Bombay High Court
Machindra Maruti Gaikwad vs The State Of Maharashtra And Others on 30 April, 2025
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2025:BHC-AUG:12662-DB
J-wp14475-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14475 OF 2021
Machindra Maruti Gaikwad ... Petitioner
Age 48 years, Occu: Service
R/o Shivajinagar, Navanagapur,
MIDC, Ahmednagar
VERSUS
1. The State of Maharashtra,
Through its Chief Secretary,
Mantralaya, Mumbai-32
2. Gangadhar Shastri Gune Auirvedh ... Respondents
Mahavidyalaya, Through its Principal,
Vishrambaug, Ahmednagar
3. Assistant Director, Ayurvedh,
Block No.C-10, 4th Floor,
New Administrative Building,
Opp. Vidhan Bhavan, Pune 411 001
Mr. Rahul A. Tambe, Advocate for the Petitioner,
Mr. Amar V. Lavte, AGP for respondent no.1/State
Mr. Sharad V. Natu, Advocate for respondent No.2.
CORAM : MANGESH S. PATIL &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 21.04.2025
PRONOUNCED ON : 30.04.2025
JUDGMENT (Per: Y. G. Khobragade, J.)
1. Rule. Rule made returnable forthwith and heard finally by the consent
of the parties.
J-wp14475-21
2. By the present petition under Article 226 of the Constitution of India,
the petitioner put forth prayer clauses (B), (C) and (D) as under:
"(B) The Respondents may kindly be directed to pay the
outstanding salary of the petitioner since September, 2019 till
the date of order;
(C) The Respondents may kindly be directed to pay interest @
12% p.a. for causing unnecessary harassment to the
petitioner and his family;
(D) The Respondents may kindly be directed to pay the salary of
the petitioner regularly hereafter as the order of suspension
has been withdrawn."
3. It is the contention of the petitioner that since June 1997, he was
working as Lab Attendant with respondent no. 2, however, vide order
dated 16.09.2019, he was suspended by respondent no. 2 w.e.f. 5 th
September, 2019 on the basis of letter dated 10.09.2019 issued by the
Deputy Superintendent of Police, Anti-Corruption Bureau, Ahmednagar due
to registration of Crime No. 870 of 2019 against him under the Prevention
of Corruption Act and he was apprehended. The petitioner, had approached
this Court by filing writ petition no. 5661 of 2020 and challenged his
suspension order. On 27.10.2021, this Court passed an order observing that,
respondent no. 2 had withdrawn the suspension order vide communication
dated 26.10.2021 and the petitioner had submitted his joining report. It is
further contended that, though his suspension order was revoked and he was
J-wp14475-21
permitted to join duty w.e.f. 26.10.2021, he has not been paid legal dues
w.e.f. 05.09.2019 till the date of revocation of order of suspension.
Therefore, he prays for issuance of writ of mandamus directing the
respondents to pay legal dues/salary with interest @ 12% p.a.
4. Mr. Vd. Venket Purushottam Dharmadhikar, the Assistant
Director of Ayush, Pune has filed affidavit in reply on behalf of Respondent
no. 3 and strongly resisted the claim of the petitioner. According to
Respondent no. 3, the petitioner was suspended w.e.f. 05.09.2019 by
respondent no. 2 Management of the aided Ayurved College under order
dated 16.09.2019 in pursuance of letter dated 10.09.2019 issued by the
Deputy Superintendent of Police, Anti-Corruption Bureau due to registration
crime. Subsequently, Respondent no. 2 withdrew suspension and permitted
the petitioner to join duty w.e.f. 26.10.2021. Since, respondent no. 2 never
obtained permission from respondent no. 3 as per Circular dated 03.06.1998
prior to suspension of the petitioner and respondent no. 3 is not concerned
with performance of duty by the petitioner, who is the employee of
respondent no. 2, it is the responsibility of the respondent no. 2 to pay legal
dues of the Petitioner. Further, the petitioner is being paid regular salary
w.e.f. 26.10.2021, hence, prayed for dismissal of the petition.
J-wp14475-21
5. Respondent no. 2 filed an affidavit in reply and contended that
vide communication dated 13.09.2019 it was informed to the respondent no.
3 about letter dated 10.09.2019 issued by the Deputy Superintendent of
Police, ACB and guidance was sought regarding suspension of the petitioner
there was no response. However, office of the DSP, Ahmednagar insisted for
suspension of the petitioner, therefore, vide letter dated 16.09.2019 the
petitioner was suspended w.e.f. 05.09.2019 and subsequently sought
guidance from respondent No.3 regarding revocation of suspension and
requested for payment of subsistence allowance. Since there was no
communication from respondent no.3, the order of suspension came to be
revoked w.e.f. 26.10.2021. Thereafter, the petitioner submitted a
representation on 05.12.2019 and requested for release of salary for the
suspension period. The representation of the petitioner was forwarded to
Respondent no. 3 for guidance and release of legal dues but no
communication was received. On 28.05.2020, respondent no. 3 issued a
communication to the Director of Ayush seeking guidance but no reply was
received. Therefore, respondent no. 3 is responsible for payment salary of
the petitioner.
6. The learned counsel appearing for the Respondent no. 2 canvassed in
vehemence that, services of Non-teaching staff of respondent no. 2 are
governed under Standard Code Rules,1984. Rule 45 (c) of Standard Code
J-wp14475-21
Rules provide for suspension of non-teaching staff if criminal case against the
non-teaching staff is registered and investigation is under progress. No
proper guidance was received from the Registrar of Maharashtra University
of Health Science, Nashik in respect of suspension of the petitioner, but the
Management was asked to approach to the Directorate of Ayush because
respondent no.2 is an aided college. Accordingly, on 24.07.2021, respondent
no. 2 submitted bill for release of salary of the petitioner to respondent no. 3,
but no communication has been received. Therefore, respondent no. 3 is
liable to pay salary of the petitioner, hence, prayed for dismissal of the
petition.
