RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ONPRONOUNCED ON

Legal Reasoning

WP-637-2024-Judgment..odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 637 OF 2024Shridhar Gangadhar LandgeAge: 56 years, Occu. Service AS HeadmasterShri Tuljabhavani Vidyalaya, Khadki,Tq. and District Ahmednagar,R/o. Khadki, Tq. And District Ahmednagar… Petitioner Versus1.The SecretaryRayat Shikshan Sanstha, SataraThrough Mr. Vikas S/o Vinayakrao Deshmukh,Age: Major, R/o Rayat Shikshan SansthaSatara, Khadki, Tq. And District Ahmednagar 2.Ashok Nanasaheb KhadusThe State of MaharashtraThrough Education Officer (Secondary),Zilla Parishad, Ahmednagar 3.Bodkhe Navnath SahaduThe InspectorRayat Shikshan Sanstha Satara, Khadki,Taluka and District Ahmednagar… Respondents .…Mr. K. P. Rodge, Advocate for Petitioner Mr. M. M. Nerlikar, AGP for Respondent No.2 Mr. P. S. Paranjape, Advocate for Respondent Nos.1 and 3 (Absent).…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ONPRONOUNCED ON :: 11.07.2024 24. 07.2024 1 of 15 (( 2 ))WP-637-2024-Judgment.JUDGMENT (Per – Y. G. Khobragade, J.) :- 1.Rule. Rule made returnable forthwith and heard finally byconsent of both the sides, at admission stage.2.Heard Mr. K. P. Rodge, the learned Counsel appearing onbehalf of Petitioner and Mr. M. M. Nerlikar, the learned AGP forRespondent No. 2. None present for Respondent Nos. 1 and 3. 3.By the present Petition under Article 226 of theConstitution of India, the Petitioner challenges the impugnedcommunication dated 30.12.2023 issued by Respondent No. 1,thereby the Petitioner, Headmaster of Shree Tuljabhavani Vidyalaya,Khadki, Taluka and District Ahmednagar, came to be suspended witheffect from 01.01.2024. 4.Mr. Rodge, the learned Counsel appearing for thePetitioner canvassed that after due selection process, the Petitionerwas appointed as an Assistant Teacher by the Respondent No. 1 on04.11.1995. The Respondent No. 1 is a private educationalinstitution, receiving grant-in-aid from the State Government and it is 2 of 15 (( 3 ))WP-637-2024-Judgment.governed by the provisions of the Maharashtra Employees of PrivateSchools (Condition of Service) Regulation Act, 1977 (in short, ‘MEPSAct’). On 30.03.2022, the Petitioner was promoted to the post ofSupervisor. Thereafter, vide order dated 17.06.2022, the Petitionerwas promoted as Headmaster and was posted at Mahatma GandhiViayalaya, Sakharpa, Taluka Sangameshwar, District Ratnagiri. TheEducation Officer granted approval to the appointment of thePetitioner vide order dated 12.10.2022 w.e.f. 17.06.2022. On20.12.2023, the Petitioner submitted a representation with thePresident of Rayat Shikshan Sanstha, complaining against Shri.Navnath Sahadu Bodkhe, who has been transferred at New EnglishSchool, Chandgaon, Taluka Shrigonda, on account of his extra maritalrelations with one lady peon and his involvement in malpractices indistribution of fruits and other articles to the students of the school.Therefore, the Petitioner prayed for cancellation of appointment ofShri Navnath Bodkhe. The Petitioner had started agitation forremoval from service of said Navnath Bodkhe, but subsequently, thePetitioner stopped agitation. Thereafter, discrete inquiry was orderedagainst the petitioner. Accordingly, the Inspector of Respondent No. 1school submitted the inquiry report on 28.12.2023. The Petitioner 3 of 15 (( 4 ))WP-637-2024-Judgment.submitted an application for voluntary retirement with effect from27.12.2023, however, on 30.12.2024, the Petitioner was served withthe impugned suspension order. 5.The learned Counsel for the Petitioner canvassed thatvide communication dated 30.12.2023, the Petitioner was suspendedwithout issuing any show-cause notice and without providing him anopportunity of being heard. Therefore, the impugned suspensionorder is illegal and contrary to the provisions of the MEPS Act. Itfurther canvassed that the Petitioner has been suspended under orderdated 30.12.2023, however, the disciplinary authority failed tocomplete the enquiry within period of 90 days and kept the petitionerunder suspension even after lapse of 90 days. Therefore, theimpugned suspension order is illegal and bad in law, hence prayed forquashing and setting aside of the same. 6. In support of his submissions, the learned Counsel appearingfor the Petitioner has placed reliance on the following judgments. (i)Sonal Prakashrao Gawande Vs. Municipal Council,Pandharkawada - Writ Petition No. 6304 of 2023 (NagpurBench), decided on 21.03.2024; 4 of 15 (( 5 ))WP-637-2024-Judgment.