SUBHAG S KAVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner was in the employment of respondent No 4 School A complaint was filed against the petitioner dated 13th september, 1991 at the Kandivali Police Station alleging that the School Leaving certificate of one student by name Ms Jigna Jayantilal Kanakia was forged based on the complaint a case was registered by the Borivali Police Station against the petitioner and two others under sections 467 and 468 and other provisions of the Indian Penal Code The petitioner was arrested on 5th October, 1991 and released on bail on 8th October, 1991 The managing committee at the meeting held on 16th October, 1991 passed a resolution to suspend the petitioner with retrospective effect from 6th October, 1991 Pursuant to the suspension correspondence was exchanged between the petitioner on the one hand and the respondent management on the other It was the case of the petitioner that the charges against him were false and fabricated and that he was innocent As no charge-sheet was served for acts of misconduct, petitioner addressed a letter to the Deputy Director of Technical Education dated 12th October, 1992 with a request to direct the management to reinstate the petitioner and withdraw the suspension order There was subsequent correspondence However, the suspension was not revoked The petitioner, however, was paid subsistence allowance The petitioner thereafter filed the present petition wherein he has prayed that the order of suspension be quashed and that he be paid the arrears of salary amounting to Rs 64,368/- from 1st October, 1991 to 31st January, 1993 during the pendency of the petition the petitioner has superannuated on 6th July, 1996 The petitioner presently is being paid provisional pension in terms of the rules as the criminal case is still pending Even at the time of superannuation no charge-sheet was served on the petitioner It is in these circumstances that the reliefs as prayed for

(2.) On behalf of the management, the Headmistress has filed an affidavit wherein the case of the petitioner has been set out It has been set out that there is no need to file a charge-sheet on the petitioner considering the provisions of m E P S Rules, 1981 in order to conduct a domestic enquiry Insofar as the salary is concerned, it is submitted that the respondents are prohibited from paying salary considering the Rules in force For all the aforesaid reasons it is prayed that the petition be dismissed In the additional affidavit filed on 10th july, 1998 it has been set out that the Department of Education has granted approval to the order of suspension by the letter dated 29th September, 1992 It is pointed out that there are serious criminal charges against the petitioner and proceedings are pending No relief can be granted as claimed by the petitioner and further the petition has become infructuous on behalf of the Department affidavit has been filed by Vijay Punju khairnar setting out that the approval was granted to suspend the petitioner and that the petitioner has been paid subsistence allowance On superannuation he has been paid dues An additional affidavit was filed on 21st November, 2005 setting out that the respondent No 2 approved the suspension subject to the provisions of the MEPS Act

(3.) The issue before us is whether it was open to the respondents to continue the petitioner on suspension without issuing charge-sheet For that purpose we may gainfully refer to some of the provisions of the M. E. P. S. Regulation Act, 1977 to the extent they are required for disposal of the present controversy. As some judgments were pointed out to us in the matter of period of suspension we propose to deal with that argument also so as to clarify the issue of law. The relevant Rules are Rule 33 (1) and Rule 33 (5) and (6) which read as under:-