{"id":174170,"date":"2010-03-05T00:00:00","date_gmt":"2010-03-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lokanchi-shala-vs-gajanan-on-5-march-2010"},"modified":"2018-11-13T19:28:35","modified_gmt":"2018-11-13T13:58:35","slug":"lokanchi-shala-vs-gajanan-on-5-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lokanchi-shala-vs-gajanan-on-5-march-2010","title":{"rendered":"Lokanchi Shala vs Gajanan on 5 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Lokanchi Shala vs Gajanan on 5 March, 2010<\/div>\n
Bench: R. C. Chavan<\/div>\n
                                     1\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                           NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                                 \n                      Writ Petition No.2946 of 2007\n\n\n\n\n                                                      \n                                   With\n                      Writ Petition No.4831 of 2007\n\n                      Writ Petition No.2946 of 2007\n\n\n\n\n                                                     \n    Lok Shikshan Sanstha, Nagpur,\n    through its Secretary\n    Shri Manohar s\/o Madhaorao Dhok,\n    M.P. Deo Smruti\n\n\n\n\n                                         \n    Lokanchi Shala,\n    Siraspeth, Nagpur.                            ... Petitioner\n\n       Versus\n                           \n    1. Gajanan s\/o Devidas Dalal,\n       Aged about 53 years,\n                          \n       r\/o Plot No.31,\n       Naik Nagar,\n       Manewada, Nagpur-27.\n\n    2. The Education Officer (Primary),\n      \n\n       Zilla Parishad, Nagpur.                    ... Respondents\n   \n\n\n\n    Shri Sameer Sohoni, Advocate for Petitioner.\n    Smt. I.L. Bodade with G.G. Mishra, Advocates for Respondent No.2.\n\n\n\n\n\n                         Writ Petition No.4831 of 2007\n\n    Gajanan s\/o Devidas Dalal,\n    aged about 53 years,\n    r\/o Plot No.31,\n    Naik Nagar,\n\n\n\n\n\n    Manewada,\n    Nagpur-27.                                    ... Petitioner\n\n       Versus\n\n    1. Lok Shikshan Sanstha,\n       Nagpur, through its Secretary,\n       Shri Manohar Madhavrao Dhok,\n       M.P. Deo Smruti\n       Lokanchi Shala,\n       Siraspeth, Nagpur.\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 15:40:49 :::\n                                         2\n\n    2. The Education Officer (Primary),\n       Zilla Parishad, Nagpur.                       ... Respondents\n\n\n\n\n                                                                                 \n    Shri A.V. Bhide, Advocate for Petitioner.\n\n\n\n\n                                                         \n    Smt. I.L. Bodade with G.G. Mishra, Advocates for Respondent No.2.\n\n\n\n               CORAM : R.C. Chavan, J.\n<\/pre>\n
               DATE  : 5th March, 2010<\/p>\n
    Oral Judgment :\n<\/p>\n
    1.
\n               Writ Petition No.2946 of 2007 by the Management questions<\/p>\n
    the judgment and order passed by the School Tribunal on 29-9-2006 and<\/p>\n
    the clarificatory order dated 23-4-2007, whereby the Tribunal allowed<\/p>\n
    respondent No.1’s appeal, set aside his dismissal effected on 28-5-2004,<\/p>\n
    remanded the matter back to the Management for holding fresh enquiry,<\/p>\n
    and directed that respondent No.1 shall remain under suspension and<\/p>\n
    would be entitled to subsistence allowance from the Management. By a<\/p>\n
    clarificatory order dated 23-4-2007, the learned Presiding Officer of the<\/p>\n
    School Tribunal clarified that respondent No.1 would be entitled to<\/p>\n
    subsistence allowance with effect from 26-10-2006, that is one month<\/p>\n
    after respondent No.1’s appeal was allowed by the School Tribunal.\n<\/p>\n
    2.         Respondent No.1 has himself challenged the said order<\/p>\n
    whereby he was held entitled to subsistence allowance from 26-10-2006<\/p>\n
    by Writ Petition No.4831 of 2007.\n<\/p>\n
    3.         The facts, which led to filing of these petitions are as under :\n<\/p>\n
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\n                                      3<\/span><\/p>\n
               The    Management runs       a   School   at   Nagpur at        which<\/p>\n
    respondent No.1 was appointed on 4-8-1978 as Assistant Teacher. He<\/p>\n
    was alleged to have made indecent advances towards female employees<\/p>\n
    and had indulged in other malpractices, including borrowing a sum of<\/p>\n
    Rs.75,000\/- from a Bank by forging the signature of the Secretary of the<\/p>\n
    Management.      The Management wanted to start an enquiry and had<\/p>\n
    sought permission from the Education Officer to suspend the employee.\n<\/p>\n
    Such permission was refused.      However, thereafter the Management<\/p>\n
    served a show cause notice and a chargesheet, caused an Enquiry<\/p>\n
    Committee to be constituted, and had also placed the Teacher under<\/p>\n
    suspension. The Enquiry Committee submitted its report on 25-5-2004<\/p>\n
    and after considering the report of the Enquiry Committee, the<\/p>\n
    Management terminated the services of the Teacher on 28-5-2004.\n<\/p>\n
    4.         The Teacher challenged the order of termination of his<\/p>\n
    services by preferring an appeal before the School Tribunal, which, by its<\/p>\n
    impugned judgment, set aside the order of termination of the services of<\/p>\n
