2017(3) ALL MR 114
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. P. DHARMADHIKARI AND SWAPNA JOSHI, JJ.
Dewaji s/o. Dasaru Gaikwad (D) Thr. LRs. Vs. Zilla Parishad, Bhandara & Ors.
Writ Petition No.1448 of 2000
9th January, 2017.
Petitioner Counsel: Mr. ANAND PARCHURE, Mr. ROHIT VAIDYA
Respondent Counsel: Mr. P.S. TEMBHARE
Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules (1964), R.3(2) - Suspension pending criminal case - Prayer for regularization of - Petitioner-school teacher was arrested in a murder case and therefore suspended from service - Petitioner acquitted from criminal case but found guilty in disciplinary inquiry - Punishment awarded that suspension period of petitioner be treated as suspension period - Held, though period of suspension can be revoked by authority concerned, there is no express provision in the Rules to regularize suspension - Moreover, impugned order passed after considering gravity of offence and fact that no appeal was filed against his acquittal - Authority also considered that loss was sustained by students and act of petitioner was against morality of educational profession - Therefore, impugned order held proper.(Paras 2, 5, 6, 8, 11)
Mrs. Swapna Joshi, J. :- The petition is being prosecuted by widow of Dewaji Gaikwad who expired on 18-04-2015. The present petition is filed challenging the order dated 31-12-1999 passed by the respondent no.2-Commissioner,Nagpur Division, Nagpur, thereby partly allowing the appeal filed by the petitioner, by setting aside the order dated 12.04.1999, passed by respondent no.1-Chief Executive Officer, Zilla Parishad, Bhandara, to the extent that the punishment of withholding one increment of the petitioner be cancelled. The period of suspension has been treated as suspension period.
The petitioner was working as an Assistant Teacher in Zilla Parishad Primary School at Pimpalgaon (Kambi) in Arjuni/ Morgaon block. The petitioner was involved in a murder case, therefore, he was arrested by the Police on 27-03-1995. Consequently thereof, he was suspended by respondent no.1 vide letter dated 10-07-1995 with effect from 27-03-1995. As the petitioner was acquitted of the charge of murder, on 10-01-1997 he was reinstated in service. However, respondent no.1 initiated the departmental enquiry against the petitioner. The Special Enquiry Officer after careful scrutiny exonerated the petitioner from all the charges. On being dissatisfied with the findings of the Special Enquiry Officer, the respondent no.1 directed to hold fresh enquiry against the petitioner. In it petitioner was found guilty. On 12-04-1999 the respondent no.1 awarded punishment of withholding one increment and held that suspension period of the petitioner be treated as suspension period. The petitioner retired from his service on 28-02-1999. He made representation to respondent no.1 to reconsider his case and to revoke the punishment awarded to him. The respondent no.1 failed to consider it. Therefore, the petitioner preferred an appeal before the respondent no.2. By an order dated 31-12-1999, the respondent no.2 revoked the punishment of withholding one increment. However, he maintained the order of treating suspension period as suspension period. Being aggrieved by both the orders passed by respondent no.1 as well as the respondent no.2 the petitioner has filed the present petition.
3. We have heard the learned Counsel for petitioner as well as learned Counsel for respondent no.2 & perused the record. The learned Counsel for the petitioner Mr. Rohit Vaidya vehemently argued that the respondents have acted arbitrarily and in capricious manner by treating the suspension period as suspension period. He submitted that the petitioner has been deprived of his full pensionary benefits by denying continuity. The learned Counsel, however, failed to point out as to under which provisions of law the suspension period can be regularized & treated as duty period. The learned AGP opposed the relief claimed by the petitioner. He submitted that when there is no fault on part of employer, public revenue cannot be burdened.