(ii)Chatrapal Vs. The State of Uttar Pradesh and others –MANU/SC/0113/2024.7.Adv. P. S. Paranjape though appeared by filingvakalatnama on behalf of the Respondent no. 1 & 3, but he did notappear in the matter. Shri Babasaheb Sambhaji Naikwade, the Asstt.Inspector of Respondent No. 1 has filed affidavit-in-reply and resistedthe Petition. According to the Respondents, the education Sansthawas require to promote certain Headmasters to the post of DivisionalOfficer and Assistant Divisional Officer. Therefore, the Committee wasformed and criteria was fixed that the meritorious teachers would beconsidered for the promotion, whose remaining service period mustbe more than two years. The present Petitioner was not consideredfor the promotional post of Divisional Officer and Assistant DivisionalOfficer because he was set to retire within a period of two years.Therefore, out of a grudge, the Petitioner directly submittedcommunication dated 20.12.2023 to the President of EducationSociety and made serious allegations against Mr. Navnath Bodkhe,who was considered for the promotion to the said post. According toRespondent No. 3, the Petitioner published defamatory items in thenews papers making serious allegation about the act of said Navnath 5 of 15 (( 6 ))WP-637-2024-Judgment.Bodkhe which is harmful to the image of the Institution. Since thePetitioner started defaming the educational society, therefore, themanagement considered to initiate inquiry against him. Therefore,during pendency of enquiry, the Petitioner was kept under suspensionand Committee of Two Members was formed to inquire into thecharges. Accordingly, the Petitioner was served with notice therebyrequesting him to appear before the committee on 18.01.2024,however, on 17.01.2024, the Petitioner moved an application andsought an adjournment on medical ground. Therefore, by anothernotice, the Petitioner was called upon to appear before the EnquiryCommittee on 20.01.2024, but the Petitioner again remained absentand sent a request letter for adjournment. The Respondents furthercontended that, the Petitioner is not keen to face the inquiry incompliance of principle of natural justice. On the contrary, thepetitioner prayed for quashing of suspension order dated 30-12-2023, therefore, prayed for dismissal of the petition.8.The Respondent No. 3 further contended that by theimpugned suspension order dated 30.12.2023, the Petitioner was keptunder suspension for the pending inquiry into the charges. Since, theRespondent Management having right to inquire into misconduct 6 of 15 (( 7 ))WP-637-2024-Judgment.committed by the petitioner and charges levelled against him andduring pendency of the enquiry, the Petitioner has been suspended.Therefore, merely the Petitioner is kept under suspension beyond theperiod of 90 days, does not automatically leads to revocation of hissuspension. 9.Having regard to the submissions, We have gone throughthe petition paper book. It is not in dispute that on 04.11.1995, thePetitioner was appointed as an Assistant Teacher and considering hislength of service, he was promoted to the post of Supervisor on30.03.2022. Further, the Petitioner was again promoted to the post ofHeadmaster on 17.06.2022. The Education Officer granted approvalto the promotion of the Petitioner vide order dated 12.10.2022. Sincethe posts of Divisional Officer and Assistant Divisional Officer were tobe filled up from the post of Headmasters, the Respondent No. 1Educational Sanstha constituted Selection committee and fixedcriteria that, those Headmasters whose service period left is morethan two years, would be considered for the promotional post. Thepresent Petitioner was not considered for the promotional post ofDivisional Officer as well as Assistant Divisional officer as he was setto retire within next two years. 7 of 15 (( 8 ))WP-637-2024-Judgment.10.The record speaks that, on 20.12.2023, the Petitionersubmitted a communication with the President of Education Sansthaalleging that Shri Navnath Bodkhe, who has been transferred fromNew English School, Chandgaon, Taluka Shrigonda, on account ofcharges of adulteration and his involment in malpractices with regardto distribution of fruits/food articles to the students. Therefore,prestige of Sanstha has been at stake due to the said act of NavnathBodkhe and prayed for cancellation of his promotion to the post ofDivisional Officer. 11.It further appears that, the Petitioner had startedagitating against the Respondent Sanstha and made severalcorrespondences against promotee Shri Navnath Bodkhe. However,on 27.12.2023, the Petitioner himself submitted an application forgrant of voluntary retirement with effect from 01.01.2024, but on30.12.2023, the Respondent No. 3 issued the impugned order andsuspended the petitioner during pendency of inquiry as per Rule 33 ofthe MEPS, Rules, 1981 on the conditions viz., I) thepetitioner/delinquent would be entitled for suspension allownacesunder Rule 34 and 35(4), ii) the Delinquent would not leave Head 8 of 15 (( 9 ))WP-637-2024-Judgment.Quarter without prior permission, iii) the Delinquent would notengage in another employment and he would furnish suchundertaking , iv) the Delinquent would not submit his resignation andv) no any kind of leave would granted. 