1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5987/2006 Dattatraya S/o Shravan Kamble Age 35 years, Occ-Asstt.Teacher R/o C/o Sambhaji Dashrath Khillare Sonkhed, Tq. Loha, Dist.Nanded. .. PETITIONER VERSUS 1] Narayansingh S/o Shankarsingh Thakur (Secretary) Sant Gadge Maharaj Shikshan Sanstha, Bhopalewadi R/o Thakur Communication Near Angeti Bar, Kautha Naka Tq. & Dist.Nanded. 2] Bedre Gangadhar Rachan R/o Sant Gadge Maharaj Magasvargiya Girls School, Bhopalewadi, Kalambar (Bk) Tq.Loha, Dist. Nanded. (Amended as per Court’s Order dated 4/8/2009) 3] Education Officer (Secondary) Zill Parishad, Nanded. 4] The State of Maharashtra School Education Department, Mantralaya, Mumbai, through its Secretary (copy to be served on Govt. Pleader, High Court of Bombay 2 Bench at Aurangabad. .. RESPONDENTS. .... Shri R.J.Godbole,Adv.for petitioner Shri A.S.Bayas,Adv.for R.1 and 2. Shri S.V.Kurundkar,Adv.for R.3 & 4. ... CORAM : A.P.DESHPANDE & N.D.DESHPANDE,JJ. DATE : 4/02/2010 ORAL JUDGEMENT [PER A.P.DESHPANDE,J.] : 1] Rule. Rule made returnable forthwith. With consent of parties, petition is heard finally at the stage of admission. 2] The petitioner was possessing necessary qualifications of B.A. B.Ed. when he came to be appointed as an Assistant Teacher in the school administrated and managed by respondent nos.1 and 2, on 1/7/1996. It is undisputed that the petitioner’s appointment was on probation and approval was also granted by the Education Officer to the petitioner’s appointment on probation. It is the case of the petitioner that he successfully completed probation period and assumed status of a confirmed employee. 3] While working as an Assistant Teacher, the petitioner came to be arrested on 28/3/2000 for alleged commission of offence under Section 302 of I.P.C. The petitioner remained in custody for quite some time 3 and thereafter, came to be prosecuted. The prosecution ended in an acquittal of the petitioner vide judgment of the Sessions Judge dated 18/9/2001. 4] After the arrest of the petitioner on 28/3/2000, he was terminated from service by the management w.e.f. 2/5/2000. After the petitioner came to be acquitted, he filed Appeal bearing No.110/2002 before the School Tribunal some time in the year 2002. The petitioner and the School management entered into a compromise before the Presiding Officer. Parties filed Compromise Petition before the Tribunal, copy of which is annexed at Exh.E to this petition. It is agreed that the School management shall revoke the termination order dated 2/5/2000 and reinstate the petitioner in service. It is further agreed that the School management will forward the proposal for drawing salary of the petitioner from 23/3/2000 onwards to the Education Officer. The management also agreed to pursue the Education Officer to release the grants. 5] It is the case of the petitioner that based on the said compromise, dated 2/7/2004, the petitioner came to be reinstated in service from next date i.e. 3/9/2004. After reinstatement of the petitioner, the petitioner claims to have worked as Assistant Teacher in the School, however, a grievance is made that the salary of the 4 petitioner has not been released from 3/9/2004 till the date the management effected petitioner’s termination for the second time vide order 17/4/2006 which document is on record at page no.40 [Exh.5]. The management is not disputing the fact that the petitioner was reinstated pursuant to the compromise arrived between the parties and his services came to be terminated vide order dated 17/4/2006. It appears that during pendency of this petition, the petitioner was pursuing the Education Officer to take appropriate decision in regard to release of salary for the period referred to hereinabove viz. 3/9/2004 to 17/4/2006. It also appears that the Education Officer had directed the Extension Officer to make an enquiry as to whether the petitioner in fact worked in the School from 2/5/2000 to 17/6/2006. A report of the Extension Officer is placed on record by learned Assistant Government Pleader dated 9/4/2009. Perusal of the said report reveals that the Extension Officer had visited the School and after making an enquiry from the Head Master, he came to the conclusion that for the period from 2/5/2000 to 17/6/2006, the petitioner was not employed in the School and that the salary of the petitioner was not drawn for the said period. The copy of the report of the Extension Officer is taken on record. 6] According to the learned counsel for the petitioner, the relations of the petitioner and the School management are strained over a 5 period of time, which is evident from the second termination order issued on 17/4/2006. It is submitted that the so-called enquiry conducted by the Extension Officer was behind the back of the petitioner and the report, in the submission of the learned counsel, appears to have been submitted relying on the version of the Head Master. It is an admitted fact that the Education Officer who is the competent authority has not made any enquiry and has caused an enquiry to be made by deputing Extension Officer. The report of the enquiry reveals that no one else was taken into confidence while making the enquiry barring the Head Master. Record also reveals that the petitioner had sat on hunger strike before office of the Education Officer some time in the year 2005, making a claim for salary, by contending that he was in service. As there arise disputed question of fact, we deem it appropriate to direct the Education Officer to make an enquiry in that regard. One more fact needs to be stated and the same is that the termination order dated 17/4/2006 issued by management came to be challenged by the present petitioner before the Tribunal and the Tribunal had granted stay to the termination and finally Appeal came to be allowed by judgment and order dated 13/3/2007. 7] We do not propose to deal with the question of entitlement of the petitioner to receive the salary after the issuance of the second 6 termination order and we restrict this judgment for the period commencing from 3/9/2004 to 17/4/2006. We have no iota of doubt that for a period prior to 3/9/2004, the petitioner is not entitled to receive any salary, as initially he was in custody and thereafter, had not worked during pendency of the Appeal before the Tribunal calling in question the termination order dated 28/3/2000. We are informed that from July 2007, the petitioner is receiving salary regularly as per the pay bill submitted by the Head Master. It is reiterated that we are not opining on the entitlement of the petitioner to receive the salary for the period commencing from 17/4/2006 till July 2007. In the light of facts and circumstances set out hereinabove, we are of the clear view that the Education Officer need himself to make an enquiry after affording reasonable opportunity of being heard to the petitioner, the management, so also the Extension Officer whose report has been placed on record, to determine as to whether the petitioner has worked during the period from 3/9/2004 to 16/4/2006. If the Education Officer comes to the conclusion that the petitioner has worked during the said period, the Education Officer shall, sanction the pay bills submitted by management claiming the salary of the petitioner for the said period and if the Education Officer comes to the conclusion that the petitioner has not in fact worked during the said period, the Education Officer would be justified in rejecting the claim of the petitioner for the salary for the period stated hereinabove. We expect the Education Officer to 7 hold enquiry and complete the same within a period of two months from today in the light of the observations made in this judgment and take a decision accordingly. Rule is made absolute in the above terms. 7] It is made clear that this order does not go to divest the petitioner of the benefits accrued by the petitioner under the compromise entered into with the School management on 2/9/2004. [N.D.DESHPANDE] [A.P.DESHPANDE] JUDGE JUDGE umg/wp5987-06