Bombay High Court
Prabha Apparao Patil vs The State Of Maharashtra And ... on 30 June, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6217 OF 2016
Prabha Apparao Patil
Age: 50 Years, Occu : Service,
R/o. C/o. A.D. Patil,
Jaijawan Building, Nageshwarwadi,
Aurangabad PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai-32.
(Copy to be served on G.P.
of Bombay Bench at
Aurangabad)
2. The Deputy Director of Education,
Aurangabad
3. The Education Officer (Secondary)
Zilla Parishad, Aurangabad
4. Vyankatesh Shikshan Sanstha
Aurangabad
Through its Secretary
5. Ravindra Vidya Mandir
Samarth Nagar, Aurangabad
Through its Acting Head
Master. RESPONDENTS
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...
Miss Surekha Mahajan, Advocate for the
Petitioner
Mr.A.G.Magare, AGP for Respondent Nos.1 to 3
Mr.R.R.Suryawanshi, Advocate for Respondent
No.4.
Respondent No.5 served
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
DATE : 30.06.2016.
JUDGMENT: (Per S.S.Shinde, J.):
This Petition takes exception to the
order dated 08.06.2016 issued by respondent
no.4, thereby suspending the services of the
petitioner as Headmaster.
2. The learned counsel appearing for
the petitioner submits that the impugned
order is the result of arbitrary and mala
fide exercise of the powers by respondent
management. It is submitted that respondent
no.4 on 27th February, 2014, had given notice
of termination to the entire staff including
Mr. Ravindra Khanapurkar (Clerk and real
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brother of respondent no.4). The teaching and
non-teaching staff excluding Shri
R.M.Khanapurkar filed Writ Petition
No.1853/2014 and Writ Petition No.3747/2014
before the High Court, and the High Court has
granted stay and protected the services of
the petitioner. It is submitted that the
services of Shri R.M.Khanapurkar, who is the
real brother of the Secretary of respondent
no.4, are already terminated. The Writ
Petition was preferred by him. It is
submitted that since the petitioner did not
succumb to the pressure of respondent no.4 to
sign the bills for payment of salary to
Mr.Ravindra Khanapurkar for the period for
which he did not work. Therefore, respondent
no.4 has passed the impugned order and issued
the charge sheet.
3. It is submitted that no prior
permission of the Education Officer is sought
prior to issuing the impugned order. The
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charges framed against the petitioner are
minor in nature and therefore, it was
absolutely not necessary to suspend the
services of the petitioner as Headmaster. It
is submitted that the copy of Resolution of
the management dated 5th June, 2016, is not
received by the petitioner. It is important
to note that the management has to decide
first whether to hold an enquiry and place
the employee under suspension and after
taking such decision, after obtaining
permission of respondent no.3, they have to
initiate the enquiry. Unless there is prima
facie case for removal of the incumbent or
there is reason to believe that his
continuance in service is likely to cause
embarrassment, no order suspending services
of the employees can be passed. It is
submitted that the statement of imputations
is needed to be issued after constitution of
the Enquiry Committee under Rule 36 of the
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Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for
short 'MEPS Rules, 1981). Respondent no.4 has
issued it prior to constitution of the
Enquiry Committee. Therefore, respondent
no.4 has not observed the provisions of Rule
36 prior to Rule 33. None of the allegations
falls within the purview of Rule 28 (5) of
the MEPS Rules, 1981. All the allegations
are vague and stale and coming out of the
bias attitude of the management. The
allegations prima facie do not show that they
would lead to removal of the petitioner from
the services or cause embarrassment to the
management. Section 4 (b) of the Maharashtra
Employees of Private Schools (Conditions of
Service) Act, 1971, prohibits inter alia
suspension of an employee except in
accordance with the Act and Rules. The
learned counsel for the petitioner in support
of her contention that the order of
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suspension has to be passed by the management
with prior approval of the Education Officer,
pressed into service the case of Dilip
Venkatrao Patil Vs. State of Maharashtra and
others1. Therefore, the learned counsel for
the petitioner submits that the Petition
deserves consideration.
4. On the other hand, the learned
counsel appearing for respondent nos.4 and 5
relying upon the affidavit-in-reply filed by
these respondents submits that in view of the
law laid down by the Full Bench of the Bombay
High Court in the case of Awdhesh Narayan K.
Singh Vs. Adarsh Vidya Mandir Trust and
another2, failure to obtain prior permission
of Authority under rule 33 (1) of the said
Rules before suspending an employee does not
affect the action of suspension pending
enquiry. If prior permission is obtained,
Rule 35 (3) is attracted and the suspended
1 1997 (3) Mh.L.J. 279
2 2004 (2) Mh.L.J. 676
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employee is entitled for subsistence
allowance under the scheme of payment through
Banks for a period of four months after which
period the payment is to be made by the
management. If an employee is suspended
without obtaining prior approval of the
Education Authority, payment of subsistence
allowance for the entire period has to be
made by the management. The learned counsel
for respondent no.4 submits that the letter
was written to the Education Officer seeking
prior permission for placing the petitioner
under suspension. He submits that it is clear
from the statement of imputations that there
are serious allegations against the
petitioner. He further submits that the
petitioner will get opportunity to rebut the
charge / allegation and therefore, this Court
may not entertain this Writ Petition. It is
submitted that there are serious charges
against the petitioner which include
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disobedience of even the orders passed by the
High Court.
5. We have given careful consideration
to the submissions of the learned counsel
appearing for the parties. With their able
assistance, perused the pleadings in the
Petition, grounds taken therein, annexures
thereto, the relevant provisions of the MEPS
Act and Rules and reported decisions of this
Court cited across the Bar. We have carefully
perused the documents placed on record and in
particular the statement of allegations.
Since the charge sheet is served upon the
petitioner, the petitioner will get
opportunity to put forth her contention by
way of filing reply to the notice and also to
contest the charges / allegations levelled
against her. Since the charge sheet is served
and enquiry is at the initial stage, we do
not propose to make observations on the
merits of the allegations, which may cause
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prejudice to the case of the petitioner.
Suffice it to say that even if the petitioner
is placed under suspension without prior
permission of the Competent Authority, the
consequences thereof which are explained in
the case of Awdhesh Narayan K. Singh (supra)
would follow and as a result respondent no.4
would have to pay subsistence allowance.
6. For the reasons afore-stated, at
this stage we are not inclined to entertain
the Writ Petition. Hence the Petition stands
rejected. No costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
