The employer cannot be held liable to pay the employee for the period for which it could not avail the services of the employee if the employee gets involved in a criminal case as a citizen and the department is not responsible in any manner.

JUDGMENT :

Rule. It is made returnable forthwith. Mr. K.N. Lokhande, learned AGP waives service for the respondent - State and Mr. A.S. Usmanpurkar, learned advocate waives service for respondent Nos.3 to 5. At the joint request of the parties, the matter is heard finally at the admission stage.

2. By this petition, Petitioner assails order dated 31.05.2019 passed by the Chief Executive Officer, Zilla Parishad, Jalna as well as the order dated 20.07.2021 passed by the Additional Divisional Commissioner, Aurangabad by which the period of his suspension from 20.03.2013 to 30.04.2017 has been treated as suspension thereby denying him pay and allowances as well as pay fixation for that period. The period is however directed to be treated towards qualifying service for pension.

3. While working as Assistant Teacher in Zilla Parishad School, Petitioner came to be arrested on 20.03.2013 in pursuance of FIR lodged against him for offences under Sections 498-A, 307, 494 r/w. 34 of the Indian Penal Code. On account of his custody for a period exceeding 48 hours, he came to be placed under suspension by order dated 04.07.2013 from the date of his arrest. During pendency of criminal prosecution, a preliminary enquiry was conducted to examine whether initiation of disciplinary proceeding was warranted. The Enquiry Officer appointed by Zilla Parishad gave a report on 05.04.2016 recommending that initiation of disciplinary proceedings was not warranted.

4. In Sessions Case No.77 of 2013, Petitioner came to be acquitted vide judgment and order dated 22.10.2016. He came to be reinstated by order dated 13.04.2017. A show cause notice was issued to him on 09.04.2018 proposing to treat the suspension period from 20.03.2013 to 30.04.2017 only as qualifying service for pension. Petitioner submitted his representation to the show cause notice on 23.04.2018 and after consideration of the same, Chief Executive Officer of Zilla Parishad passed order dated 31.05.2019 / 03.06.2019 directing that the suspension period from 20.03.2013 to 13.04.2017 shall be treated only for payment of subsistence allowance and would be counted only towards qualifying service for pension. The appeal preferred by him before the Divisional Commissioner has been rejected by order dated 20.07.2021.

5. Mr. Ambetkar, the learned counsel for Petitioner would submit that Petitioner has been acquitted in the criminal case and therefore, the entire period of suspension is required to be treated as duty for all purposes. He relies upon provisions of Rule 72 of the Maharashtra Civil Service (Joining Time, Foreign Services and Payments during Suspension, Dismissal and Removal) Rules, 1981 to contend that the petitioner is required to be paid full pay and allowances since the suspension is found to be totally unjustified. Mr. Ambetkar would rely upon judgment of the Apex Court in Brahma Chandra Gupta vs. Union of India, 1984 AIR (SC) 380 as well as decision of this Court in Baban Shriram Wafare vs. Zilla Parishad, 2002 (4) of ALL M.R. 155.

6. Inviting my attention to the Enquiry Officer’s report dated 05.04.2016, Mr. Ambetkar would contend that since a conscious decision was taken not to conduct any disciplinary enquiry, the finding of acquittal recorded by the criminal court is required to be implemented for all purposes for payment of full pay and allowances to the petitioner.

7. Mr. Lokhande, the learned AGP opposes the petition submitting that Petitioner had got himself embroiled in the criminal case and his acquittal in the same cannot be a reason for payment of full pay and allowances. He would submit that the impugned orders are passed after granting due opportunity of hearing to Petitioner.

8. Mr. Usmanpurkar, the learned counsel appearing for the respondent - Zilla Parishad also opposes the petition. He would submit that the petitioner has an alternate remedy of filing revision before the State Government under Rule - 15 of the Maharashtra Zilla Parishad District Service (Discipline and