Judgment:
Oral Order: (Anoop V. Mohta, J.)
1. For an offence under Sections 354, 504, 506 (2) of Indian Penal Code on an online complaint filed by one temporary employee (sweeper) after due enquiry apart from release order in favour of the Petitioner dated 14.12.2012 passed by the learned Metropolitan Magistrate, 9th Court, Bandra, on his bail application. Now, the statement is made by the learned counsel appearing for the State that the police have filed 'C' Summary Report and the same is pending for acceptance. Even otherwise after the departmental enquiry, the Committee has recommended and made observations against the Petitioner only to the following extent:
œThe Recommendations:
¢ ¦..
¢ Mr. Chougule HoD, should make immediate arrangements for a separate changing room for male staff members, away from the common staff room.
¢ The complaints of Ms “ Dhoke and Ms. Sumra do not surely fall within the purview of sexual harassment but seen to emerge from the group dynamics that are entrenched in the department.?
2. Respondents “ University of Mumbai by communication dated 29.10.2012 directed as under:
œBy the direction of the Vice-Chancellor, you are hereby directed to manage the department as per regulations and procedures and in consultation with senior staff members. Further, you are directed to make arrangement for separate changing room for male staff members, away from the common staff room.?
3. This is a peculiar case where though Petitioner's bail application was allowed on 14.12.2012 and the order was passed on the same date by the learned Magistrate, 9th Court, Bandra, Mumbai, the surety papers in connection with the same were processed on 15.12.2012, before the another learned Magistrate 12th Court, Bandra, as the learned Magistrate 9th Court Bandra was on leave. The police report was called for verification of surety papers on 15.12.2012. The police report was presented before another learned Magistrate 32nd Court Bandra as the learned Magistrate 9th Court, Bandra, was on leave on 17.12.2012 also. Ultimately, on 17.12.2012 the petitioner was released on bail, though there was a release order in his favour on 14.12.2012.
4. Rule 4(2) (a) and (b) of The Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 deals with the various aspects of œDetention?. The Petitioner, therefore inspite of release order within 48 hours but for want of completion of formalities of verifying surety papers, detained in judicial custody and the physical detention was used against the petitioner stating it to be œdetention “ exceeding forty-eight hours?.
5. Had the bail formalities could have been completed, including the verification of the surety, the petitioner would have been released within 48 hours of the alleged detention. He suffered detention for more than 48 hours in view of uncontrolled circumstances and so also the suspension. For the service career of the Petitioner, it is necessary for the competent authority to consider this undisputed position on record, to modify or pass order in the interest of justice. The criminal prosecution and the departmental inquiry or action, are two distinct aspects of service jurisprudence. The competent authority therefore, in our view, is competent to take decision within the frame of service rules / regulations and in accordance with law.
6. Learned counsel for the Petitioner read and pointed out judgment of the Division Bench of this Court in the case of Dr. Namdeo G. Kalwale vs. State of Maharashtra and Ors. (1998(3) Bom. C.R. 305)wherein this Court after considering the basic purpose and object including the circulars so issued by the State of Maharashtra from time to time referring to the œcontinuation of suspension, beyond the period and suspension allowance?, has observed in following words:
œIn the circumstances, we find no justification for continuing the petitioner under suspension, whatever may be the fate of the inquiry against him. As indicated above, we express no opinion on the merits of the departmental inquiry.?
7. In view of above, we see there is no reason that the Respondents should not invoke the provisions of Rule (5) (a), (b) and (c) of The Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, as they are empowered to modify or revoke such suspension order.
8. Therefore, we are inclined to observe that the Respondent No. 2 Competent Authority to take decision as early as possible preferably within ten days.
9. Stand over to 15.04.2014.
10. All parties to act on the basis of an authenticated copy of this order.