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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
—————————————————————————————————-
CORAM : R.K. DESHPANDE
MRS.SWAPNA JOSHI, JJ.
DATED : 4 th
August, 2
017
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
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