Bombay High Court
Ku. Kunda Motiram Bodalkar (Smt. ... vs The Director Of Education ... on 21 March, 2017
Bench: B.P. Dharmadhikari
wp.787.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 787/2017
Ku. Kunda Motiram Bodalkar
(after marriage: Smt.Kunda Arjun Godbole)
Aged 52 years, occu: Headmistress
Sant Shivram Maharaj Madhyamik Vidyalaya
Bhandara, R/o Ramabai Ambedkar Ward
Bhandara. ..PETITIONER
v e r s u s
1) The Director of Education
(Secondary and Higher Secondary)
Education Directorate,
Maharashtra State, Pune-1.
2) Swami Vivekanand Shikshan Sanstha
Through its so called President
Madhukarrao Amborkar
Apna Nagar, Takia Ward, Bhandara.
3) Swami Vivekanand Shikshan Sanstha
Through Its President:
Shri Kailash Bhayyalal Nashine
R/o Vidya Nagar
Behind Indralok Sabha Gruha
Bhandara.
4) Education Officer (Secondary)
Zilla Parishad, Bhandara.
5) State of Maharashtra
Through its Secretary
Department of Sports and Education
Mantralaya, Mumbai-400 032. ...RESPONDENTS
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...........................................................................................................................
Mr. R.S.Parsodkar, Adv. for petitioner
Ms. Ritu Kalia, AGP for respondent nos.1,4 and 5
Mr. A.Z.Jibhkate, Adv. for respondent no.2
Mr. V.K. Paliwal, Adv. for respondent no.3.
............................................................................................................................
CORAM: B.P. DHARMADHIKARI &
MRS
. SWAPNA JOSHI, JJ
.
DATED : 21st March,2017
ORAL JUDGMENT: (PER MRS. SWAPNA JOSHI, J.)
1. Rule. Rule made returnable forthwith. Heard by consent of both sides at
the stage of admission itself.
2. By this petition, the petitioner seeks a direction to quash and set
aside the impugned order of suspension dated 21.01.2017 issued by
respondent no.1-Director of Education (Secondary & Higher Secondary
Education), Pune.
3. The petitioner was appointed on 05.07.2004 as Headmistress in
Sant Shivram Maharaj Madhyamik Vidyalaya, Bhandara. On 14.02.2007
the Deputy Director of Education granted approval to the appointment
of the petitioner. It is the case of petitioner that on the complaint of one
Ms.Archana Dhok, who was not in good terms with the petitioner,
lodged a complaint, alleging that the petitioner demanded an amount
of Rs.1,700/- for releasing her salary. Accordingly, a trap was laid
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against the petitioner on 09.05.2011. On 10.05.2011, the petitioner
was arrested at 2.20 pm. and was released of bail by an order of Special
Judge, Bhandara at 4.45 pm, on the same day. On 25.5.2011, the
Education Officer, Zilla Parishad, Bhandara granted permission for
suspension of the petitioner by communication dated 01.06.2011.
However on 02.06.2011, the Education Officer passed an order whereby
permission granted earlier for suspension of the petitioner by
communication dated 01.06.2011, was cancelled.
4. The petitioner stated that the State Government has issued a
Government Resolution (G.R.) dated 14.07.2016 whereby the State
Government delegated power and authority upon the Director of
Education to suspend an employee teaching and non-teaching in private
aided and unaided schools recognized by the State Government, in
respect of the employees who are arrested in an anti-corruption raids
and such employees be suspended, dismissed or removed from the
service.
5. According to the petitioner, when there is a specific rule regarding
suspension of Headmistress, there is no need to apply the G.R. As under
the Rules, the power to suspend rests solely with the President of the
Society and not with Director of Education, Deputy Director of
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Education or the Education Officer. The petitioner submitted that the
order of suspension dated 21.01.2017 issued by respondent no.1-
Director of Education is illegal. The said order is challenged in this
petition.
6. Mr. R.S.Parsodkar, learned counsel for petitioner contended that
the impugned order of suspension issued by the respondent no.1 is
absolutely without jurisdiction and therefore non-est, as the same runs
counter to Maharashtra Employees of Private Schools Rules, 1981
(henceforth abbreviated to "Rules of 1981"), more particularly Rule 33
sub-rule(5) thereof. He further submitted that as per Rule 33 sub-rule
(1), it is the authority of the Management to suspend an employee
subject to provisions of sub-rule(5) of Rule 33 of the Rules of 1981.
