Proceedings under section 498A of IPC,1860 cannot be construed to be a criminal proceeding regarding the employment of the accused.

6 wp 12817.17.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 12817 OF 2017 … Petitioner Sau Sheela Rameshchandra Bargaje Age 58 Occu. School Teacher R o Nisarg Priyadarshini Housing Society Siddhanth Wadi Tal. Wai The Administrative Officer Municipal Education Board Wai Dist. Satara Shri Sunil Krushnarao Jagtap Former Administrative Officer of thereafter Municipal Education Board Wai R o Plot No. B 17 Sayali Hill Near Ganpati Temple at P.O. & Tal Baramati Dist. Pune The Municipal Council Wai The State of Maharashtra … Respondents Mr. C.M. Kothari for the Petitioner Ms. Gunjan P. Shah i by Mr. Kayval P. Shah for the Respondent Nos. 1 Mr. N. C. Walimbe AGP for the Respondent No.4 CORAM: R. D. DHANUKA AND ABHAY AHUJA JJ DATE : 29th OCTOBER 2021 6 wp 12817.17.doc ORAL JUDGMENT: Rule. Learned counsel for the respondent nos.1 and 2 waives service. Respondent no.2 has expired. Petitioner seeks leave to delete the name of the respondent no.2. Leave to amend is granted to delete the name of the respondent no.2 from the cause title of the petition Amendment to be carried out forthwith. Re verification is dispensed with. Learned AGP waives service for the respondent no.4. By consent of parties petition is heard finally By this petition filed under Article 226 of the Constitution of India the petitioner has impugned the order of suspension dated 8th June 2016 passed by the respondent nos. 1 and 3 under Section 4 of the Maharashtra Civil ServicesRules 1979 for short ‘the said MCS Rules 1979’ The petitioner is the mother in law of the complainant who filed FIR on 4th June 2016 alleging offences under Sections 498A 313 323 etc of the Indian Penal Code against the petitioner. The petitioner was arrested and was sent to 15 days custody. On 6th June 2016 the petitioner was suspended from service as a teacher by the respondent no.2. The petitioner thereafter filed a criminal application in the month of August 2016 inter alia praying for quashing the process. On 16th June 2017 the Criminal Application filed by the petitioner came to be admitted. Interim relief came to be granted in favour of the petitioner This Court directed the Police not to file charge sheet without leave of the High Court. The petitioner thereafter filed a Criminal Application 6 wp 12817.17.doc bearing No. 4017 on 28th June 2017 in the pending criminal application for seeking discontinuation of the suspension order. The petitioner was granted liberty to withdraw the said proceeding with liberty to file a fresh petition. On 30th June 2017 the petitioner retired from service. Since the dues of the petitioner are not paid by the respondent no.1 the petitioner filed this writ petition inter alia praying for quashing and setting aside the order of suspension dated 8th June 2016 and for a declaration that the petitioner is regular in service since 6th June 2017. The petitioner also seeks an order and direction to grant all benefits to the petitioner before retirement and after her retirement treating her as a regular employee In prayer clauseof the petition the petitioner has prayed for an order and direction against the respondent nos. 1 to 3 to pay compensation for illegal suspension in the sum of Rs.20 00 000 and legal expenses in the sum of Rs.5 00 000 Mr. Kothari learned counsel for the petitioner invited our attention to the suspension order issued by the Administrative Officer of the respondent no.1 and would submit that the service of the petitioner were suspended in view of ongoing criminal proceedings filed by the daughter in law of the petitioner. He submits that at the first instant the order of suspension itself was illegal and in any event could not have been continued beyond three months in view of the decision of the Supreme Court in the case of Ajay Kumar Chaudhary v s. Union of India7 SCC 291 and in any event after retirement of the petitioner by superannuation 6 wp 12817.17.doc It is submitted by the learned counsel that admittedly the respondent nos. 1 to 3 did not initiate any departmental enquiry against the petitioner till the date of the retirement of the petitioner by It is submitted that the respondent nos. 1 to 3 paid only part of the terminal dues of the petitioner. Learned counsel submits that the criminal proceedings filed by the daughter in law of the petitioner has nothing to do with the employment of the petitioner. After noticing this fact this Court directed the Police not to file charge sheet against the petitioner without leave of the High Court Ms. Shah learned counsel for the respondent nos. 1 and 3 on the other hand strongly places reliance on the Rule 4 of the said MCS Rules 1979 and would submit that since FIR was filed against the petitioner in respect of the criminal offence and the same is under investigation the respondent no.1 was justified to suspend the services of petitioner. She also placed reliance on Rule 68 of the Maharashtra Civil Services Rules 1981and more particularly Rule 68(2) which reads thus : ‘Rule 68(2) When a Government servant is convicted by a competent Court and sentenced to imprisonment the subsistence allowance shall be reduced to a nominal amount of rupee one per month with effect from the date of such conviction and he shall continue to draw the same till 6 wp 12817.17.doc the date of his removal or dismissal or re instatement by the competent authority. If however he was acquitted by the Appellate Court in the meanwhile in which case he will draw the subsistence allowance at the normal rate from the date of acquittal by the Appellate Court.’ Learned counsel also placed reliance on Rule 4(2) of the MCS Rules 1979 and would submit that the petitioner was deemed to have been placed under suspension w.e.f. from the date of her detention since she was detained in police or judicial custody whether on a criminal charges or otherwise for a period exceeding forty eight hours It is submitted by the learned counsel for the respondent nos. 1 and 3 that under Rule 130(c) of the Maharashtra Civil Services no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon Learned counsel placed reliance on the Rule 17 of the said MCS Rules 1979 and would submit that against an order of suspension made or deemed to have been made under Rule 4 the remedy of appeal is available. This Writ petition thus shall not be entertained by this 11. Mr. Walimbe learned AGP for the State also supported the case of the respondent nos. 1 and 3 and would submit that under the provisions of the said MCS Rules 1979 the petitioner is not entitled to any dues in view of the order of suspension during pendency of criminal proceedings against the petitioner 6 wp 12817.17.doc 12. A perusal of the record indicates that the petitioner was in service of the respondent no.1. The daughter in law of the petitioner Mrs.Tanvee Aniruddha Bargaje filed FIR with Wai Police Station against petitioner and her husband under Section 498A 313 323 504 506 read with 534 of the Indian Penal Code on 4 th June 2016. The petitioner was arrested and was produced before the Magistrate and was in custody till 21st June 2016. The respondent no.1 suspended the service of the petitioner vide order dated 8th June 2016 w.e.f. 6th June 2016. The petitioner admittedly thereafter retired on superannuation It is not in dispute that the respondent nos. 1 to 3 did not initiate any department enquiry against the petitioner till her date of superannuation. The petitioner was not paid the entire amount due to the petitioner. It is the case of the respondent nos. 1 and 2 in the affidavit in reply the petitioner was paid certain amounts by way of subsistence allowance including a sum of Rs.6 71 076 towards full and final settlement of her provident fund. It is the case of the respondent no.1 that since the investigation is still pending against the petitioner the petitioner is not entitled to recover any further amount from the respondent no.1 14. Rule 4 of the said MCS Rules 1979 provides that the appointing authority may place the Government servant under suspension where a disciplinary proceeding against him is contemplated or is pending or where the case against him in respect of criminal offence is under investigation inquiry or trial. Rule 4(2) of the said MCS Rule 1979 provides for deemed suspension 6 wp 12817.17.doc In our view the suspension cannot be continued after retirement of the petitioner by superannuation since no extension is granted for holding of any enquiry by the respondent nos.1 and 3 16. Rule 68 of the said MCS Rules 1981 provides that for subsistence allowance and compensatory allowances during the period of suspension. Rule 68(2) clearly indicates that when a Government servant is convicted by a competent Court and sentenced to imprisonment the subsistence allowance shall be reduced to a nominal amount of rupee one per month with effect from the date of such conviction and he shall continue to draw the same till the date of his removal or dismissal or re instatement by the competent authority. If however he was acquitted by the Appellate Court in the meanwhile in which case he will draw the subsistence allowance at the normal rate from the date of acquittal by the Appellate Court. It is not in dispute that till date the petitioner has not been convicted by any Competent Authority nor has been sentence to imprisonment based on such conviction. The respondent nos. 1 and 3 therefore cannot refuse to pay any allowance to the petitioner which is in arrears today 17. Rule 130 of the said MCS Rules 1982 which is pressed into service by the learned counsel for the respondent nos. 1 and 3 provides that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon. It is not in dispute that no such departmental 6 wp 12817.17.doc proceedings are initiated against the petitioner