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Faiz Ahmed Mohammed Ali Khot Assistant Teacher v/s The State of Maharashtra (through Education Department) Mantralaya & Others

    Writ Petition No. 3638 of 2019

    Decided On, 04 May 2022

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE A.S. CHANDURKAR & THE HONOURABLE MR. JUSTICE G.A. SANAP

    For the Petitioner: A.A. Maniyar, Advocate. For the Respondents: R1 to R4, Kedar Dighe, AGP, R5 & R6, S.C. Naidu a/w. Shaikh Nasir Masih, Advocates.



Judgment Text

A.S. Chandurkar, J.

Rule. Rule made returnable forthwith. Heard learned Counsel for the parties.

2. The Petitioner is serving as an Assistant Teacher in the School conducted by the 5th Respondent. After his appointment on probation on 1st July 1997, it is the case of the Petitioner that he is deemed to have been confirmed on that post and since then he has been serving at the said school. A complaint came to be lodged against the Petitioner under Section 377 of the Indian Penal Code read with Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012. On that basis First Information Report No.507/2016 came to be registered on 21st December 2016. The Petitioner, therefore, sought to avail leave from the school by making various applications. Those applications, however, were not duly considered by the School. In the meanwhile, the Petitioner made an application for grant of anticipatory bail and on 31st January 2017 an interim order came to be passed granting protection to the Petitioner in the event of his arrest. By a subsequent order dated 27th July 2017 the interim order came to be confirmed and anticipatory bail came to be granted on conditions. In the meanwhile, the 5th and 6th Respondent made an application dated 6th April 2007 to the 4th Respondent – Education Inspector seeking permission to suspend the services of the Petitioner in view of registration of the First Information Report. The 4th Respondent on 15th April 2017 granted such permission to suspend the services of the Petitioner. This permission was in terms of Rule 33(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short ‘the Rules of 1981’). Based on this order granting permission the 5th Respondent placed the Petitioner under suspension by the order dated 17th April 2017.

3. The Petitioner on 6th November 2017 issued a communication to the 3rd Respondent – Dy. Director of Education as well as the 4th Respondent stating therein that despite of order of suspension, no steps had been taken by the management to complete the enquiry as proposed within a period of 120 days. He further stated that he was not being paid subsistence allowance. The Petitioner issued a reminder to the said Respondents on 24th November 2017. Pursuant thereto the 4th Respondent on 9th January 2018 sought an explanation from the Head Master of the School as to why the Petitioner was not being paid subsistence allowance. Since no cognizance of this letter was taken, the 4th Respondent issued a reminder on 23rd January 2018 followed by another reminder dated 20th August 2018. The Head Master was directed to pay the amount of subsistence allowance during the period of suspension and also submit a report in that regard. Since the management and the Head Master failed to comply with the directions contained in the aforesaid communications, the Petitioner has approached to this Court praying for the order of suspension dated 17th April 2017 be set aside, the recognition granted to the School be withdrawn for failure to comply with the directions issued by the 4th Respondent with a further prayer to pay subsistence allowance to the Petitioner from 17th April 2017.

4. Shri A.A. Maniyar, the learned Counsel for the Petitioner, submitted that in view of provisions of Rule-34 and Rule-35 of the Rules of 1981 for the initial period of four months, it was the responsibility of the 4th Respondent to pay subsistence allowance to the Petitioner since the services of the Petitioner had been placed under suspension with prior permission of the Education Officer. On expiry of the period of four months, it was the responsibility of the management to pay the amount of subsistence allowance thereafter. The Petitioner had not been paid any subsistence allowance from the date he was placed under suspension. It was not possible for the Petitioner to survive without being paid the subsistence allowance. The management as well as the Head Master had failed to abide by various directions issued by the 4th Respondent to pay the amount of subsistence allowance to the Petitioner. Withholding of subsistence allowance was unjustified and it was not the case of the said Respondents that the amount of subsistence allowance was being withheld in view of provisions of Rule 33(3) or (4) of the Rules of 1981. Placing reliance on the judgment of the Full Bench in Awdesh Narayan K. Singh vs. Adarsh Vidya Mandir Trust (2004 (1) Mh.L.J. 676)it was submitted that it was a legal right of an employee who was placed under suspension to be paid subsistence allowance. The learned Counsel also placed reliance on the decisions in Geeta Shridhar Gadre vs. Brahman Shikshan Mandal & ors. (2007 (4) Bom.C.R. 139)and the judgment of the Division Bench in Writ Petition No.5595/2006 (Sanjay s/o Shrihari Chate vs. The State of Maharashtra & others) decided on 25th April 2007 in that regard. It was thus prayed that order of suspension dated 17th April 2017 be set aside on account of failure to pay the subsistence allowance tot he Petitioner. In the alternate, it was submitted that the subsistence allowance be directed to be paid in terms of Rules 34 and 35 of the Rules of 1981.

