1 WP8702.10 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8702 OF 2010 Mustaffa Ismail Tadvi ... Petitioner v/s The State of Maharashtra & anr. ... Respondents Mr.N.V.Bandiwadekar for the petitioner. Ms.S.S.Bhende, A.G.P. for respondent No.1. Mr.C.G.Gavnekar for respondent No.2. CORAM: A.M.KHANWILKAR & R. Y. GANOO, JJ. DATED: 10TH AUGUST, 2011 P.C.: 1. Rule. Rule made returnable forthwith by consent of the parties. 2. Heard learned counsel for the parties. 3. This petition takes exception to the order passed by the Chief Executive Officer removing the petitioner from the post of Primary Teacher on the assumption that the petitioner had 2 WP8702.10 indulged in misconduct while working as Shikshan Sevak. It is not in dispute that the petitioner was initially appointed as Shikshan Sevak vide order dated 29.5.2007. On completion of three years, he was appointed on the post of Primary Teacher on permanent basis. After he was appointed on permanent basis as Primary Teacher, in connection with the incident which took place in the month of August 2010, the appropriate Authority decided to take action against the petitioner. The Chief Executive Officer by the impugned order accordingly removed the petitioner from service. On perusal of the impugned order, it is obvious that the Chief Executive Officer proceeded on the assumption that it was possible to remove the petitioner for the misconduct without holding disciplinary enquiry as he was initially appointed as Shikshan Sevak. This assumption, to say the least, is untenable. Once the petitioner was appointed on permanent basis and confirmed in the post as Primary Teacher, he could be removed from service for the alleged misconduct only by way of holding departmental enquiry and not otherwise. The question of removing the employee by simpliciter termination would be only in respect of employee who is on probation. Once the employee is a permanent employee and is being removed for the alleged misconduct, there was no option but to institute departmental enquiry in that behalf. 3 WP8702.10 4. Accordingly, the impugned decision of the Chief Executive Officer dated 4.9.2010 at Exh.”C” is quashed and set aside. As the consequence of setting aside that order, we declare that the petitioner will have to be treated as if he is reinstated in service on the same post with effect from 4.9.2010 and would be entitled for all consequential benefits and back wages for the relevant period. Indeed this would not deprive the respondents (the Chief Executive Officer of the Zilla Parishad) to proceed against the petitioner by way of departmental enquiry in accordance with law. All questions in that behalf are kept open. 5. Rule made absolute in terms of prayer clause (b) on the above terms with no order as to costs. ( R. Y. GANOO, J. ) (A.M.KHANWILKAR, J.) 4 WP8702.10