12.It is not in dispute that the Respondent No. 3 formed twomember committee to inquire into the charges. Accordingly, on16.01.2024, the inquiry committee issued a notice to the Petitionerand directed him to appear before the inquiry committee on18.01.2024, but the Petitioner submitted an application on17.01.2024, and sought adjournment on ground of his healthproblem. Therefore, by another notice the petitioner was directed toappear before the committee on 20.01.2024, however, the Petitioneragain remained absent and sought further adjournment. Therefore,inquiry not completed.13.Section 4A of the ‘MEPS Act provides that, about holdingof enquiry in case of alleged misconduct or misbehavior of a seriousnature or moral turpitude on part of an employee and such enquiry isto be conducted by the Inquiry Committee into such allegations. Rule34 contemplates about payment of subsistence allowances during 9 of 15 (( 10 ))WP-637-2024-Judgment.suspension period at an amount equal to the leave salary which theemployee would have drawn if he had been on leave on half pay andin addition, Dearness allowance based on such leave salary. Rule 34(1) (b) provides that, where the period of suspension exceeds 4months, the authority which made or is deemed to have made theorder or suspension shall be competent to vary the amount ofsubsistence allowance for any period subsequent to the period of thefirst 4 months as follows, namely: “(i)The amount of subsistence allowance may be increasedby a suitable amount not exceeding 50 per cent of thesubsistence allowance admissible during the period of first 4months, if in the opinion of the said authority, the period ofsuspension has been prolonged for reasons to be recorded inwriting, not directly attributable to the employee. (ii)The amount of subsistence allowance may be reduced bya suitable amount not exceeding 50 per cent of the subsistenceallowance admissible during the period of first 4 months, if theopinion of the said authority the period of suspension has beenprolonged due to reasons, to be recorded in writing, directlyattributable to the employee.(iii)The rate of Dearness allowance shall be based on theincreased or on the decreased amount of subsistence allowance,as the case may be, admissible under sub-clauses (i) and (ii).”14.In the case of Sonal D/o Prakashrao Gawande Vs. TheMunicipal Council, Pandharkawada, Dist. Yavatmal, (cited supra), the 10 of 15 (( 11 ))WP-637-2024-Judgment.co-ordinate Bench of this Court considered the case of Ajay KumarChoudhary Vs. Union of India, through its Secretary and another –(2015) 7 SCC 291, wherein it is held thus:-“We, therefore, direct that the currency of a suspension ordershould not extend beyond three months if within this periodthe memorandum of charges/charge-sheet is not served on thedelinquent officer/employee; if the memorandum ofcharges/charge-sheet is served, a reasoned order must bepassed for the extension of the suspension. As in the case inhand, the Government is free to transfer the concerned personto any department in any of its offices within or outside theState so as to sever any local or personal contact that he mayhave and which he may misuse for obstructing the investigationagainst him. The Government may also prohibit him fromcontacting any person, or handling records and documents tillthe stage of his having to prepare his defence. We think this willadequately safeguard the universally recognized principle ofhuman dignity and the right to a speedy trial and shall alsopreserve the interest of the Government in the prosecution. Werecognize that previous Constitution Benches have beenreluctant to quash proceedings on the grounds of delay, and toset time limits to their duration. However, the imposition of alimit on the period of suspension has not been discussed inprior case law, and would not be contrary to the interests ofjustice. Furthermore, the direction of the Central VigilanceCommission that pending a criminal investigation departmentalproceedings are to be held in abeyance stands superseded inview of the stand adopted by us.” 15.In the case of Chatrapal (cited supra), the Hon’bleSupreme court has observed in paras 12 and 13, as under:- 11 of 15 (( 12 ))WP-637-2024-Judgment.“12.Despite the well-settled position, it is painfully disturbingto note that the High Court has acted as an appellate authorityin the disciplinary proceedings, reappreciating even theevidence before the enquiry officer. The finding on Charge Iwas accepted by the disciplinary authority and was alsoendorsed by the Central Administrative Tribunal. In disciplinaryproceedings, the High Court is not and cannot act as a secondcourt of first appeal. The High Court, in exercise of its powersUnder Articles 226/227 of the Constitution of India, shall notventure into reappreciation of the evidence. The High Courtcan only see whether:(a) the enquiry is held by a competent authority;(b) the enquiry is held according to the procedureprescribed in that behalf;(c) there is violation of the principles of natural justice inconducting the proceedings;(d) the authorities have disabled themselves from reachinga fair conclusion by some considerations extraneous to theevidence and merits of the case;(e) the authorities have allowed themselves to beinfluenced by irrelevant or extraneous considerations;(f) the conclusion, on the very face of it, is so whollyarbitrary and capricious that no reasonable person couldever have arrived at such conclusion;(g) the disciplinary authority had erroneously failed toadmit the admissible and material evidence;(h) the disciplinary authority had erroneously admittedinadmissible evidence which influenced the finding;(i) the finding of fact is based on no evidence. 