2000 Supreme(Bom) 322

IN THE HIGH COURT OF BOMBAY
A.P. Shah Dr. D.Y. Chandrachud, JJ.
Shri Madhukar Namdeo Patil.... Petitioner.
Versus
Chairman Sudhagad Education Society others... Respondents.
Writ Petition No. 574 of 2000, decided on 24-4-2000.
Advocates appeared :
Sunil Dighe, for the petitioner.
R.D. Rane, A.G.P., for respondent Nos. 3 and 4.

Headnote:-Rule 33(S)-Suspension of employee after the period of judicial custody coming to an end will be contrary to the provision of Rule 33(5) which restricts the operation of suspension to the period during which the employee was in judicial custody-Rule does not contemplate automatic suspension pending criminal proceedings.-The petitioner was a permanent Assistant Teacher working with the School for thirty years. The petitioner formed a co-operative society of which he, in November, 1995 was elected as Chairman. One S who was working as a teacher in another school was elected as Secretary of the Society. Sometime in February, 1998, a fraud was detected during the course of the regular audit of the credit co-operative society involving an amount of Rs. 2,01,540/-. According to the petitioner, S admitted his guilt and furnished an undertaking to repay the amount before 15.8.1998. This amount was, however, not repaid by S. On or about 23.7.1999, the Government Auditor lodged a criminal complaint against S and the petitioner. The petitioner was arrested on 28.10.1999 in respect of offences alleged to have been comn1itted under Sections 408, 468, 471 and 34 of the Indian Penal Code. The petitioner was released on bail on 2.11.1999. On 5.11.1999, an order of suspension was issued against the petitioner on the ground that he had been detained in judicial custody for a period exceeding 48 hours. The order of suspension excited that since this period exceeded 48 hours, the petitioner had been suspended from service with effect from 28.1.2000. The Education Officer by a letter dated 6.11.1999 purported to grant sanction to the order of suspension. In writ petition challenging the suspension.

       Held, that sub-rule (5) of Rule 33 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 stipulates that the employee in such a case shall be considered as under suspension for any period during which he is under preventive detention or where he is detained in police or judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment. Where the employee is in police or judicial custody, he shall be considered as under suspension when the period of custody exceeds 48 hours. Moreover, the suspension can only be for the period during which the employee is in police or judicial custody and only if the period of such custody exceeds 48 hours. The period of suspension under the provisions of sub-rule (5) of Rule 33 must necessarily come to an end once the period of judicial or police custody is terminated. Suspension under Rule 33(S) is not an indefinite suspension during the pendency of a criminal prosecution. That was not the intention underlying the framing of Rule 33(5) and the words used in the said rule militate against an interpretation which extends the period of suspension to the pendency of the criminal proceedings. The period of suspension under Rule 33(5) comes to an end once an en1ployee ceases to be in police or judicial custody. It is clear beyond doubt that suspension of the employee under Rule 33(5) where the employee has been detained in police or judicial custody cannot exceed the duration of the detention of the employee in such custody. The order of suspension dated 5.11.1999 was dearly contrary to the provisions of Rule 33(5). The order proceeds on the footing that the employee is suspended under Rule 33(5) because he was in judicial custody for a period of six days between 28.10.1999 and 2.11.1999. The suspension of the employee after the period of judicial custody came to an end would be clearly contrary to the express provisions of Rule 33(5) which restrict the operation of suspension to the period during which the employee was in judicial custody. The rule does not contemplate automatic suspension pending criminal proceedings. Permission to suspend the employee was given on 6.11.1999 by the Education Officer but that was only for the action taken by the Ist respondent. The sanction that was accorded in respect of the action which was taken by the 1st respondent, that action being the order of suspension under Rule 33(5). The period of suspension under Rule 33(5) cannot be longer than the period during which the employee was in judicial or police custody. The sanction accorded by the Education Officer cannot validate the action which was taken under Rule 33(5) for a period beyond that which is stipulated in the said sub-rule. 1982 Mh LJ 403, Relied.