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1998 DIGILAW 604 (BOM)

Pandurang W. Patil v. Chetna's H. S. College of Commerce and Economics

1998-11-10

A.C.AGARWAL, S.S.PARKAR

body1998
JUDGMENT : S.S. PARKAR, J. By this writ petition the petitioner has challenged the order of suspension dated February 21, 1981 passed by the Respondent No. 1-College with whom he was employed as a Senior Clerk. The suspension order had been issued against the petitioner due to his alleged involvement, in the forgery and defalcation made in the store which was being run in the college campus by the Society formed by the students and employees of the Respondent No.I College. 2. The petitioner was appointed, initially, as Library Assistant on July 7, 1970 by the Respondent No.1 college. 3. He was promoted from time to time and lastly, when he was suspended, was working as a Senior Clerk with the Respondent No. 1- college. It is the case of the petitioner that while being employed in the said college he was also working in the store which was being run by the Society formed by the employees and students of the college. When the college found that the petitioner, in conspiracy with the then Principal of the college and the other employees, had defrauded the Respondent No. 1-College of a large sum of money and committed several offences, including forgery, the respondent no. 1-college issued impugned order dated February 26, 1981, which is annexed as Exhibit “B” to the petition, whereby the petitioner came to be suspended forthwith as his presence in the college was considered to be prejudicial to the working of the college. The said order also stated that the charge sheet followed. It is not in dispute that the said order of suspension is in operation till today which is being challenged in the present petition, filed in August 1987. 4. Mr. Bhandare, the learned counsel appearing on behalf of the petitioner contends that the said order of suspension is liable to be quashed as the same had been continued beyond a period of six months without obtaining permission for the extension as required under the Rules and also without filing any charge sheet. It is not in dispute that no departmental inquiry was initiated against the petitioner. It is not in dispute that no departmental inquiry was initiated against the petitioner. The petitioner is one of the several employees against whom criminal case being Special Case No. 4 of 1983 is pending before the Special Judge for Greater Bombay on various charges including the charges under the provisions of the IPC for the offences of forgery, use of the forged documents and abetment etc. In the said case there were also charges levied against the petitioner and others under the provisions of Prevention of Corruption Act on the ground that the petitioner and other accused being the members of the Co-operative Society were public servants. Mr. Bhandare informs us that the petitioner had filed Criminal Revision Application in this Court challenging the framing of the charges against him in the criminal case and the said criminal revision application has been partly allowed recently by this Court and the charges under the provisions of the Prevention of Corruption Act have been quashed and set aside and the petitioner is required to face only the charges of defalcation, forgery and use of forged documents etc, under the provisions of the IPC. 5. The main grievance raised on behalf of the petitioner is that the suspension order could not have been continued for a period beyond one year after the initial order and the same could not have been continued beyond six months without prior permission obtained from the Head of the Department and that having not been done the suspension order is liable to be quashed and set aside. The affidavit has been filed on behalf of the respondent-college in which reliance is placed on the charges framed by the Special Judge, Greater Bombay against the petitioner and other accused who were the co-employees of the petitioner and it is contended that the suspension order is fully justified. It is also submitted on behalf of the respondent-college that the Maharashtra Civil Services Rules were made applicable by virtue of the circular issued by the Vice-Chancellor of the Bombay University on February 13, 1981 to the non-Government affiliated colleges in exercise of the powers conferred upon him under Section 11(6)(b) of the Bombay University Act, 1974. It is also submitted on behalf of the respondent-college that the Maharashtra Civil Services Rules were made applicable by virtue of the circular issued by the Vice-Chancellor of the Bombay University on February 13, 1981 to the non-Government affiliated colleges in exercise of the powers conferred upon him under Section 11(6)(b) of the Bombay University Act, 1974. It is argued that it is only Civil Services Rules which have been made applicable and not the Government Resolution on which reliance is placed on behalf of the petitioner whereby a period of six months is prescribed for initial period of suspension and which could be extended to the maximum of one year after obtaining prior permission of the Head of the Department pending inquiry or investigation of the crime. It is further case of the respondent-college that the Civil Services Rules were applied in the absence of any Rules in that behalf and after the commencement of the Standard Code which was introduced from May 1, 1985 the suspension order of the petitioner came to be governed under the said Standard Code which does not prescribe the maximum period of one year for continuing the suspension of the non-Government employee. Under Rule 45(1)(c) of the Standard Code an employee could be placed under suspension where a case against him in respect of any criminal offence is under investigation, enquiry or trial. 