Judgment:
Sinha D.D., J.
1. Heard Mr. Mohgaonkar, learned Counsel for the petitioner, Mr. Jichkar, learned A.G.P., for respondents 1 and 4 and Mr. Jiwane, learned Counsel for respondents 2 and 3.
2. Rule. Rule made returnable forthwith by consent of parties.
3. The learned Counsel for the petitioner states that the order of suspension dated 26-12-2003 passed by respondent No. 2/management automatically lapses after completion of 120 days, since as per Rule 37(2)(f) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 the management has to complete the enquiry within a period of 120 days failing which the order of suspension lapses and the petitioner is entitled to be reinstated thereafter. It is further submitted that though the petitioner was suspended on 26-12-2003, till this date the enquiry is not completed and, therefore the order of suspension cannot be sustained in view of the above referred facts. In order to substantiate the above referred contentions, the learned Counsel for the petitioner placed reliance on the decision of this Court in (Hamid Khan v. Education Officer, Amravati) : 2004(6)BomCR871 .
4. The learned A.G.P. does not dispute the factual and legal aspect of the matter referred to hereinabove and further contended that the management has also not obtained the prior approval of the Education Officer before suspending the petitioner, as is required under the M.E.P.S. Rules and therefore as per Sub-rule (4) of Rule 35 of the said Rules it is for the respondent/management to pay the salary of the petitioner for the above referred suspension period.
5. The Counsel for the respondent/management states that there was no prior approval from the Education Officer before suspending the petitioner, however looking to the seriousness of the charge the order of suspension would not lapse merely on completion of 120 days.
6. We have considered the contentions canvassed by the respective Counsel and also perused the decision relied on by the learned Counsel for the petitioner. In the instant case, it is not in dispute that the petitioner was suspended by the order dated 26-12-2003 and the departmental enquiry is not concluded within 120 days. It is also not in dispute that prior approval of the Education Officer before suspending the petitioner, as is required under Rule 33 of the M.E.P.S. Rules, was not obtained by the respondent/management. In that view of the matter, the law laid down by this Court in the above referred judgment is squarely applicable to the facts of the present case and in view of Rule 37(2)(f) of the M.E.P.S. Rules the suspension order would cease to operate after 120 days from the date of the said order.
7. For the reasons stated hereinabove, in view of the provisions of Rule 37(2)(f) of M.E.P.S. Rules, 1981 the order of suspension dated 26-12-2003 ceases to operate after 120 days from the date of the said order and the petitioner shall be deemed to have joined the duties thereafter and is entitled for all other consequential benefits.
Rule is made absolute in above terms. No costs.