MADHUKAR NAMDEO PATIL Vs. CHAIRMAN SUDHAGAD EDUCATION SOCIETY

JUDGEMENT

(1.) RULE, returnable forthwith. Learned Addl. Government Pleader for respondent Nos. 3 and 4 waives service. Respondent Nos. 1 and 2 are absent despite service.

(2.) THE petitioner is a permanent Assistant Teacher working with the 2nd respondent school for thirty years. Together with some other members of the teaching and non-teaching staff, the petitioner formed a Co-operative Society of which the petitioner, in November 1995, was elected as Chairman. One Shri Subhedar who is working as a teacher in another school was elected as Secretary of the society. Some time in February 1998, a fraud was detected during the course of the regular audit of the credit co-operative society involving an amount of Rs. 2,01,540/ -. According to the petitioner, Shri Subhedar admitted his guilt and furnished an undertaking to repay the amount before 15-8-1998. This amount was, however, not repaid by Subhedar. On or about 23-7-1999, the Government Auditor lodged a criminal complaint at Panvel Station against Shri Subhedar and the petitioner. The petitioner was arrested on 28-10-1999 in respect of offences alleged to have been committed under sections 408, 468, 471 and 34 of the Indian Penal Code. The petitioner was released on bail on 2-11-1999. On 5-11-1999, an order of suspension was issued against the petitioner on the ground that he had been detained in judicial custody for a period exceeding 48 hours. The order of suspension which is annexed at Exhibit "a" to the petition recites that since this period exceeded 48 hours, the petitioner has been suspended from service with effect from 28-1-2000. The Education Officer by a letter dated 6-11-1999 (Exhibit "b" to the petition) purported to grant sanction to the order of suspension, with reference to the provisions of Rules 28. 5, 33, 34 and 35 of the Maharashtra Employees of Private Schools) Conditions of Service) Rules 1981.

(3.) ON behalf of the petitioner, it has been urged that under Rule 33 (5) the period of suspension can only be for such period (beyond 48 hours) as the employee was in custody and the suspension can only be for such period (beyond 48 hours) as the employee was in custody and the suspension of the employee cannot be for a period beyond the detention in judicial custody in the present case. In other words, the suspension even if validly made could not be operated beyond 2-11-1999, when the petitioner was released on bail. The second submission which was urged before us was that the F. I. R. which has been lodged by the Auditor, does not implicate the petitioner in any specific or overt act of criminal wrongdoing. The learned Counsel submitted that the petitioner has been implicated solely on the ground that he was a Chairman of the Co-operative Credit Society. The order of suspension in the present case purports to have been passed under the provisions of Rule 33 (5) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. In order to consider whether the suspension can be sustainable in the present case with reference to the provisions of Rule 33 (5), it would be convenient to extract the relevant part of that rule. Rule 33 (5) provides as follows :--An employee against whom proceedings have been taken on criminal charge or who is detained under any law for the time being in force providing for preventive detention shall be considered as under suspension for any period during which he is under such detention or he is detained in police or judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment, and he shall not be allowed to draw any pay and allowances for such period until the termination of the proceedings taken against him or until he is relieved from detention and is in a position to rejoin duty and produce documentary proof of his release (otherwise than on bail), or acquittal as the case may be. An adjustment of his pay and allowances for such periods shall be made, according to the circumstances of the case, the full amount being given only in the event of the employee being acquitted of charge or detention being held by the Court to be unjustified. " rule 33 (5) lays down that an employee "shall be considered as under suspension" (i) where proceedings have been taken on a criminal charge against the employee or (ii) where the employee is detained under any law for the time being in force providing for preventive detention. Sub-rule (5) however is qualified by the period during which the employee shall be regarded as under suspension. The said sub-rule stipulates that the employee in such a case shall be considered as under suspension for any period during which he is under preventive detention or where he is detained in police or judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment. In a case where, as in the present facts, the employee is in police or judicial custody, he shall be considered as under suspension when the period of custody exceeds 48 hours. Moreover, the suspension can only be for the period during which the employee is in police or judicial custody and only if the period of such custody exceeds 48 hours. In other words, the period of suspension under the provisions of sub-rule (5) of Rule 33 must necessarily come to an end once the period of judicial or police custody is terminated. Suspension under Rule 33 (5) is not an indefinite suspension during the pendency of a criminal prosecution. That was not the intention underlying the framing of Rule 33 (5) and the words used in the said Rule militate against an interpretation which extends the period of suspension to the pendency of the criminal proceedings. The period of suspension under Rule 33 (5) comes to an end once an employee ceases to be in police or judicial custody.