1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.2946 of 2007
With
Writ Petition No.4831 of 2007
Writ Petition No.2946 of 2007
Lok Shikshan Sanstha, Nagpur,
through its Secretary
Shri Manohar s/o Madhaorao Dhok,
M.P. Deo Smruti
Lokanchi Shala,
Siraspeth, Nagpur. ... Petitioner
Versus
1. Gajanan s/o Devidas Dalal,
Aged about 53 years,
r/o Plot No.31,
Naik Nagar,
Manewada, Nagpur-27.
2. The Education Officer (Primary),
Zilla Parishad, Nagpur. ... Respondents
Shri Sameer Sohoni, Advocate for Petitioner.
Smt. I.L. Bodade with G.G. Mishra, Advocates for Respondent No.2.
Writ Petition No.4831 of 2007
Gajanan s/o Devidas Dalal,
aged about 53 years,
r/o Plot No.31,
Naik Nagar,
Manewada,
Nagpur-27. ... Petitioner
Versus
1. Lok Shikshan Sanstha,
Nagpur, through its Secretary,
Shri Manohar Madhavrao Dhok,
M.P. Deo Smruti
Lokanchi Shala,
Siraspeth, Nagpur.
::: Downloaded on - 09/06/2013 15:40:49 :::
2
2. The Education Officer (Primary),
Zilla Parishad, Nagpur. ... Respondents
Shri A.V. Bhide, Advocate for Petitioner.
Smt. I.L. Bodade with G.G. Mishra, Advocates for Respondent No.2.
CORAM : R.C. Chavan, J.
DATE : 5th March, 2010
Oral Judgment :
1.
Writ Petition No.2946 of 2007 by the Management questions
the judgment and order passed by the School Tribunal on 29-9-2006 and
the clarificatory order dated 23-4-2007, whereby the Tribunal allowed
respondent No.1’s appeal, set aside his dismissal effected on 28-5-2004,
remanded the matter back to the Management for holding fresh enquiry,
and directed that respondent No.1 shall remain under suspension and
would be entitled to subsistence allowance from the Management. By a
clarificatory order dated 23-4-2007, the learned Presiding Officer of the
School Tribunal clarified that respondent No.1 would be entitled to
subsistence allowance with effect from 26-10-2006, that is one month
after respondent No.1’s appeal was allowed by the School Tribunal.
2. Respondent No.1 has himself challenged the said order
whereby he was held entitled to subsistence allowance from 26-10-2006
by Writ Petition No.4831 of 2007.
3. The facts, which led to filing of these petitions are as under :
::: Downloaded on – 09/06/2013 15:40:49 :::
3
The Management runs a School at Nagpur at which
respondent No.1 was appointed on 4-8-1978 as Assistant Teacher. He
was alleged to have made indecent advances towards female employees
and had indulged in other malpractices, including borrowing a sum of
Rs.75,000/- from a Bank by forging the signature of the Secretary of the
Management. The Management wanted to start an enquiry and had
sought permission from the Education Officer to suspend the employee.
Such permission was refused. However, thereafter the Management
served a show cause notice and a chargesheet, caused an Enquiry
Committee to be constituted, and had also placed the Teacher under
suspension. The Enquiry Committee submitted its report on 25-5-2004
and after considering the report of the Enquiry Committee, the
Management terminated the services of the Teacher on 28-5-2004.
4. The Teacher challenged the order of termination of his
services by preferring an appeal before the School Tribunal, which, by its
impugned judgment, set aside the order of termination of the services of
the Teacher, but remanded the matter back to the Management and
directed continuance of suspension of the Teacher.
5. The Teacher preferred Writ Petition No.5991 of 2006
questioning the order of the Tribunal to the extent of refusal of back
wages, which was allowed to be withdrawn, with liberty to the Teacher to
seek clarification from the Tribunal. The Teacher accordingly approached
the Tribunal and demanded subsistence allowance at the rate of 75% of
the regular salary from the date of dismissal from services. This
application was opposed by the Management. As already indicated, the
::: Downloaded on – 09/06/2013 15:40:49 :::
4
learned Presiding Officer of the School Tribunal, by his order
dated 23-4-2007, clarified that the Teacher was entitled to subsistence
allowance with effect from 26-10-2006. As already recounted, both the
Management and the Teacher have filed these petitions questioning
these two orders.
