Judgment : Oral Judgment: Rule. Rule made returnable forthwith. With consent of parties the matters are taken up for final hearing immediately. 2. Writ Petition No. 2946 of 2007 is filed by the School Management against the judgment dated 26.09.2006 passed by the School Tribunal in appeal filed by respondent No.1 against his dismissal from the post of Head Master. The another Writ Petition no. 4831 of 2007 is filed by the Head Master against the Management challenging the clarificatory order passed by School Tribunal on 23.04.2007 whereby he was denied subsistence allowance. That writ petition is practically a consequence of the main petition, therefore, I will first deal with the judgment of the School Tribunal passed on 26.09.2006 which is challenged by the Management. 3. Respondent Gajanan Dalal was working as Head Master in a school run by the petitioner. The Management decided to hold an enquiry against him on several allegations including misappropriation. Accordingly Secretary of the Society served the copies of statement of allegations to the respondent. Thereafter a Committee for enquiry was constituted consisting of one member nominated by the Management, one member nominated by the respondent and one Member chosen by the President from the panel of the Head Masters on whom the State/National award was conferred. The Committee recorded evidence and held some meetings before beginning of the vacation and three meetings were held during the month of May 2004 i.e. during the Summer Vacation. Respondent was not present at the time of Meetings held during the month of May. His representative did not cross examine any of the witnesses examined by the Management nor he examined any defence witness on behalf of the respondent. On 14.05.2004 the inquiry committee submitted a report recommending the termination of services of the respondent and accordingly an order was issued by the Management terminating the services of the respondent. That order was challenged by the respondent before the School Tribunal and the School Tribunal set aside the termination order and also held that enquiry itself was vitiated mainly on two grounds. That order was challenged by the respondent before the School Tribunal and the School Tribunal set aside the termination order and also held that enquiry itself was vitiated mainly on two grounds. Firstly that the charge sheet was issued to the respondent, who was Head Master, by the Secretary of the Management and not by the President and secondly, enquiry was held during Summer Vacations without consent of the respondent in violation of the provisions of Rule 36 of the Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as Rules). It was also held that because enquiry was not properly held the respondent did not get proper opportunity to defend himself. In the result the School Tribunal allowed the appeal and quashed and set aside the dismissal order dated 28.05.2004 and remanded the matter back to the management for fresh enquiry as per the provisions of M. E. P. S. Act and Rules. School Tribunal also directed that meanwhile the appellant shall remain under suspension and be entitled to subsistence allowance. Hence this petition by the Management. 4. Learned counsel for the Management contended that the School Tribunal was not right in holding that the provisions of Rule 36 were not complied because the statement of allegations and charge sheet were not served upon the respondent who was a Head Master by the Secretary and not by the President. Rule 36(1) reads as follows: “36 Inquiry Committee: (1) If an employee is allegedly found to be guilty on any of the grounds specified in sub-rule (5) of rule 28 and the Management decides to hold an inquiry, it shall do so through a properly constituted Inquiry Committee. Such a committee shall conduct an inquiry only in such cases where major penalties are to be inflicted. The Chief Executive Officer authorised by the Management in this behalf and in the case of an inquiry against the Head who is also the Chief Executive officer, the President of the Management shall communicate to the employee or the Head concerned by registered post acknowledgment due the allegations and demand from him a written explanation within seven days from the date of receipt of the statement of allegations.” This provision was interpreted by Full Bench of this Court in National Education Society & Another Vs. Mahendra s/o Baburao Jamkar & Another 2007(3) ALL MR 553. Mahendra s/o Baburao Jamkar & Another 2007(3) ALL MR 553. Full Bench observed as follows: “Perusal of Section 36(1)(2)(b), in the light of the above discussion, shows that the Chief Executive Officer shall communicate the statement of allegations to an employee. If the statements of allegations are required to be issued to the Head, who is also empowered to act as Chief Executive Officer, the same will have to be issued by the President of the management. Further, looking to the hierarchy as seen above, if the statement of allegations are required to be issued to the Head (who is not empowered to act as Chief Executive Officer by the management), then such statement of allegations can be issued by the Chief Executive Officer and it is not necessary that the President should issue the same.” It is not the contention of the respondent that he was also appointed as Chief Executive Officer of the school. According to management the Secretary was performing the functions of Chief Executive Officer. As per Rule 2(1)(c) the Chief Executive Officer means the Secretary, Trustee, Correspondent or a person by