1 wp 5098.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5098 OF 2011 Pervez Md. Abrar Shaikh .. Petitioner Versus Hazrat Siddique Shah Education Society and others .. Respondents Shri S. B. Gastgar, Advocate for the Petitioner. Shri K. B. Choudhari, A.G.P. for the Respondent/State. CORAM : S. V. GANGAPURWALA, J. DATE : 14TH JULY, 2011. PER COURT : . The petitioner is an assistant teacher with the respondent No. 2 school run by the respondent No. 1. He was appointed in the year 1983. A criminal case was lodged against the petitioner U/Sec. 465, 468, 120-B r/w Sec. 34 of the Indian Penal Code. The charge sheet was filed and during service the Judicial Magistrate First Class, Kannad convicted the petitioner for imprisonment of two years. The petitioner preferred an appeal to the Sessions Court. The Sessions Court dismissed the appeal and confirmed 2 wp 5098.11 the sentence given by the J. M. F. C. After the Judgment of the Sessions Court, the respondents terminated the services of the petitioner with effect from 16.08.2005. The petitioner challenged the judgment of conviction confirmed by the Sessions Court before the High Court. The High Court also dismissed the revision filed by the present petitioner. The petitioner thereafter approached the Apex Court. The Apex Court also dismissed the appeal and confirmed the conviction of the petitioner. 2. The petitioner filed an appeal before the School Tribunal against the order of termination. The School Tribunal dismissed the appeal. Aggrieved thereby the petitioner has filed the present writ petition. 3. Shri Gastgar, the learned counsel submits that there is no enquiry held by the management and without conducting an enquiry a permanent employee cannot be terminated from the service. The learned counsel relies on the judgment of the Apex Court in a case of Vidya Vikas Mandal & another Vs. Education Officer and another reported in 2007(3) Mh. L. J. 801. So also the Rules 37 and 38 of the M. E. P. S. Rules and contends that the management does not have right and authority 3 wp 5098.11 to terminate the employee without holding a departmental enquiry. The learned counsel further contends that the petitioner had put in more than 22 years of service and this aspect was required to be considered. Even the application of voluntary retirement of the petitioner was approved by the management and was sent to the Education Officer. In such circumstances, the petitioner could not have been terminated from the service. 4. The factual matrix that the petitioner is convicted for the offences U/Sec. 465, 468, 120-B r/w Sec. 34 of the Indian Penal Code is not disputed. The said conviction is confirmed upto the Apex Court. In such circumstances, Rule 33(6) of the M. E. P. S. Rules would be attracted. The Rule 33(6) reads as under : 33. Procedure for inflicting major penalties : (1) .......... (6) After the result of the criminal prosecution, a copy of the judgment shall be obtained by the Management and if the judgment is one of conviction for the charges and if an inquiry is also initiated by the Management against the employee on the basis of the same charges, it shall not be necessary to proceed with the inquiry on the same charges and the Management shall take action to terminate the 4 wp 5098.11 services of the employee. The Management shall not however pass any order till the period upto which the employee is entitled to prefer an appeal or revision application to the higher Court against the conviction by the lower Court is over. If the appeal or revision application is preferred the Management shall not take any action till the conviction is finally confirmed by the higher Court. When the judgment in the criminal case, appeal or revision application is one of acquittal, the Management shall consider in the light of the judgment whether it is necessary to institute or proceed with the inquiry. If the Management agreed that the acquittal is justified, it may drop the inquiry by certifying that it agrees with the findings of the Court. If the Management does not agree with the findings, it may proceed with the inquiry and inflict proper punishment. 5. Sub Rule 6 of Rule 33 states that if the management has initiated an enquiry and in a criminal prosecution the employee is convicted, then the management is not required to proceed with the enquiry and can terminate the service of the employee. The judgment of the Apex Court relied by the learned counsel for the petitioner i. e. in a case of Vidya Vikas Mandal referred supra the Rule 37(6) and 38 of M. E. P. S. Rules were for the consideration, where the contingency as contemplated in the Rule 33(6) was not concerned. As such, the said judgment is of no avail to the petitioner. 5 wp 5098.11 6. In view of Rule 33(6) of M. E. P. S. Rules no error has been committed by the School Tribunal in dismissing the appeal. As such, no case for interference in the writ jurisdiction is made out. The writ petition is as such dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11