Dr. Neela Gokhale, J.

1. Rule. Rule made returnable forthwith. With the consent of all the parties, the matter is finally heard.

2. The present petition, filed under Article 226 of the Constitution of India, assails the suspension of the Petitioner’s service from the post of Full-Time Assistant Teacher at the Respondent No. 5 – Samata Vidyalay, and the continuation of the suspension order for over twenty-five years. The Petitioner further seeks consequential directions for the Respondents to pay him the arrears of subsistence allowance and salary and allowances up to the date of his superannuation on 28th February 2023, and to sanction and release his retiral benefits, including pension with effect from 1st March 2023, commutation of pension and gratuity, together with interest.

3. The Petitioner claims to hold a Master of Commerce and a Master of Physical Education. Respondent No. 5 is a government-recognised and aided secondary school. Respondent No. 5 school is managed and conducted by Respondent No. 4 – Sane Guruji Shikshan Sanstha, a trust registered under the Maharashtra Public Trusts Act, 1950, and the Societies Registration Act, 1860. The conditions of service for the teaching and non-teaching employees of the Respondent No. 5 school are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (‘the MEPS Act’) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (‘the MEPS Rules’).

4. The Petitioner was appointed as a Full-Time Assistant Teacher at the Respondent No. 5 school by an order dated 6th June 1994, w.e.f. 10th June 1994, at a pay scale of Rs. 1,400-2,600, on a sanctioned and vacant post, following the prescribed selection process. The Petitioner’s appointment was approved by the Respondent No. 3 – Education Officer, pursuant to which the Petitioner was paid a monthly salary and allowances from the grant-in-aid sanctioned and released by the Respondent No. 3. On completion of two years of continuous service, the Petitioner became deemed permanent in service in terms of Section 5(2) of the MEPS Act.

5. On 5th December 1997, the Petitioner was arrested for offences under Sections 498A and 306 of the Indian Penal Code, 1860 (‘IPC’). He remained in custody until 15th December 1997, when he was released on bail. By an order dated 14th February 1998 passed by the Respondent No. 4 trust, the Petitioner was placed under suspension w.e.f. 5th December 1997, the date of his detention, in accordance with Rule 33(5) of the MEPS Rules.

6. By a further order dated 23rd March 1998, issued by the Respondent No. 4, the Petitioner was once again placed under suspension with effect from 5th December 1997 under Rule 33(5) of the MEPS Rules. It was recorded therein that unless the Petitioner produced documentary evidence of his exoneration or acquittal, he would not be permitted to resume duty and would not be paid any salary and allowances until he furnished documentary proof of his acquittal in the said case.

7. By an application dated 7th April 1999, the Petitioner requested that the Respondent No. 5 pay him subsistence allowance during the period of suspension in accordance with the MEPS Rules, and stated that he had no other source of income for his maintenance. However, no subsistence allowance was paid to him.

8. Aggrieved, the Petitioner approached Respondents No. 2 and 3. By an order dated 20th April 1998, Respondent No. 3 directed Respondent No. 4 to pay the subsistence allowance to the Petitioner in accordance with the directions in the order dated 16th March 1998, failing which action would be taken against the Management and the school. The said order was not complied with. By a communication dated 29th June 1999, Respondent No. 2 informed Respondent No. 3 that there would be no objection to payment of the subsistence allowance to the Petitioner, as per rules, from the date of his suspension until he resumed duty, upon production of documentary evidence of his exoneration or acquittal. By a letter dated 19th July 1999, Respondent No. 4 informed Respondent No. 5 that, although the communication dated 29th June 1999 had been received, a decision on payment of the subsistence allowance would be taken only after the Respondent No. 3 conveyed the same to the Management.

9. By an order dated 2nd August 1999, Respondent No. 3 directed the Respondent No. 4 to pay the subsistence allowance to the Petitioner from the Society's funds while the Petitioner was under suspension. Despite the said order, the Petitioner did not receive any subsistence allowance.

10. By a letter dated 1st September 1999, Respondent No. 5 informed the Petitioner that, pursuant to the Management’s letter dated 20th August 1999, he was to be paid a subsistence allowance of Rs. 2,204/- per month from 5th December 1997 to 31st March 1998, and thereafter Rs. 825/- per month from 1st April 1998 until further orders.

11. The Petitioner faced trial in Sessions Case No. 145 of 1998 before the learned Xth Additional Sessions Judge, Pune. By its Judgment and Order dated 7th December 1999, the Petitioner was convicted of offences under Sections 498A and 306 of the IPC. The Petitioner, who had been on bail until then, was directed to be taken into custody.