6. These petitions were heard by this Court and by judgment
dated 29-1-2009. the writ petition filed by the Management, i.e. Writ
Petition No.2946 of 2007, was dismissed. The petition of the Teacher, i.e.
Writ Petition No.4831 of 2007, was allowed and it was clarified that the
Teacher shall be deemed to be under suspension from the date when he
was first put under suspension till the completion of the enquiry. This
judgment was challenged by the Management by preferring Letters
Patent Appeals, which were disposed of by judgment dated 7-9-2009,
whereby the judgment was set aside and the petitions were ordered to be
heard again by this Court keeping all the points and contentions open.
This is how the petitions are being heard today again.
7. I have heard the learned counsel for the Management as well
as the learned counsel for the Teacher.
8. The first ground on which the learned Presiding Officer of the
School Tribunal had set aside the order of dismissal was that the
chargesheet was served upon the Teacher by a person not authorized to
do so, that is by Secretary Smt. Vibhwari Kulkarni. It was stated that
since the Teacher, who was subjected to the disciplinary enquiry, was the
Head, chargesheet ought to have been signed and issued by the
::: Downloaded on – 09/06/2013 15:40:50 :::
5
President of the Society. The learned counsel for the Management
submits that in view of the judgment of the Full Bench of this Court in
National Education Society, Nagpur, and another v. Mahendra s/o
Baburao Jamkar and another, reported at 2007(3) Mh.L.J. 707,
chargesheet could have been issued and served even by a Secretary. He
submitted that this position had been considered by this Court in the
previous judgment dated 29-1-2009. This Court had observed in para 4
of the judgment that the Full Bench judgment in National Education
Society was delivered on 6-4-2007 and, therefore, was not available to
the Tribunal when it delivered its judgment on 26-9-2006.
ig The Court
observed that in view of the Full Bench judgment, enquiry could not be
treated to vitiated and could not be set aside on that ground. The
learned counsel for the Teacher submits that since the questions are kept
open, the observations in judgment dated 29-1-2009 are not conclusive of
the matter and submitted that the Secretary of the Society, by virtue of
holding the position of Secretary, cannot be termed as the Chief
Executive Officer empowered to initiate the proceedings against the
Head.
9. It may be useful to reproduce for ready reference the
definition of “Chief Executive Officer” appearing in sub-clause (c) of
sub-rule 1 of Rule 2 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (for short, “the MEPS Rules”), which
reads as under :
“(c) Chief Executive Officer” means the Secretary, Trustee,
Correspondent or a person by whatever name called who is
::: Downloaded on – 09/06/2013 15:40:50 :::
6empowered to execute the decisions taken by the
Management.”
Rule 36 of the MEPS Rules, which pertains to conduct of the enquiry,
reads as under :
“36. Inquiry Committee : (1) if an employee is allegedly
found to be guilty on any of the grounds specified in sub-rule
(5) of rule 28 and the Management decides to hold an inquiry,
it shall do so through a properly constituted Inquiry
Committee. Such a committee shall conduct an inquiry only
in such cases where major penalties are to be inflicted. The
Chief Executive Officer authorised by the Management in this
behalf and in the case of an inquiry against the Head who is
also the Chief Executive Officer, the President of the
Management shall communicate to the employee or the Head
concerned by registered post acknowledgement due the
allegations and demand from him a written explanation
within seven days from the date of receipt of the statement of
allegations.
