Dnyanodaya Shikshan Prasarak ... vs Supaji S/O. Ananda Wankhade And ...
2017 Latest Caselaw 4171 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 133 of 2016


 1.      Dnyanodaya Shikshan Prasarak Mandal,
         Hatroon, Tq. Balapur,
         Distt. Akola, through its Member
         Shri Jagdish son of Mahadeo Pathak,
         aged about 70 years,
         occupation - Social Worker,
         resident of Hatroon, Tq. Balapur,
         Distt. Akola.

        .....Org. Defendant No.1.


 2.     The Headmaster,
        Mahatma Gandi Vidyalaya,
        Hatrun, Tq. Balapur,
        Distt. Akola. [on transposition].    .....           Appellants.

        .....Org. Defendant No.3.



                                   Versus


 1.     Supaji son of Ananda Wankhade,
        aged about 65 years,
        occupation - Retired,
        resident of Malsur,
        Tq. Patur, Distt. Akola.




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        .....Org. Plaintiff.

 2.     The Headmaster,
        Mahatma Gandi Vidyalaya,
        Hatrun, Tq. Balapur,
        Distt. Akola [transposed as
        Appellant No.2].

        .....Org. Defendant No.3.

 3.     Eduction Officer [Secondary],
        Zilla Parishad,
        Akola,
        near Santoshi Mata Mandir,
        Akola, Tq. & Distt. Akola.

        .....Org. Defendant No.3.                   .....        Respondents.


                                 *****
 Mr. C. A. Joshi, Adv., for the appellant.

 Mr. A. S. Kilor, Adv., for respondent no.1.

 Mr. S. Bissa, Asstt. Govt. Pleader for respondent no.3.


                                      *****


                                 CORAM :         A.S. CHANDURKAR, J.

                                 Date       :    07th July, 2017

 ORAL JUDGMENT:

01. In view of notice for final disposal, the learned counsel for

the parties have been heard on the following substantial questions of

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law:-

"1. In the light of permission granted by the Education Officer on 18th August, 2005 to suspend the respondent no.1, whether the defendant no.3 would be liable to pay subsistence allowance for a period of four months in terms of provisions of Rule 35 (3) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981?

2. Whether grant of interest at the rate of nine per cent per annum on the suit claim is justified in the facts of the case?"

02. The respondent no.1 is the original plaintiff who had filed

suit for recovery of Rs.1,36,060-00 being subsistence allowance

payable to him for the period from 10th June, 2005 to 30th June, 2006

with interest. According to the plaintiff, he was appointed as an

Assistant Teacher in the school run by the appellant. The appellant

was arrested being charged of the offences punishable under Sections

302, 212 and 201 read with Section 34 of the Indian Penal Code. He

was in custody from 9th June, 2005 and was released on bail on 17th

July, 2005. He thereafter availed earned leave from 18th July, 2005 to

17th August, 2005. As he was not paid subsistence allowance, the

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aforesaid suit came to be filed.

03. The appellants opposed the claim as made. They relied on

the permission granted by the Education Office to suspend the

respondent no.1. They denied the liability to pay the aforesaid

amount.

04. The trial Court held that the respondent no.1 was entitled for

subsistence allowance for the aforesaid period. Relying upon the

provisions of Rule 33 (5) of the Maharashtra Employees of Private

Schools (Conditions of Service) Rules, 1981 [for short, "the said Rules],

the claim was decreed with nine per cent interest being awarded from

the date of the suit till realization. The appellate Court affirmed the

said finding.

05. Shri C. A. Joshi, learned counsel for the appellant, submitted

that as permission was granted by the Education Officer to suspend

the respondent no.1 on 18th August, 2005, it was the liability of the

respondent no.3 to satisfy the claim. He submitted that both the

Courts wrongly interpreted the aforesaid legal provisions and saddled

liability on the appellant. He then submitted that interest was directed

to be paid at nine per cent per annum when there was no commercial

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transaction. He, therefore, submitted that the same was liable to be

reduced.

06. Shri A. S. Kilor, learned counsel for the respondent no.1,

supported the impugned judgment. Referring to the judgment of the

Division Bench of this Court in Madhukar Namdeo Patil Vs.

Chairman, Sudhgad Education Society & others [2000 (3) ALL

MR 789], it was submitted that the period of suspension on account of

detention was only from 9th June, 2005 to 17th July, 2005. The

permission granted on 18th August, 2005 by the Education Officer was

under Rule 33 (5) of the said Rules and, therefore, it was for the

management to pay the subsistence allowance. He further submitted

that as the respondent no.1 had been deprived of the subsistence

allowance, the grant of interest was reasonable.

Shri Bissa, learned Asstt. Govt. Pleader for respondent no.3,

submitted that it was the liability of the management to pay the

amount of subsistence allowance. He did not dispute issuance of

communication dated 18th August, 2005.

07. Heard the respective counsel.

08. The appellant was arrested on 9th June, 2005 and remained

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in custody till 17th July, 2005. After being so released, he availed

earned leave for the period from 18th July, 2005 to 17th August, 2005.

On 18th August, 2005, the Education Officer granted permission under

provisions of Rule 33 (5) of the said Rules to suspend the respondent

no.1 from 10th June, 2005. According to the law laid down by the

Division Bench in Madhukar Namdeo Patil [supra], suspension under

Rule 33 (5) of the said Rules is only for the period when the employee

is in police or judicial custody. This period was from 9th June, 2005 to

17th July, 2005. Permission having been granted vide communication

dated 18th August, 2005 as regards suspension for the period from 9th

June, 2005 and in view of provisions of Rule 35 (3) of the said Rules,

the respondent no.3 would be liable to pay the subsistence allowance

for the period from 10th June, 2005 till 17th July, 2005. From 18th July,

2005, such liability has to be borne by the appellant. Substantial

question of law at Sr. No.1 is answered accordingly.

09. In so far as rate of interest is concerned, it can be seen that

the trial Court passed the decree and directed payment of interest at

the rate of nine per cent per annum on the decretal amount.

Considering the facts of the case and in view of provisions of Section

34 of the Civil Procedure Code, the appellant can be directed to pay

interest at the rate of six per cent per annum on the decretal amount

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from the date of the suit till the decree was passed by the trial Court

on 10th December, 2008. For the subsequent period which is from the

date of judgment till realization, the grant of interest at the rate of nine

per cent per annum is liable to be maintained. Substantial question of

law at Sr. No.2 is answered accordingly.

10. Hence the following order:-

ORDER

[a] The decree passed by the trial Court is partly modified.

[b] The liability to pay subsistence allowance for the period from 10th June, 2005 to 17th July, 2005 will be that of defendant no.3 and from 18th July, 2005, the claim shall be satisfied by the defendant no.1.

[c] It is held that the defendant no.1 shall pay interest on the decretal amount at the rate of six per cent per annum from the date of the suit, namely 16th June, 2006 till 10th December, 2008. From 10th December, 2008 till realization,

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interest would be liable to be paid at nine per cent per annum. The defendant no.3 shall not be liable to pay any interest on the amount of subsistence allowance from 10th June, 2005 to 17th July, 2005.

11. Decree accordingly. Second Appeal is partly allowed. No

costs.

Judge

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