1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3415 OF 2009 Smt. Kamal w/o Pundlik Barhate, Age 54 years, Occu.Service, R/o 1, Resham, Gulmohar Colony, Behind M.G.College, Taluka and Dist.Jalgaon .. PETITIONER VERSUS 1. The State of Maharashtra through its Secretary, School Education, Mantralaya, Mumbai 2. The Education Officer (Secondary), Zilla Parishad, Jalgaon 3. The Chairman, Rural Education Society, Bhadali (Bk), Tq. and District Jalgaon 4. The Head Master, M.G.Vidyalaya, Bhadali (Bk), Taluka and Dist.Jalgaon .. RESPONDENTS Miss Surekha Mahajan, Advocate holding for Shri R.R.Bangar and Ms.V.B.Kapse, Advocates for petitioner Shri V.B.Ghatge, Advocate for respondent No.1 Shri A.S.Shelke, Advocate for respondents 3 and 4 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 20th August 2009 ORAL JUDGMENT [ PER P.V.HARDAS , J ] 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties these petitions are heard finally at the stage of admission. 2 2. By this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of a writ of mandamus directing the quashing of the communication dated 13.4.2009 issued by respondent No.3 in respect of the initiation of the departmental enquiry against the petitioner and also for quashing and setting aside a charge-sheet issued to the petitioner dated 30.3.2009. The petitioner by virtue of prayer clause (C) prays for issuance of a writ of mandamus directing the quashing of letter dated 17.2.2009 issued by respondent No.4 calling upon the petitioner to deposit the amount of salary received by the petitioner during the period of maternity leave i.e. the salary amounting to Rs.38,486/- and also the amount of Rs.3,69,100/- as salary received by the petitioner during the period 1993 to 1996. The other prayers are prayers in respect of interim reliefs. 3. Undisputedly, a charge-sheet came to be issued to the petitioner dated 30.3.2009 which was preceded by a show cause notice directing holding of the departmental enquiry against the petitioner on various allegations of misconduct. The principal challenge to the said show cause notice on behalf of the petitioner is that the allegations, if accepted at their face value as well as coupled with the other documentary evidence would clearly mean that the allegations do not amount to misconduct. We do not consider it appropriate to quash the show cause notice 3 as well as the charge-sheet as the departmental enquiry has already been initiated against the petitioner and certain witnesses have been examined. These grounds, obviously would be available to the petitioner are to be urged before the Enquiry Officer during the enquiry. We, therefore, find that there is no case made out for prayer clause (B). The petition, therefore, stands dismissed in respect of prayer clause (B). 4. In respect of prayer clause (C), we find that the petitioner has made out the sufficient cause warranting the interference of this Court. Obviously, since the amount of Rs.38,486/- is the amount of salary received by the petitioner, for the aforesaid period of maternity leave, the respondents cannot recover the said amount unless and until the enquiry is concluded and the petitioner is proved to have obtained the maternity leave on the false pretext that she was in the family way. Since this is a subject matter of the departmental enquiry, we refrain from expressing any opinion vis-a-vis the merits of the matter. Shri A.S.Shelke, learned Counsel for respondents 3 and 4 states that though the respondent – management has issued letter to the petitioner calling upon the petitioner to deposit the aforesaid amount of salary received by the petitioner, the management would not take any coercive steps for recovery of the said amount which included the salary paid to the petitioner for the maternity 4 leave as well as the salary which has been drawn by the petitioner thereafter till the decision of the enquiry. We accept the aforesaid statement as an undertaking to the Court and are, therefore, inclined to allow the petition to that effect. This petition is, therefore, partly allowed directing the respondents not to take any coercive steps for recovery of an amount of Rs. 38,486/- constituting the salary paid to the petitioner for the maternity leave and the other amount of salary from 1993 to 1996 till the enquiry is concluded and the petitioner is found to have committed the said misconduct. 5. Rule is thus made absolute on the above terms with no orders as to costs. ( A.V.POTDAR ) ( P.V.HARDAS ) JUDGE JUDGE vvr/3415.09wp 5