(2) If the Chief Executive Officer or the President, as
the case may be, finds that the explanation submitted by the
employee or the Head referred to in sub-rule (1) is not
satisfactory, he shall place it before the Management within
fifteen days from the date of receipt of the explanation. The
Management shall in turn decide within fifteen days whether
::: Downloaded on – 09/06/2013 15:40:50 :::
7
an inquiry be conducted against the employee and if it
decides to conduct the inquiry, the inquiry shall be conducted
by an Inquiry Committee constituted in the following manner,
that is to say, –
(a) in the case of an employee –
(i) one member from amongst the members of the
Management to be nominated by the Management, or by the
President of the Management if so authorised by the
Management, whose name shall be communicated to the
Chief Executive Officer within 15 days from the date of the
decision of the Management;
(ii) one member to be nominated by the employee
from amongst the employees of any private school;
(iii) one member chosen by the Chief Executive
Officer from the Panel of teachers on whom State/National
Award has been conferred;
(b) in the case of the Head referred to in sub-rule (1) –
(i) one member who shall be the President of the
Management;
(ii) one member to be nominated by the Head from
amongst the employees of any private school;
(iii) one member chosen by the President from the
panel of Head Masters on whom State/National Award has
been conferred.
(3) The Chief Executive Officer, or as the case may be,
the President shall communicate the names of members
::: Downloaded on – 09/06/2013 15:40:50 :::
8
nominated under sub-rule (2) by registered post
acknowledgement due to the employee or the Head referred
to in sub-rule (1), as the case may be, directing him to
nominate a person on his behalf on the proposed Inquiry
Committee and to forward the name alongwith the written
consent of the person so nominated to the Chief Executive
Officer or to the President, as the case may be, within fifteen
days of the receipt of the communication to that effect.
(4) If the employee or the Head, as the case may be,
communicates the name of the person nominated by him the
Inquiry Committee of three members shall be deemed to
have been constituted on the date of receipt of such
communication by the Chief Executive Officer or the
President, as the case may be. If the employee or such Head
fails to communicate the name of his nominee within the
stipulated period, the Inquiry Committee shall be deemed to
have been constituted on expiry of the stipulated period
consisting of only two members as, provided in sub-rule (2).
(5) The Convener of the respective Inquiry Committee
shall be the nominee of the President, or as the case may be,
the President who shall initiate action pertaining to the
conduct of the Inquiry Committee and shall maintain all the
relevant record of the inquiry.
(6) The meetings of the Inquiry Committee shall be held
::: Downloaded on – 09/06/2013 15:40:50 :::
9
in the school premises during normal school hours or
immediately thereafter, if the employee agrees and even
during vacation.”
The Full Bench in National Education Society, held, in the context of these
provisions, in para 14 that the Chief Executive Officer had to be a person
– whether Secretary, Trustee or Correspondent, empowered by the
Management to executive its decisions. It then concluded that the Chief
Executive Officer could communicate statement of allegations to the
employee and that it was not necessary that the President alone should
issue such statement of allegations.
10. The learned counsel for the Management has made available
for my perusal the Bye-laws of the Society as also Resolution No.2 passed
in the meeting dated 2-8-2001. Neither the Bye-laws of the Society nor
Resolution No.2 in the meeting dated 2-8-2001 show that Smt. Vibhwari
Kulkarni had been empowered by the Management to execute the
decisions of the Management. The Resolution states that the Managing
Committee had authorized Smt. Kulkarni to deal with all financial
transactions and legal affairs of the Society. Since the Resolution had
specifically referred to the financial transactions and legal affairs of the
Society, and had not mentioned that Smt. Kulkarni was also to execute
the decisions of the Managing Committee, the said Resolution does not
comply with the requirements of clause (c) of sub-rule (1) of Rule 2 of the
MEPS Rules and, therefore, Smt. Kulkarni cannot be termed as the Chief
Executive Officer empowered to issue a chargesheet. Therefore, the Full
Bench decision would not help the Management, since the decision
::: Downloaded on – 09/06/2013 15:40:50 :::
10
requires that a person other than the President could also serve the
chargesheet, provided he is the Chief Executive Officer, as defined under
clause (c) of sub-rule (1) of Rule 2 of the MEPS Rules, that is, having the
duty to execute the decisions of the Management. Therefore, the defect
was rightly ordered to be cured by the School Tribunal by relegating the
enquiry to the earliest stage, that is issuing of chargesheet.
