JUDGMENT - SHAH A.P., J.:---Rule. Respondents waive service. By consent, rule is made returnable forthwith.

2. By this petition under Article 226, the petitioner is challenging the order of suspension dated 26th August, 1996 passed by the Principal of Shivaji Mahavidyalaya (Arts, Science and Commerce), Parbhani.

3. Only few facts are required to be stated. The petitioner is working as a teacher in the junior college of Shivaji Mahavidyalaya (Arts, Science and Commerce), Parbhani. It seems that a criminal case is registered against the petitioner under sections 498A and 306 of Indian Penal Code. He was arrested by the police in connection with the said case and was subsequently released on bail. By the impugned order dated 26th August, 1996, the petitioner was put under suspension by the Principal of the college.

4. Mr. Patil, learned Counsel for the petitioner raises a three-fold submission before us. Firstly, he submits that under the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, an order of suspension is required to be passed by the management. The Principal of the college has no authority to pass the suspension order. Secondly, Mr. Patil submits that before passing a suspension order prior permission of the Education Officer is necessary and since no such permission was taken, the order of suspension is illegal. Thirdly, Mr. Patil submits that even assuming that the order of suspension is valid, the petitioner is entitled to receive subsistence allowance. Mr. Patil makes a grievance that the petitioner has not been paid subsistence allowance since August, 1996.

5. Mr. Suryavanshi, learned advocate appearing for the management, has supported the petitioner. He contends that the Principal has no right to pass the order of suspension without prior permission of the management. Mr. Walujkar, learned advocate for the respondent No. 3, submits that the petitioner is liable to be suspended in view of Rule 33(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Mr. Walujkar further submits that suspension contemplated by Rule 33(5) is automatic and is liable to be continued till the criminal proceedings are finally terminated.

4. After hearing the learned counsel for the parties, we are of the opinion that the order of suspension of the petitioner cannot be sustained in law. Rule 35 provides for suspension. Under Rule 35(1), the management is empowered to suspend an employee, but such suspension can be ordered only with the prior approval of the appropriate authority i.e. the Education Officer. Under sub-rule (2) the period of suspension cannot exceed more than four months except with the prior approval of the Education Officer. Then sub-rule (3) provides that where the employee is suspended with prior approval, he shall be paid subsistence allowance under the scheme of payment through Co-operative Banks for a period of four months only and thereafter, the payment shall be made by the management concerned. Sub-rule (4) says that in case where the employee is suspended by the management without obtaining prior approval of appropriate authority, the payment of subsistence allowance even during the first four months of suspension and for further period thereafter till the completion of inquiry shall be made by the management itself. Thus it is clear that the power of suspension is vested in the management and it is required to be exercised with the prior approval of the appropriate authority. In (Vanmala S. Aney v. National Education Society)1, 1982 Mh.L.J. 403, this Court has held that the provisions of section 35(1) are mandatory and any suspension without the prior approval of the Education Officer is invalid. In the present case, the order of suspension suffers from two major defects. Firstly, it is passed by the Principal and not by the management and secondly approval of the Education Officer has not been obtained. Thus, the order of suspension of

Click Here to Read the rest of this document