    the Teacher, but remanded the matter back to the Management and<\/p>\n
    directed continuance of suspension of the Teacher.\n<\/p>\n
    5.         The    Teacher   preferred   Writ   Petition   No.5991     of    2006<\/p>\n
    questioning the order of the Tribunal to the extent of refusal of back<\/p>\n
    wages, which was allowed to be withdrawn, with liberty to the Teacher to<\/p>\n
    seek clarification from the Tribunal. The Teacher accordingly approached<\/p>\n
    the Tribunal and demanded subsistence allowance at the rate of 75% of<\/p>\n
    the regular salary from the date of dismissal from services.                 This<\/p>\n
    application was opposed by the Management. As already indicated, the<\/p>\n
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\n                                          4<\/span><\/p>\n
    learned   Presiding   Officer   of   the   School   Tribunal,   by    his   order<\/p>\n
    dated 23-4-2007, clarified that the Teacher was entitled to subsistence<\/p>\n
    allowance with effect from 26-10-2006. As already recounted, both the<\/p>\n
    Management and the Teacher have filed these petitions questioning<\/p>\n
    these two orders.\n<\/p>\n
    6.         These petitions were heard by this Court and by judgment<\/p>\n
    dated 29-1-2009. the writ petition filed by the Management, i.e. Writ<\/p>\n
    Petition No.2946 of 2007, was dismissed. The petition of the Teacher, i.e.<\/p>\n
    Writ Petition No.4831 of 2007, was allowed and it was clarified that the<\/p>\n
    Teacher shall be deemed to be under suspension from the date when he<\/p>\n
    was first put under suspension till the completion of the enquiry. This<\/p>\n
    judgment was challenged by the Management by preferring Letters<\/p>\n
    Patent Appeals, which were disposed of by judgment dated 7-9-2009,<\/p>\n
    whereby the judgment was set aside and the petitions were ordered to be<\/p>\n
    heard again by this Court keeping all the points and contentions open.\n<\/p>\n
    This is how the petitions are being heard today again.\n<\/p>\n
    7.         I have heard the learned counsel for the Management as well<\/p>\n
    as the learned counsel for the Teacher.\n<\/p>\n
    8.         The first ground on which the learned Presiding Officer of the<\/p>\n
    School Tribunal had set aside the order of dismissal was that the<\/p>\n
    chargesheet was served upon the Teacher by a person not authorized to<\/p>\n
    do so, that is by Secretary Smt. Vibhwari Kulkarni.        It was stated that<\/p>\n
    since the Teacher, who was subjected to the disciplinary enquiry, was the<\/p>\n
    Head, chargesheet ought to have been signed and issued by the<\/p>\n
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\n                                      5<\/span><\/p>\n
    President of the Society.   The learned counsel for the Management<\/p>\n
    submits that in view of the judgment of the Full Bench of this Court in<\/p>\n
    National Education Society, Nagpur, and another v. Mahendra s\/o<\/p>\n
    Baburao   Jamkar   and   another,    reported   at   2007(3)    Mh.L.J.    707,<\/p>\n
    chargesheet could have been issued and served even by a Secretary. He<\/p>\n
    submitted that this position had been considered by this Court in the<\/p>\n
    previous judgment dated 29-1-2009. This Court had observed in para 4<\/p>\n
    of the judgment that the Full Bench judgment in National Education<\/p>\n
    Society was delivered on 6-4-2007 and, therefore, was not available to<\/p>\n
    the Tribunal when it delivered its judgment on 26-9-2006.\n<\/p>\n
                              ig                                        The Court<\/p>\n
    observed that in view of the Full Bench judgment, enquiry could not be<\/p>\n
    treated to vitiated and could not be set aside on that ground.              The<\/p>\n
    learned counsel for the Teacher submits that since the questions are kept<\/p>\n
    open, the observations in judgment dated 29-1-2009 are not conclusive of<\/p>\n
    the matter and submitted that the Secretary of the Society, by virtue of<\/p>\n
    holding the position of Secretary, cannot be termed as the Chief<\/p>\n
    Executive Officer empowered to initiate the proceedings against the<\/p>\n
    Head.\n<\/p>\n
    9.         It may be useful to reproduce for ready reference the<\/p>\n
    definition of “Chief Executive Officer” appearing in sub-clause (c) of<\/p>\n
    sub-rule 1 of Rule 2 of the Maharashtra Employees of Private Schools<\/p>\n
    (Conditions of Service) Rules, 1981 (for short, “the MEPS Rules”), which<\/p>\n
    reads as under :\n<\/p>\n
               “(c) Chief Executive Officer” means the Secretary, Trustee,<\/p>\n
               Correspondent or a person by whatever name called who is<\/p>\n
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\n                                         6<\/span><\/p>\n
               empowered        to   execute   the   decisions   taken     by     the<\/p>\n
               Management.”\n<\/p><\/blockquote>\n
    Rule 36 of the MEPS Rules, which pertains to conduct of the enquiry,<\/p>\n
    reads as under :\n<\/p>\n
               “36.    Inquiry Committee : (1) if an employee is allegedly<\/p>\n
               found to be guilty on any of the grounds specified in sub-rule<\/p>\n
               (5) of rule 28 and the Management decides to hold an inquiry,<\/p>\n
