Mr. Gaikwad Sunil Marutrao vs Shreenath Prasarak Mandal ...
2021 Latest Caselaw 13028 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION


                            WRIT PETITION NO.9359 OF 2014


      Gaikwad Sunil Marutrao                                       ...Petitioner
                V/s.
      Shreenath Shikshan Prasarak Mandal & Ors.                    ...Respondents


      Ms.Kumud A. Bhatia for the Petitioner.

      Mr.Nitin Dhumal for the Respondent Nos.1 to 3.

      Ms.K.N. Solunke, AGP for the State - Respondent Nos.4 to 6.

                                        CORAM : R.D. DHANUKA &
                                                ABHAY AHUJA, JJ.

DATE : 13TH SEPTEMBER, 2021.

P.C. :-

1. Rule. Learned counsel for the respondent nos.1 to 3

waives service. Ms.Solunke, learned AGP waives service for the

respondent nos.4 to 6. By consent of parties, the petition is heard

finally.

2. By this petition filed under Article 226 of the Constitution of

India, the petitioner has prayed for a writ of certiorari for quashing

and setting aside the order of suspension dated 27 th May, 2013 and

for restitution on the post of Naik forthwith. The petitioner also seeks

an order and direction against the respondents to pay full salary from

the date of suspension dated 26 th March, 2013 till the date of

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reinstatement.

3. The petitioner was appointed as Peon on 13th June, 1992

and was promoted to the post of Naik on 1st December, 2014. The

petitioner was granted benefit of senior scale. The petitioner was

arrested by Sikrapur Police Station as one of the accused on 26 th

March, 2013 and was in police custody during the period between

26th March, 2013 and 30th March, 2013. The petitioner was ultimately

acquitted of all charges on 18th February, 2016. The petitioner was

under suspension during the period between 26th March, 2013 and

26th May, 2013. No enquiry has been initiated against the petitioner

by the management. The petitioner demanded payment for salary

during the suspension period. Since the salary has not been paid

during the suspension period, the petition filed this writ petition.

4. Ms.Bhatia, learned counsel for the petitioner invited our

attention to various documents annexed to the petition. She submits

that no enquiry was initiated against the petitioner. The petitioner has

been acquitted of all the charges. She relied upon a judgment of the

Division Bench of this Court in case of Madhukar Namdeo Patil vs.

Chairman, Sudhagad Education Society & Ors. 2000(4)

Bom.C.R. 698 and the judgment of the Division Bench of this Court

in case of Narsing Shankarrao Shivshette vs. Secretary, Bharat

Liberal Education Society, Udgir and Ors.2018(2) Mh.L.J.662.

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5. Learned counsel for the management does not dispute

that no enquiry was initiated against the petitioner. He also does not

dispute that the petitioner has been subsequently acquitted from all

such charges. The petitioner was only paid subsistence allowance

and not full salary during the period of suspension.

6. The management has not sent any pay bill or proposal to

the Education Officer for payment of salary during the suspension

period.

7. A Division Bench of this Court in case of Madhukar

Namdeo Patil (supra) has held that under Rule 33 (5) and 35 of the

Maharashtra Employees of Private Schools (Conditions of Service)

Rules, 1981, the petitioner having been acquitted and there being no

enquiry initiated against the petitioner by the management, the

petitioner is entitled to salary for the period of suspension. Similar

view is taken by the Division Bench of this Court in case of Narsing

Shankarrao Shivshette (supra). In our view, both these judgments

would apply to the facts of this case. We are respectfully bound by

the said judgments.

8. We accordingly pass the following order :-

a). The respondent nos.1 to 3 shall send pay bills / proposal

for payment of salary and other benefits during the period of

suspension to the Education Officer within three weeks from today,

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without fail. A copy of the pay bill / proposal shall be also furnished to

the petitioner's advocate simultaneously.

b). Upon receipt of the said proposal along with pay bill, the

Education Officer shall release the payment due to the petitioner

within four weeks thereafter, without fail.

c). The writ petition is accordingly disposed of. Rule is made

absolute accordingly. Parties to act on the authenticated copy of this

order. There shall be no order as to costs.

(ABHAY AHUJA, J.)                                 (R.D. DHANUKA, J.)