whatever name called, who is empowered to execute the decisions taken by the Management. Rule 36(1)(a) requires that if enquiry is to be held against the Head, who is also the Chief Executive Officer, the President of the Management shall communicate the statement of allegations and demand from him a written explanation about the said statement of allegations. In any other case, Chief Executive Officer, who is authorised by the management on this behalf, can serve the statement of allegations to the concerned employee including the Head master who is also not discharging the functions of Chief Executive Officer. It may be noted that the judgment of the School Tribunal was delivered on 26.09.2006 before the Full Bench judgment was delivered on 06.04.2007. There was difference of opinion between two Division Benches and therefore it is possible that School Tribunal was under bonafide mistake. Any how on this ground the enquiry could not be treated to have been vitiated and could not be set aside. 5. However the record reveals that some evidence was recorded during the month of March and April and then it was adjourned to 05.05.2004. On that date the respondent was not present on the ground of ill health and his representative Vijay Nandanwar sought time to study the matter. 5. However the record reveals that some evidence was recorded during the month of March and April and then it was adjourned to 05.05.2004. On that date the respondent was not present on the ground of ill health and his representative Vijay Nandanwar sought time to study the matter. The matter was adjourned to 08.05.2004. On that date also respondent was absent and his representative refused to cross examine the witnesses of the management and also to lead defence evidence. The matter was adjourned to 14.05.2004. On that date also the respondent was absent. Minutes of the Meeting dated 14.05.04 also indicate that Vijay Nandanwar, representative of the defendant, had taken objection to the proceedings during the vacation in view of Rule 36(6). That objection was over ruled and the Committee proceeded with the matter. After that the Committee submitted its report dated 25.05.2004, on the basis of which termination order dated 28.05.2004 was issued. Rule 36(6) reads as follows: “36(6): The meetings of the Inquiry Committee shall be held in the school premises during normal school hours or immediately thereafter, if the employee agrees and even during vacation.” On reading this Rule it is clear that Meeting of the Inquiry Committee shall be held in the school premises during the normal school hours or immediately after the school hours if the employee agrees. Admittedly during the vacation the schools do not function and therefore there are no normal school hours. Therefore during the vacation the meeting of the Inquiry Committee may be held only with consent of the concerned employee and not without that. It is material to note that this provision was also required to be interpreted by this Court in an unreported judgment in Writ Petition No. 1942 of 1998 Shankar Vs. R. M. Ingole and Others. After quoting Rule 36(6) this Court had held that the reading of the Rule makes it clear that even for holding meeting of the Inquiry Committee immediately after school hours concerned employee should agree, therefore it is obvious that if the inquiry is to be held during the vacation, consent of the employee would be necessary. In that matter objection was taken that this would not be applicable in case of Head Master because he is required to function during the vacation also. In that matter objection was taken that this would not be applicable in case of Head Master because he is required to function during the vacation also. However, that contention was also turned down by this Court I am fully supported by the view taken by this Court in Shankar Vs. R. M. Ingole. In view of this, as the inquiry was held during the vacation without consent of the respondent or his representative, it was in violation of Rule 36(6). 6. Due to the violation of this Rule natural consequence was that the respondent could not cross examine the witnesses examined by the petitioner and also he could not lead defence evidence in that respect and he was deprived of the right to defend himself properly and thus the principle of natural justice have been violated . 7. Inview of the above circumstances even though the School Tribunal was not right in holding that the inquiry was vitiated because the statement of allegations were served by the Secretary and not by the President, I find that School Tribunal was right in holding that there was violation of Rule 36(6) and also that the respondent was deprived of his right to defend himself properly. On this ground the inquiry have been vitiated and was liable to be set aside. Naturally the order of dismissal based on the report of the said Inquiry Committee will also be liable to be set aside. In view of these circumstances I find no substance in the Writ Petition No. 2946 of 2007 filed by the Management. 