4. Admittedly, the petitioner was suspended for the period commencing from 27-03-1995 to 10-09-1997. In fact it was a deemed suspension from the date of arrest of the petitioner i.e. 27-03-1995, as per the provisions under Rule 3(2) of the Maharashtra Zilla Parishads District Services (Discipline and Appeal) Rules, 1964 (hereinafter referred as the "said Rules''). Significantly, the suspension was never challenged by the petitioner. As the petitioner was arrested for serious offence of murder, he was suspended by the respondent no.1 on 10-7-1995. The effect was however given from 27-03-1995 i.e. the date of arrest and the detention in the custody of the petitioner, as per the provisions of Rule 3(2) of the said Rules.
"(2)A Parishad servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding fortyeight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Appointing Authority and shall remain under suspension until further orders."
6. As regards the contention of the learned Counsel for the petitioner for regularization of the suspension period, i.e. to treat the suspension period of the petitioner as a service period, no doubt the suspension period can be revoked by the concerned Authority. However, there is no express provision in the Rules to regularize the suspension period. So far as the allegations against the petitioner are concerned, the petitioner was charged as under:
(i) Charge no.1 : That on 27/3/95 the petitioner quarreled with one Jogiram Gaikwad and when the mother of Jogiram intervene and tried to stop the quarrel the petitioner beat her on mouth and also dashed her to wall, consequently she died on the spot.
(ii) Charge no.2 :That the petitioner is not residing at head quarter and it illegally demanding house rent. He has left the head quarter without prior permission of the seniors. He used to visit his native place to do his personal work.
(iii) Charge no.3 :The petitioner was arrested by the Police on 27/3/95 for offence punishable under section 302, 323, 506 R./W section 34 of the Indian Penal Code therefore the students of the school were put in irreparable loss.
(iv) Charge no.4 :That the petitioner is arrested under the charge of murder and it is subjudiced and the alleged act is against the morality of educational profession."
7. The Special Enquiry Officer exonerated the petitioner from all the charges levelled against him. However, after conducting the fresh enquiry by respondent no.1, the respondent no.1 awarded the punishment withholding one increment and held that the suspension period be treated as period of suspension. On preferring appeal against the said order passed by respondent no.1, before the respondent no.2, the respondent no.2 quashed the punishment against the petitioner, with regard to withholding one increment. However, he maintained the finding that the suspension period was to be treated as suspension period.
8. In our considered opinion, the respondent no.2 has rightly passed the order after considering the gravity of the offence against the petitioner as well as he also considered that the petitioner was acquitted by the learned Sessions Judge and no appeal was preferred against the petitioner, It was also considered that the loss was sustained by the students of the school and the act of the petitioner was against the morality of educational profession. There was no fault or error on part of respondent no.1 in ordering interim suspension by adhering to mandate of Rules. Petitioner cannot be allowed to gain at the cost of public revenue.
9. It will be appropriate to note the principles applicable in such interim suspension matter. In case of Union of India and another vrs Ashok Kumar Aggarwal, reported at (2013) 16 SCC 147 : [2014 ALL SCR 359], when employer has option whether to suspend or not, it is held by the Hon'ble Apex Court that :
"The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority and there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material to find out whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry."
"The law on the issue can be summarized to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. Purpose of suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the departmental proceeding unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. Long period of suspension does not make the order of suspension invalid. However, where for any reason it is not possible to proceed with the domestic enquiry the delinquent may not be kept under suspension."
It is further held that :-
"Ordinarily the court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question."
11. When above principles governing the interim suspension are kept in mind, in present facts the disciplinary authority did not err in honouring the mandate of service rules by placing petitioner under suspension. In our view, there is no illegality or perversity in the order passed by the respondent no.2. But the pension and retirement benefits of petitioner cannot be withheld. If the petitioner is eligible to pension & other benefits due to his superannuation & the same are still not released to him, the same shall be worked out within next two months. The pension and other terminal benefits to which petitioner is found entitled, shall be released to him, within next 3 months.
With this direction, we partly allow the petition, with no order as to costs.