by the respondent nos. 1 to 3. Insofar as the expression ‘judicial proceedings’ prescribed in Rule 130(1)(c) is concerned this Court has considered similar issue in case of Shrikant Ramchandra Inamdar v s. Municipal Corporation of Greater Mumbai and Anr. in Writ Petition No. 3601 of 2018 considered by K. K. Tated J. as his lordship then was and one of us Abhay Ahuja J). This Court in the said judgment considered a provision i.e. ‘no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon’. After interpreting the said provision and after considering the fact that the petitioner therein had already retired however his gratuity dues were held up in view of the pending criminal proceedings in a property dispute with his family members this Court accordingly held that those were not the proceedings relating to the service of the petitioner with the respondent corporation. Therefore the said Rule 45A(c) would not apply to the case of the petitioner In our view the criminal proceedings filed at the instance of the daughter in law of the petitioner under Section 498A of the Indian Penal Code and other related provisions against the petitioner have nothing to do with the employment of the petitioner with respondent nos. 1 and 3. If any criminal proceedings would have been filed and pending investigation relating to the employment of the petitioner with the respondent no.1 the situation would have been different. The principle laid down by this Court in case of Shrikant Ramchandra Inamdarapplies to the facts of this case. We do not propose to take any different view in the matter 6 wp 12817.17.doc Insofar as the submission of the learned counsel for the respondent nos. 1 to 3 that there is a provision of appeal under Rule 17 of the said MCS Rules 1979 and thus this writ petition shall not be entertained is concerned in our view there is no merit in the submission of the learned counsel for the respondent nos. 1 to 3. In the facts of this case the continuation of suspension beyond the period of retirement of superannuation and that also without any pending departmental enquiry or conviction of the petitioner being illegal does not preclude this Court from exercising powers to entertain a writ petition under Article 226 of the Constitution of India and to interfere with such illegal and untenable order passed by the respondent nos. 1 and 3 though an appeal is provided against the order of suspension 20. A perusal of the affidavit in reply filed by the respondent nos. 1 to 3 and affidavit in rejoinder filed by the petitioner indicates that part payment by way of subsistence allowance and under other heads have been alleged to have been paid by the respondent nos. 1 to 3 to the petitioner. According to the petitioner more amount is due and payable as set out in the affidavit in rejoinder. Respondent nos. 1 and 3 are liable to pay the balance amount due to the petitioner on the premise that the petitioner continued to be in service till the date of her superannuation all through out on the ground that there being no departmental enquiry having been initiated against the petitioner and till such date there being no conviction in the criminal proceedings which may not even otherwise be relevant for the purpose of the employment of the petitioner with the respondent nos. 1 to 3 6 wp 12817.17.doc 21. We accordingly pass the following order : Impugned order of suspension dated 8th June 2016 is quashed and set aside. The petitioner is declared to be regular in service as prayed. The petitioner is entitled to be granted all benefits before retirement and after her retirement on superannuation by treating her as regular employee. The service dues on this premise shall be paid by the respondent nos. 1 to 3 to the petitioner within six weeks from today with interest @ 8% p.a. from the due The arrears of post retirement benefits shall be paid to the petitioner within six weeks with interest @ 8% p.a. from due date payment of gratuity shall be made with interest at Insofar as prayer clausefor compensation prayed by the petitioner is concerned we grant liberty to the petitioner to file appropriate proceedings for claiming compensation against the respondent nos. 1 and 3 in The petitioner would be at liberty to file statement showing the amount payable with the respondent nos. 1 and 3 within one week from today according to the petitioner. Respondent nos. 1 and 3 shall verify the said 6 wp 12817.17.doc statement and shall inform the petitioner about the amount due and payable according to them within one week It is made clear that whatever amount is already paid to the petitioner by the respondent nos. 1 and 3 from the date of suspension shall be taken into consideration while paying the balance amount Rule is made absolute accordingly g) Writ Petition is allowed in the aforesaid terms. There shall be no order as to costs Parties to act on an authenticated copy of this order [ABHAY AHUJA J [R. D. DHANUKA J