12. Being aggrieved by the said order of conviction and sentence, the Petitioner preferred Criminal Appeal No. 703 of 1999 before this Court, together with an application for bail. This Court admitted the appeal and ordered the Petitioner's release on bail, and he was accordingly released with effect from 22nd December 1999.

13. By a letter dated 30th December 1999, the Respondent No. 4 called upon the Petitioner to inform it, within eight days, whether he had filed any appeal, revision or writ petition against the judgment of conviction, and to forward a copy thereof. Failing this, Respondent No. 4 informed him that it would be presumed that no such proceedings had been initiated, and that action would be taken against him under the Secondary Schools Code and the MEPS Rules. It was further stated that, in view of his conviction and sentence, the Petitioner would be entitled only to a nominal subsistence allowance of Re. 1/- per month, and that he should not interfere with the functioning of the school or of the Management pending the enquiry. The Petitioner informed Respondent No. 4 of the Criminal Appeal he had filed. By a letter dated 8th May 2000, Respondent No. 3 enquired of Respondent No. 4 about the action taken against the Petitioner in view of his conviction, and by a reply dated 12th June 2000, Respondent No. 4 informed Respondent No. 3 that the Petitioner had filed a Criminal Appeal before this Court and that further action would be taken only after the said appeal was decided.

14. At no time, neither upon the Petitioner's arrest nor upon his conviction, did the Respondent Nos. 4 and 5 initiate any disciplinary proceedings against him. No Enquiry Committee was constituted under the MEPS Rules, and no order was passed terminating him from service. The Petitioner remained under suspension.

15. The subsistence allowance was paid to the Petitioner only until 10th December 2001 and was discontinued thereafter. Repeated requests and applications by the Petitioner to Respondents No. 3 to 5 evoked no response.

16. The Petitioner thereafter approached the Lok Ayukta, Maharashtra State, at Mumbai, with the grievance that he had not been paid any subsistence allowance during his suspension. The Lok Ayukta issued notice to Respondents No. 2 to 5 and conducted hearings from time to time. By a letter dated 23rd November 2017, Respondent No. 3 communicated its Rules on the suspension and termination of employees. A report was called for explaining why such action had not been taken.

17. By an order dated 16th May 2018, Respondent No. 2 again directed Respondent No. 4 to take action to pay the subsistence allowance to the Petitioner in accordance with the MEPS Rules. That order was neither challenged nor complied with.

18. On the basis of the hearing held on 20th March 2018, the Lok Ayukta passed an order dated 20th March 2018, holding that the Management had retained the Petitioner in service and kept him under suspension, and that, in these circumstances, it was necessary to pay him the subsistence allowance; and further that, if the Management did not discharge that responsibility, the Respondent No. 2 should arrange to pay the subsistence allowance to the Petitioner by the end of May 2018, deducting the amount from the grants sanctioned to the Management. The Management did not comply with the said order.

19. By a further order dated 11th May 2018, communicated to Respondent No. 3, the Lok Ayukta directed Respondents Nos. 2 and 3 to verify and pay the subsistence allowance to the Petitioner. By a letter dated 27th June 2018, Respondent No. 3 directed Respondent No. 5 to comply with the Lok Ayukta's order and to furnish particulars of the amounts paid to the Petitioner and those still payable towards subsistence allowance.

20. In the meantime, the Petitioner had approached the School Tribunal at Pune, questioning the Management's inaction in not permitting him to resume duty. The School Tribunal rejected his application on the ground that it had no jurisdiction to entertain proceedings assailing an order of suspension.

21. Ultimately, by an order dated 30th July 2018, Respondent No. 3 directed that the Petitioner be paid subsistence allowance from the non-grant admissible to the Management. Accordingly, the Petitioner received an amount of Rs. 9,61,148/-on or about 30th July 2018. No further payment was made to him towards subsistence allowance, nor was he permitted to resume duty. On the Petitioner’s further complaint, the Respondent No. 2, by a letter dated 20th October 2018, directed Respondent No. 3 to take the necessary action.

22. As no action was taken, the Petitioner made an application dated 1st November 2018 to the Lok Ayukta seeking a further hearing. By a letter dated 8th January 2019, the Director of Education (Secondary and Higher Secondary), M.S., Pune directed that appropriate action be taken on the Petitioner’s request that his post at Respondent No. 5 school be cancelled, that the post, along with the salary grant, be transferred to or absorbed in another school, and that a compliance report be submitted. By a letter dated 9th January 2019, the office of the Lok Ayukta directed Respondent No. 3 to take action on the Petitioner’s complaint. Respondent No. 3 accordingly heard the parties on 15th June 2019 and passed an order observing that, as the Criminal Appeal filed by the Petitioner was pending before this Court, the Petitioner should, in the meantime, be permitted to resume duty and be paid salary and allowances. The said order was forwarded under cover of a letter dated 1st August 2019.

