Geeta Ganpatrao Suryawanshi vs Shraddheya Mahila Bahuudeshiya Sanstha and Another

Bobde S.A., J.—Rule is made returnable forthwith and heard finally by consent of the parties. The petitioner has challenged order of suspension dated 12.5.2011 suspending her from the post of Headmistress for whimsical and capricious behaviour and for irregularities committed during past fourteen years.

Shri Chandurkar, learned Counsel for the petitioner, submitted that the suspension is illegal in view of the admitted fact that the management failed to obtain prior approval of the Education Officer under Rule 35(2) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The learned Counsel relied on a judgment of the Division Bench of this Court in Hamid Khan Nayyar Vs. Education Officer and Others, for the proposition that except in emergent circumstances prior approval of the Education Officer must be obtained. Rule 35 reads as follows :

Conditions of suspension :

(1) In cases where the Management desires to suspend an employee, he shall be suspended only with the prior approval of the appropriate authority mentioned in Rule 33.

(2) The period of suspension shall not exceed four months except with the prior permission of such appropriate authority.

(3) In case where the employee is suspended with prior approval he shall be paid subsistence allowance under the scheme of payment through Cooperative Banks for a period of four months only and thereafter, the payment shall he made by the Management concerned.

(4) In case where the employee is suspended by the Management without obtaining prior approval of the appropriate authority as aforesaid, the payment of subsistence allowance even during the first four months of suspension and for further period thereafter till the completion of inquiry shall be made by the Management itself.

(5) The subsistence allowance shall not be withheld except in cases of breach of provisions of sub-rules (3) or (4) of Rule 33.

The question is, whether Rule 35(4) is mandatory or directory and what is the consequence of only obtaining prior approval of the Education Officer, in this case. Generally, where law lays down a specific consequence upon failure to comply with the requirement of law, the provision must be considered as mandatory. In Sharif-ud-din Vs. Abdul Gani Lone, , the Supreme Court reiterated this position as follows:

9......Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.

Thus, since sub-rule (4) prescribes a specific consequence of suspending an employee without obtaining prior approval, the requirement of obtaining the prior approval must be considered as mandatory since rule provides for the specific consequence i.e. imposing the liability of payment of subsistence allowance on the management.

However, as regards the question, whether the failure to obtain prior approval would invariably result in nullification of the suspension order ?, while it is generally correct to say that nullification is the usual consequence of disobedience, but it is not always so as observed by the Supreme Court in Seth Banarsi Das Vs. The Cane Commissioner and Another, . The Supreme Court in para 18, observed as follows:

(18) The general rule as to which provision of law can be regarded as mandatory and which directory is stated in Maxwell on the Interpretation of Statutes at page 364:

It has been said that no rule can be laid down for determining whether the command (of the statute) is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice (R. Vs. Ingall)4, (1876) 2 Q.B.D. 199 at p. 208, per Lush, J.), and, when that result would involve general inconvenience or injustice to innocent persons, or advantage of those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

In (Vanmala Vs. National Education Society, Khamgaon)5, reported in 1982 (soft) B.C.I. 47 : 1982 Mh.L.J. 403 it is held that Rule 35 is mandatory and suspension order made without obtaining prior approval will be of no effect and void. Full Bench of this Court in Awdhesh Narayan K. Singh Vs. Adarsh Vidya Mandir Trust and Another, held that suspension made without obtaining prior approval would be void but in such a case the subsistence allowance would be borne by the Management in accordance with sub-rule (4) of Rule 35.

There are two reasons why nullification should not be considered to be the natural consequence in a case such as the present. Firstly, the law itself has provided for specific consequence of non compliance vide sub-rule (4), which lays down that non compliance will impose a liability of payment of subsistence allowance on the management. Secondly, that an automatic nullification would involve general inconvenience in the sense that an employer would be forced to bear with an employee, who has prima facie, been found to be guilty of misconduct which, in some cases, might be serious enough to warrant expulsion of an employee from the place of employment and a stripping of official powers. It would also result in conferring advantage on "those guilty of the neglect" without promoting the real aim and object of the enactment. Thus, having regard to the well settled position that Rule 35 acknowledges that suspension is an inherent right and also provides for the consequence of non compliance, which though capable of being regulated by the statute, cannot be completely defeated by taking it away from the employer altogether. Thus, it is mandatory that the prior approval must be obtained though not obtaining such approval will not result in nullification of the suspension order, it will result in consequence provided by Rule itself i.e. sub-rule (4) of imposing the liability of subsistence allowance on the Management.

We have no doubt that the Rule requires prior approval of the Deputy Director to be obtained before the management suspends one of its employees. However, the Rule itself provides for the consequence of not obtaining approval and that consequence is as follows. The consequence is provided for by sub-rule (4) supra. Thus, it cannot be said that not obtaining approval vitiates the suspension order so that it becomes ineffective. Consequence of not obtaining approval or prior approval is that the management becomes liable for payment of subsistence allowance.

We are informed that there is some dispute before us about whether the management has paid subsistence allowance to the petitioner. We direct that the subsistence allowance shall be paid to the petitioner by the management for the suspension period within a period of eight weeks from today. We further direct that the enquiry, which is at the verge of completion, be completed within a period of three weeks from today. Rule discharged. No order as to costs.