Bombay High Court
Shri Madhukar Namdeo Patil vs Chairman Sudhagad Education Society & ... on 24 April, 2000
Equivalent citations: 2000(4)BOMCR698, 2000(4)MHLJ206
Author: D.Y. Chandrachud
Bench: A.P. Shah, D.Y. Chandrachud
ORDER DR. D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Learned Addl. Government Pleader for respondent Nos. 3 and 4 waives service. Respondent Nos. 1 and 2 are absent despite service.
2. The petitioner is a permanent Assistant Teacher working with the 2nd respondent school for thirty years. Together with some other members of the teaching and non-teaching staff, the petitioner formed a Co-operative Society of which the petitioner, in November 1995, was elected as Chairman. One Shri Subhedar who is working as a teacher in another school was elected as Secretary of the society. Some time 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, Shri Subhedar admitted his guilt and furnished an undertaking to repay the amount before 15-8-1998. This amount was, however, not repaid by Subhedar. On or about 23-7-1999, the Government Auditor lodged a criminal complaint at Panvel Station against Shri Subhedar and the petitioner. The petitioner was arrested on 28-10-1999 in respect of offences alleged to have been committed 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 which is annexed at Exhibit "A" to the petition recites that since this period exceeded 48 hours, the petitioner has been suspended from service with effect from 28-1-2000. The Education Officer by a letter dated 6-11-1999 (Exhibit "B" to the petition) purported to grant sanction to the order of suspension, with reference to the provisions of Rules 28.5, 33, 34 and 35 of the Maharashtra Employees of Private Schools) Conditions of Service) Rules 1981.
3. On behalf of the petitioner, it has been urged that under Rule 33(5) the period of suspension can only be for such period (beyond 48 hours) as the employee was in custody and the suspension can only be for such period (beyond 48 hours) as the employee was in custody and the suspension of the employee cannot be for a period beyond the detention in judicial custody in the present case. In other words, the suspension even if validly made could not be operated beyond 2-11-1999, when the petitioner was released on bail. The second submission which was urged before us was that the F.I.R. which has been lodged by the Auditor, does not implicate the petitioner in any specific or overt act of criminal wrongdoing. The learned Counsel submitted that the petitioner has been implicated solely on the ground that he was a Chairman of the Co-operative Credit Society. The order of suspension in the present case purports to have been passed under the provisions of Rule 33(5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. In order to consider whether the suspension can be sustainable in the present case with reference to the provisions of Rule 33(5), it would be convenient to extract the relevant part of that rule. Rule 33(5) provides as follows :--
"An employee against whom proceedings have been taken on criminal charge or who is detained under any law for the time being in force providing for preventive detention shall be considered as under suspension for any period during which he is under such detention or he is detained in police or judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment, and he shall not be allowed to draw any pay and allowances for such period until the termination of the proceedings taken against him or until he is relieved from detention and is in a position to rejoin duty and produce documentary proof of his release (otherwise than on bail), or acquittal as the case may be. An adjustment of his pay and allowances for such periods shall be made, according to the circumstances of the case, the full amount being given only in the event of the employee being acquitted of charge or detention being held by the Court to be unjustified."
Rule 33(5) lays down that an employee "shall be considered as under suspension" (i) where proceedings have been taken on a criminal charge against the employee or (ii) where the employee is detained under any law for the time being in force providing for preventive detention. Sub-rule (5) however is qualified by the period during which the employee shall be regarded as under suspension. The said sub-rule 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. In a case where, as in the present facts, 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. In other words, 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(5) 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 employee ceases to be in police or judicial custody.
