The court clarified the application of Rule 35(3) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, in determining the revocation of suspension and payment of suspension allowance.

JUDGMENT :

Ravindra V. Ghuge, J.

1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

2. The Petitioner Management has put-forth prayer clauses ‘B’ and ‘C’, as under:-

“B) By issuing appropriate writ in the nature of direction and order, to quash and set-aside the order passed by the respondent No.2 by its letter dated 11.07.2018 (Exhibit-G) in the interest of justice.

(C) Pending hearing and final disposal of this Writ Petition, the execution and operation of the order passed by the respondent No.2 by its order/letter dated 11.07.2018 (Exhibit-G) may kindly be stayed in the interest of justice.”

3. Respondent No.3, the original appellant before the School Tribunal, was the Headmaster of the school. It was alleged that he indulged in serious misconducts. The prior permission of the Education Officer was obtained on 18.03.2015, in order to place him under suspension. Accordingly, the appellant was suspended on 25.04.2015. He challenged the Departmental Enquiry as well as the order of suspension, in Writ Petition Nos.4049 of 2015 and 6106 of 2015. The first Petition was dismissed. The second Petition i.e. Writ Petition No.6106 of 2015, challenging the order of suspension, has been subsequently withdrawn by the appellant.

4. After the Departmental Enquiry commenced on 25.06.2015, the Management was not able to conclude the enquiry within three (03) months. Upon completion of the same, the appellant was dismissed from service on 18.01.2016. The Management had moved an application on 05.09.2015 for seeking extension of the suspension. The Education Officer (Secondary) passed an order on 22.09.2015, declaring that the extension is not being granted and the appellant be reinstated on the post of Headmaster. This order was not challenged by the Management and it has attained finality.

5. The appellant again approached this Court by preferring Writ Petition No.14828 of 2017, alleging that the enquiry has not been completed within 120 days and, therefore, he should be granted all consequential service benefits. By order dated 03.05.2018, this Court disposed of the Writ Petition with a direction that the entitlement of subsistence allowance after lapse of 120 days can be verified by the concerned authority. By the impugned Communication dated 11.07.2018, Respondent No.2 directed the Petitioner to pay 100% subsistence allowance, from the date of suspension, to the appellant and refund the amount of subsistence allowance paid to the appellant by the State. It is in this backdrop that the Petitioner Management is before the Court challenging the order dated 11.07.2018, by which the Education Officer directed the Management to pay an amount of Rs.306097/- to the appellant and refund the amount of Rs.104239/- paid by the Education Department, towards suspension allowance beyond 120 days of the suspension period.

6. The learned Advocate representing the appellant submits that he would not be concerned with the dispute between the Management and the Education Department as regards who should pay the suspension allowance. He is a suspended employee and he is entitled to the suspension allowance strictly in accordance with Rules. He relies upon an order passed by this Court on 24.10.2016 in Writ Petition No.9825 of 2016, filed by Smt. Rukhamin Ashruba Andhale Vs. The Deputy Director and others, more particularly, Paragraph No.8 which reads as under:-

“8. In my view, paragraph No.9 of the judgment of the Honourable Supreme Court in Vidya Vikas Mandal and another Vs. Education Officer and others [2007 (3) Mah.L.J. 801], is a clear guideline to the respondent/management to pay subsistance allowance from the date of termination. Similarly, as per the judgment of the learned Division Bench of this Court in Writ Petition No.2137 of 2013 (Umakant G. Kalkotwar Versus Mahatma Gandhi Vidhya Mandir Nasik), dated 25.2.2015, the petitioner would be entitled for subsistence allowance at the rate of 50% initially for the period of 4 m