               it shall do so through a properly constituted Inquiry<\/p>\n
               Committee. Such a committee shall conduct an inquiry only<\/p>\n
               in such cases where major penalties are to be inflicted. The<\/p>\n
               Chief Executive Officer authorised by the Management in this<\/p>\n
               behalf and in the case of an inquiry against the Head who is<\/p>\n
               also the Chief Executive Officer, the President of the<\/p>\n
               Management shall communicate to the employee or the Head<\/p>\n
               concerned by registered post acknowledgement due the<\/p>\n
               allegations and demand from him a written explanation<\/p>\n
               within seven days from the date of receipt of the statement of<\/p>\n
               allegations.<\/p><\/blockquote>\n
               (2)            If the Chief Executive Officer or the President, as<\/p>\n
               the case may be, finds that the explanation submitted by the<\/p>\n
               employee or the Head referred to in sub-rule (1) is not<\/p>\n
               satisfactory, he shall place it before the Management within<\/p>\n
               fifteen days from the date of receipt of the explanation. The<\/p>\n
               Management shall in turn decide within fifteen days whether<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                             7<\/span><\/p>\n
     an inquiry be conducted against the employee and if it<\/p>\n
     decides to conduct the inquiry, the inquiry shall be conducted<\/p>\n
     by an Inquiry Committee constituted in the following manner,<\/p>\n
     that is to say, –\n<\/p>\n
     (a)     in the case of an employee –\n<\/p>\n
             (i)   one member from amongst the members of the<\/p>\n
     Management to be nominated by the Management, or by the<\/p>\n
     President of the Management if so authorised by the<\/p>\n
     Management, whose name shall be communicated to the<\/p>\n
     Chief Executive Officer within 15 days from the date of the<\/p>\n
     decision of the Management;\n<\/p>\n
             (ii) one member to be nominated by the employee<\/p>\n
     from amongst the employees of any private school;\n<\/p>\n
             (iii) one member chosen by the Chief Executive<\/p>\n
     Officer from the Panel of teachers on whom State\/National<\/p>\n
     Award has been conferred;\n<\/p>\n
     (b)     in the case of the Head referred to in sub-rule (1) –\n<\/p>\n
             (i)   one member who shall be the President of the<\/p>\n
     Management;\n<\/p>\n
             (ii) one member to be nominated by the Head from<\/p>\n
     amongst the employees of any private school;\n<\/p>\n
             (iii) one member chosen by the President from the<\/p>\n
     panel of Head Masters on whom State\/National Award has<\/p>\n
     been conferred.\n<\/p>\n
     (3)     The Chief Executive Officer, or as the case may be,<\/p>\n
     the President shall communicate the names of members<\/p>\n
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\n                             8<\/span><\/p>\n
     nominated     under    sub-rule      (2)   by    registered      post<\/p>\n
     acknowledgement due to the employee or the Head referred<\/p>\n
     to in sub-rule (1), as the case may be, directing him to<\/p>\n
     nominate a person on his behalf on the proposed Inquiry<\/p>\n
     Committee and to forward the name alongwith the written<\/p>\n
     consent of the person so nominated to the Chief Executive<\/p>\n
     Officer or to the President, as the case may be, within fifteen<\/p>\n
     days of the receipt of the communication to that effect.\n<\/p>\n
     (4)    If the employee or the Head, as the case may be,<\/p>\n
     communicates the name of the person nominated by him the<\/p>\n
     Inquiry Committee of three members shall be deemed to<\/p>\n
     have been constituted on the date of receipt of such<\/p>\n
     communication     by   the   Chief   Executive    Officer or       the<\/p>\n
     President, as the case may be. If the employee or such Head<\/p>\n
     fails to communicate the name of his nominee within the<\/p>\n
     stipulated period, the Inquiry Committee shall be deemed to<\/p>\n
     have been constituted on expiry of the stipulated period<\/p>\n
     consisting of only two members as, provided in sub-rule (2).\n<\/p>\n
     (5)    The Convener of the respective Inquiry Committee<\/p>\n
     shall be the nominee of the President, or as the case may be,<\/p>\n
     the President who shall initiate action pertaining to the<\/p>\n
     conduct of the Inquiry Committee and shall maintain all the<\/p>\n
     relevant record of the inquiry.\n<\/p>\n
     (6)    The meetings of the Inquiry Committee shall be held<\/p>\n
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\n                                       9<\/span><\/p>\n
               in the school premises during normal school hours or<\/p>\n
               immediately thereafter, if the employee agrees and even<\/p>\n
               during vacation.”\n<\/p>\n
    The Full Bench in National Education Society, held, in the context of these<\/p>\n
    provisions, in para 14 that the Chief Executive Officer had to be a person<\/p>\n
    – whether Secretary, Trustee or Correspondent, empowered by the<\/p>\n
    Management to executive its decisions. It then concluded that the Chief<\/p>\n