11. The next ground on which the Tribunal had set aside the
dismissal of the Teacher was that the enquiry had been conducted during
vacation. The learned counsel for the Management submitted that
on 5-5-2004 when the Enquiry Committee met, time was sought by one
Vijay Nandanwar, representative of the delinquent employee, and,
therefore, the further proceedings were adjourned to 8-5-2004. On
8-5-2004, the delinquent employee was absent, but his representative
Vijay Nandanwar stated that no evidence was to be tendered on his
behalf and he also declined to cross-examine one Smt. Vidya Joshi. The
proceedings were then adjourned to 14-5-2004. On that day, Shri
Nandanwar had delivered a letter addressed to the Convener of the
Enquiry Committee raising objections to the proceedings in view of the
provisions of sub-rule (6) of Rule 36 of the MEPS Rules. These objections
were presumably rejected by the Committee and then the Committee
submitted its report.
12. The learned counsel for the Management submitted that
sub-rule (6) of Rule 36 of the MEPS Rules does not prohibit holding the
enquiry during vacation. The said sub-rule reads as under :
::: Downloaded on – 09/06/2013 15:40:50 :::
11
“(6) The meetings of the Inquiry Committee shall be held
in the school premises during normal school hours or
immediately thereafter, if the employee agrees and even
during vacation.”
The learned counsel for the Management submitted that the said
sub-rule (6) prohibits holding of meetings of the Enquiry Committee after
normal school hours without the consent of the employee only, because
the employee and the member of the Enquiry Committee too may be
exhausted after a day’s work and, therefore, the consent of the employee
is required. He pointed out that the clause “and even during vacation”
does not precede the clause about the employee agreeing to holding of
such an enquiry and, therefore, the agreement of the employee is
required only if the enquiry is to be held beyond normal school hours. He
submitted that otherwise there was absolutely no reason why the framers
of the rule referred to the “vacation” at the end and not after the words
“immediately thereafter”. According to him, if the rule was to be read to
mean that an enquiry could not be held during the vacation without the
employee’s agreement, it should have read as under :
“The meeting of the Inquiry Committee shall be held in the
premises during the normal school hours or immediately
thereafter and even during the vacation if the employee
agrees.”
13. The learned counsel for the Teacher submitted that this
question is no longer open and has been concluded by the judgment of
::: Downloaded on – 09/06/2013 15:40:50 :::
12
this Court in Writ Petition No.1942 of 1998, decided on 10-9-1998. In that
case too, the enquiry was held during vacation in spite of the employee
not agreeing to such a course. This Court in para 5 of the judgment held
as under :
“5. …Perusal of the provisions of Rule 36 of the Rules
shows that it deals with the constitution and conduct of
business of an Inquiry Committee. It is further to be seen
here that the Rule provides for constitution of the Inquiry
Committee. It lays down that in an Inquiry Committee for
holding enquiry into misconduct of the employee, a nominee
of the employee shall be a member. The nominee is to be
appointed by the employee concerned from amongst the
members of any private school. Sub-rule (6) therefore deals
with enquiry against all the employees. It does not make a
distinction between an employee who is a Head Master and
an employee who is not a Head Master. The reading of the
Rule makes it clear that even for holding meeting of the
Inquiry Committee immediately after the school hours,
consent of the employee concerned is necessary and,
therefore, it is obvious that if the enquiry is to be held during
vacation consent of the employee would be necessary. …”
I do not see any reason for taking a different view.
14. The learned counsel for the Management submitted that the
fact that Shri Nandanwar had participated in the proceedings on 5-5-2004
::: Downloaded on – 09/06/2013 15:40:50 :::
13
as well as on 8-5-2004, which fell in the vacation, it must be taken that
the employee had agreed to holding the enquiry during vacation. The
proceedings of 5-5-2004 and 8-5-2004 have been annexed by the
Management to their petition as Annexures 6 and 7. Though on those
dates, an objection based on sub-rule (6) of Rule 36 of the MEPS Rules
was not raised, the proceedings also do not record that the employee had
agreed to holding of enquiry during the vacation. It has also to be noted
that on those dates, in fact the representative of the delinquent
employee had sought time and was recorded to have not tendered any
evidence or cross-examined any witness. When the rules requires that
the enquiry could be held when the employee agrees, there has to be an
express agreement and mere participation of the employee on two dates
on which nothing concrete occurred, could not be interpreted to amount
to his acquiescence to the conduct of enquiry in the vacation. Therefore,
even on this ground, it cannot be said that the learned Presiding Officer
of the School Tribunal erred in concluding that the enquiry was vitiated,
since it amounted to denial of proper opportunity to the employee to
defend himself.