23. The Respondents No. 4 and 5 assailed the orders dated 18th December 2017, 24th May 2018 and 27th June 2018 passed by Respondent No. 3 before this Court by filing Writ Petition No. 335 of 2019 before this Court. By its Order dated 25th February 2019, this Court stayed the impugned orders. Consequently, no further amount was paid to the Petitioner towards subsistence allowance.

24. By a Judgment and Order dated 6th February 2025, this Court quashed and set aside the Judgment and Order of conviction dated 7th December 1999, passed by the learned Additional Sessions Judge, Pune, and the Petitioner was acquitted of the offences punishable under Sections 498A and 306 of the IPC. According to the Petitioner, the order of acquittal has not been further challenged and has attained finality.

25. The Petitioner reached the age of superannuation on 28th February 2023. Since the Petitioner retired before the acquittal order, he never resumed his duties.

26. Following his acquittal, the Petitioner submitted an application dated 3rd March 2025 to the Director of Education and Respondent No. 3, enclosing a copy of this Court’s judgment and requesting that the Management be directed to cancel the order of suspension and to pay him all consequential benefits. By a letter dated 24th March 2025, Respondent No. 3 directed the Respondents No. 4 and 5 to take appropriate action in accordance with the rules in light of the Petitioner’s acquittal. By a letter dated 2nd April 2025, the Director of Education directed Respondents No. 2 and 3 to take action at their level. As no action followed, the Petitioner submitted a reminder dated 15th May 2025 to Respondent No. 3, and thereafter a representation dated 21st May 2025 to Respondents Nos. 2 and 3 and to other officers of the Education Department. By a letter dated 17th June 2025, the Director of Education called for a report on the Petitioner’s case from the Respondents concerned.

27. The Petitioner's case is that he has not received any retiral benefits nor has he been permitted to resume his duties. Accordingly, he has filed the present petition for the relief sought. He seeks arrears of subsistence allowance, arrears of salary and allowances, retiral benefits, including monthly pension with effect from 1st March 2023, and gratuity.

28. We have heard Mr. Narendra V. Bandiwadekar, learned Senior Advocate for the Petitioner, and Ms. N.M. Mehra, learned AGP for Respondent Nos. 1 to 3. We have perused the record with their assistance. Although served, there is no appearance on behalf of Respondent Nos. 4 and 5.

29. Mr. Bandiwadekar, learned Senior Advocate for the Petitioner, has urged, in short, the following contentions:

                    (a) The Petitioner's services were suspended pursuant to his arrest in the pending criminal case against him, not pursuant to any disciplinary enquiry initiated by the employer.

                    (b) The Petitioner was in custody for ten days alone, and a deemed suspension based on that detention could not have been carried forward for over twenty-five years, until his superannuation.

                    (c) No enquiry having ever been instituted, the Petitioner ceased to be under suspension upon the expiry of 120 days under Rule 37(2)(f) and must be treated as having re-joined duty on 5th April 1998, with full salary and allowances thereafter.

                    (d) Upon acquittal, Rule 33(6) left the Management with no enquiry to either drop or proceed with, and none can now be instituted, the Petitioner having retired on 28th February 2023; he is therefore entitled to all consequential service and retirement benefits.

                    (e) In any event, and in the alternative, the subsistence allowance was never paid in accordance with Rule 34(1) of the MEPS Rules, and the Petitioner is entitled to the differential amount, with arrears, for the entire period of suspension.

30. Ms. Mehra, learned AGP, states that the subsistence allowance to the tune of Rs. 9,61,148/- has been paid to the Petitioner. She submits that the liability to pay rests with the Management, and that the State authorities shall abide by such orders as this Court may pass.

31. Admittedly, the Petitioner’s services were suspended on 5th December 1997 pursuant to the criminal case filed against him. His services have remained suspended to date. He retired on 28th February 2023 and was acquitted by Order dated 7th December 2024. Admittedly, the Petitioner never resumed his services up to the date of his superannuation. Throughout that period, neither was any disciplinary action initiated against the Petitioner nor was any order of termination of the Petitioner’s service passed. Equally, throughout that period he rendered no service to the Respondent No. 5 school.