    Executive Officer could communicate statement of allegations to the<\/p>\n
    employee and that it was not necessary that the President alone should<\/p>\n
    issue such statement of allegations.\n<\/p>\n
    10.        The learned counsel for the Management has made available<\/p>\n
    for my perusal the Bye-laws of the Society as also Resolution No.2 passed<\/p>\n
    in the meeting dated 2-8-2001. Neither the Bye-laws of the Society nor<\/p>\n
    Resolution No.2 in the meeting dated 2-8-2001 show that Smt. Vibhwari<\/p>\n
    Kulkarni had been empowered by the Management to execute the<\/p>\n
    decisions of the Management. The Resolution states that the Managing<\/p>\n
    Committee had authorized Smt. Kulkarni to deal with all financial<\/p>\n
    transactions and legal affairs of the Society. Since the Resolution had<\/p>\n
    specifically referred to the financial transactions and legal affairs of the<\/p>\n
    Society, and had not mentioned that Smt. Kulkarni was also to execute<\/p>\n
    the decisions of the Managing Committee, the said Resolution does not<\/p>\n
    comply with the requirements of clause (c) of sub-rule (1) of Rule 2 of the<\/p>\n
    MEPS Rules and, therefore, Smt. Kulkarni cannot be termed as the Chief<\/p>\n
    Executive Officer empowered to issue a chargesheet. Therefore, the Full<\/p>\n
    Bench decision would not help the Management, since the decision<\/p>\n
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\n                                       10<\/span><\/p>\n
    requires that a person other than the President could also serve the<\/p>\n
    chargesheet, provided he is the Chief Executive Officer, as defined under<\/p>\n
    clause (c) of sub-rule (1) of Rule 2 of the MEPS Rules, that is, having the<\/p>\n
    duty to execute the decisions of the Management. Therefore, the defect<\/p>\n
    was rightly ordered to be cured by the School Tribunal by relegating the<\/p>\n
    enquiry to the earliest stage, that is issuing of chargesheet.\n<\/p>\n
    11.         The next ground on which the Tribunal had set aside the<\/p>\n
    dismissal of the Teacher was that the enquiry had been conducted during<\/p>\n
    vacation.   The learned counsel for the Management submitted that<\/p>\n
    on 5-5-2004 when the Enquiry Committee met, time was sought by one<\/p>\n
    Vijay Nandanwar, representative of the delinquent employee, and,<\/p>\n
    therefore, the further proceedings were adjourned to 8-5-2004.               On<\/p>\n
    8-5-2004, the delinquent employee was absent, but his representative<\/p>\n
    Vijay Nandanwar stated that no evidence was to be tendered on his<\/p>\n
    behalf and he also declined to cross-examine one Smt. Vidya Joshi. The<\/p>\n
    proceedings were then adjourned to 14-5-2004.           On that day, Shri<\/p>\n
    Nandanwar had delivered a letter addressed to the Convener of the<\/p>\n
    Enquiry Committee raising objections to the proceedings in view of the<\/p>\n
    provisions of sub-rule (6) of Rule 36 of the MEPS Rules. These objections<\/p>\n
    were presumably rejected by the Committee and then the Committee<\/p>\n
    submitted its report.\n<\/p>\n
    12.         The learned counsel for the Management submitted that<\/p>\n
    sub-rule (6) of Rule 36 of the MEPS Rules does not prohibit holding the<\/p>\n
    enquiry during vacation. The said sub-rule reads as under :\n<\/p>\n
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\n                                     11<\/span><\/p>\n
               “(6)    The meetings of the Inquiry Committee shall be held<\/p>\n
               in the school premises during normal school hours or<\/p>\n
               immediately thereafter, if the employee agrees and even<\/p>\n
               during vacation.”\n<\/p><\/blockquote>\n
    The learned counsel for the Management submitted that the said<\/p>\n
    sub-rule (6) prohibits holding of meetings of the Enquiry Committee after<\/p>\n
    normal school hours without the consent of the employee only, because<\/p>\n
    the employee and the member of the Enquiry Committee too may be<\/p>\n
    exhausted after a day’s work and, therefore, the consent of the employee<\/p>\n
    is required. He pointed out that the clause “and even during vacation”\n<\/p>\n
    does not precede the clause about the employee agreeing to holding of<\/p>\n
    such an enquiry and, therefore, the agreement of the employee is<\/p>\n
    required only if the enquiry is to be held beyond normal school hours. He<\/p>\n
    submitted that otherwise there was absolutely no reason why the framers<\/p>\n
    of the rule referred to the “vacation” at the end and not after the words<\/p>\n
    “immediately thereafter”. According to him, if the rule was to be read to<\/p>\n
    mean that an enquiry could not be held during the vacation without the<\/p>\n
    employee’s agreement, it should have read as under :\n<\/p>\n
               “The meeting of the Inquiry Committee shall be held in the<\/p>\n
               premises during the normal school hours or immediately<\/p>\n
               thereafter and even during the vacation if the employee<\/p>\n
               agrees.”\n<\/p><\/blockquote>\n
    13.        The learned counsel for the Teacher submitted that this<\/p>\n
    question is no longer open and has been concluded by the judgment of<\/p>\n
