan Nayyar S/o Habib Khan, 2004(4)
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Mh.L.J. 513.
7. Shri S. B. Ahirkar, the learned Assistant Government
Pleader for the respondent Nos.2 to 4 submitted by referring to the
affidavits filed on behalf of the respondent Nos.2 & 3 that as per
the impugned judgment, it was the liability of the petitioners to
pay the amount of subsistence allowance. It was submitted that
the respondent no.2 had not permitted extension of the period of
suspension beyond four months. Therefore, it was the liability of
the petitioners to pay subsistence allowance. It was also submitted
that as the petitioners had placed the respondent No.1 under
suspension, the liability to pay subsistence allowance was on the
petitioners.
8. As noted above, the petitioners are aggrieved only by
that part of the order by which they have been directed to pay
subsistence allowance to the respondent No.1. Further, by filing
pursis dated 18-2-2014 the petitioners have stated that they are
ready to pay the suspension allowance to the respondent No.1
from the date of expiry of four months of the order of suspension
dated 03-04-2010 till 31-8-2012. Thus, the only aspect that
requires consideration is the liability of the petitioners to pay
subsistence allowance from 1-9-2012 onwards till the culmination
of the enquiry proceedings. The further question is with regard to
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the entitlement of the petitioners to be reimbursed said amount of
subsistence allowance by the respondent No.2.
9. In the present case, the petitioners have resolved to
adopt the course prescribed by provisions of Rule 33(6) of the said
Rules. According to the Rule 33(6) of the said Rules, after the
criminal prosecution comes to an end and the employee is
convicted then in an enquiry initiated by the Management on the
basis of the same charges, it would not be necessary to proceed
with the enquiry and necessary action can be taken by the
Management to terminate the services of the employee. In case of
acquittal of the employee, the Management can drop the enquiry
by agreeing with the findings of the Court. Rule 34(1) of the said
Rules stipulates the manner in which the subsistence allowance
has to be paid. The same is equal to amount of leave salary which
the employee would have drawn if he had been on half pay leave
in addition to dearness allowance. Under Rule 34(1)(b) where the
period of suspension exceeds four months, the amount of
subsistence allowance can either be increased or reduced by a
suitable amount not exceeding 50% of the subsistence allowance.
Rule 35 of the said Rules lays down various conditions of
suspension and where the suspension is with prior approval of the
Competent Authority, the Management has to pay subsistence
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allowance after expiry of four months from the date of suspension.
Under Rule 35(5) of the said Rules, subsistence allowance cannot
be withheld except in cases of breach of provisions of Rule 33(4)
or (4) of the said Rules. The aforesaid is, therefore, the scheme
relating to payment of subsistence allowance. The provisions of
Rule 37(2)(f) of the said Rules would not be attracted in the facts
of the present case as completion of the enquiry at this stage
would not be possible within a period of 120 days from the date of
the first meeting of the Enquiry Committee as the Management has
sought to resort to the provisions of Rule 33(6) of the said Rules
and has decided to await the result of the criminal prosecution.
10. Thus, from the aforesaid Rules, it can be seen that it is
open for the Management to await the result of the criminal
prosecution especially when an enquiry is also initiated against the
employee on the basis of the same charges that are the subject
matter of the criminal prosecution. The subsistence allowance has
been limited to the amount equal to leave salary if the employee
would have been on half pay leave. Even where the period of
suspension exceeds four months, the subsistence allowance does
not exceed 50% of the amount that is admissible during the period
of first four months. The liability to pay subsistence allowance
after a period of four months is that of the Management.
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Similarly, subsistence allowance can be withheld only if the
employee accepts private employment or if he leaves the
headquarters during the period of suspension without prior
approval of the Chief Executive Officer.
11. The provisions of Rule 33(5) of the said Rules on
which much emphasis was laid by the learned Counsel for the
petitioners, contemplates suspension of an employee who has been
detained under any law for the time being in force provided for
preventive detention or if he is detained in police or judicial
custody for a period exceed 48 hours or is undergoing
imprisonment. In the present case, the respondent No.1 had
secured anticipatory bail and, therefore, he was not detained in
custody. In the facts of the present case, aforesaid Rule cannot
assist the case of the petitioners.
12. The School Tribunal while allowing the appeal filed by
the respondent No.1 permitted the petitioners to adopt the course
prescribed by Rule 33(6) of the said Rules. While granting
permission to the Management to initiate fresh enquiry, it directed
payment of subsistence allowance to the extent of half salary with
further liberty to the Management to reinstate the respondent No.1
in service if it so desired. This course adopted by the learned
Presiding Officer is according to the provisions of Rules 33 to 36 of
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the said Rules. By restricting the amount of subsistence allowance
to half salary, the learned Presiding Officer has taken into
consideration provisions of Rule 34(1) of the said Rules. The
petitioners cannot be permitted to avoid their liability of paying
subsistence allowance even while keeping the respondent No.1
under suspension and also awaiting the outcome of the criminal
prosecution in terms of Rule 33(6) of the said Rules. The course
as adopted by the learned Presiding Officer is in accordance with
law and the same does not call for any interference whatsoever.
The judgment of the Division Bench relied upon by the learned
Counsel for the respondent No.1 in Hamid Khan (supra) cannot
apply to the facts of the present case inasmuch as the enquiry has
to commenced after the criminal proceedings against the
respondent No.1 comes to an end. For the same reason also, the
judgment of the Hon'ble Supreme Court in Vidya Vikas Mandal and
another (supra) cannot apply to the facts of the present case.
13. Having found that the petitioners are liable to pay
subsistence allowance to the respondent No.1, the alternate prayer
as regards reimbursement can be considered. As per the
provisions of Rule 35 of the said Rules even where the employee is
suspended with prior approval of the Competent Authority, it is
the liability of the Management to pay subsistence allowance after
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a period of four months from the date of suspension. There is no
statutory provision in said Rules that enables the petitioner to be
reimbursed the amount of subsistence allowance after the period
of four months from the date of initial suspension. In that
background therefore the communication dated 15-12-2012 issued
by the respondent No.3 refusing to entertain the pay bills
pertaining to the suspension allowance of the respondent No.1
cannot be said to be contrary to law. The liability to pay
subsistence allowance after the period of four months from the
date of the suspension would be of the petitioners and they cannot
be held entitled for reimbursement from the respondent Nos.2 & 3.
Hence, the alternate prayer made by the petitioners also cannot be
granted.
14. In view of aforesaid discussion, there being no
jurisdictional error committed by the School Tribunal there is no
case to interfere in writ jurisdiction. The writ petition is, therefore,
dismissed with no order as to costs.
15. By the order dated 29-6-2015, the petitioners had been
directed to deposit an amount equivalent to full salary receivable
by the respondent No.1. Accordingly, the petitioners have
deposited an amount of Rs.4,85,897/- in this Court. As the
impugned order passed by the School Tribunal has been
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maintained, the respondent No.1 would be entitled to subsistence
allowance as per clause (iv) of the impugned order. The same
would be 50% of the salary payable to the respondent No.1. The
respondent Nos.2 & 3 shall calculate the amount of suspension
allowance receivable by the respondent No.1 from 03-08-2010
onwards within a period of three weeks from today and file on
record a statement to that effect. Thereafter, the respondent No.1
would be at liberty to withdraw said amount as adjudicated by the
respondent No.2 & 3. The balance amount, if any, shall be
refunded to the petitioners. Order accordingly.
JUDGE
//MULEY//