7. As per Sub Rule (6) of Rule 2 of the Standard Code Rules,
"Competent Authority" means the authority competent to exercise different
powers in the Non-agricultural universities Act and in the rules specified
therein. Rule 24 provides for payment of subsistence allowance to the
employee under suspension at the rates prescribed therein. Sub Rule (5) of
Rule 24 provides that when an employee who has been suspended is
reinstated, the competent authority which orders the reinstatement shall
consider and make specific order - (a) regarding the period being treated as
'duty' or 'leave' and (b) regarding the pay and allowance to be paid to the
employee for the period of his absence from duty.
J-wp14475-21
8. Rule 45 of Standard Code Rules provides about suspension as under:
"45. Suspension (1) The appointing Authority or any authority
to which the Appointing Authority is subordinate or any other
authority empowered in that behalf by the Competent
Authority, by general general or special order, in Form 8 in
Appendix I appended to these rules may place an employee
under suspension :-
(a) where disciplinary proceedings against him is contemplated
or is pending and is likely to result into imposing any of the
major penalties. or
(b) where in the opinion of the Authority he has engaged
himself in activities prejudicial to the interest of the University
or College,
(c) where case against him in respect of any criminal offence is
under investigation, enquiry or trial:
Provided that, where the order of suspension is made by
an Authority lower than the Appointing Authority, such
Authority shall forthwith report to the Appointing Authority, the
circumstances in which the order was made:
Provided further that, suspension of an employee shall
not be ordered unless there is a prima-facie case against him for
imposing one of the major penalties stated in these rules or
there is reason to believe that his continuance in service is likely
to cause embarrassment or to hamper the investigation of the
case."
J-wp14475-21
9. Needless to say that, vide order dater 16.09.2019, the Petitioner
was kept under suspension w.e.f. 05.09.2019 at the instance of the Deputy
Superintendent of Police, Anti-Corruption Bureau, Ahmednagar, on account
of registration of Crime No. 870 of 2019 against the petitioner under the
Prevention of Corruption Act. The petitioner was never served with the
charge sheet and no enquiry was initiated. It is a matter of record that, the
Petitioner had approached before this Court by filing writ petition no. 5661
of 2020 and had challenged his suspension. On 27.10.2021, the coordinate
bench of this Court passed an order and disposed of the petition, which reads
as under:
"1. Shri. Natu, the learned Advocate representing respondent
Nos.2 and 3, places on record a copy of the communication dated
26/10/2021, addressed by the Institution to the petitioner, calling
upon him to report on duties as his suspension order has been
withdrawn and his legal dues would be paid to him after he
reports for duties. A copy of the application filed by the petitioner,
dated 26/10/2021 which is his joining report, is also placed on
record.2. We are, therefore, taking both these documents on
record, which are marked as 'X-1' and 'X-2', respectively.
3. In view of the above, the learned Advocate for the petitioner
submits on instructions, that the petition stands worked out.
4. As such, this petition is disposed off."
10. It is not in dispute that respondent no. 2 is the appointing authority of
the petitioner. On 16.09.2019, respondent no. 2 issued order of suspension
and suspended the petitioner w.e.f. 05.09.2019. On 26.10.2021, respondent
J-wp14475-21
no. 2 issued a communication and withdrew the suspension and permitted
the petitioner to resume the duty. Therefore, it is apparent that, Respondent
no. 3 played no role while suspending the petitioner and withdrawing order
of suspension. Needless to say that, as per Circular dated 03.06.1998
Respondent no. 2 did not obtain permission from respondent no. 3 prior to
issuance of order of suspension. The petitioner is an employee of Respondent
no. 2. Respondent no. 3 is not concerned with the performance of duty by
the petitioner. Respondent no.2 could have obtained guidance from the
university and/or Respondent no.3 prior to issuance of suspension order with
reference to the communication received from the Deputy Superintendent of
Police. However, no such exercise was undertaken.
11. It further appears that, Respondent no. 2 sought guidance from the
Respondent no. 3 about payment of subsistence allowance/salary of the
petitioner after lapse of two years from revocation of suspension. It is not in
dispute that, the petitioner is being paid salary regularly from the date of
resuming duty after revocation of suspension. When an employee's
suspension is revoked without any departmental enquiry, the employee is
normally entitled to full salary and allowance for the period of suspension
and considering the said period as duty.
J-wp14475-21
12. In the case in hand, respondent no.2 itself had issued suspension
order without prior permission/due process as per Circular dated 03.06.1998
and itself has revoked the same without conducting enquiry into the
allegations. Therefore, in our view, Respondent no. 2 is liable to pay all the
legal dues including salary of petitioner for the period of suspension i.e.
w.e.f. 05.09.2019 till his resuming duty on 25.10.2021, with interest.
13. In view of the above, we dispose of the writ petition with direction to
respondent no. 2 to pay all legal dues including salary of petitioner w.e.f.
05.09.2019 till 25.10.2021 with interest @ 6% per anuum within a period of
3 months from today.
14. Rule is made absolute accordingly. No order as to costs.
( Y. G. KHOBRAGADE, J. ) ( MANGESH S. PATIL, J. )
JPChavan