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\n                                        12<\/span><\/p>\n
    this Court in Writ Petition No.1942 of 1998, decided on 10-9-1998. In that<\/p>\n
    case too, the enquiry was held during vacation in spite of the employee<\/p>\n
    not agreeing to such a course. This Court in para 5 of the judgment held<\/p>\n
    as under :\n<\/p>\n
                 “5.    …Perusal of the provisions of Rule 36 of the Rules<\/p>\n
                 shows that it deals with the constitution and conduct of<\/p>\n
                 business of an Inquiry Committee.      It is further to be seen<\/p>\n
                 here that the Rule provides for constitution of the Inquiry<\/p>\n
                 Committee.    It lays down that in an Inquiry Committee for<\/p>\n
                 holding enquiry into misconduct of the employee, a nominee<\/p>\n
                 of the employee shall be a member. The nominee is to be<\/p>\n
                 appointed by the employee concerned from amongst the<\/p>\n
                 members of any private school. Sub-rule (6) therefore deals<\/p>\n
                 with enquiry against all the employees. It does not make a<\/p>\n
                 distinction between an employee who is a Head Master and<\/p>\n
                 an employee who is not a Head Master. The reading of the<\/p>\n
                 Rule makes it clear that even for holding meeting of the<\/p>\n
                 Inquiry Committee immediately after the school hours,<\/p>\n
                 consent of the employee concerned is necessary and,<\/p>\n
                 therefore, it is obvious that if the enquiry is to be held during<\/p>\n
                 vacation consent of the employee would be necessary. …”\n<\/p><\/blockquote>\n
    I do not see any reason for taking a different view.\n<\/p>\n
    14.          The learned counsel for the Management submitted that the<\/p>\n
    fact that Shri Nandanwar had participated in the proceedings on 5-5-2004<\/p>\n
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\n                                     13<\/span><\/p>\n
    as well as on 8-5-2004, which fell in the vacation, it must be taken that<\/p>\n
    the employee had agreed to holding the enquiry during vacation. The<\/p>\n
    proceedings of 5-5-2004 and 8-5-2004 have been annexed by the<\/p>\n
    Management to their petition as Annexures 6 and 7. Though on those<\/p>\n
    dates, an objection based on sub-rule (6) of Rule 36 of the MEPS Rules<\/p>\n
    was not raised, the proceedings also do not record that the employee had<\/p>\n
    agreed to holding of enquiry during the vacation. It has also to be noted<\/p>\n
    that on those dates, in fact the representative of the delinquent<\/p>\n
    employee had sought time and was recorded to have not tendered any<\/p>\n
    evidence or cross-examined any witness. When the rules requires that<\/p>\n
    the enquiry could be held when the employee agrees, there has to be an<\/p>\n
    express agreement and mere participation of the employee on two dates<\/p>\n
    on which nothing concrete occurred, could not be interpreted to amount<\/p>\n
    to his acquiescence to the conduct of enquiry in the vacation. Therefore,<\/p>\n
    even on this ground, it cannot be said that the learned Presiding Officer<\/p>\n
    of the School Tribunal erred in concluding that the enquiry was vitiated,<\/p>\n
    since it amounted to denial of proper opportunity to the employee to<\/p>\n
    defend himself.\n<\/p>\n
    15.        The learned counsel for the Teacher submitted that by letter<\/p>\n
    dated 19-10-2006, the Management had acquiesced in the order of<\/p>\n
    remand by stating that the Management would be shortly taking<\/p>\n
    appropriate steps. I have carefully considered the contents of the said<\/p>\n
    letter dated 19-10-2006. The contents of the said letter do not amount to<\/p>\n
    acquiescence or any admission by the Management that they are not<\/p>\n
    likely to challenge the order of the School Tribunal before appropriate<\/p>\n
    Court. They had only stated that they are shortly taking steps, which<\/p>\n
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\n                                      14<\/span><\/p>\n
    could include filing of writ petition. The tenor of the letter is that the<\/p>\n
    employee was not justified in claiming back wages and that he should not<\/p>\n
    raise any frivolous demand.\n<\/p>\n
    16.        In view of this, the Management’s challenge to the order<\/p>\n
    passed by the School Tribunal remanding the matter back to the stage of<\/p>\n
    serving of chargesheet, has to be rejected.\n<\/p>\n
    17.        Writ Petition No.2946 of 2007 is, therefore, dismissed.\n<\/p>\n
    18.<\/p>\n
               Writ Petition No.4831 of 2007 is filed by the employee,<\/p>\n
    whereby he questions the clarification by the learned Presiding Officer of<\/p>\n
    the School Tribunal that he was entitled to subsistence allowance from<\/p>\n
    26-10-2006, that is one month after the judgment allowing his appeal<\/p>\n
    was delivered by the Tribunal.\n<\/p>\n
    19.        The learned counsel for the employee submitted that under<\/p>\n
    the rules, the employee was entitled to subsistence allowance right from<\/p>\n
    the date of his suspension and, therefore, restricting the claim of the to<\/p>\n