15. The learned counsel for the Teacher submitted that by letter
dated 19-10-2006, the Management had acquiesced in the order of
remand by stating that the Management would be shortly taking
appropriate steps. I have carefully considered the contents of the said
letter dated 19-10-2006. The contents of the said letter do not amount to
acquiescence or any admission by the Management that they are not
likely to challenge the order of the School Tribunal before appropriate
Court. They had only stated that they are shortly taking steps, which
::: Downloaded on – 09/06/2013 15:40:50 :::
14
could include filing of writ petition. The tenor of the letter is that the
employee was not justified in claiming back wages and that he should not
raise any frivolous demand.
16. In view of this, the Management’s challenge to the order
passed by the School Tribunal remanding the matter back to the stage of
serving of chargesheet, has to be rejected.
17. Writ Petition No.2946 of 2007 is, therefore, dismissed.
18.
Writ Petition No.4831 of 2007 is filed by the employee,
whereby he questions the clarification by the learned Presiding Officer of
the School Tribunal that he was entitled to subsistence allowance from
26-10-2006, that is one month after the judgment allowing his appeal
was delivered by the Tribunal.
19. The learned counsel for the employee submitted that under
the rules, the employee was entitled to subsistence allowance right from
the date of his suspension and, therefore, restricting the claim of the to
subsistence allowance from 29-10-2006, was thoroughly unwarranted.
By judgment dated 29-1-2009, this Court had in fact held that the
clarificatory order dated 23-4-2007 passed by the Tribunal was liable to
be quashed and set aside and the employee was deemed to be under
suspension from the date when he was first put under suspension till the
enquiry gets over.
20. The learned counsel for the Management submitted that the
::: Downloaded on – 09/06/2013 15:40:50 :::
15
course adopted by the learned Presiding Officer, School Tribunal, was not
proper and that the employee could not have been ordered to be paid
subsistence allowance from 26-10-2006. For this purpose, he relied on a
judgment of the Supreme Court in H.L. Mehra v. Union of India and
others, reported at AIR 1974 SC 1281. In that case, the Supreme Court
was considering, among other things, the entitlement of an employee to
subsistence allowance upon setting aside the order of dismissal of such
employee. It may be useful to recount the facts of the case in order to
understand what the Court had held. The petitioner there had been
chargesheeted on several grounds.
ig He had also been prosecuted for
corruption, etc. The enquiry, therefore, did not make much progress.
The employee was eventually dismissed from service on 26-10-1967. He
had been suspended from service from 11-4-1963. His conviction had
been set aside and, therefore, his dismissal based on the conviction was
also set aside by order dated 9-6-1971. The order directed that the
enquiry should be continued till its finalization and also directed that the
employee would remain under suspension until further orders. The
Supreme Court observed in para 3 of the judgment that the only question
that was debated before the Court was whether the third part of the order
dated 9-6-1971 was valid, that is whether it was competent for the
President to continue the suspension of the employee in the context of
the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
In para 7 of the judgment, the Court observed as under :
“7. Let us first examine the question on principle. When
an order of suspension is made against a Government servant
pending an enquiry into his conduct, the relationship of
::: Downloaded on – 09/06/2013 15:40:50 :::
16master and servant does not come to an end. What the
Government, as master, does in such a case is merely to
suspend the Government servant from performing the duties
of his office. The Government issues a direction forbidding
the Government servant from doing the work which he was
required to do under the terms of the contract of service or
the statute or rules governing his conditions of service, at the
same time keeping in force the relationship of master and
servant. In other words, to quote Hegde, J., from V.P.
