*1* nmw262-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.262 OF 2011 IN WRIT PETITION NO.1309 OF 2010 Shri Gurukul Shikshan Prasarak Mandal and Anr. .. Petitioners Versus Sharda Ashgok Suryagandh and Anr. .. Respondents Mr.A.R.Gore for petitioners Mr.S.S.Pakale i/b. K.J.Phadke for respondent No.1 Ms.Sindha Shridharan, AGP for respondent No.2. CORAM : S.C.DHARMADHIKARI, J. Date : 19th September, 2011. P.C.: 1 This is a motion by respondent No.1 for following reliefs:- “(a) That this Court may be pleased to allow the present applicant (Orig.respondent) to withdraw the amount of Rs.2,99,307/- deposited by the original petitioner – present respondent (original petitioner) as per the order dated 5th October 2010, passed in the main petition by this Court from the office of Prothonotary and Senior Master, High Court, Bombay against the subsistence allowance payable to the present applicant. *2* nmw262-11.sxw (b) That this Court may be pleased to order and direct directing the Prothonotary & Senior Master, High Court, Bombay to allow the present applicant original respondent to withdraw the amount of Rs. 2,99,307/- which has been deposited by the present respondent original petitioner as per the order dated 5th October 2010 passed in the main petition by this Court.” 2] It is stated that in the writ petition, an order was passed by consent of parties on 23rd August 2010. That order records that the judgement of the School Tribunal is set aside so also the termination of the first respondent's services and, therefore, the relationship of Master and Servant is restored. However, the petitioner – management is at liberty to hold de novo inquiry and for that purpose place the respondent under suspension. But, when the first respondent is placed under suspension, she will have to be paid 50% of the subsistence allowance for the first 120 days commencing from 1st August 2008 and, thereafter, till the inquiry is concluded and final orders passed thereon. 3] The arrears of the subsisting allowance till the date of order dated 23rd August 2010 were directed to be paid to the first respondent within three weeks and even enquiry was directed to be completed within six *3* nmw262-11.sxw weeks from the date of order and liberty was given and that is in relation to reimbursement of the expenses for payment of subsistence allowance till the enquiry, by forwarding bills to the Education department. It is submitted that this order was not complied with and, therefore, on 5th October 2010, time to conclude disciplinary proceedings came to be extended but subject to the petitioner's depositing arrears of subsistence allowance payable to first respondent within one week from the date of passing of the said order. 4] Thereafter, it appears that on 25th October 2010, there was a substitution of the earlier order of 23rd August 2010 on an application viz., Chamber Summons No.313 of 2010. On 29th October 2010, there was a statement made by petitioner's Advocate which came to be recorded that he will submit necessary bills to the Education Department, who shall take steps to make payment. 5] Mr.Pakale, learned Advocate appearing in support of this motion submitted that Rs.2,99,307/- have been deposited. There were subsequent proceedings as have been noted above. Hence, the first respondent could not apply for withdrawal of the sum. My attention is also invited to the order dated 15th November 2010 of the Education *4* nmw262-11.sxw Officer. It is submitted that the amount which is deposited in this Court constitutes subsistence allowance payable to the first respondent. She had to undergo and face fresh enquiry but the substance allowance has not been paid in terms of the Rules. In these circumstances, the amount that is deposited be allowed to be withdrawn. 6] On the other hand Mr.Gore, learned Counsel appearing for original petitioner – management has submitted that this notice of motion is not maintainable. This motion is filed in a petition which is already disposed of. No substantive orders can be passed in favour of the first respondent in a proceeding which was instituted by the management and which petition also has been disposed of. In these circumstances and when the inquiry has been concluded and an order of termination has been passed, all the more, no amounts should be released in favour of the first respondent. Further, no amount can be withdrawn and/or released in favour of first respondent because of the notice of motion that is being moved by the management. It has been pointed out by the Secretary of the Management that the departmental enquiry has been completed and after due procedure the first respondent is dismissed from service. She has filed an appeal to the School Tribunal being Appeal No.31 of 2010 and, therefore, this is nothing but an attempt to derive some benefit when *5* nmw262-11.sxw an amount has been deposited by the management to show its bonafides which cannot be construed as admitting the case of the first respondent. For all these reasons, this notice of motion be dismissed. 