    subsistence allowance from 29-10-2006, was thoroughly unwarranted.\n<\/p>\n
    By judgment dated 29-1-2009, this Court had in fact held that the<\/p>\n
    clarificatory order dated 23-4-2007 passed by the Tribunal was liable to<\/p>\n
    be quashed and set aside and the employee was deemed to be under<\/p>\n
    suspension from the date when he was first put under suspension till the<\/p>\n
    enquiry gets over.\n<\/p>\n
    20.        The learned counsel for the Management submitted that the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                                      15<\/span><\/p>\n
    course adopted by the learned Presiding Officer, School Tribunal, was not<\/p>\n
    proper and that the employee could not have been ordered to be paid<\/p>\n
    subsistence allowance from 26-10-2006. For this purpose, he relied on a<\/p>\n
    judgment of the Supreme Court in H.L. Mehra v. Union of India and<\/p>\n
    others<\/a>, reported at AIR 1974 SC 1281. In that case, the Supreme Court<\/p>\n
    was considering, among other things, the entitlement of an employee to<\/p>\n
    subsistence allowance upon setting aside the order of dismissal of such<\/p>\n
    employee. It may be useful to recount the facts of the case in order to<\/p>\n
    understand what the Court had held.        The petitioner there had been<\/p>\n
    chargesheeted on several grounds.\n<\/p>\n
                             ig             He had also been prosecuted for<\/p>\n
    corruption, etc.   The enquiry, therefore, did not make much progress.\n<\/p>\n
    The employee was eventually dismissed from service on 26-10-1967. He<\/p>\n
    had been suspended from service from 11-4-1963. His conviction had<\/p>\n
    been set aside and, therefore, his dismissal based on the conviction was<\/p>\n
    also set aside by order dated 9-6-1971.      The order directed that the<\/p>\n
    enquiry should be continued till its finalization and also directed that the<\/p>\n
    employee would remain under suspension until further orders.                The<\/p>\n
    Supreme Court observed in para 3 of the judgment that the only question<\/p>\n
    that was debated before the Court was whether the third part of the order<\/p>\n
    dated 9-6-1971 was valid, that is whether it was competent for the<\/p>\n
    President to continue the suspension of the employee in the context of<\/p>\n
    the Central Civil Services (Classification, Control and Appeal) Rules, 1965.\n<\/p>\n
    In para 7 of the judgment, the Court observed as under :\n<\/p>\n
               “7.      Let us first examine the question on principle. When<\/p>\n
               an order of suspension is made against a Government servant<\/p>\n
               pending an enquiry into his conduct, the relationship of<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                           16<\/span><\/p>\n
     master and servant does not come to an end.              What the<\/p>\n
     Government, as master, does in such a case is merely to<\/p>\n
     suspend the Government servant from performing the duties<\/p>\n
     of his office. The Government issues a direction forbidding<\/p>\n
     the Government servant from doing the work which he was<\/p>\n
     required to do under the terms of the contract of service or<\/p>\n
     the statute or rules governing his conditions of service, at the<\/p>\n
     same time keeping in force the relationship of master and<\/p>\n
     servant.   In other words, to quote Hegde, J., from V.P.\n<\/p><\/blockquote>\n
     Gindroniya v. State of Madhya Pradesh, (1970) 3 SCR 448+<\/p>\n
     (AIR 1970 SC 1494=1970 Lab IC 1332) “the employer is<\/p>\n
     regarded as issuing an order to the employee which because<\/p>\n
     the contract is subsisting, the employee must obey”.            This<\/p>\n
     being the true nature of an order of suspension, it follows that<\/p>\n
     the   Government     servant   would    be    entitled     to    his<\/p>\n
     remuneration for the period of suspension unless there is<\/p>\n
     some provision in the statute or rules governing his<\/p>\n
     conditions of service which provides for withholding of such<\/p>\n
     remuneration. Now, when an order of dismissal is passed, the<\/p>\n
     viculum juris between the Government and the servant is<\/p>\n
     dissolved: the relationship of master and servant between<\/p>\n
     them is extinguished. Then the order of suspension must a<\/p>\n
     fortiori come to an end. But what happens when the order of<\/p>\n
     dismissal is subsequently set aside?     Does that revive the<\/p>\n
     order of suspension?      We do not think so.           Once the<\/p>\n
     suspension has come to an end by an order of dismissal,<\/p>\n
     which was effective when made, it cannot be revived by mere<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                           17<\/span><\/p>\n
     subsequent setting aside of the order of dismissal in the<\/p>\n
     absence of a statutory provision or rule to that effect. That is<\/p>\n
     precisely the reason why sub-rules (3) and (4) had to be<\/p>\n
     introduced in Rule 10 providing for retrospective revival and<\/p>\n
     continuance of the suspension in cases falling within those<\/p>\n
     sub-rules. This position which emerges clearly on principle is<\/p>\n
     supported also by authority. There is a decision of a Bench of<\/p>\n
