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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Nitin Jamdar, M.M. Sathaye, JJ.
Vishnu Mahadeo Sarawale - Petitioner
Versus
The State of Maharashtra, Through the Secretary, School Education Department and ors. – Respondents
Writ Petition No. 11584 of 2023
Decided On : 18-07-2024
Advocate Appeared:
For the Petitioner:Mr. Narendra V. Bandiwadekar, Senior Advocate with Mr. Vinayak Kumbhar, Mr. Rajendra Khaire and Mr. Aniket S. Phapale i/b. Ms. Ashwini Bandiwadekar
For the Respondent: Mr. S.C. Naidu, Mr. Siddhesh B. Kalel, AGP
An employee under suspension is deemed to have rejoined duties if the inquiry is not completed within 120 days, unless an extension is sought.
Headnote:(A) Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Rule 33, 34, 35, 36, 37(2)(f) - Suspension of employee - Procedure for suspension and inquiry - The court held that if an inquiry is not completed within 120 days, the employee is deemed to have rejoined duties. (Paras 5, 7, 17)
(B) Suspension without prior approval - The court clarified that non-grant of prior permission does not vitiate the suspension order, but the management must seek extension for inquiry completion. (Paras 12, 14)
Facts of the case:
The petitioner, a head of a school, was suspended without prior approval, and the inquiry was not completed within the stipulated 120 days. The petitioner challenged the suspension order.
Findings of Court:
The petitioner ceased to be under suspension after 120 days as no extension was sought by the management, and he is deemed to have rejoined duties.
Issues: The main issues addressed were the effect of the inquiry's delay on the suspension and the necessity of prior approval for suspension.
Ratio Decidendi: The court reasoned that Rule 37(2)(f) mandates completion of inquiry within 120 days, and failure to seek extension results in automatic rejoining of the employee.
Result: The petitioner is deemed to have rejoined duties after 11 March 2023.
JUDGMENT :
Nitin Jamdar, J.
Rule. Rule made returnable forthwith. Taken up for disposal.
2. The Petitioner, working as a head of the school of the Respondent – Management, is placed under suspension. He has challenged the order of suspension and has sought a direction to permit him to resume the duties.
3. The Petitioner joined the services of Respondent No.1 – Management in the year 1991 as an Assistant Teacher in the Respondent No.5 – school. A Resolution was passed by the Respondent No.4 – Management in the year 2021 to permit the Petitioner to be a signing authority for the post of headmaster after the death of the earlier head of the school. Thereafter, the Petitioner came to be promoted as head of the school on a regular basis on 11 June 2021.
4. Dispute arose between the Petitioner and the Respondent – Management. On 19 August 2022 the Respondent – Management approached the Respondent No.3 – Education Inspector to grant permission to place the Petitioner under suspension. The permission was refused by the Education Inspector by a communication dated 6 September 2022. Thereafter, on 11 November 2022, a statement of allegations of misconduct were issued to the Petitioner and that the Petitioner was being placed under suspension with effect from 11 September 2022. Challenging the order of suspension, the present Petition is filed.
5. The procedure to be adopted by management for holding a departmental inquiry in the context of placing an employee under suspension, is provided under Rules 33, 34, 35 and 36 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Rule 33 specifies the procedure for inflicting major penalties. If an employee is alleged to be guilty of misconduct and if there is reason to believe that in the event of the guilt being proved against him, the Management shall first decide whether to hold an inquiry and also to place the employee under suspension. If it decides to suspend the employee, it shall to do so after obtaining the permission of the Education Officer/Deputy Director. Suspension is not ordered unless there is a prima facie case or there is reason to believe that the continuance of the employee in active service is likely to cause embarrassment or to hamper the investigation of the case. Rule 34 provides for the payment of subsistence allowance of the specified amount. Rule 35 which lists the conditions of suspension, states that in cases where the Management desires to suspend an employee, he shall be suspended only with the prior approval of the Appropriate Authority mentioned in Rule 33. The period of suspension shall not exceed four months except with the prior permission of such appropriate authority. In cases 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. In case where the employee is suspended by the Management without obtaining prior approval of the appropriate authority as aforesaid, the payment of subsistence allowance even during the first four months of suspension and for a further period thereafter till the completion of inquiry shall be made by the Management. This is the basic scheme of holding an inquiry against an employee of a private school. The Rules provide for suspension, the duration of the inquiry, the extension procedure to be adopted for placing an employee under suspension, subsistence allowance and the time limit prescribed for continuing the order of suspension.
6. For the purpose of the present petition, Rule 37(2)(f) is of importance. Rule 37(2)(f) reads thus :-
“37. Procedure of Inquiry :-
(1) ….. …. ….. ….
(2) ….. …. ..… …..
(a) ….. ….
(b) ….. ….
(c) ….. ….
(d) ….. ….
(e) ….. ….
(f) The inquiry shall ordinarily be completed within a period 120 days from the date of first meeting of the Inquiry Committee or from the date of suspension of the employ
