Bombay High Court
Madhav Nagappa Hanamshetty vs The State Of Maharashtra And ... on 19 July, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 488 OF 2016
Madhav s/o Nagappa Hanamsshetty,
Age : 40 years, Occu.: Service,
R/o.: Lohara, Tq. Lohara,
Dist. Osmanabad PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department
Mantralaya, Mumbai - 32
2. The Education Officer, (Secondary)
Zilla Parishad, Osmanabad
3. The Headmaster,
High School, Lohara,
Tq. Lohara, Dist. Osmanabad
4. Lohara High School Lohara,
Through its Secretary
Shri S.K. Sutar,
Age : 56 years, Occu.: Agri,
R/o.: Lohara, Tq. Lohara,
Dist. Osmanabad RESPONDENTS
----
Mr. V.D. Gunale, Advocate for the Petitioner
Mr. V.S. Badakh A.G.P. for respondent nos. 1 and 2
None for respondent no. 3
Mr. Sandeep C. Swami, Advocate for respondent no. 4
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 4th JULY, 2016
JUDGMENT PRONOUNCED ON : 19th JULY, 2016
::: Uploaded on - 19/07/2016 ::: Downloaded on - 30/07/2016 09:58:10 :::
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JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is heard finally.
2. By this petition under Article 226 of the
Constitution of India, the petitioner has sought
directions against respondent nos. 2 and 3 for his
reinstatement in the service as Junior Clerk by revoking
suspension order dated 1st June, 2011 and for payment of
arrears of his salary from the date of his suspension
till reinstatement.
3. Undisputedly, the petitioner was appointed as a
Junior Clerk with respondent no. 3 - High School at
Lohara on 1st November, 2000. His appointment has been
duly approved by respondent no. 2 - Education Officer
(Secondary), Zilla Parishad, Osmanabad. One Ragini
Chanbas Ashtange, Assistant Teacher working with
respondent no. 3, set herself on fire on 30th March,
2011. She succumbed to the injuries sustained by her on
30th April, 2011, while being treated in the Civil
Hospital at Solapur. Her husband, namely, Dilip
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Mashalkar lodged a report against the petitioner in
Police Station, Lohara on 11th May, 2011 on the
allegations that the petitioner assured the deceased
Ragini to send the proposal for her promotion to the
post of Head Master of the School and on that pretext,
sexually abused her, which compelled her to commit
suicide. On the basis of that report, Crime No. 21 of
2011 came to be registered against him for the offences
punishable under section 354 and 306 of the Indian Penal
Code. He came to be arrested and detained in police
custody. Consequently, respondent no. 3 issued an order
dated 1st June, 2011 suspending the petitioner with
effect from that day, as per the provisions of the
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 (for short, "the MEPS Rules").
4. After investigation of Crime No. 21 of 2011,
the Police Station Officer of Police Station Lohara,
submitted chargesheet against the petitioner before the
learned Judicial Magistrate First Class, Lohara, for the
above-mentioned offences, who, in turn, committed the
case to the Sessions Court at Omerga. Sessions Case
No. 9 of 2012 came to be instituted against the
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petitioner, which ended in acquittal as per the judgment
and order dated 4th February, 2015, passed by the learned
Additional Sessions Judge, Omerga.
5. The learned counsel for the petitioner submits
that a false report was lodged against the petitioner
due to the groupism in the Management of the school. He
submits that while acquitting the petitioner, the
learned Additional Sessions Judge has passed strictures
against the Investigating Officer for not conducting the
investigation properly. The learned Additional Sessions
Judge opined that the possibility of false implication
of the petitioner due to political rivalry cannot be
ruled out. He submits that Dilip Mashalkar falsely
involved the petitioner in this case due to political
rivalry between his family and that of the petitioner.
He submits that no disciplinary proceedings have been
initiated against the petitioner at any point of time.
The petitioner made several applications to respondent
nos. 2 and 3 for revoking his suspension and reinstating
him to the post of Junior Clerk with full backwages.
However, the said applications were not considered by
them. Therefore, the present petition came to be filed
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for the above-mentioned reliefs.
