{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4549 OF 2009 Fr. Peter S/o Thamaji Amolik, Head Master, Sr.Francis De Sales High School, Jalna Road, Aurangabad PETITIONER VERSUS 1. The President, St. Franscis De Sales Education Society C/o Bishop’s House, Cantonment, Aurangabad 2. Sr. Franscis De Sales High School, Jalna road, Aurangabad Through its In-charge Head Master 3. St. Franscis De Sales Education Society C/o Bishop’s House, Cantonment, Aurangabad Through its Secretary, 4. The Education Officer (Secondary) Zilla Parishad, Aurangabad 5. The State of Maharashtra RESPONDENTS ....... Mr.B.L.Sagar Killarikar, Advocate for petitioner. Mr.V.H.Dighe, AGP for respondents No.4 & 5 Mr.S.V.Adwant, Advocate for respondent No.1 and 3 ....... [CORAM : P.V.HARDAS, {2} and A.V.POTDAR, J.J.] DATE: 12th October 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties this petition is heard finally at the stage of admission. 2. This petition, under Article 226 of the Constitution of India, filed by the petitioner, prays for issuance of a writ directing respondent No.4 Education Officer to take steps for reinstatement of the petitioner in respondent No.2 school, in the light of Rule 37 (2) (f) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981. Other reliefs deal with prayers of ad interim nature, which need not be adverted to by us. 3. Undisputedly, the petitioner came to be placed under suspension by an order dated 15.12.2008. The suspension was pending, holding of a Departmental Inquiry and we are informed by Mr.Adwant, learned counsel for respondents that the Departmental Inquiry had commenced and virtually the recording of the evidence is complete and by the end of this month, the Inquiry Officer would be pronouncing the verdict of the Inquiry. 4. In the present matter, we are not concerned with the misconduct, which is alleged against the petitioner or the progress {3} of the inquiry as such. In the present petition, we are concerned with Rule 37 (2) (f) of the MEPS Rules, which reads thus - “The inquiry shall ordinarily be completed within a period of 120 days from the date of first meeting of the inquiry Committee or from the date of suspension of the employees, whichever is earlier, unless the inquiry Committee has, in the special circumstances of the case under inquiry, extended the period of completion of the inquiry with the prior approval of the Deputy Director. In case the inquiry is not completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties; without prejudice to continuance of the inquiry.” 5. As per the mandate of the aforesaid rule, the inquiry is required to be completed within a period of 120 days from the date of the first meeting of the inquiry committee or from the date of the suspension of the employee, whichever is earlier and unless the inquiry committee in special circumstances has extended the period of completion of the inquiry with the prior approval of the Deputy Direction, the employee cannot be placed under suspension for a period exceeding 120 days and would be deemed to have rejoined his duties without prejudice to the continuance of the inquiry. Undisputedly, in the present case, the period of 120 days came to an end on 15.03.2009. The respondent management has disclosed in its affidavit in reply that an application came to be submitted to the Deputy Director of Education, seeking extension for completion of the inquiry, by an application dated 01.06.2009. Another application came to be moved on 17.08.2009. We are {4} informed by Mr.Adwant, learned counsel for respondents No.1 and 3 that the Deputy Director of Education has not decided the aforesaid applications. The respondents have also not filed any petition in this Court seeking directions to the Deputy Director of Education to decide the aforesaid applications. The net result is that there is no sanction of the Deputy Director of Education in terms of sub clause (f) of Rule 3 (2) and as a result the petitioner would be deemed to have rejoined his duties. The continuance of the inquiry against the petitioner would in no manner be affected. 6. Mr.Adwant, learned counsel for respondents No.1 and 3, states that the misconduct alleged against the petitioner is of grave nature and the petitioner is likely to prejudice the inquiry and his continued presence in the school is likely to terrorize the management. However, we are not concerned with the aforesaid apprehension expressed on behalf of respondents No.1 and 3. Suffice it to state that since there is no extension in terms of sub clause (f) of Rule 37 (2), the petitioner is entitled for the mandate of the said Rule. Our attention has been invited by the learned counsel for the petitioner to a judgment of the Division Bench of this Court in “Hamid Khan Nayyar Habib Khan V/s Education Officer, Secondary, Zilla Parishad Amravati & others” 2004 (4) Bom.C.R. 871. The Division Bench of this Court construing the aforesaid rule at para 7 and 8 has held thus- 7. The next ground of challenge on behalf of the petitioner is with regard to Rule 37 (2) (f) which provides {5} as follows : “The inquiry shall ordinarily be completed within a period of 120 days from the date of first meeting of the inquiry Committee or from the date of suspension of the employees, whichever is earlier, unless the inquiry Committee has, in the special circumstances of the case under inquiry, extended the period of completion of the inquiry with the prior approval of the Deputy Director. In case the inquiry is not completed within the period of 120 days or within the extended period, if any, the employee shall cease to be under suspension and shall be deemed to have rejoined duties; without prejudice to continuance of the inquiry.” 8. Rule 37 (2) (f) postulates that the inquiry has to be ordinarily completed within a period of 120 days from the date of the first meeting of the Committee or form the date of the suspension of an employee. The word “ordinarily” indicated that the period of 120 days is not an inflexible rule. The inquiry shall not stand vitiated upon the expiry thereof. Power has been conferred by the Rule to allow the inquiry Committee in “special circumstances of the case under inquiry”, to extend the period for the completion of inquiry within the prior approval of the Deputy Director of Education. However, it has been spelt out that in case the inquiry is not completed within a period of 120 days or within the extended period, the employee shall cease to be under suspension and shall deemed to have rejoined duties without prejudice to the continuance of the inquiry. In view of the provisions of this Rule, the learned Counsel appearing on behalf of the petitioner has fairly stated that it is not his submission that the inquiry stands invalidated upon the expiry of 120 days. After the expiry of the period of 120 days the consequence that has been laid down in Rule 37 (2) (f) in regard to the suspension necessarily comes into {6} force. In that view of the matter, the suspension ceases to operate and the employee is deemed to have rejoined his duties without prejudice to the continuance of the inquiry. Hence, we are of the view that there is merit in the contention of the petitioner. The petitioner is entitled to the benefit of the provisions of Rule 37 (2) (f). In the present case the management has not convinced even the Enquiry Committee. The attention of the Court is not drawn to any steps having been taken for progressing with the enquiry. Save and except for a bald averment there is nothing to show that the conduct of the petitioner is the reason for the failure to hold and complete the enquiry.” 7. In that light of the matter, according to us, the petition deserves to succeed. It appears however that respondent No.4 has not taken any steps for enforcement of the aforesaid rule and accordingly the petitioner has filed this petition with the aforesaid prayer. 8. We accordingly allow this petition. Rule is made absolute in terms of prayer clause “B” to the petition. We direct the respondent No.4 to enforce the aforesaid rule within a period of two weeks from the date of receipt of the writ of this Court. Copy of this order, duly authenticated by the Court Shirstedar be provided to the parties to act upon. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp4549-09