5. Shri S.C.Naidu, learned Counsel for the 5th and 6th Respondent vehemently opposed the aforesaid submissions. At the outset he submitted that the Petitioner by failing to place on record all relevant and material facts pertaining to his involvement in FIR No.507/2016 was not entitled to be heard in the writ petition. Inviting attention to the order passed in Criminal Application No.513/2017 (Abdul Rehman vs. State of Maharashtra & Others) dated 17th April 2018 it was submitted that the Petitioner had made a statement before the Court in those proceedings that until further orders, he would not enter the school premises from 17th April 2018. As a result of such stand being taken by the Petitioner, the management was not in a position to conduct any departmental enquiry against the Petitioner. By failing to bring on record this relevant aspect, the Petitioner was not entitled to any relief. In that regard, the learned Counsel referred to the judgment of the Hon’ble Supreme Court in K.D.Sharma Vs. Steel Authority of India (2008 (12) SCC 481)and submitted that the writ petition was liable to be dismissed on such ground.

It was then submitted that the period of four months as contemplated by Rule 35(2) of the Rules of 1981 had not yet commenced and hence it was not possible for the management to pay the amount of subsistence allowance. Though the management was keen to hold the disciplinary enquiry against the Petitioner, it could not do so in view of the order dated 17th April 2018 by which the Petitioner had undertaken not to enter the school premises. In that regard he invited attention to the provisions of Rule 36(6) of the Rules of 1981. It was only on 21st February 2022 that the Petitioner had forwarded the name of his nominee as member of the Enquiry Committee and hence it could be said that from said date the enquiry proceedings had commenced. The Petitioner having failed to take any steps to have the order dated 17th April 2018 vacated, he could not be permitted to take advantage of his own statement. There was no equity in favour of the Petitioner and hence no relief could be granted to him. On these grounds, it was submitted that the writ petition was liable to be dismissed.

6. Shri Kedar Dighe, the learned AGP for Respondent Nos. 1 to 4 submitted that it was for the 5th and 6th Respondent to comply with various directions issued by the 4th Respondent in the matter of payment of subsistence allowance to the Petitioner.

7. We have heard the learned Counsel for the parties at length. With their assistance we have also perused the documents on record. Insofar as the power of management to place an employee under suspension is concerned, the same has been recognised by Rules 33 and 34 of the Rules of 1981. While directing such suspension pending holding of any enquiry a right has been conferred on the employee to receive subsistence allowance in the manner prescribed by Rule 34 of the Rules of 1981. Where the suspension is ordered after obtaining prior permission of the Education Officer, it is the responsibility of the appropriate Authority to ensure payment of subsistence allowance for a period of four months. After expiry of the period of four months, it is the responsibility of the management to pay the amount of subsistence allowance till the completion of the enquiry. Subsistence allowance can be withheld only when the matter is covered by Rule 33(3) and (4) of the Rules of 1981. The Judgment of the Full Bench of this Court in Awdesh Narayan K. Singh (Supra) clarifies the aforesaid position by interpreting Rules 33 to 35 of the Rules of 1981.

8. In the present case, the services of the Petitioner were placed under suspension by the order dated 17th April 2017. This was after obtaining the prior permission of the Education Officer that was granted on 15th April 2017. In view of the provisions of the Rule 35(1) and (2), for a period of four months it would be the responsibility of the 4th Respondent to ensure payment of subsistence allowance. On the expiry of the period of four months, it is the responsibility of the management and the Head Master – 5th and 6th Respondent to ensure that Petitioner receives the amount of subsistence allowance in terms of Rule 34 of the Rules of 1981. The Petitioner claims that he has not been paid any amount of subsistence allowance either by the Education Officer for the initial period of four months or by the management and the Head Master for the period subsequent to the said four months.