6. Respondent nos. 1 and 2 filed common affidavit-
in-reply through one Ramesh Devidas Joshi, Deputy
Education Officer (Secondary), Zilla Parishad,
Osmanabad. It is stated that after receiving the report
dated 19th May, 2011 from respondent no. 3 about arrest
and detention of the petitioner in crime no. 21 of 2011
for the above-mentioned offences, respondent no. 2
directed respondent no. 3 to take action as per the
provisions of the MEPS Rules. Respondent no. 3 suspended
the petitioner vide letter dated 1st June, 2011. It is
stated that after acquittal of the petitioner in
Sessions Case No. 9 of 2012 for the above-mentioned
offences, it was for the Management to take decision to
revoke suspension of the petitioner and pay subsistence
allowance to him. The power to revoke suspension of the
petitioner and to reinstate him in service does not vest
in respondent no. 2. It is further stated that the
acquittal of the petitioner has been challenged by the
informant, namely, Dilip Mashalkar by filing an Appeal
bearing No. 256 of 2015. The State Government also has
decided to challenge the said acquittal by filing an
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Appeal. It is stated that there are disputes between
two groups of Management at Lohara High School and Writ
Petitions are pending before the Hon'ble High Court,
arising out of those disputes. On the strength of the
averments made in this reply, the learned A.G.P. submits
that the petitioner is not entitled to get himself
reinstated and seek backwages, since his acquittal is
challenged before the Hon'ble High Court. He, therefore,
prays that the present writ petition may be dismissed.
7. Respondent no. 3 was duly served with the
notice of the writ petition, but none appeared for
respondent no. 3.
8. From the facts of the case as summarised above,
it is clear that it was only because of the arrest and
detention of the petitioner in connection with Crime No.
21 of 2011 registered in Police Station, Lohara, for the
offences punishable under sections 354 and 306 of the
Indian Penal Code, that he came to be suspended with
effect from 1st June, 2011 as per the suspension order of
the even date issued by respondent no. 3. Admittedly, no
disciplinary proceedings have been initiated against the
petitioner. The petitioner was tried before the Sessions
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Court at Omerga in Sessions Case No. 9 of 2012 for the
above-mentioned offences and after fullfledged trial, he
came to be acquitted by the learned Additional Sessions
Judge, Omerga, as per the judgment and order dated 4 th
February, 2015. While acquitting the petitioner of the
said offences, the learned Additional Sessions Judge
observed in paragraph no. 22 of the judgment as under:
"Therefore all the said circumstances appeared in
the cross examination of P.W. 1 Dilip Mashalkar
and P.W.7 Investigating Officer that, the false
F.I.R. was lodged by Shri. Dilip Mashalakar and
biased Investigation was carried out by the
Investigating Officer. Admittedly there is
political rivalry between the complainant's
family and accused's family therefore possibility
can not be ruled out that the complainant Dilip
Mashalkar falsely involved the accused in this
case. Therefore the accused is entitled for
benefit of doubt. The oral evidence given by the
prosecution witnesses is not reliable and
trustworthy."
9. It would be worthwhile to reproduce here the
relevant provisions of Rule 33 of the MEPS Rules,
relating to suspension of an employee.
"33. Procedure for inflicting major penalties.
(1) ............
(2) ............
(3) ............
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(4) .............
(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 of 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 in a position to rejoin duty
after producing 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.
(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 service 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
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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
10. In the present case, the petitioner has not
only been acquitted of the offences punishable under
sections 354 and 306 of Indian Penal Code for want of
reliable evidence, but the learned Additional Sessions
Judge has opined that the possibility of false
implication of the petitioner on account of political
rivalry cannot be ruled out. Albeit, the fact remains
that now the petitioner has been acquitted of the above-
mentioned offences and no disciplinary proceedings have
been initiated against him till date. It may be noted
that the President and Secretary of the Education
Committee of Respondent no. 3 - High School have
requested the Head Master to reinstate the petitioner in
the service vide letter dated 07.03.2015 (Exh.I). There
is no provision in the MEPS Rules that during pendency
of the Appeal against the judgment of acquittal of the
employee, his suspension shall be continued until final
decision of the Appeal. In the circumstances, in view of
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the above referred provisions of Rule 33 of the MEPS
Rules, the suspension of the petitioner is liable to
revoked and he is liable to be reinstated in the
service.
11. It is the case of the petitioner that he has
not been paid subsistence allowance from 1st June, 2011
onwards. Since the petitioner is entitled to get
himself reinstated in the service, he would be entitled
to get backwages as admissible to him. According to MEPS
Rules, for considering the question of payment of
backwages, the Management or in the absence of the
Management, the Administrator looking after the
management of the School would consider the claim of the
petitioner for payment of backwages, as per the
provisions of MEPS Rules. The petition deserves to be
allowed and accordingly, is allowed with the following
order.
(i) The Writ Petition is allowed.
(ii) Respondent nos. 2 and 3 are directed to
reinstate the petitioner to the post held by
him prior to his suspension.
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(iii) The Management or Administrator, as the case
may be, looking after management of the High
School at Lohara shall take decision on the
claim of the petitioner for payment of
backwages from the date of his suspension i.e.
1st June, 2011 till the date of his
reinstatement as per the provisions of the
Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981, within six
weeks from the date of this order and take
necessary steps within two weeks thereafter so
as to enable the petitioner to get the amount
to which he is legitimately entitled.
(iv) Rule made absolute in the above terms.
(v) The Writ Petition is accordingly disposed of.
(vi) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
samandwgad/wp-488-2016
