RAICHAND NENSHI DEDHIA Vs. NUTAN GUJARATI

JUDGEMENT

(1.) BY the present writ petition under Article 226 of the Constitution of India, the petitioners have challenged the suspension order dated 10th, September 1988 passed against them. The 1st petitioner and the 2nd petitioner were at the relevant time and even today working as Assistant Teacher and Junior Clerk respectively in the 2nd Respondent-School which is run by the 1st Respondent-Trust. The 3rd Respondent claims to be the President of the Trust. When the petition was filed, the 1st petitioner had put in 22 years of service and the 2nd petitioner had put in 14 years of service. Alongwith other employees, the petitioners were suspended by an order dated 21st September 1987. All the six suspended employees including the present petitioners, filed a writ petition in this Court on 11th May 1988 being writ Petition No.2682 of 1988, challenging the said suspension order. The petition was admitted and certain interim reliefs were granted by this Court on 22nd June 1988. By the interim order all the suspended persons including the petitioners were permitted to resume the duties in the school in their respective posts. The Management was directed to pay the salary to each one of them and also directed to pay future salary for each month regularly. The said petition is pending. It is the case of the petitioners in the present petition before us that the 3rd Respondent who is in fact managing the 1st Respondent-Trust has with an ulterior motive, as he failed in his earlier attempt, filed criminal complaint in the Panvel Police Station and as a result thereof by his letter dated 9th July 1988 suspended the petitioners. Therefore, the petitioners had no choice but to file the present petition challenging the second order of suspension.

(2.) MR . Vashi, the learned Counsel appearing for the petitioners drew our attention to the order passed in the earlier writ petition No.2682 of 1988. The said order dated 22nd June 1988, apart from granting interim relief in the above terms, also directed the Management to pay the arrears of salary within a period of 6 weeks from that day. Liberty was granted to the Management to proceed with the enquiry against the petitioners. It is the submission of Mr.Vashi that despite this, no enquiry has been even instituted. Referring to the criminal complaint lodged with the Panvel Police Station, it was submitted by Mr.Vashi that the said complaint was lodged by the 3rd Respondent; a copy of which complaint is annexed as Exh.D to the petition. As a result of the said complaint, the petitioners before us were arrested by the Panvel Police Station and they have been on bail. However, no further action has been taken in the criminal case based on the said complaint filed by the 3rd Respondent. It was the submission of Mr.Vashi that the order of suspension impugned in the present petition was colourable and in fact was passed by the 3rd Respondent in order to circumvent the interim order passed by this Court in the said earlier writ petition.

(3.) IN the instant case as it appears that the 3rd Respondent acting on behalf of the 1st Respondent first filed a complaint with the Police, saw to it that the petitioners were arrested and then invoked the provisions of Rule 33(5) and passed an impugned order of suspension. In our opinion, the procedure for suspending an employee by the Management is provided for in Rule 33(1) which provides also a safeguard and read with Rule 35 inter alia indicates the duration during which the employee can be kept under suspension. Again in the instant case, it appears from the record that neither any progress has taken place in the criminal prosecution which has been launched against the petitioners nor any enquiry has taken place although in the interim order passed in earlier Writ Petition being Writ Petition No.2682 of 1988 where the petitioners along with others were the petitioners; a specific liberty was given to the Management to proceed with the enquiry. The 3rd Respondent has filed an affidavit in reply which is in Marathi and not in the official language of this Court. However, going through the same, it appears that the 3rd Respondent has several grievances against the petitioners. In our opinion, surely this is not the way to proceed against the petitioners. It is clear from the record that the Management has not proceeded under Rule 33(1) and have passed the impugned order of suspension assuming that the very fact of filing of the criminal complaint enabled the Management to pass the suspension order. Reading Rule 33(5) of the said Rules it is clear that the same provides for a 'deemed' suspension in the event when an employee is unable to attend the school. Surely this cannot be converted into a procedure for suspending an employee more so when the management is instrumental in initiating a criminal proceeding.