Bombay High Court
Rajaram Dnyandeo Nakade vs The State Of Maharashtra And ... on 15 July, 2016
Bench: S.S. Shinde
8080.2015WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8080 OF 2015
Rajaram s/o. Dnyandeo Nakade,
Age 45 years, Occu : Nil,
R/o. Nakade Wadi, At Post
Jat-Deole, Taluka Pathardi,
District Ahmednagar PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
2. The Education Officer (Secondary)
Zilla Parishad, Ahmednagar
3. President / Secretary,
Savitribai Phule Shaikshanik
Sanskrutik, Samajik Vikas
Sanstha, Phule Nagar,
Pathardi Taluka Pathardi
District Ahmednagar RESPONDENTS
...
Mr.Amol N. Kakade, Advocate for the
petitioner
Mrs.M.A.Deshpande, AGP for Respondent Nos.1
and 2
Mr.S.B.Talekar, Advocate for Respondent No.3.
...
::: Uploaded on - 15/07/2016 ::: Downloaded on - 17/07/2016 00:03:25 :::
8080.2015WP.odt
2
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 24.06.2016
Pronounced on: 15.07.2016
JUDGMENT: (Per S.S.Shinde, J.)
Heard the learned counsel appearing
for the petitioner, learned AGP appearing for
the respondent - State and the learned
counsel appearing for Respondent No.3.
2. This Petition takes exception to the
order dated 17th July, 2015 by which the
petitioner is placed under suspension,
thereby suspending the services of the
petitioner as Headmaster of respondent no. 3
school.
3. The learned counsel appearing for
the petitioner submits that the petitioner
has rendered services in respondent no.3
society as Headmaster for the period of 13
years. Respondent management issued a show
8080.2015WP.odt
cause notice alleging various charges against
the petitioner. The Enquiry Committee was
constituted and after enquiry the services of
the petitioner came to be terminated by an
order dated 07.07.2012, which shall take
effect w.e.f. 07.01.2012. It is submitted
that the petitioner assailed the said order
of termination before the School Tribunal and
the School Tribunal allowed the appeal filed
by the petitioner, however, liberty was
granted to respondent no. 3 that, it can
initiate fresh enquiry if so desired. It is
submitted that though the petitioner was
reinstated, in pursuance of the order of the
School Tribunal, immediately he was placed
under suspension. It is submitted that the
order of suspension without issuing charge
sheet and without seeking prior permission of
the Education Officer is contrary to the
provisions of MEPS Act and Rules, arbitrary
and illegal, and therefore, the impugned
8080.2015WP.odt
order deserves to be quashed and set aside.
It is submitted that the show cause notice
issued by respondent no.3 earlier or the
impugned order is tainted with the mala fides
and arbitrary exercise of the powers by
respondent no.3, and therefore, the same
deserves to be quashed and set aside.
4. It is further submitted that though
the petitioner is placed under suspension, no
subsistence allowance is paid till filing of
the Petition and after filing of the
Petition, part of subsistence allowance is
paid. It is further submitted that from the
perusal of the affidavit filed by respondent
no.3 it seems that the management has paid
the subsistence allowance in respect of
suspension of the petitioner from 05.01.2012
to 07.07.2012, from 07.07.2015 to 31.12.2015
and thereafter from 01.01.2016 to 31.03.2016.
It is submitted that thereafter no
subsistence allowance is paid. It is
8080.2015WP.odt
submitted that respondent has not deposited
the amount towards back wages as ordered by
the School Tribunal. It is submitted that the
Supreme Court in the case of Capt.M.Paul
Anthony Vs. Bharat Gold Mines Ltd. and
another1 held that non-payment of subsistence
during suspension period is violative of
fundamental right to life, and therefore,
such non-payment of subsistence allowance, it
is held that the departmental proceedings
stand vitiated. The learned counsel further
presses into service exposition of law in the
case of O.P.Gupta Vs. Union of India and
others2 and submits that the suspension
pending departmental enquiry for long
duration, is illegal. The expression 'life'
does not merely connote animal existence or a
continued drudgery through life. The learned
counsel for the petitioner in support of his
contention that the enquiry has to be
1 AIR 1999 SC 1416 (1)
2 AIR 1987 SC 2257
8080.2015WP.odt
conducted in accordance with the law and
procedure places reliance on the exposition
of law in the case of Vidya Vikas Mandal and
another Vs. Education Officer and another3.
Resultantly, the learned counsel for the
petitioner submits that the Petition deserves
to be allowed. ig
5. The learned AGP appearing for
respondent - State relying upon the averments
in the affidavit-in-reply filed on behalf of
respondent no.2 submits that respondent no.3
did not take permission before the petitioner
was placed under suspension. It is submitted
that the proposal submitted by the management
has been rejected by respondent no.2,
therefore, it is liability of respondent no.3
to pay subsistence allowance. It is submitted
that even the earlier issuance of show cause
notice and ultimate termination of the
services of the petitioner by respondent no.3
3 (2007) 11 SCC 352
8080.2015WP.odt
was the result of the actions taken by
respondent no.3 and therefore, respondent
no.2 is not liable to pay back wages as
ordered by the School Tribunal. It is
submitted that the School Tribunal has
directed respondent no.2 to pay back wages to
the petitioner.