     six judges of this Court which endorses the same view. That<\/p>\n
     is the decision in Om Prakash Gupta v. State of Uttar Pradesh,<\/a><\/p>\n
     (1955) 2 SCR 391 = (AIR 1955 SC 600). The appellant in that<\/p>\n
     case was suspended from service with effect from 24th<\/p>\n
     August, 1944 pending an enquiry into his conduct.               The<\/p>\n
     Commissioner completed the enquiry and made a report to<\/p>\n
     the Government and on the basis of the report the<\/p>\n
     Government passed an order dated 25th November, 1944<\/p>\n
     dismissing the appellant from service. The appellant claimed<\/p>\n
     that the order of dismissal passed against him was illegal and<\/p>\n
     void and he continued to be in service and was entitled to<\/p>\n
     recover arrears of salary.     The claim that the order of<\/p>\n
     dismissal was illegal and void and the appellant continued to<\/p>\n
     be in service was upheld by the High Court but relief by way<\/p>\n
     of recovery of arrears of salary was refused and the appellant,<\/p>\n
     therefore, preferred an appeal to this Court. The claim of the<\/p>\n
     appellant for arrears of salary which was debated before this<\/p>\n
     Court related to two distinct periods: one from the date of the<\/p>\n
     order of suspension up to the date of the order of dismissal,<\/p>\n
     and the other from the date of the order of dismissal up to the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                           18<\/span><\/p>\n
     date when the order of dismissal was set aside by the Court.\n<\/p>\n
     So far as the claim for the first period was concerned, the<\/p>\n
     appellant gave it up before this Court, as it would have<\/p>\n
     necessitated a remand which would have involved the<\/p>\n
     appellant in heavy expenditure and harassment. The claim<\/p>\n
     for the second period was, however, seriously pressed on<\/p>\n
     behalf of the appellant and this Court decreed it for reasons<\/p>\n
     which may best be stated in the words of Imam, J., speaking<\/p>\n
     on behalf of the Court:\n<\/p>\n
            “He”, i.e. the appellant, “however, contended that the<\/p>\n
     order of suspension continued to be in force only until the 25th<\/p>\n
     Hnovember, 1944, the date of the order of dismissal. On that<\/p>\n
     date the order of suspension ceased to exist and the<\/p>\n
     appellant was entitled to recover arrears of salary from the<\/p>\n
     25th November, 1944, to the 31st December, 1947, inclusive.\n<\/p>\n
     The Attorney-General strongly contended that it continued to<\/p>\n
     be in force and that it was not at all affected by the<\/p>\n
     declaration of the Civil Judge that the order of dismissal was<\/p>\n
     illegal. In view of that decision the order of dismissal must be<\/p>\n
     regarded as a nullity and non-existent in the eye of law. The<\/p>\n
     inquiry, the outcome of which was the order of dismissal, had<\/p>\n
     not therefore ended.      It could only end with a valid order<\/p>\n
     which would replace the order of suspension.            Until that<\/p>\n
     happened the accusation against the appellant remained and<\/p>\n
     the inquiry had not ended. He referred to the case of Gopal<\/p>\n
     Krishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170.\n<\/p>\n
     On behalf of the appellant reliance was placed on the case of<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                            19<\/span><\/p>\n
     Provincial Govt. Central Provinces and Berar v. Shamshul<\/p>\n
     Hussain, ILR (1948) Nag 576 _ AIR 1949 Nag 118. The order<\/p>\n
     of suspension made against the appellant was clearly one<\/p>\n
     made pending an inquiry.      It certainly was not a penalty<\/p>\n
     imposed after an enquiry.     As the result of the inquiry an<\/p>\n
     order of dismissal by way of penalty had been passed against<\/p>\n
     the appellant.    With that order, the order of suspension<\/p>\n
     lapsed.      The order of dismissal replaced the order of<\/p>\n
     suspension which then ceased to exist. That clearly was the<\/p>\n
     position between the Government of the United Provinces and<\/p>\n
     the appellant. The subsequent declaration by a Civil Court<\/p>\n
     that the order of dismissal was illegal could not revive an<\/p>\n
     order of suspension which did not exist. The case referred to<\/p>\n
     by the Attorney-General is not directly in point and that<\/p>\n
     decision does not conflict with the case relied upon the<\/p>\n
     appellant.    The appellant is, therefore, entitled to recover<\/p>\n
     arrears of salary from the 25th November, 1944, to 31st<\/p>\n
     December, 1947.”\n<\/p>\n
     This decision leaves no room for doubt as to the correct legal<\/p>\n
     position and the conclusion must, therefore, inevitably follow<\/p>\n
     that when the order of dismissal was passed on 26th October,<\/p>\n
     1967, the order of suspension dated 11th April, 1963 ceased<\/p>\n
     to exist and it did not revive thereafter the the subsequent<\/p>\n
     setting aside of the order of dismissal by the first part of the<\/p>\n
     impugned Order.     The appellant was accordingly not under<\/p>\n
     suspension at the point of time when the third part of the<\/p>\n