According to him, the Chief Executive Officer is only authorized to
execute the decision of the Management for suspension. The legal body
is required to pass a resolution of suspension and the said order of
suspension is to be issued by the Chief Executive Officer. He submitted
that in present case, no suspension order is passed by the Management
and therefore, there cannot be any suspension by the Education Officer,
Deputy Director of Education or Director of Education. Mr.Parsodkar
urged that the impugned order of suspension dated 21.01.2017 is illegal
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and without jurisdiction. He added that the Director of Education is
duty-bound to follow rule 35 sub-rule(5) which specifically stipulates
that the suspension is permissible only if the employee is detained in
police custody exceeding forty-eight hours and then such an employee
would not be allowed to draw pay and allowances till termination of
such proceedings. He further submitted that the petitioner was in
custody only for two-hours and, therefore, she cannot be suspended.
7. Mr. Parsodkar placed reliance upon the judgment in the case of
Dilip Patil vs. State of Maharashtra, reported in 1997 (3) Mh.L.J. 279,
wherein it has been held that Rule 33(5) of the Rules of 1981 does not
contemplate automatic suspension pending criminal proceedings and
the order of suspension has to be passed by the Management with prior
approval of the Education Officer.
8. Learned AGP Ms. Ritu Kalia, for respondent nos.1, 4 and 5
submitted that in case of corruption charges, the Management under
which the employee is working, has to initiate action against such
employee and if the Management is not initiating action within
stipulated period, the Director of Education, being competent authority,
is empowered to initiate action against the erring employee facing
charges of corruption, initiate disciplinary action and suspend him/her
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on charges of corruption. She submitted that as per Government
Resolution dated 14.07.2016, the respondents have initiated action
against the present petitioner.
9. Learned counsel for respondent no.2-Mr.Jibhkate, urged that he
represents the real employer in Management. The Managing Committee
of the respondent no.2 initiated enquiry against the petitioner through
legally constituted Inquiry Committee as per Rule 36 of Rules of 1981
for her serious misconduct and misbehaviour. He further submitted that
the President of the respondent no.2-Management intended to initiate
enquiry against the petitioner and to place her under suspension.
However, permission was not granted to suspend her inasmuch as her
illegal activities were sheltered by the then Secretary. He further
submitted that the respondent no.1 is justified in placing the petitioner
under suspension by the impugned order.
10. Learned counsel appearing for respondent no.3-Sanstha,
Mr.Paliwal, supported the case of the petitioner and contended that the
respondent no.1 was not justified in passing the impugned order. He
asserts that his clients are legally and factually in Management and have
neither moved any disciplinary proceedings nor suspended the
petitioner.
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11. We are not inclined to go into the rival contentions of both the
Managements. Instead, we would like to go through the legal provisions
which bolster the case of the petitioner.
12. Heard rival submissions of both sides and on a perusal of the
records, it is apparent that the petitioner was arrested on 10.05.2011
at 2.30 pm. After the arrest, she was released on bail at 4.35 p.m.
which means that the petitioner was in custody for less than forty-eight
hours.
13. At this stage, it would be useful to go through the provisions of
the Rules of 1981. Rule 33 sub-rule (5) reads thus :
"33(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 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
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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."
14. As per provisions of Rule 33 (5) of the Rules of 1981 if an
employee is in custody for more than forty-eight hours it would be a
deemed suspension. Significantly, the suspension lasts for the period in
which the employee is in custody. The deemed suspension cannot
continue after the employee is enlarged on bail. In the instant case, the
order of suspension is issued after six years of cessation of police
custody and it stipulates interim suspension prospectively, from
21.01.2017.
15. Rule 33 sub-rule (5) of the Rules of 1981 does not empower
the employer to order suspension, in view of the fact that the
suspension order was not issued during the period in which the
petitioner was in custody. In these circumstances, when the employer
was not entitled to issue the order of suspension to the petitioner, the
respondent no.1-Director of Education is also not empowered to issue
the impugned order of suspension.
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16. So far as the G.R. dated 14th July, 2016 is concerned, it stipulates
that the State Government delegated powers and authority to the
Director of Education to suspend an employee,teaching and non-
teaching in private aided and unaided schools recognized by the State
Government in respect of the employees who are arrested in anti
corruption raid and such employees be suspended, dismissed or
removed from service. This delegation is on account of omission to act
on part of employer to act. When employer himself cannot "act", the
Scheme in G.R. Cannot apply. In this regard,it is to be noted that the
statutory provisions prevail over the G.R. The order dated 21.01.2017
runs counter to the mandate of statutory Rules of 1981 so far as Rule
33 sub-rule (5)is concerned.
17. As per the provisions contemplated under Rule 33 sub-rule (5) of
Rules of 1981, the respondent no.1 is not empowered to suspend the
petitioner and as such, order dated 21.01.2017 is rather indefensible
and cannot be sustained inasmuch as it is without jurisdiction.
18. In this view of the matter, we quash and set aside the impugned
order of suspension dated 21.01.2017.
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19. Rule is made absolute in the aforesaid terms, with no order as
to costs.
JUDGE JUDGE
sahare