Gindroniya v. State of Madhya Pradesh, (1970) 3 SCR 448+
(AIR 1970 SC 1494=1970 Lab IC 1332) “the employer is
regarded as issuing an order to the employee which because
the contract is subsisting, the employee must obey”. This
being the true nature of an order of suspension, it follows that
the Government servant would be entitled to his
remuneration for the period of suspension unless there is
some provision in the statute or rules governing his
conditions of service which provides for withholding of such
remuneration. Now, when an order of dismissal is passed, the
viculum juris between the Government and the servant is
dissolved: the relationship of master and servant between
them is extinguished. Then the order of suspension must a
fortiori come to an end. But what happens when the order of
dismissal is subsequently set aside? Does that revive the
order of suspension? We do not think so. Once the
suspension has come to an end by an order of dismissal,
which was effective when made, it cannot be revived by mere
::: Downloaded on – 09/06/2013 15:40:50 :::
17
subsequent setting aside of the order of dismissal in the
absence of a statutory provision or rule to that effect. That is
precisely the reason why sub-rules (3) and (4) had to be
introduced in Rule 10 providing for retrospective revival and
continuance of the suspension in cases falling within those
sub-rules. This position which emerges clearly on principle is
supported also by authority. There is a decision of a Bench of
six judges of this Court which endorses the same view. That
is the decision in Om Prakash Gupta v. State of Uttar Pradesh,
(1955) 2 SCR 391 = (AIR 1955 SC 600). The appellant in that
case was suspended from service with effect from 24th
August, 1944 pending an enquiry into his conduct. The
Commissioner completed the enquiry and made a report to
the Government and on the basis of the report the
Government passed an order dated 25th November, 1944
dismissing the appellant from service. The appellant claimed
that the order of dismissal passed against him was illegal and
void and he continued to be in service and was entitled to
recover arrears of salary. The claim that the order of
dismissal was illegal and void and the appellant continued to
be in service was upheld by the High Court but relief by way
of recovery of arrears of salary was refused and the appellant,
therefore, preferred an appeal to this Court. The claim of the
appellant for arrears of salary which was debated before this
Court related to two distinct periods: one from the date of the
order of suspension up to the date of the order of dismissal,
and the other from the date of the order of dismissal up to the
::: Downloaded on – 09/06/2013 15:40:50 :::
18
date when the order of dismissal was set aside by the Court.
So far as the claim for the first period was concerned, the
appellant gave it up before this Court, as it would have
necessitated a remand which would have involved the
appellant in heavy expenditure and harassment. The claim
for the second period was, however, seriously pressed on
behalf of the appellant and this Court decreed it for reasons
which may best be stated in the words of Imam, J., speaking
on behalf of the Court:
“He”, i.e. the appellant, “however, contended that the
order of suspension continued to be in force only until the 25th
Hnovember, 1944, the date of the order of dismissal. On that
date the order of suspension ceased to exist and the
appellant was entitled to recover arrears of salary from the
25th November, 1944, to the 31st December, 1947, inclusive.
The Attorney-General strongly contended that it continued to
be in force and that it was not at all affected by the
declaration of the Civil Judge that the order of dismissal was
illegal. In view of that decision the order of dismissal must be
regarded as a nullity and non-existent in the eye of law. The
inquiry, the outcome of which was the order of dismissal, had
not therefore ended. It could only end with a valid order
which would replace the order of suspension. Until that
happened the accusation against the appellant remained and
the inquiry had not ended. He referred to the case of Gopal
Krishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170.
On behalf of the appellant reliance was placed on the case of
::: Downloaded on – 09/06/2013 15:40:50 :::
19
Provincial Govt. Central Provinces and Berar v. Shamshul
Hussain, ILR (1948) Nag 576 _ AIR 1949 Nag 118. The order
of suspension made against the appellant was clearly one
made pending an inquiry. It certainly was not a penalty
imposed after an enquiry. As the result of the inquiry an
order of dismissal by way of penalty had been passed against
the appellant. With that order, the order of suspension
lapsed. The order of dismissal replaced the order of
suspension which then ceased to exist. That clearly was the
position between the Government of the United Provinces and
the appellant. The subsequent declaration by a Civil Court
that the order of dismissal was illegal could not revive an
order of suspension which did not exist. The case referred to
by the Attorney-General is not directly in point and that
decision does not conflict with the case relied upon the
appellant. The appellant is, therefore, entitled to recover
arrears of salary from the 25th November, 1944, to 31st
December, 1947.”