13.Under Articles 226/227 of the Constitution of India, theHigh Court shall not:(i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case 12 of 15 (( 13 ))WP-637-2024-Judgment.the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on whichfindings can be based.(vi) correct the error of fact however grave it mayappear to be; (vii) go into the proportionality of punishment unless itshocks its conscience.”16.In the case of State of Andhra Pradesh Vs. N.Radhakishan – (1998) 4 SCC 154, wherein it is held thus:-“It is not possible to lay down any pre-determined principlesapplicable to all cases and in all situations where there is delayin concluding the disciplinary proceedings. Whether on thatground the disciplinary proceedings are to be terminated eachcase has to be examined on the facts and circumstances in thatcase the essence of the matter is that the court has to take intoconsideration all relevant factors and to balance and weightthem to determine if it is in the interest of clean and honestadministration that the disciplinary proceedings should beallowed to terminate after delay particularly when delay isabnormal and there is no explanation for the delay. Thedelinquent employee has a right that disciplinary proceedingsagainst him are concluded expeditiously and he is not made toundergo mental agony and also monetary loss when these areunnecessarily prolonged without any fault on his part indelaying the proceedings. In considering whether delay hasvitiated the disciplinary proceedings the Court has to considerthe nature of charge, its complexity and on what account thedelay has occurred. if the delay is unexplained prejudice to thedelinquent employee is writ large on the face of it. It could alsobe seen as to how much disciplinary authority is serious inpursuing the charges against its employee. It is the basic 13 of 15 (( 14 ))WP-637-2024-Judgment.principle of administrative justice that an officer enterustedwith a particular job has to perform his duties honestly,efficiently and in accordance with the rules. If he deviates fromthis path he is to suffer a penalty prescribed. Normally,disciplinary proceedings should be allowed to take its course asper relevant rules but then delay defeats justice. Delay causesprejudice to the charged officer unless it can be shown that heis to or when there is proper explanation for the delay inconducting the disciplinary proceedings. Ultimately, the court isto balance these two diverse consideration. 17.In the case in hand, the Petitioner came to be suspendedand Inquiry Committee already constituted to inquire into misconductcommitted by the petitioner. Though, the Petitioner served with thenotices for his appearance before the Inquiry Committee, but thepetitioner sought adjournments on two occasions on account of hishealth problem, due to which enquiry was not completed and thepetitioner remained under suspension beyond 90 days. Therefore, itcannot be held that, the disciplinary authority has not completed theenquiry within period of 90 days intentionally and deliberately. ThePetitioner has not disputed about payment of subsistence allowances.Therefore, keeping in view the ratio laid down in case of N.Radhakishan, cited supra, the delay caused in disciplinary proceedingcannot said to be on account of the disciplinary authority, but it isapparent on account of non-cooperation on part of the petitioner. 14 of 15 (( 15 ))WP-637-2024-Judgment.18.Since, the Respondent No. 3 employer having statutoryright to enquire into misconduct of it’s employee and suspendemployee for his misconduct committed during course of employmentby issuing suspension order, it cannot said to be illegal and bad in law.In the case in hand, the Petitioner has challenged the suspensionorder dated 30.12.2023, only on the ground that the inquiry has notbeen completed within a period of 90 days and his suspensioncontinued beyond 90 days, but considering the fact that two noticeswere served upon the petitioner, and the petitioner himself did notappear before the Enquiry Committee and sought adjournmentsthereby delaying the enquiry. The petitioner has been regularlyreceiving admissible suspension allowances. Therefore, enquiry hasnot been concluded, on account of non-cooperation from thePetitioner. Hence, the impugned suspension order cannot be said tobe illegal and bad in law. 19.In view of above discussion, the present Petition is herebydismissed. Accordingly, Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 15 of 15