6. The learned counsel appearing for
respondent no.3 relying upon affidavit-in-
reply, additional affidavit-in-reply and
short affidavit submits that the subsistence
allowance has been paid to the petitioner for
the period for which the petitioner's
services were suspended. He submits that in
pursuance of the liberty granted by the
School Tribunal, after reinstatement of the
petitioner, again the petitioner has been
placed under suspension and the enquiry is in
process. It will take another one month to
conclude the enquiry. It is submitted that
the management transferred the subsistence
8080.2015WP.odt
allowance in respect of the period of
suspension of the petitioner during the
period between 05.01.2012 and 07.07.2012 in
his bank account on 18th March, 2016. The
management paid the subsistence allowance in
respect of suspension of the petitioner
during the period between 17.07.2015 and
31.12.2015 amounting to Rs.1,26,364/- in his
bank account on 16th January, 2016. Similarly
subsistence allowance in respect of the
period between 01.01.2016 and 31st March, 2016
is also deposited in the petitioner's bank
account on 18th March, 2016. The management
has paid the entire amount of subsistence
allowance. He further submits that even
thereafter subsistence allowance has been
paid. It is submitted that the management is
ready to pay subsistence allowance for
further period till the enquiry is concluded
by the management. It is submitted that so
far back wages are concerned, the Execution
8080.2015WP.odt
Petition is filed by the petitioner, and
therefore, the petitioner cannot claim back
wages in this petition. The learned counsel
for the respondent no.3 submits that in the
case of Chairman-cum-Managing Director, Coal
India Limited and others Vs. Ananta Saha and
others4, the Supreme Court has taken a view
that the relief sought by the delinquent
that the appellants should be directed to pay
the arrears of back wages from the date of
first termination order till date, cannot be
entertained. He invites our attention to the
observations in para 46 to 50 of the said
judgment and submits that the respondent
management is ready to conduct enquiry, and
will conclude enquiry within four weeks
subject to co-operation by the petitioner.
Therefore, he submits that the petition may
not be entertained.
7. We have heard the learned counsel
4 (2011) 5 SCC 142
8080.2015WP.odt
appearing for the petitioner, learned AGP
appearing for respondent nos. 1 and 2 and the
learned counsel appearing for respondent no.
3. With able assistance of the learned
counsel appearing for the parties, perused
the pleadings in the Petition, annexures
thereto, affidavit-in-reply, additional
replies filed by the respondents, rejoinder-
affidavit filed by the petitioner and also
judgments cited at Bar by the learned counsel
appearing for the respective parties. It
appears that the School Tribunal, while
allowing the appeal filed by the petitioner,
granted liberty to the respondent management
to conduct fresh enquiry against the
appellant, if desired by the management. It
further appears that the School Tribunal
directed the management to reinstate the
petitioner with continuity in service and
with full back wages from the date of his
termination till the date of reinstatement.
8080.2015WP.odt
There is no doubt that it is a settled legal
preposition that the result of fresh enquiry
relates back to the date of termination.
However, in the facts of the present case,
the petitioner did approach the School
Tribunal for implementation / execution of
the directions / order of the School Tribunal
in his appeal. The Tribunal transferred these
proceedings to Civil Court for execution.
Admittedly, the said execution proceedings
are yet pending. It appears that the period
for which the petitioner was placed under
suspension before his services were
terminated, the subsistence allowance has
been disbursed to him. It further appears
that again the petitioner is placed under
suspension after his reinstatement and
thereafter, the management has disbursed the
subsistence allowance till the end of March
2016. It further appears that this Court, by
an order dated 26th November, 2015, ordered
8080.2015WP.odt
that until further orders enquiry shall not
proceed further, as a result enquiry is
stayed.
8. It is also true that in the
affidavit-in-reply filed by respondent no.2,
it is stated that the petitioner is placed
under suspension without prior permission of
respondent no.2. Respondent no.2 has also
stated in the affidavit-in-reply that
respondent no.3 is responsible to pay back
wages as ordered by the School Tribunal and
respondent no.2 is not under any obligation
to pay such back wages. It is also true that
the petitioner is placed under suspension for
considerably long a period. It is also true
that respondent no. 3 challenged the judgment
and order passed by the School Tribunal by
filing Petition before the High Court,
however, the said Petition was withdrawn
unconditionally and as a result the order
passed by the School Tribunal attained
8080.2015WP.odt
finality. However, it appears that the
enquiry proceeded till the same was stayed by
the order dated 26th November, 2015 passed by
this Court. Therefore, without entering into
the disputed questions of facts and keeping
in view the exposition of law laid down by
the Supreme court in the case of Chairman-
cum-Managing Director, Coal India Limited
(supra) and in particular para 48 to 50, we
pass the following order:
ORDER
i) The interim order dated 26th
November, 2015, thereby staying the further
enquiry stands vacated.
ii) Respondent no.3 can continue with
the enquiry subject to depositing the
subsistence allowance for further period from
April 2016 to July 2016 in the bank account
of the petitioner within two weeks.
Respondent no.3 shall continue to pay
8080.2015WP.odt
subsistence allowance till conclusion of the
enquiry.
iii) Subject to compliance of the
directions in clause (ii), respondent no.3
shall proceed with the enquiry and conclude
the same, as expeditiously as possible,
however, within 6 weeks from today and if
necessary on day to day basis. The petitioner
shall extend full co-operation for such
enquiry.
iv) In case the enquiry is not initiated
and concluded within 6 weeks from today in
spite of co-operation of the petitioner, the
petitioner will be entitled to revive the
prayers in this petition.
v) All the contentions raised in the
present proceedings by the parties are kept
open to be agitated at the appropriate time
including the claim for payment of back
wages.
8080.2015WP.odt
vi) The Writ Petition stands disposed of
in the above terms.
vii) The parties shall act upon
authenticated copy of this order.
viii) No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
After pronouncement of judgment, the
learned Counsel appearing for the petitioner
prays for further continuation of the interim
order, which was in force during pendency of
this Petition.
The said prayer is vehemently
opposed by the learned counsel appearing for
the respondents.
8080.2015WP.odt
We are not inclined to continue the
interim order since the enquiry was stayed
for a considerable period due to interim
order passed by this Court.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