This decision leaves no room for doubt as to the correct legal
position and the conclusion must, therefore, inevitably follow
that when the order of dismissal was passed on 26th October,
1967, the order of suspension dated 11th April, 1963 ceased
to exist and it did not revive thereafter the the subsequent
setting aside of the order of dismissal by the first part of the
impugned Order. The appellant was accordingly not under
suspension at the point of time when the third part of the
impugned order was made and in the circumstances, the
::: Downloaded on – 09/06/2013 15:40:50 :::
20
third part of the impugned order could not be justified under
sub-rule (5)(b) of Rule 10.”
It would be seen from this discussion that the Court held that the
suspension of the employee came to an end on the date when he was
dismissed from service and did not automatically revive on that dismissal
being set aside. In para 10 of the judgment, the Court concluded as
under :
“10. …That means that the suspension of the appellant
under the order dated 11th April, 1963 came to an end on 25th
October, 1967 when the order of dismissal was passed
against him and since then the appellant is no longer under
suspension. The appellant must, therefore, be held to be
entitled to salary from 25th October, 1967 and an order for
payment of arrears of salary must be passed in his favour.
This of course does not mean that the President cannot now
in exercise of the powers under sub-rule (1) of Rule 10, pass a
fresh order of suspension against the appellant pending the
enquiry which has been revived and continued against him.
It would always be only open to the President to take
appropriate action by way of suspension against the
appellant under sub-rule (1) of Rule 10, if he so thinks fit. But
until such action is taken, the appellant would be entitled to
his salary under the conditions of service applicable to
him. …”
::: Downloaded on – 09/06/2013 15:40:50 :::
21
21. Though the employee by his petition has merely claimed
subsistence allowance at 75% of his salary from the date of his
suspension, i.e. from 28-5-2004, after having noticed the judgment of the
Supreme Court, which categorically lays down that the suspension would
come to an end once the order of dismissal was passed, and would not
revive, unless the rules so provide, on the dismissal being set aside, it
would not be permissible to allow the employee’s claim though it is
substantial lesser than what he would be otherwise entitled to.
22. The learned counsel for the Management submitted that the
judgment would in fact help the Management, since the Court had
observed that revival would not accrue automatically unless the rules so
provide. He submitted that in the present case, Rule 34 of the MEPS
Rules provides for such revival of suspension. I have gone through the
entire Rule 34 of the MEPS Rules and it does not appear that there is any
clause in the Rule, which provides for automatic revival of suspension
upon setting aside the order of dismissal. The learned counsel for the
Management submitted that whatever is provided in Rule 10 of the
Central Civil Services (Classification, Control and Appeal) Rules, 1965 is
not there in the MEPS Rules and, therefore, subsistence allowance cannot
be paid. As far as non-payment of subsistence allowance is concerned,
there can be no doubt, because what the employee is entitled to in terms
of the judgment of the Supreme Court is salary and not subsistence
allowance from the date when his suspension came to an end upon
dismissal of the employee from service, and since that dismissal has been
set aside, the employee could be deemed to be on duty and not under
suspension unless suspended by a specific order. Therefore, the
::: Downloaded on – 09/06/2013 15:40:50 :::
22
employee would be at liberty to approach the School Tribunal for
appropriate orders as to his entitlement, since his prayer in the petition,
which is misconceived, cannot be allowed.
23. Therefore, Writ Petition No.4831 of 2007 is disposed of. Since
the Tribunal would obviously be required to hear the parties again on that
issue should such an occasion arise upon culmination of the enquiry, the
entitlement of the employee to salary or subsistence allowance would be
dealt with by the Tribunal.
ig Judge.
Pdl.
::: Downloaded on - 09/06/2013 15:40:50 :::