Chandrashekhar Haribhau Harode ... vs The Education Officer Z.P. Nagpur ...
2017 Latest Caselaw 5633 Bom

                                                                                                 wp.1767.02.s

                                                        1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 1767/2002 

*        Chandrashekhar s/o Haribhau Harode 
         Aged about 37 years 
         R/o  Mukkam-Chincholi,  Post: Dhanla 
         Tah.Mouda,  Dist. Nagpur.                                            ..PETITIONER

                        VERSUS

1)       The Education Officer (Primary)
         Zilla Parishad, Nagpur. 

2)       Bhartiya  Gramin Mandal  
         Kondamendhi : Through its Secretary 
         Mouda, Dist. Nagpur. 

3)       Adarsha Prathmik Vidyalaya 
         Through  its Headmaster 
         Kondhamendhi, Tah.Mouda, 
         Dist. Nagpur.                                                        ..RESPONDENTS
                                                                                           . 

...................................................................................................................
                     Mr. A.D. Mohgaonakar,  Advocate for petitioner
         Mr. V.P. Maldhure, Assistant Govt. Pleader for respondent no.1 
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                                                 CORAM :  R.K. DESHPANDE &
                                                                  MRS.SWAPNA JOSHI, JJ.

                                                 DATED :    4       th
                                                                       August, 2



JUDGMENT:  (Per Mrs. Swapna Joshi,  J.)

1. By this petition, the petitioner has challenged the order

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dated 18.12.2001 suspending the petitioner from service, issued by the

respondent-management and for issuing directions to the respondents to

release the salary of the petitioner regularly except for the period of

detention.

2. The petitioner is a permanent teacher working in Adarsha

Prathmik Vidyalaya, Kondamendhi, Tq.Mouda, Dist. Nagpur. The

petitioner came to be suspended on 18.12.2001, on the allegations that

he was detained in Central Jail, Nagpur from 19.12.2001 to 5.1.2002

for committing the offences punishable under Sections 302, 498A and

304-B read with Section 34 of the Indian Penal Code. The petitioner

was subsequently released on bail. The petitioner was put under

suspension by the President/Secretary, Adrasha Prathmik Vidyalaya,

Kondamendhi, Tq. Mouda, Dist. Nagpur. According to the petitioner he

was kept under suspension for more than three and a half months. The

petitioner, therefore, approached this Court seeking the reliefs, as

aforesaid.

3. Two-fold contentions have been made by the learned

counsel for the petitioner, Mr. A.D.Mohgaonkar. Firstly, that under the

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provisions of Maharashtra Employees of Private Schools (Conditions of

Services) Rules 1981, the management is supposed to pass the order

of suspension and the President/Secretary of the educational institution

has no authority to pass the suspension order. Secondly, Mr.Mohgaonkar,

submitted that prior permission of the respondent no.1/ Education

officer is necessary prior to passing the order of suspension and since

no such permission is sought by the President, the order of suspension is

rather indefensible and cannot be sustained, inasmuch as it is illegal. He

further submitted that the petitioner had preferred a plethora of

representation to the Headmaster of the School praying for joining the

duties. However, the Headmaster did not pay any heed to it. Thus,

according to Mr. Mohgaonkar, the petitioner is not responsible for his

absence from duty from 6.1.2002. He further stated that the petitioner

is entitled for the salary from the date 6.1.2002 i.e. the date on which

the petitioner was ready to join his duties.

4. Mr V.P Maldhure, the learned Assistant Government Pleader

submitted that the order of suspension has been rightly passed by the

respondents as the petitioner was involved in a serious and heinous

crime. The respondents, however, did not file the returns.

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5. We are of the view that there is certainly substance in the

contentions raised by the Mr. Mohgaonkar. At this stage, it would be

advantageous to go through the provisions of Rule 33 (5) of the MEPS

Rules, 1981, which stipulates as under :-

" An employee against whom proceedings 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 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 and produce 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."

5. On a plain reading of Rule 33 (5) of the MEPS Rules, 1981

it is clear that an employee shall be considered as "under suspension"

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where a proceedings have been taken on a criminal charge against the

employee or where the employee is detained under any law for the

time being in force providing for preventive detention. So far as sub-

rule (5) of Rule 33 is concerned, it is restricted for the period during

which the employee shall be regarded as under suspension. The said

sub-rule stipulates that the employee in such a case shall be considered

as under suspension for any period during which he is under preventive

detention or in a judicial custody or police custody, for a period

exceeding 48 hours or is undergoing imprisonment. The period of

suspension under the provisions of sub-rule (5) of Rule 33 must

necessarily come to an end once the period of judicial or police custody

is terminated.

6. In view of the above, the order of suspension dated

18.12.2001 issued by the respondent-Management appears to be

palpably contrary to the provisions of Rule 33(5). The order indicates

that the petitioner was placed under suspension under Rule 33 (5) as he

was in judicial custody for 18 days i.e. from 19.12.2001 to 5.1.2002.

After the judicial custody came to an end the suspension of the

petitioner appears to be contrary to the express provisions of Rule 33

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(5) which restricts operation of the suspension to the period during

which the petitioner was in custody. Thus, the impugned order dated

18.12.2001 needs to be quashed and set aside.

7. In the case of Madhukar Namdeo Patil vs. Chairman,

Sudhagad Education Society and others, reported in 2000(4) Mh.LJ.

206, it is held that suspension of employee after the period of judicial

custody coming to an end will be contrary to the provision of Rule 33(5)

which restricts the operation of suspension to the period during which

the employee was in judicial custody. The Rule does not contemplate

automatic suspension pending criminal proceedings.

In the instant case also, there was no need for the

respondents to issue the order of suspension. Admittedly, the petitioner's

suspension was a deemed suspension for a period commencing from

19.12.2001 to 5.1.2002 and, therefore, there is no question of

suspension, in view of Rule 33(5) of the MEPS Rules,1981.

8. As regards the prayer of the petitioner for grant of salary

for the period after the petitioner was released on bail, the petitioner is

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entitled for the salary if not paid, from 6.1.2002 onwards as the

petitioner had preferred several representations to the respondents for

allowing him to resume his duty. However, the respondents did not

consider his requests for a considerable period of time i.e for about three

and a half months. Mr. Mohgaonkar, the learned counsel submitted that

the petitioner was thereafter allowed to join his duty, he however was

however unable to state the exact date. In any case, the petitioner was

not at fault inamuch as he had showed his willingness to join the duty.

In view thereof, the petitioner is entitled for the salary from 6.1.2002

onwards till he was allowed to join his duties. Hence the following

order :

ORDER:

i) The order of suspension dated 18.12.2001 issued by the

Respondent-Management is hereby quashed and set aside.

ii) The respondents are directed to release the regular salary

of the petitioner from 6.1.2002, if not paid, onwards unless any

other action is taken against the petitioner.

iii) Rule is made absolute accordingly. No costs.

                        JUDGE                               JUDGE