Summary: The criminal proceeding filed by the daughter-in-law of the petitioner under section 498A of the Indian Penal Code, 1860 and other related provisions against have nothing to do with the employment of the petitioner and therefore the order of suspension of the petitioner by the respondent no. 1 &amp; 2 is set aside. Such an observation was made by the Hon’ble Bombay High Court before Hon’ble Justice R. D. DHANUKA and Hon’ble Justice ABHAY AHUJA in the matter of Sau Sheela Rameshchandra Bargaje vs The Administrative Officer, Municipal Education Board &amp; anr[WRIT PETITION NO. 12817 OF 2017]. 
The fact of the case was that the petitioner was suspended from his post as a teacher in regard to a criminal proceeding under section 498A set forth by her daughter-in-law. No internal enquiry or departmental enquiry was initiated by the respondents were initiated against the petitioner but she remained suspended till she retired by superannuation. It was the contention of the petitioner that the suspension order was ultra-vires and should be set aside and all the dues should be paid to her.

The Hon’ble High Court held that if a criminal proceeding would have been filed and the same is pending then the suspension would have been valid but in the current case, the criminal proceeding pending is in regard to section 498A of the Indian Penal Code, 1960 which is in no matter related to the employment of the petitioner. 

Further, the Hon’ble High Court referred to the judgment held in the case of Shrikant Ramchandra Inamdar v/s. Municipal Corporation of Greater Mumbai and Anr[Writ Petition No. 3601 of 2018] in which it was held that “the petitioner therein had already retired however his gratuity dues were held up in view of the pending criminal proceedings in a property dispute with his family members, this Court accordingly held that those were not the proceedings relating to the service of the petitioner with the respondent-corporation. Therefore, the said Rule 45A(c) would not apply to the case of the petitioner”

Finally, the Hon’ble High Court allowed the appeal and set aside the order of suspension and directed the respondent no 1 &amp; 3 to clear up all the arrears of service within 3 weeks.
Click here to read the judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The fact of the case was that the petitioner was suspended from his post as a teacher in regard to a criminal proceeding under section 498A set forth by her daughter-in-law. No internal enquiry or departmental enquiry was initiated by the respondents were initiated against the petitioner but she remained suspended till she retired by superannuation. It was the contention of the petitioner that the suspension order was ultra-vires and should be set aside and all the dues should be paid to her. 
The Hon’ble High Court held that if a criminal proceeding would have been filed and the same is pending then the suspension would have been valid but in the current case, the criminal proceeding pending is in regard to section 498A of the Indian Penal Code, 1960 which is in no matter related to the employment of the petitioner. 

Further, the Hon’ble High Court referred to the judgment held in the case of Shrikant Ramchandra Inamdar v/s. Municipal Corporation of Greater Mumbai and Anr[Writ Petition No. 3601 of 2018] in which it was held that “the petitioner therein had already retired however his gratuity dues were held up in view of the pending criminal proceedings in a property dispute with his family members, this Court accordingly held that those were not the proceedings relating to the service of the petitioner with the respondent-corporation. Therefore, the said Rule 45A(c) would not apply to the case of the petitioner”

Finally, the Hon’ble High Court allowed the appeal and set aside the order of suspension and directed the respondent no 1 &amp; 3 to clear up all the arrears of service within 3 weeks.
Click here to read the judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 The Hon’ble High Court held that if a criminal proceeding would have been filed and the same is pending then the suspension would have been valid but in the current case, the criminal proceeding pending is in regard to section 498A of the Indian Penal Code, 1960 which is in no matter related to the employment of the petitioner.  
Further, the Hon’ble High Court referred to the judgment held in the case of Shrikant Ramchandra Inamdar v/s. Municipal Corporation of Greater Mumbai and Anr[Writ Petition No. 3601 of 2018] in which it was held that “the petitioner therein had already retired however his gratuity dues were held up in view of the pending criminal proceedings in a property dispute with his family members, this Court accordingly held that those were not the proceedings relating to the service of the petitioner with the respondent-corporation. Therefore, the said Rule 45A(c) would not apply to the case of the petitioner”

Finally, the Hon’ble High Court allowed the appeal and set aside the order of suspension and directed the respondent no 1 &amp; 3 to clear up all the arrears of service within 3 weeks.
Click here to read the judgment.
Judgment Reviewed by: Rohan Kumar Thakur
 Further, the Hon’ble High Court referred to the judgment held in the case of Shrikant Ramchandra Inamdar v/s. Municipal Corporation of Greater Mumbai and Anr[Writ Petition No. 3601 of 2018] in which it was held that “the petitioner therein had already retired however his gratuity dues were held up in view of the pending criminal proceedings in a property dispute with his family members, this Court accordingly held that those were not the proceedings relating to the service of the petitioner with the respondent-corporation. Therefore, the said Rule 45A(c) would not apply to the case of the petitioner” 
Finally, the Hon’ble High Court allowed the appeal and set aside the order of suspension and directed the respondent no 1 &amp; 3 to clear up all the arrears of service within 3 weeks.