4. Section 4(6) of the Maharashtra Employees of Private School (Conditions of Service) Regulation Act, 1977 provides that "no employee of a private school shall be suspended, dismissed or removed or his services shall not be otherwise terminated or he shall not be reduced in rank by the Management, except in accordance with the provisions of this Act and the Rules made in that behalf." In the leading judgment on the point, a Division Bench of this Court in Vanmala S. Aney v. National Education Society, 1982 Mh.L.J. 403 held that the provisions of Rule 35 of the M.E.P.S. (Conditions of Service), Rules are mandatory. The Division Bench held that it was "well settled that where a power is given to do a certain thing in a certain way, the thing must be done in that way and not at all or that other methods of performance are necessarily forbidden. .........Where a power or authority is conferred with a direction that certain regulation or formalities shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority." The judgment of the Division Bench was followed in Dilip Venkatrao Patil v. State of Maharashtra, 1997(3) Mh.L.J. 279, where one of us (A.P. Shah, J.) speaking for a Division Bench of this Court emphasised that the period of suspension under Rule 33(5) was only for the duration of the detention by the police. The Court held thus :---
"On a plain reading of the aforesaid Rule, it is clear that it merely provides that an employee shall be deemed to be under suspension during the period of his detention in police he shall not be allowed to draw any pay and allowances for such period until the termination of the proceed ings taken against him. In view of this rule, the petitioner will not be entitled to draw any salary or allowances during the period of his de tention, but the rule does not contemplate automatic suspension pend ing the criminal proceedings."
In view of the law laid down by this Court with which we respectfully agree, 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.
5. In that view of the matter, in the present case, the order of suspension dated 5-11-1999 is clearly 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. Rule 33(5) as elaborated by the Division Bench in Dilip Venkatrao's case (supra) only lays down that the employee in such a case will not be allowed to draw any pay and allowances for the "period of suspension" until the termination of the proceedings taken against him. As held by the Division Bench, the employee will not be entitled to draw any salary or allowance during the period of his detention in custody, but the rule does not contemplate automatic suspension pending criminal proceedings.
6. An affidavit in reply has been filed in these proceedings by the Superintendent in the Office of the Education Officer. In the said affidavit in reply, it has been stated that 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 1st respondent, as per the provisions of Rule 28.5, and of Rules 33, 34, and 35. From the affidavit in reply, it is thus clear that the sanction that was accorded was in respect of the action which was taken by the 1st respondent, that action being the order of suspension under Rule 33(5). Since we have held that 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.
7. The second submission which was urged before us on behalf of the petitioner may now be considered. The material part of the F.I.R. lodged by the Government auditor reads as follows :---
"When I checked (audited) the accounts of the said society for the financial year from the date 1-4-97 to 31-3-98, I found the misappropriation of Rs. 201540/- as above. Therefore, I sent a Notice bearing this office outward No. Audit/T-9/98, dated 13-10-98 by registered A.D. to the present Chairman Shri Madhukar Namdeo Patil seeking clarification about the aforesaid misappropriation. In that regard, the Chairman has made following clarification.
"Upon receiving the oral complaints from the aforesaid Borrowers, a meeting of the Board of Directors was called and enquiry committee was appointed. Before the said Enquiry Committee, Secretary Shri Sudhakar Gopal Subhedar accepted the responsibility of the loans of the aforesaid five borrowers and gave in writing on a Bond-paper to deposit the entire amount of the loan together with the interest upto 15-8-98'."
Thereafter, the F.I.R. contains a statement that the petitioner acted in concert with Shri Subhedar in the commission of the said illegal Acts.
8. Having regard to the allegations made in F.I.R., we are of the view that it would not be in the interest of justice to direct the petitioner to be placed under suspension any further. Since a criminal case is still pending, we refrain from making any detailed reference to the merits of the case. Ordinarily, an order of suspension should not be interfered with since it lies within the discretion of the employer to exercise the powers of suspension, when departmental proceedings are contemplated. In the present case, we have carefully considered the nature of the alleged case against the petitioner and we are of the view that the petitioner is entitled to the relief prayed for. In the circumstances, the petition succeeds. Rule absolute in terms of prayer (a). There shall, however, be no order as to costs.
9. All concerned parties to act on the ordinary copy of this order duly authenticated by the Personal Secretary of this Court.
10. Certified copy expedited.
11. Petition succeeds.