32. Rule 34(1) of the MEPS Rules entitles a suspended employee to a subsistence allowance of 50% of his basic pay and dearness allowance for the first four months from the date of suspension, and, where the suspension is prolonged for reasons not directly attributable to him, at an enhanced rate thereafter. No reason attributable to the Petitioner is recorded in writing by the Management. The Petitioner was, however, paid a token sum of Rs. 2,204/- and thereafter Rs. 825/-per month only until 10th December 2001. Eventually, he was paid a sum of Rs. 9,61,148/- in July 2018 as subsistence allowance.

33. Upon the Petitioner’s acquittal on 6th February 2025, Rule 33(6) required the Management to consider, in light of the judgment, whether it was necessary to institute or proceed with an enquiry. Since the Petitioner retired on 28th February 2023, there was no question of a departmental enquiry against him.

34. It is also a matter of record that this Court, vide its Order dated 25th February 2019 in Writ Petition No. 335 of 2019, stayed the orders passed by the Lok Ayukta directing payment to the Petitioner. The Petitioner is a party to the said petition. Admittedly, he has never made any attempt to proceed with the hearing of the said matter nor has he prayed to vacate the stay. The petition is yet pending.

35. Before we delve into the merits of the matter, we shall reproduce the relevant provisions of the MEPS Act.

                    “33. Procedure for Inflicting major penalties.

                    (1) ……

                    (2) ……

                    (3) ……

                    (4) ……

                    (5) An employee against whom proceeding have been taken on criminal charge or who is detained under any law for the time being in force providing for preventive detention shall be considered as under suspension for any period during which he is under such detention or he is detained by police for judicial custody for a period exceeding forty-eight hours or is undergoing imprisonment, and he shall not be allowed to draw any pay and allowances for such period until the termination of the proceedings taken against him or until he is relieved from detention and is in a position to rejoin duty after producing documentary proof of his release (otherwise than on bail) or acquittal, as the case may be. An adjustment of his pay and allowances for such periods shall be made according to the circumstances of the case, the full amount being given only in the event of the employee being acquitted of charge or detention being held by the Court to be unjustified.

                    (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 any 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 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 agrees 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.

                    34. Payment of subsistence allowance

                    (1) (a) A subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half pay and in addition, Dearness Allowance based on such leave salary shall be payable to the employee under suspension.

                    (b) Where the period of suspension exceeds 4 months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first 4 months as follows, namely:

                    (i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of first 4 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the employee.

                    (ii) The amount of subsistence allowance may be reduced by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of the first 4 months, if in the opinion of the said authority the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the employee.

                    (iii) The rate of Dearness allowance shall be based on the increased or on the decreased amount of subsistence allowance, as the case may be, admissible under sub-clauses (i) and (ii).

                    (2) Other compensatory allowances, if any, of which the employee was in receipt on the date of suspension shall also be payable to the employee under suspension to such extent and subject to such conditions as the authority suspending the employee may direct:

                    Provided that the employee shall not be entitled to the compensatory allowance unless the said authority is satisfied that the employee continues to meet the expenditure for which such allowance are granted:

                    Provided further that, when an employee 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 reinstatement by the competent authority:

                    Provided also that, if an employee is acquitted by the Appellate Court and no further appeal or a revision application to a higher Court is preferred and pending, he shall draw the subsistence allowance at the normal rate from the date of acquittal by the Appellate Court till the termination of the inquiry if any, initiated under these rules:

                    Provided also that, in cases falling under sub-rules (1) and (2) above, where the management refuses to pay or fails to start and continue payment of subsistence allowance and other compensatory allowances, if any, to an employee under suspension, payment of the same shall be made by the Education Officer or Deputy Director, as the case may be, who shall deduct an equal amount from the non-salary grant that may be due and payable or may become due and payable to the school.

                    (3) In case an employee under suspension attains the age of superannuation while under suspension he shall be deemed to have been retired on attaining the age of superannuation and any departmental or judicial proceedings pending against him shall be continued even after his retirement. A provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the employee or if he was under suspension on the date of retirement upto the date immediately preceding the date on which he was placed under suspension shall be paid to him. But no amount of Death-cum-Retirement Gratuity shall be paid till his case is finally decided. Where an employee is acquitted of the charges and he is not proceeded against by the Management under sub-rule (6) of rule 33 his case shall be regulated by sub-rule (5) if his suspension is held to have been wholly unjustified, and by sub-rule (6) if it is held to have been wholly justified.

                    (4) When an employee who has been suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order-

                    (a) regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and

                    (b) regarding the said period being treated as a period spent on duty.

                    (5) Where the authority mentioned in sub-rule (4) is of the opinion that the employee has been fully exonerated or, in the case of suspension that it was wholly unjustified, the employee shall be given the full pay, allowances and pension to which he would have been entitled had he not been dismissed removed or suspended, as the case may be. The management shall bear expenditure on pay and allowances of substitute, if any, appointed in place of the employee under suspension and such expenditure shall not be held admissible for the Government grant.

