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Judgment
A.S.Chandurkar, J
RULE. Rule made returnable forthwith. Heard the learned counsel for the petitioner and the learned Assistant Government Pleader for the
respondent no.1. Despite service, the respondent no.2-Management has not chosen to contest the writ petition.
The petitioner being a trained graduate was appointed as an Assistant Teacher on probation by an order dated 03.07.1991. His services were
however terminated on 28.04.2014. The petitioner approached the School Tibunal by filing an appeal under Section 9 of the Maharashtra Employees
of Private Schools (Conditions of Service) Act, 1977 (for short, ‘the Act of 1977’). The School Tribunal by its judgment dated 26.07.2017 set
aside the order of termination and directed reinstatement of the petitioner with continuity and back wages. Liberty was granted to the Management to
hold a fresh enquiry after his reinstatement and on payment of back wages. This order of the School Tribunal was unsuccessfully challenged by the
Management initially in Writ Petition No.78 of 2018 before this Court and thereafter by filing a Special Leave Petition before the Hon’ble
Supreme Court. With the dismissal of the Special Leave Petition on 26.11.2018 the order of reinstatement attained finality. The services of the
petitioner were reinstated on 22.12.2018. Subsequently on 03.03.2021 and 29.09.2021 the petitioner was placed under suspension by the Management.
This order is the subject matter of challenge in the present writ petition. Besides said challenge the petitioner also seeks to challenge the statement of
allegations issued to him for conducting a fresh enqiry.
Shri P.N. Shende, learned counsel for the petitioner submits that the liberty granted to the Management to conduct a fresh enquiry was subject to
the petitioner being reinstated and being paid the back wages as directed by the School Tribunal. Without doing so, it was not permissible for the
Management to have placed the petitioner under suspension. He further submits that Rule 35(2) read with Rule 37 of the Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981 indicates that the maximum period of suspension could be only for four months and not more.
There was no permission obtained from the Education Officer before suspending the services of the petitioner and hence the continuation of the order
of suspension beyond the stipulated period was also not justified. He therefore prays that the petitioner be granted appropriate reliefs.
As stated above, the Management has not chosen to oppose the prayers made in the writ petition.
We have perused the documents on record and on hearing the learned counsel for the petitioner, we are satisfied that the order of suspension as
well as the statement of allegations impugned in this writ peti-tion are liable to be set aside for the following reasons:
(a) While allowing the appeal preferred by the petitioner the School Tribunal had granted liberty to the Management to hold a fresh enquiry sub-ject to
fulfillment of conditions. Direction No.4 in the order of the School Tribunal dated 26.07.2017 reads as under:
“4. The respondent management is at liberty to hold enquiry afresh against the appellant after his reinstatement and payment of back wages as per
Rules, if desire for.â€
Admittedly, the petitioner has not been paid back wages as directed and he was required to file Contempt Petition No.285 of 2017. Till date, these
back wages have not been paid to the petitioner. Hence, the condition of payment of back wages imposed on the Management for holding a fresh
enquiry has not been complied with.
(b) The orders of suspension are dated 03.03.2021 and 29.09.2021. As per Rule 35(1) of the Rules of 1981 since prior permission of the appropri-ate
authority has not been obtained, the period of suspension cannot exceed four months as per Rule 35(2) of the Rules of 1981. On expiry of period of
four months it is deemed that the petitioner would be entitled to rejoin his du-ties. Assuming that the enquiry has commenced, the provisions of Section
37(2)(f) of the Act of 1977 would come into play.
(c) The earlier order of suspension dated 02.01.2020 has been set aside in Writ Petition No.518/2020.
For the aforesaid reasons the orders of suspension dated 03.03.2021 and 29.09.2021 are quashed and set aside. The respondent no.2 is at liberty to
hold a fresh enquiry after complying with the order passed by the School Tribunal. It is however seen that without complying with the said order, the
respondent no.2 has opted to suspend the services of the petitioner by passing three different orders. The initial order of suspension dated 02.01.2020
was set aside in Writ Petition No.518/2020.
It is made clear that if the respondent no.2 issues any fresh order of suspension without complying with the order passed by the School Tribunal, this
Court would consider to take appropriate action against the respondent no.2.
Since the orders of suspension have been set aside, the respondent no.2 shall release the salary of the petitioner from March 2021 and continue to pay
his regular salary in accordance with law. The same be done within a period of three months from today. The petitioner to communicate this order to
the respondent no.2.
Rule is made absolute in aforesaid terms with no order as to costs.