Case Note & Summary
The petitioner, Faiz Ahmed Mohammed Ali Khot, was appointed as an Assistant Teacher on probation on 1st July 1997 at a school conducted by the 5th respondent society. He was deemed confirmed after probation. On 21st December 2016, an FIR was registered against him under Section 377 IPC and Sections 10 and 12 of the POCSO Act. He applied for leave, which was not considered, and he was not allowed to resume duty. He obtained anticipatory bail on 27th July 2017. The school management applied for permission to suspend him on 6th April 2007, but no formal suspension order was passed. The petitioner filed a writ petition seeking reinstatement with back wages and continuation of salary. The court held that the petitioner was deemed confirmed after probation, the suspension was illegal due to lack of a formal order, and he was entitled to full back wages and continuation of salary during suspension. The petition was allowed with directions to reinstate the petitioner with continuity of service and back wages.
Headnote
A) Service Law - Deemed Confirmation - Probation - An employee appointed on probation who continues in service without a formal order of confirmation is deemed to have been confirmed after the probation period - The court held that the petitioner, appointed on 1st July 1997, was deemed confirmed after satisfactory completion of probation (Paras 2, 10).
B) Service Law - Suspension - Subsistence Allowance - Suspension without a valid order is illegal and the employee is entitled to full salary for the period of illegal suspension - The court held that the petitioner was entitled to subsistence allowance during suspension and full back wages upon reinstatement (Paras 11-13).
C) Criminal Law - POCSO Act - Suspension - Mere registration of an FIR under the Protection of Children from Sexual Offences Act, 2012 does not automatically justify suspension without following due process - The court held that the school management's failure to pass a formal suspension order rendered the suspension invalid (Paras 8, 12).
Issue of Consideration
Whether the petitioner is entitled to reinstatement with back wages and continuation of salary during suspension period despite criminal charges under POCSO Act
Final Decision
The court allowed the writ petition, directing the respondents to reinstate the petitioner with continuity of service and full back wages, and to continue his salary during the suspension period.
Law Points
- Deemed confirmation after probation
- suspension without valid order
- right to subsistence allowance
- reinstatement with back wages
- continuation of salary during suspension
Case Details
2022 LawText (BOM) (05) 25
Writ Petition No. 3638 of 2019
A.S. Chandurkar, G.A. Sanap
Mr. A.A. Maniyar for the Petitioner, Mr. Kedar Dighe, AGP for Respondent Nos. 1 to 4, Mr. S.C. Naidu a/w. Mr. Shaikh Nasir Masih for Respondent Nos.5 and 6
Faiz Ahmed Mohammed Ali Khot
The State of Maharashtra, The Director of Education, The Deputy Director of Education, The Education Inspector, The President Bombay Memons' Education Society, The Head Master Farooq Sattar Oomerbhoy High School for Boys
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Nature of Litigation
Writ petition challenging illegal suspension and seeking reinstatement with back wages
Remedy Sought
Petitioner sought reinstatement with continuity of service, back wages, and continuation of salary during suspension period
Filing Reason
Petitioner was not allowed to resume duty after obtaining anticipatory bail in a criminal case under POCSO Act, and no formal suspension order was passed
Previous Decisions
Anticipatory bail granted on 27th July 2017; application for suspension by school management dated 6th April 2007 was not decided
Issues
Whether the petitioner is deemed to have been confirmed after probation
Whether the suspension of the petitioner was legal and valid
Whether the petitioner is entitled to reinstatement with back wages and continuation of salary during suspension
Submissions/Arguments
Petitioner argued that he was deemed confirmed after probation and his suspension was illegal as no formal order was passed
Respondents argued that the petitioner was not confirmed and suspension was justified due to criminal charges
Ratio Decidendi
An employee on probation who continues in service without a formal confirmation order is deemed confirmed after the probation period. Suspension without a valid order is illegal, and the employee is entitled to full salary for the period of illegal suspension and reinstatement with back wages.
Judgment Excerpts
The Petitioner is serving as an Assistant Teacher in the School conducted by the 5th Respondent.
After his appointment on probation on 1st July 1997, it is the case of the Petitioner that he is deemed to have been confirmed on that post and since then he has been serving at the said school.
A complaint came to be lodged against the Petitioner under Section 377 of the Indian Penal Code read with Sections 10 and 12 of the Protection of Children from Sexual Offences Act, 2012.
Procedural History
FIR registered on 21st December 2016; anticipatory bail granted on 27th July 2017; school management applied for suspension on 6th April 2007; writ petition filed in 2019; judgment pronounced on 4th May 2022.
Acts & Sections
- Indian Penal Code, 1860: 377
- Protection of Children from Sexual Offences Act, 2012: 10, 12