                    (6) In other cases, the employee shall be given such proportion of pay and allowances and pension as the Management may decide:

                    Provided that, where the amount of provisional pension sanctioned to an employee during the period of suspension is more than the amount of pension finally held admissible, the difference of such amount shall not be recovered or adjusted from the amount of pension payable to him:

                    Provided further that, the payment of allowances under sub-rule (5) or (6) shall be subject to all other conditions under which such allowances are admissible:

                    Provided also that in a case falling under sub-rule (5) the period of absence from duty shall be treated as a period spent on duty, after the Management specifically directs that it shall be so treated (for specified purposes).”

36. Admittedly, the Petitioner was placed under suspension w.e.f. 5th December 1997. The Trial Court convicted him on 7th December 1999 for the offences for which he was tried. Under the relevant Rules of the MEPS, Respondent No. 5 could not have terminated his services, as he had preferred an Appeal against the conviction order. The Petitioner then retired. He was ultimately acquitted after his retirement. Respondent No. 5 continued the suspension of his services, for which the Petitioner approached Respondent No. 3. Respondent No. 3 directed payment of his subsistence allowance. However, Respondents No. 4 and 5 challenged the same before this Court in Writ Petition No. 335 of 2019. By order dated 25th February 2019 of this Court, passed in the said Writ Petition, Respondent No. 3’s order was stayed. Hence, Respondent No. 5 kept the matter pertaining to the Petitioner's services in abeyance.

37. During the pendency of the Writ Petition, the Petitioner sought reinstatement in his services and accordingly made a prayer before this Court in the Writ Petition. By order dated 24th February 2023, this Court declined to pass any orders on the Petitioner’s prayer. However, in the said order, this Court recorded the school’s submissions that the Petitioner’s services were terminated. The Writ Petition is still pending. It is important to note that there is no clarity regarding the status of the Petitioner's service, as the Petitioner, in the present Petition, claims that he was never terminated, while the school in the previous Writ Petition stated that the Petitioner’s services stood terminated. None has appeared for the Respondent before us.

38. Be that as it may, the issue of payment of salary or retirement benefits to the Petitioner does not arise at this stage, since the Petitioner retired before the acquittal order. Rule 33(6) restrains the management from passing any order relating to an employee’s services until the period during which the employee is entitled to prefer an appeal has expired. Hence, the school had no authority to take any decision in respect of the Petitioner’s services. We find no fault on the part of the school in keeping the Petitioner’s case in abeyance. In these circumstances, the Respondent No. 5 – school continued the suspension order. This Court stayed the Respondent No. 3’s order directing the school to pay subsistence allowance. In fact, the said order is in effect as on date.

39. In the meantime, the Petitioner superannuated. His acquittal order was passed only after his retirement. Under Rule 34(3) of the MEPS Rules, if an employee superannuates while under suspension, he is deemed to have retired on attaining the age of retirement. As mentioned hereinabove, this Court had refused relief to the Petitioner in the Writ Petition pending before this Court. There was no challenge to the said order dated 24th February 2023.

40. From the above sequence of events, it is clear that the Petitioner has worked at the school for only about three years. He has not completed the qualifying service required to be entitled to a pension. He has been paid Rs. 9,61,148/- in arrears of subsistence allowance, as required by the relevant Rules. From the date of his conviction, the school was required to pay him Rs. 1/- as subsistence allowance until his retirement. Hence, the school is duty-bound to pay the subsistence allowance to the Petitioner as per the Rules, if not already paid.

41. Accordingly, we find no merit in the present petition. We therefore pass the following order:

                    (i) The Respondents shall compute and pay to the Petitioner the subsistence allowance due to him for the period of his suspension, namely from 5th December 1997 to 28th February 2023, i.e., from the date of his suspension to the date he retired. The amount shall be computed in accordance with the relevant Rules.

                    (ii) From the amount so computed, the sum of Rs. 9,61,148/- already paid to the Petitioner shall be deducted, and the balance shall be paid to him as arrears of subsistence allowance.

                    (iii) Salary, allowances and other consequential monetary benefits shall be admissible to the Petitioner only for the period during which he actually worked, i.e., from 10th June 1994 to 4th December 1997.

                    (iv) For this purpose, the Petitioner is at liberty to make a representation to the Respondent No.3 – Education Officer and/or the Respondents No. 4 and 5 – School. If such a representation is made, the Respondents concerned shall decide it within four weeks of the date on which the representation is received by them.

42. Writ Petition is dismissed. Rule is accordingly discharged.