1. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 06.08.2009, by which the petitioner was dismissed from service and further to direct the respondents to reinstate the petitioner in service and pay him regular salary and pay arrears thereto as also direct the respondent no.1 to pay petitioner's subsistence allowances for the period, for which, same is not paid to him.
2. The case of the petitioner is that petitioner was appointed in the Government Primary School as Assistant Primary Teacher in village- Kelana Movad, Taluka- Thasara on 25.3.1980, and thereafter, on 12.3.2003 he was transferred to Dantali, Taluka- Petlad and was working there as Head Master in Government Primary School at Dantali, Taluka- Petlad. An F.I.R. Came to be registered before petlad Rural Police Station against the present petitioner on 07.6.2006 being C.R. No. I-69/2006 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code which later on culminated into Sessions Case no. 82/2007. The petitioner came to be arrested in connection with the said F.I.R. By order dated 23.2.2007 issued by the respondent no.1 the petitioner came to be suspended with effect from 15.9.2006 on the ground that the petitioner is involved in the serious criminal offence and he was in custody for more than 48 hours. After appreciation of the evidence, the Learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Anand, by order dated 28.4.2008 convicted the present petitioner for the offence punishable under section 302 read with Section 34 of the IPC. and sentenced him to undergo life imprisonment and fine of Rs. 2,000/-. Thereafter Criminal Appeal No. 2530/2008 was preferred by the petitioner against the order of conviction before this Court which came to be admitted. By order dated 02.03.2009 the petitioner was enlarged on bail pending the appeal. Thereafter, the respondent no.2 passed an order dated 06.08.2009 dismissing the services of the petitioner. As per the order of suspension the petitioner was ordered to be paid subsistence allowances. According to the petitioner he was paid subsistence allowance for the period from 15.9.2006 to 15.3.2007, and from 15.4. 2007 to 30.4.2007. The petitioner was dismissed from service on 6.8.2009. However, the petitioner was not given subsistence allowance commencing from1.8.2008. Hence, the present petition has been filed.
3. As regards dismissal from service is concerned, it is required to be noted that the petitioner has been convicted in connection with Section 302 and other provisions of IPC. The Criminal Appeal is still pending before this Court and therefore it is within the realm of the respondents to pass orders of dismissal especially in view of the fact that the petitioner is a teacher.
4. As regards subsistence allowance is concerned, the petitioner is entitled for the same in view of the order dated 23.2.2007. The petitioner has been paid subsistence allowance from 15.9.2006 to 15.3.2007 and from 15.4.2007 to 30.4.2007. Admittedly the petitioner has not been paid subsistence allowance for the period from May 2007 to June 2007 and from 1.8.2008 till the date of his conviction. As per the rules the petitioner is entitled for such assistance allowance.
5. Therefore, the petition is partly allowed. The petitioner shall be paid subsistence allowance for the period for which he is entitled to and not paid upto the date of his conviction. Rule is made absolute to the aforesaid extent with no order as to costs.
(K.S.JHAVERI,J.) pawan Top