9. According to the management, it was the Petitioner himself who had undertaken before this Court in Criminal Application No.513/2017 that he would not visit the school in view of the pending prosecution until further orders. Since the Petitioner was not in a position to attend the school, it is submitted that the enquiry Committee could not proceed with the enquiry in view of Rule 36(6) as that Rule requires the meetings of the enquiry committee to be held in the School premises during normal school hours or immediately thereafter.

10. We, however, find that there is no material on record placed by the management to indicate that it was on account of the nonavailability of the Petitioner that the enquiry proceedings could not be commenced. There is no notice issued by the Enquiry Committee calling upon the Petitioner to participate in the enquiry proceedings or that despite issuance of such notice the Petitioner had failed to remain present before the Enquiry Committee. On the contrary it is submitted that it is only in February 2022 that the Petitioner was called upon to furnish the name of his nominee to represent him in the Enquiry Committee. Accordingly, on 21st February 2022 the Petitioner has furnished the name of his nominee on the Enquiry Committee. This indicates that since 17th April 2017 when the Petitioner was placed under suspension, the management and thereafter the Enquiry Committee did not take any steps whatsoever to call upon the Petitioner to participate in the enquriy as proposed. The Petitioner cannot be faulted in the matter since he was never called upon to furnish the name of his nominee till February 2022. In the absence any steps taken by the management or by the Enquiry Committee calling upon the Petitioner to participate in the enquiry proceedings, there would be no justification for the management to deny its liability to pay subsistence allowance to the Petitioner as required by Rules 34 and 35 of the Act of 1981. We find that the Petitioner has been unnecessarily deprived of the subsistence allowance which is his legal right recognised under the Rules of 1981. As held in Jagdamba Prasad Shukla vs. State of Uttar Pradesh (2000 SCC Online SC 1201), payment of subsistence allowance in accordance with the relevant Rules to an employee is not a bounty. It is a right.

11. It was vehemently urged on behalf of the management that the Petitioner failed to bring on record the statement made by him as recorded in the order dated 17th April 2018 in Criminal Application No. 513/2017. It was also submitted that the Petitioner did not take any steps to have that order vacated. In view of the facts referred to herein above, we find that nothing much would turn on this aspect. The Petitioner was never called upon to attend the proceedings before the Enquiry Committee nor it is his case that he could not participate in the enquiry proceedings because of the order dated 17th April 2018. On the contrary, the Petitioner was called upon to furnish the name of his nominee on the Enquiry Committee only in February 2022. Hence, for this reason the said contention raised on behalf of the management cannot be accepted. For the very same reason, we do not find that the ratio of the decision in K.D.Sharma (supra) could be applied to the facts of the present case.

12. Hence, for aforesaid reasons, we are of the view that the Petitioner has been denied subsistence allowance by the management for no justifiable reason. It has not been shown that the Petitioner was in any manner responsible for non-completion of the enquiry proceedings and there is no material on record to indicate the same. The Petitioner is thu

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s entitled to receive subsistence allowance in accordance with the provisions of Rule 34 and 35 of the Act of 1981. Hence, for aforesaid reasons, we pass the following order: (a) It is held that the Petitioner is entitled to receive subsistence allowance in terms of Rules 34 and 35 of the Rules of 1981 pursuant to the order of suspension dated 17th April 2017. (b) For the initial period of four months commencing from 17th April 2017 the amount of subsistence allowance shall be paid in accordance with Rule 35(3) of the Rules of 1981 by the Education Inspector – Respondent No.4, if not paid earlier. On the expiry of the period of four months from 17th April 2017, it shall be the responsibility of the management – Respondent No.5 to pay subsistence allowance in the manner prescribed by Rule 34 of the Rules of 1981 till conclusion of the enquiry proceedings. (c) The management – Respondent No.5 shall pay the Petitioner the arrears of subsistence allowance accordingly within a period of four weeks from today failing which the aforesaid amount would carry simple interest at the rate of 4% per annum till actual payment. (d) The Enquiry Committee is free to conduct the enquiry in the manner prescribed by Rules 36 and 37 of the Rules of 1981. 13. The Writ Petition is allowed in the aforesaid terms. Rule is made absolute with no order as to costs. 14. This order would come into effect after a period of four weeks from today.
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