8. Coming to Writ petition No. 4831 of 2007 filed by the Head Master, in Clause 4 of the operative order passed by the School Tribunal in its judgment dated 26.09.2006 it had directed as follows: “4) Meanwhile, the appellant shall be remained under suspension and entitled to subsistence allowance from the management.” In para 29 i.e. the concluding para of that judgment the School Tribunal had noted that considering the seriousness of the charges leveled against the appellant (Head Master) it is a fit case to remand the same to the Management for fresh inquiry from the stage of issuance of statement of allegations. School Tribunal observed that at the same time since the appellant was under suspension during the course of inquiry, instead of directing his reinstatement to the post of Head Master it would be just and proper to direct the Management to keep him under suspension during the fresh inquiry till the decision of the management and the Management shall pay him subsistence allowance as per Rules. It appears that the Head Master was some how in doubt about the meaning of the order passed by the School Tribunal in respect with his entitlement of subsistence allowance. Therefore, he preferred Writ Petition No. 5991 of 2006. However, that writ petition was withdrawn with liberty to move an appropriate application before the School Tribunal. Therefore he filed M. C. A. 7 of 2007 seeking clarification of the said order. After hearing the parties the School Tribunal clarified thus: .The appellant (Head Master) shall be remained under suspension and entitled to subsistence allowance from the management with effect from 210.2006.. This order is challenged by the Head Master in this petition. According to him the clarification given by the School Tribunal is not as per Rules. As per Rule 34, when any employee is under suspension, the management is bound to pay him subsistence allowance equal to the leave salary which the employee would have drawn if he had been on leave on half pay and in addition, Dearness Allowance based on such leave salary shall be payable to the employee under suspension. If the period exceeds 4 months, subsistence allowance may be increased by a suitable amount not exceeding 50% of the subsistence allowance admissible during the period of first 4 months, if the period of suspension has been prolonged for reasons recorded in writing not directly attributable to the employee. From this it is clear that during the first 4 months after suspension the employee is entitled to half pay and allowances and if the inquiry is not completed and suspension continues beyond 4 months and if the delay is not attributable to the employee, subsistence allowance may be increased suitably from 50% of the pay and allowance upto 75% of pay and allowance payable to him. 9. 9. Inthe present case the management did not follow the procedure laid down in Rule 36 in respect of holding inquiry and passed an order of dismissal which has been quashed and set aside by the School Tribunal. However the School Tribunal allowed the management to continue that inquiry from the stage of service of statement of allegations and to continue the Head Master under suspension. The fact that the appeal filed by the Head Master against the dismissal was allowed and the dismissal order was set aside, clearly shows that the Head Master had good reasons to challenge that order. There is nothing on record that the delay could be attributed to the head Master. Once the School Tribunal came to the conclusion that the inquiry itself was vitiated due to non observance of the procedure laid down in Rule 36 and found that the inquiry could be continued from the stage of issuance of charge sheet or statement of allegations, it means the inquiry goes back to the same stage. The Head master was under suspension before the inquiry was held and his suspension was continued till the date of impugned order of the dismissal. Once that order was set aside and the School Tribunal directed that he shall remain to be under suspension, that suspension has to relate back to the date on which he was wrongfully dismissed from service and therefore it must be held that Head Master continues to be under suspension from the day one, when he was first suspended. It is not the case where after setting aside the order of dismissal the Court has directed reinstatement wherein the period of his dismissal could not be treated as suspension. In case of reinstatement the Court could examine whether full back wages should be given or any portion of the same should be given to him depending on evidence which may be placed before it as to whether during the period his services were terminated, he was gainfully employeed or not. Once it is held that the enquiry was vitiated and the Management is permitted to hold the enquiry de-novo, keeping the employee under suspension, he continues to be entitled to payment of the subsistence allowance as per Rule 34. That right cannot be taken away by the School Tribunal. Once it is held that the enquiry was vitiated and the Management is permitted to hold the enquiry de-novo, keeping the employee under suspension, he continues to be entitled to payment of the subsistence allowance as per Rule 34. That right cannot be taken away by the School Tribunal. In view of this I find that order passed by the School Tribunal on 23.04.2007 clarifying Clause 4 of the operative part of the judgment dated 29.09.2006 is liable to be set aside. 10. For the aforesaid reasons Writ Petition No. 2946 of 2007 filed by the management stands dismissed. 12. Writ Petition No. 4831 of 2007 filed by the employee/Head Master Gajanan Devidas Dalal is hereby allowed. Impugned clarificatory order dated 23.04.2007 passed by the School Tribunal is hereby set aside and it is clarified that he shall be deemed to be under suspension from the date when he was first put under suspension till the inquiry will be completed as per law and he shall also be entitled to subsistence allowance as per Rule 34 for whole of the period including period of appeal before School Tribunal. 13. Rule made absolute accordingly.