     impugned order was made and in the circumstances, the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                                       20<\/span><\/p>\n
               third part of the impugned order could not be justified under<\/p>\n
               sub-rule (5)(b) of Rule 10.”\n<\/p>\n
    It would be seen from this discussion that the Court held that the<\/p>\n
    suspension of the employee came to an end on the date when he was<\/p>\n
    dismissed from service and did not automatically revive on that dismissal<\/p>\n
    being set aside.   In para 10 of the judgment, the Court concluded as<\/p>\n
    under :\n<\/p>\n
               “10.    …That means that the suspension of the appellant<\/p>\n
               under the order dated 11th April, 1963 came to an end on 25th<\/p>\n
               October, 1967 when the order of dismissal was passed<\/p>\n
               against him and since then the appellant is no longer under<\/p>\n
               suspension.   The appellant must, therefore, be held to be<\/p>\n
               entitled to salary from 25th October, 1967 and an order for<\/p>\n
               payment of arrears of salary must be passed in his favour.\n<\/p><\/blockquote>\n
               This of course does not mean that the President cannot now<\/p>\n
               in exercise of the powers under sub-rule (1) of Rule 10, pass a<\/p>\n
               fresh order of suspension against the appellant pending the<\/p>\n
               enquiry which has been revived and continued against him.\n<\/p><\/blockquote>\n
               It would always be only open to the President to take<\/p>\n
               appropriate   action   by   way of   suspension      against the<\/p>\n
               appellant under sub-rule (1) of Rule 10, if he so thinks fit. But<\/p>\n
               until such action is taken, the appellant would be entitled to<\/p>\n
               his salary under the conditions of service applicable to<\/p>\n
               him. …”\n<\/p><\/blockquote>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                                      21<\/span><\/p>\n
    21.         Though the employee by his petition has merely claimed<\/p>\n
    subsistence allowance at 75% of his salary from the date of his<\/p>\n
    suspension, i.e. from 28-5-2004, after having noticed the judgment of the<\/p>\n
    Supreme Court, which categorically lays down that the suspension would<\/p>\n
    come to an end once the order of dismissal was passed, and would not<\/p>\n
    revive, unless the rules so provide, on the dismissal being set aside, it<\/p>\n
    would not be permissible to allow the employee’s claim though it is<\/p>\n
    substantial lesser than what he would be otherwise entitled to.\n<\/p>\n
    22.         The learned counsel for the Management submitted that the<\/p>\n
    judgment would in fact help the Management, since the Court had<\/p>\n
    observed that revival would not accrue automatically unless the rules so<\/p>\n
    provide.   He submitted that in the present case, Rule 34 of the MEPS<\/p>\n
    Rules provides for such revival of suspension. I have gone through the<\/p>\n
    entire Rule 34 of the MEPS Rules and it does not appear that there is any<\/p>\n
    clause in the Rule, which provides for automatic revival of suspension<\/p>\n
    upon setting aside the order of dismissal. The learned counsel for the<\/p>\n
    Management submitted that whatever is provided in Rule 10 of the<\/p>\n
    Central Civil Services (Classification, Control and Appeal) Rules, 1965 is<\/p>\n
    not there in the MEPS Rules and, therefore, subsistence allowance cannot<\/p>\n
    be paid. As far as non-payment of subsistence allowance is concerned,<\/p>\n
    there can be no doubt, because what the employee is entitled to in terms<\/p>\n
    of the judgment of the Supreme Court is salary and not subsistence<\/p>\n
    allowance from the date when his suspension came to an end upon<\/p>\n
    dismissal of the employee from service, and since that dismissal has been<\/p>\n
    set aside, the employee could be deemed to be on duty and not under<\/p>\n
    suspension unless suspended by a specific order.            Therefore, the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:40:50 :::<\/span>
\n                                      22<\/span><\/p>\n
    employee would be at liberty to approach the School Tribunal for<\/p>\n
    appropriate orders as to his entitlement, since his prayer in the petition,<\/p>\n
    which is misconceived, cannot be allowed.\n<\/p>\n
    23.         Therefore, Writ Petition No.4831 of 2007 is disposed of. Since<\/p>\n
    the Tribunal would obviously be required to hear the parties again on that<\/p>\n
    issue should such an occasion arise upon culmination of the enquiry, the<\/p>\n
    entitlement of the employee to salary or subsistence allowance would be<\/p>\n
    dealt with by the Tribunal.\n<\/p>\n
                             ig                     Judge.\n                           \n    Pdl.\n      \n   \n\n\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 15:40:50 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-174170","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLokanchi Shala vs Gajanan on 5 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lokanchi-shala-vs-gajanan-on-5-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lokanchi Shala vs Gajanan on 5 March, 2010 - 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