6. On behalf of the respondent-college it is also contended by Mr. Pal that the petitioner had filed in this Court Writ Petition in the year 1983 in which grievance was made only with regard to the payment of subsistence allowance and the suspension order as such was not challenged. It appears that in that behalf the petitioner had also taken the matter to the Labour Court with regard to the payment of his subsistence allowance and there is no dispute that the subsistence allowance at the rate of 50 percent of his salary was paid by the respondent-college except for short period as stated by Mr. Bhandare. Mr. Pal fairly states that whatever amount has remained to be paid by way of subsistence allowance shall be paid to the petitioner. 7. Bhandare. Mr. Pal fairly states that whatever amount has remained to be paid by way of subsistence allowance shall be paid to the petitioner. 7. So far as the main grievance raised in this petition with regard to the issue of the suspension order is concerned and the quashing thereof sought on the main ground that the suspension order could not be, in any case, extended beyond a period of one year is in our view without merit. The suspension order was passed as far back as on February 26, 1981 and the same is being challenged by this petition which was filed in August 1987. It is not disputed by Mr. Bhandare the learned counsel appearing on behalf of the petitioner that the petitioner had filed writ petition in this Court in the year 1983 with regard to the payment of the subsistence allowance in which no grievance was made about the invalidity or illegality of the suspension order. From the affidavit-in-reply and the copy of the charges framed by the Special Judge for Greater Bombay which is annexed to the reply-affidavit, it appears that serious charges of forgery and use of forged documents and defalcation have been made against the petitioner along with his co-employees in Respondent No. 1-College. If the criminal case is still pending for trial the petitioner cannot make a grievance that he cannot be continued on suspension until the trial is over in the matter. Under Rule 45(1)(c) of the Standard Code the petitioner could be continued under suspension pending trial of Special Case No. 4 of 1983 against him. As stated by Mr. Bhandare himself the petitioner had challenged the framing of the charges against him by filing criminal revision application in this Court in the year 1991 which criminal revision application had been disposed of only in the last week i.e. in the first week of November 1998 whereby the main charges framed against the petitioner about forgery and use of forged documents and the defalcation under the provisions of the IPC have been allowed to stand against him. The trial of the case pending before the Special Judge could not be proceeded for a period of more than seven years because of the stay granted by this Court in the criminal revision application filed by the petitioner. The trial of the case pending before the Special Judge could not be proceeded for a period of more than seven years because of the stay granted by this Court in the criminal revision application filed by the petitioner. That stay continued from 1991 till the first week of November 1998 as a result of which the trial could not take place during the period of stay. 8. The reliance is rightly placed on behalf of the respondent-college on the judgment of the Supreme Court in the case of Allahabad Bank v. Deepak Kumar Bhola, reported in (1997-I-LLJ-854 (SC)) wherein it was held that notwithstanding the fact that a period of 10 years elapsed since the charge sheet was filed and the accused was suspended, it was inconceivable that a bank should allow an employee to continue to remain on duty when he was facing serious charges of corruption and misappropriation of money. In that case the High Court had quashed the order of suspension which was challenged before the Supreme Court. While allowing the appeal of the Allahabad Bank and setting aside the Judgment of the High Court, the Supreme Court observed as follows at p. 858: “We are unable to agree with the contention of learned counsel for the respondent that there has been no application of mind or the objective consideration of the facts by the appellant before it passed the orders of suspension. As already observed, the very fact that the investigation was conducted by the C.B.I. which resulted in the filing of a charge-sheet, alleging various offences having been committed by the respondent, was sufficient for the appellant to conclude that pending prosecution the respondent should be suspended. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and misappropriation of money. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the first Bipartite Settlement, 1966. Allowing such an employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the first Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for al lowing the respondent to come back to duty on a sensitive post in the bank, unless he is exonerated of the charge. In our opinion, the High Court was not justified in quashing the orders of suspension.” 9. In this case also we find that the petitioner is facing serious charges under the provisions of the IPC and hence it is not expedient to quash the suspension order and direct the respondent-college to allow petitioner to remain on duty when he was facing such serious charges of misappropriation of money and forgery. 10. In the result, the petition is dismissed and rule is discharged with no order as to costs. 11. On the application of Mr. Bhandare issue of certified copy is expedited.