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Judgment
R.K. Deshpande, J.—Rule made returnable forthwith.
Heard the matter finally by consent of the learned counsels appearing for the parties.
In Appeal Nos. 36, 37 and 38 of 2014, decided by the School Tribunal at Amravati, under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act (in short "the MEPS Act), the order of termination dated 12.05.2014 passed by the management has been set aside and it is held that the respondent-employees are entitled to benefit of continuity in service. The School Tribunal has directed payment of backwages to the extent of 75% and the monthly salary from the date of termination till the date of reinstatement. The Management is before this Court in these writ petitions.
The only point urged by Shri P.B. Patil, the learned counsel appearing for the petitioner Management is that, the School Tribunal has committed an error in directing reinstatement of the employees with continuity in service and payment of 75% of backwages. He submits that the tribunal has found the enquiry to be vitiated on account of certain technical aspects of non compliance with the provisions of the Rules and the deficiency in constitution of Enquiry Committee. He submits that the Tribunal should have, therefore, left it open for the Management to conduct the enquiry from the stage from which it found the enquiry to be vitiated and should have left the question of grant of continuity in service and payment of backwages open subject to the out come of the enquiry to be conducted by the Management.
The learned counsel appearing for the respondents-employees submits that the Management be directed to deposit 75% of the amount of backwages and the respondents are prepared to face the enquiry as is permissible in law.
It is not urged that the Tribunal has committed an error in setting aside the order of termination upon recording the finding that the enquiry was vitiated on account of improper constitution of Enquiry Committee. The question is what further order the School Tribunal should have passed. The respondent-employees were not placed under suspension during the period of conducting enquiry. Shri Patil, the learned counsel appearing for the petitioner Management submits that the Management desires to place the respondent No. 3 employees under suspension pending the enquiry to be conducted from the stage from which it is found to be vitiated.
The learned counsel for the petitioner has relied upon the following three decisions;
[a] In the case of Kashiram Kathane Vs. Bhartiya R.B. Damle Gram Sudhar Tatha Shikshan Prasar Society and Others, (1997) 3 ALLMR 388 : (1997) 4 BomCR 398 : (1997) 3 MhLj 235 ;
[b] In the case of U.P. State Textile Corporation Ltd. Vs. P.C. Chaturvedi and Others, AIR 2006 SC 87 : (2006) 109 FLR 411 : (2005) 12 JT 90 : (2006) 1 LLJ 413 : (2005) 8 SCALE 46 : (2005) 8 SCC 211 : (2005) SCC(L&S) 1108 : (2005) 1 SCR 849 Supp : (2006) 2 SLJ 62 : (2005) AIRSCW 5519 : (2005) 6 Supreme 612 ; and
[c] In the case of Saindranath Jawanjal Vs. Pratibha Shikshan Sanstha and The Presiding Officer (Additional), School Tribunal, (2007) 4 ALLMR 281 : (2007) 3 BomCR 527 .
The decisions are not applicable. On the contrary, it is well settled that if the employee is placed under suspension, he is entitled to subsistence allowance in accordance with the Rules and the Management cannot avoid the payment of subsistence allowance. In such a situation, the Tribunal ought to have held that the employees are deemed to have been placed under suspension from the date of termination of service i.e. 15.05.2014 and should have granted opportunity to the Management to conduct an enquiry afresh. If the respondent -employees are to be treated under suspension, they would naturally be entitled to subsistence allowance as per the provisions of the Rules. The impugned order passed by the School Tribunal, therefore, need to be modified.
In view of above, the writ petitions are partly allowed and the following order is passed.
[i] The order of termination dated 12.05.2014 passed by the Management terminating the services of the respondent-employees is quashed and set aside.
[ii] The respondent-employees shall be treated to have been placed under suspension with effect from 12.05.2014 and shall be entitled for subsistence allowance to be paid to them from that date and the Management shall be at liberty to conduct de novo enquiry from the stage from which it is found to be vitiated.
[iii] The question of grant of continuity in service and payment of full backwages to the respondent-employees is kept open subject to the out come of the enquiry to be conducted by the Management against them.
[iv] The Management to deposit the amount of subsistence allowance in terms of Rule 34 of the MEPS Rules and after expiry of the period of 4 months w.e.f. 12.05.2014, the subsistence allowance shall be calculated in terms of clause (b) of sub-rule (1) of Rule 34 read with sub-rule (2) under Rule 34.
[v] The amount of subsistence allowance so calculated shall be deposited in this Court on or before 15th June, 2015 and it is thereafter that the Management shall proceed to conduct an enquiry.
[vi] The Management shall further continue to pay the further subsistence allowance till the completion of enquiry to the respondent-employees.
[vii] If the amount is not deposited in this court on or before 15th June, 2015, the respondent-employees shall be deemed to have been reinstated in service and entitled to entire salary with effect from 12.05.2014.
After such amount is deposited, the respondent No. 3 shall be entitled to withdraw the said amount.
The petitions stand disposed of.
Put up this matter for compliance on 15th June, 2015.