Bombay High Court High Court

Lokanchi Shala vs Gajanan on 5 March, 2010

Bombay High Court
Lokanchi Shala vs Gajanan on 5 March, 2010
Bench: R. C. Chavan
                                     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.




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    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 :

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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

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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

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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

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empowered 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

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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

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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

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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

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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 :

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“(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

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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

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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

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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

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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

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master 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

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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

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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

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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

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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. …”

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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

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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.
      
   






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