7] After hearing both sides, in my view, as far as the first objection of the petitioner that this petition is disposed of and, therefore, in a disposed of petition, no relief can be granted and particularly by way of present notice of motion, need not detain me. The orders that have been passed by this Court on 23rd August 2010 permitted the petitioner to hold de novo enquiry by placing the first respondent under suspension. Pursuant to the liberty granted by this Court, original petitioner – management placed the first respondent under suspension and decided to hold disciplinary enquiry. It could not complete the same within the time stipulated by this Court and, therefore, it is the petitioner management which applied to this court by a Notice of Motion No.528 of 2010 seeking extension of time to hold enquiry. On that motion an order was passed on 5th October 2010 extending the time to complete enquiry but subject to the management depositing arrears of subsistence allowance payable to the first respondent within a week from 5th October 2010. It appears that thereafter, further orders were passed on the chamber summons No.313 of 2010. To my mind, when the petitioners sought liberty of this Court to *6* nmw262-11.sxw hold an enquiry by placing the respondent under suspension and thereafter, sought an extention of time to complete it, but which extension was granted on a condition, then, it is not open for the petitioner to urge that in a disposed of petition and proceedings, no orders can be made in favour of an employee. It is on petitioner's notice of motion in a disposed of matter that the enquiry was permitted to be continued and held but on a condition that the subsistence allowance and arrears thereof are deposited in this Court. In these circumstances, the only course available and open for the first respondent was to apply for withdrawal of this amount and by moving a appropriate application. Precisely that has been done and merely because main petition has been disposed of, does not mean that this Court has not retained any control over the disciplinary proceedings. Once the court orders and directions are to be complied with and compliance thereof not being made in the time stipulated is the grievance raised, then, this Court can pass appropriate orders and directions. It is not as if the Court has absolutely no power or jurisdiction in the peculiar facts of this case. On the other hand, all through out the Court ensured early disposal of the enquiry and once the court ensures that by imposing conditions on parties, then, the parties cannot be heard to say that the Court has lost control or has no jurisdiction or power to pass any further orders. In such circumstances, the first contention of *7* nmw262-11.sxw Mr.Gore must fail. 8] Equally, there is no merit in the second contention. The order of this Court is clear. The amount is deposited towards arrears of subsistence allowance and that is how the order dated 5th October 2010 in Notice of Motion No.528 of 2010 would read. Once the amount is towards subsistence allowance, then, I am not concerned, as to when the enquiry concluded and how it got concluded. It may have concluded in the dismissal of the subject employee but when the Court directs payment of subsistence allowance and the first respondent is suspended and the amount is deposited towards subsistence allowance/ arrears thereof, then, that is the sum which is due and payable during the course of enquiry, for subsistence of the employee. That amount ought to be paid to the employee and particularly because the employee has faced the enquiry and thereafter, challenged the order of dismissal before the appropriate forum. In these circumstances, subject to the further orders and directions of the competent court and without prejudice to the rights and contentions of the petitioners as also the first respondent employee, the amount deposited in this Court can be allowed to be withdrawn with accrued interest by the respondent No.1. That sum can be recovered by the petitioner Management by instituting appropriate proceedings against *8* nmw262-11.sxw the department and keeping open all contentions in that behalf, it is possible to allow withdrawal of the sum. I am not concerned with what is the outcome of the enquiry or the proceedings challenging the same. That is an issue which is certainly not subject matter of the instant proceedings and particularly the writ petition. Once the instant proceedings are in furtherance of the orders on the main petition, then, permission to withdraw the money can be granted. 9] Accordingly, this notice of motion is made absolute in terms of prayer clauses (a) and (b) but without prejudice to the rights and contentions of the petitioner as also the first respondent to adopt such proceedings as are permissible in law. All contentions in relation to the merits of the charges and outcome of departmental proceedings are kept open. All concerned to act on an authenticated copy of this order. 10] At this stage, Mr.Gore submits that the motion which has been moved by the management is pending and in the light of the same, this order cannot be passed. In my view, interest of justice would be served if it is directed that the amount deposited by the petitioner management be allowed to be withdrawn by first respondent herein within four weeks from today, within which time, it is open for the petitioner to adopt *9* nmw262-11.sxw appropriate proceedings and seek such interim and final orders thereon as are permissible in law. (S.C. Dharmadhikari, J)