Vishnu Mahadeo Sarawale v. The State of Maharashtra

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 employee, whichever is earlier, unless the Inquiry Committee has, in the special circumstances of the case under inquiry, extended the period of completion of the inquiry with the prior approval of the Deputy Director. In case the inquiry is not completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuance of the enquiry.” (emphasis supplied) Under Rule 37(2)(f), in case the inquiry is not completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties, without prejudice to continuance of the enquiry.

7. The Petitioner was placed under suspension with effect from 11 September 2022. The period of 120 days prescribed under Rule 37(2)(f) expired in March 2023. The inquiry continues even today, and the Petitioner is still under suspension. The Petitioner has therefore approached this Court for a declaration that his suspension has been deemed to have lapsed as per the provisions of Rule 37(2) (f). It is an admitted position that no application was made by the Respondent – Management as contemplated under Rule 37(2)(f) for extension of completion of the inquiry.

8. The contention of Mr. Bandiwadekar, learned Senior Advocate for the Petitioner is straightforward. According to him, in view of the admitted position, Rule 37(2)(f) has come into play and the Petitioner is deemed to have re-joined after a period of 120 days and necessary consequences must follow.

9. Mr. Naidu, learned Counsel for the Respondent - Management sought to contend that since there was no prior permission given by the Education Officer for placing the Petitioner under suspension, Rule 37(f) would not come into play. Mr. Naidu then sought to contend that the use of the word “ordinarily” in Rule 37(2)(f) would indicate that the provision is directory. Mr. Naidu relied on the decisions in the cases of Awadhesh Narayan K. Singh v/s. Adarsh Vidya Mandir Trust and Anr.1, Thapar Education Society and Anr. v/s. Syam Maroti Bhasarkar and Ors.[2] and Imtaiyazul Haque and Ors. v/s. State of Maharashtra and Ors.3.

10. Under Rule 37(2)(f) of the Rules of 1981, the inquiry is to be ordinarily completed within a period of 120 days from the date of the first meeting of the Inquiry Committee or from the date of the suspension of the employee whichever is earlier unless the inquiry committee in the special circumstances extends the period of completion of inquiry with the prior approval of the Deputy Director. In case the inquiry is not completed within a period of 120 days or within the extended period, the employee ceases to be under suspension and is deemed to have rejoined the duties, without prejudice to the continuance of the inquiry.

11. The undisputed position is that the order of suspension of 11 November 2022 was prior to the first meeting of the Inquiry Committee. The Inquiry therefore had to be completed ordinarily within a period of 120 days from the date of suspension of the Petitioner dated 11 November 2022 that is by 11 March 2023. No prior approval of the Deputy Director was sought for the extension 1 2004(1) Mh.LJ 676 2 1997(3) MHLJ 709 3 O.S.WP(L) 383.05 dtd. 1 April 2005 of inquiry beyond 120 days. The debate before us is regarding the effect of these admitted positions on the suspension of the Petitioner.

12. As regards the contention that the Respondent – Management did not have approval to the suspension, and hence Rule 37(2)(f) will not apply, the reliance of the Respondents is on the decision of the Full Bench Awdhesh Narayan K. Singh. In this case issue had arisen before the Full Bench of this Court whether failure to obtain permission of the Authority under Rule 33(1) before suspending an employee would vitiate the action of suspension pending an inquiry. The Full Bench held that if prior permission is obtained, then Rule 35(3) is attracted and the suspended employee is entitled for subsistence allowance under the claim of payment through the Co-operative Banks for a period of four months after which the payment is to be made by the Management. If an employee is suspended without obtaining prior approval from the Education Authority, the payment of subsistence allowance for the entire period has to be made by the Management. However, non-grant of prior permission by the Education Authority does not vitiate the suspension order. Where an employee of a recognised school is placed under suspension without approval, subrule (4) of Rule 35 will apply and subsistence allowance will be paid by the management as laid down in the said provision. Therefore, the decision of the Full Bench is in an entirely different arena. The Petitioner is not raising the issue of the non-grant of prior permission before placing the Petitioner under suspension.

13. The decision of the Division Bench of this Court in the case of Thapar Education Society relied by the Respondent – Management also arose in different fact situation. In this case the School Tribunal had held that there was a breach of Rule 37(2)(f) as the inquiry was extended beyond the permissible period of 120 days and in view of this delay, the inquiry was vitiated. In this context, the Division Bench observed that the period of 120 days in Rule 37(2)(f) is not mandatory in the light of the use of the word “ordinarily” in the opening sentence of the sub-rule. The Petitioner has restricted his challenge to the effect of not taking prior approval for continuation of the inquiry beyond the period of 120 days on his suspension and not on the factum of the inquiry, therefore this decision does not apply.

14. In the case of Imtaiyazul Haque the issue that arose before the Division Bench was that if the Management applies to the Education Officer for prior approval under Rule 37(2)(f) for extension and no response is given, then what will be the effect on the factum of suspension. In this case the employee had faced a departmental inquiry of serious charge of outraging the modesty of a lady staff member, character assassination of the Principal and pasting copies of derogatory letters in the toilets open to the public. An employer had filed the Petition contending that the inquiry was not completed and he should be allowed to resume the duties as per Rule 37(2)(f). The Division Bench noted that the School Management had written to the Deputy Director for an extension of time for completing the inquiry but instead of passing the order he had forwarded the proposal. In this context, the Division Bench accepted the contention of the management that in the case where the application is made to an appropriate authority and the authority does not decide the application, the mandate of Rule 37(2)(f) will not come into play. That a decision needs to be given before the period of 120 days by the Education Authorities is not within the control of the Management and therefore, the Division Bench observed that having acted diligently to make an application for extension, the Respondent – Management cannot penalized by deemed revocation of suspension. However, this position would not apply if the Management does not even make an attempt to make prior application for an extension. In the present case as stated earlier, there is no application made for seeking prior approval. In such circumstances, Rule 37(2)(f) will clearly come into play and the Petitioner ceases to be under suspension and be deemed to have rejoined duties when the period of 120 days was over.

15. Rule 37(2)(f) has two components. One, the duration of the inquiry and second, the duration of the suspension. The first part is regarding the extension of the prior approval and the second is the effect of suspension in case the inquiry is not completed within a period of 120 days or during the extended period. Rule 33 which deals with inflicting a major penalty in sub-clause (1) provides for suspension of an employee and conditions of suspension. Rule 34 specifies payment of subsistence allowance. Rule 35 enumerates the conditions of suspension. These Rules read with Rule 37(2)(f) regulate the aspect of suspension of an employee. While power is given to the Management to place an employee under suspension, care has been taken to extend protection to the employees under suspension. Time mandate is given for completion of inquiry with liberty to the Management to seek extension of the time limit. However, this liberty is again regulated by a condition that it should be with the prior approval of the Education Authorities.

16. In the case at hand, no application was made by the Respondent – Management under Rule 37(2)(f), and the period of 120 days from the date suspension over and the enquiry has continued. The Petitioner is then entitled to succeed as per rule 37(2)(f) and deemed to have joined the duties.