1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1662 OF 2009 Rajeev @ Raju s/o Bhagwanta Sonwane, R/o-Khandala, Tq-Bhokardan, Dist-Jalna. ...PETITIONER. VERSUS 1) The State of Maharashtra, Through its Principal Secretary, School Education Department, Mantralaya, Mumbai, 2) The Deputy Director of Education, Aurangabad Region, Aurangabad, 3) The Education Officer (Secondary), Zilla Parishad, Jalna, 4) The President/ Secretary, Bhokardan Shikshan Prasarak Mandal, Bhokardan, Tq-Bhokardan, Dist-Jalna, 5) The Head Mistress, Priyadarshani Indira Gandhi Kanya Vidyalaya, Bhokardan, Tq-Bhokardan, Dist-Jalna. ...RESPONDENTS. ... Mr.V.G. Salgare Advocate for Petitioner. Mr.V.H. Dighe, A.G.P. for Respondent Nos. 1 to 3. Mr. R.L. Kute Advocate h/f. Mr. V.R. Dhorde Advocate for Respondent Nos. 4 and 5. ... 2 CORAM: A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 5TH FEBRUARY, 2010. PER COURT : 1. Heard learned counsel for the parties. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, the matter is taken up for final hearing at the stage of admission itself. 2. By this Petition, it is prayed that the Respondent Nos. 4 and 5 be directed to pay subsistence allowance to the Petitioner from 1st September, 2006 till the Petitioner is reinstated in service forthwith with interest @ 18% per annum on the arrears and the Respondent Nos. 2 and 3 be also directed to take immediate steps for payment of the same. It is further prayed that the Respondent Nos. 4 and 5 be directed to immediately reinstate the Petitioner in service as secondary teacher in the Respondent No.5 school as the very 3 basis of his suspension no more exists in view of his acquittal in the Sessions Case No.19 of 2008. It is also prayed that the Respondent Nos. 2 and 3 be directed to immediately deduct the grants of the Respondent Nos. 4 and 5 to the extent of suspension allowance payable to the Petitioner from 1st September, 2006 till he is reinstated and make the payment of the same to the Petitioner. 3. These reliefs proceed on the assumption that no steps have been taken by the Management to conduct disciplinary enquiry and that the Petitioner, therefore, continues to remain in the employment of the Management. The Respondent Management, however, on affidavit has stated before us that the services of the Petitioner have been terminated as back as on 1st July, 2008 vide letter issued under the signature of the Secretary of the Management, Exhibit R/7 at Page 65. The Respondent Management is also relying on the document at Page 68, which is postal acknowledgement dated 3rd July, 2008, to assert 4 that the termination letter sent by Registered Post, was duly served on the Petitioner. 4. Counsel for the Petitioner, however, submits that the Petitioner was not aware about such termination order until filing of the present Petition in March, 2009. Moreover, the document at Page 68 being postal acknowledgement was in respect of some other communication received by the Petitioner. 5. The fact remains that the Respondent Management has terminated the services of the Petitioner. In that sense, the Petitioner cannot be heard to contend that he continues to remain in the service and for which reason, he is entitled to subsistence allowance. Indeed, the Petitioner may be justified in claiming relief of subsistence allowance for the period between 1st September, 2006 till 1st July, 2008, on which date the Management claims to have terminated the services of the Petitioner. 5 6. However, according to the Management, even this relief cannot be granted to the Petitioner as he never reported to the Head Quarters during this period, especially after he was released from jail. The Petitioner, however, disputes the correctness of this position. According to him, representations were sent to the Head Master from time to time to allow the Petitioner to resume duties but to no avail. 7. All these are disputed questions of fact. It is not possible for this Court to enquire into the correctness of the stand taken by both the sides on this issue. In our opinion, the appropriate course is to direct the Education Officer to enquire into those facts and issue appropriate directions to the Respondent Nos. 4 and 5 Management, as may be advised. The claim of the Petitioner for subsistence allowance between 1st September, 2006 till 1st July, 2008 may be considered by the Education Officer on its own 6 merits, in accordance with law. All questions in that behalf are left open. 8. We would also clarify that this order is not an expression of opinion on the correctness or otherwise of the termination of services of the Petitioner vide letter dated 1st July, 2008. The Petitioner would be free to question the correctness of the said communication on grounds as may be permissible and available to the Petitioner in law. We express no opinion in that behalf. 9. Rule is made absolute on the terms indicated above. Writ Petition is disposed off accordingly. [S.S. SHINDE, J.] [A.M. KHANWILKAR, J.] asb/FEB10/wp1662.09