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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No.
22
of 201
0
in
Writ Petition No. 1469 of 2008 (D)
1. Shri Shivaji Education Society,
Amravati, Through its Secretary,
Amravati Office at Shivaji Nagar,
Amravati, Tq.and Distt. Amravati
2. The Headmaster,
Kasturba Kannya Shala,
Belpura, Amravati
Tq.and Distt. Amravati .... APPELLANTS.
Vs.
1. Ravindra S/o Kashirao Deshmukh
Aged about 41 years,
R/o Chandak Bank
Near Bahtkull, Panchayat Samiti,
Camp, Amvavati
Tq.and District Amravati
2. The Education Officer,
(Secondary) Zilla Parishad,
Amravati .... RESPONDENTS
----------------------------------------------------------------------------------
Shri Sambhare, counsel for appellant No.1 Shri P.D.Meghe, counsel for respondent No.1
---------------------------------------------------------------------------------- Letters Patent Appeal No. 153 of 201 0 in Writ Petition No. 1469 of 2008 Ravindra S/o Kashirao Deshmukh Aged about 43 years, R/o Chandak Bhavan Near Bahtkuli Panchayat Samiti, Camp, Amvavati .. APPELLANT.
Vs.
1. Shivaji Education Society,
Amravati, Through it's Secretary,
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2. The Head Master,
Kasturba Kannya Shala,
Belpura, Amravati
3. The Education Officer,
(Secondary)
Zilla Parishad, Amravati .... RESPONDENTS
---------------------------------------------------------------------------------- Shri P.D.Meghe, counsel for appellant Shri Sambhare, counsel for respondent No.1
---------------------------------------------------------------------------------- CORAM : B. P. DHARMADHIKARI AND MRS. SWAPANA JOSHI, JJ DATED : OCTOBER 5, 2017.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.) Termination of employee, part time librarian, on 02/08/2002 by his employer / college was set aside by the School Tribunal, Amravati on 28/11/2007. The School Tribunal has granted the relief of reinstatement on the post of part time librarian with continuity and back wages from 02/08/2002 till the date of Judgment i.e. 28/11/2007.
2. The employer Education Institute and college challenged this judgment in Writ Petition No. 1469/2008 before the learned Single Judge. On 04/11/2009, the learned Single Judge dismissed the petition filed by the employer. However, the quantum of back wages awarded by the School Tribunal was reduced to 50%. The learned Single Judge ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:50:02 ::: 3 lpa22.10.odt directed the employer to continue to pay the salary to the employee and also directed that 50% back wages would be paid till his reinstatement in service.
3. It appears from the Judgment of the School Tribunal and learned Single Judge that though post of part time librarian sanctioned in employer institution lapsed in the academic year 1994-95, as such the employer was constrained to terminate the employee as grants were not being received. The learned Single judge, therefore, directed the competent authority (the State Government) to consider the proposal of the employer management to grant sanction to that post within stipulated time. This Judgment of the learned Single Bench is questioned by the employer in LPA No.22/2010. The employee, who has been denied 50% of back wages has filed LPA No. 153/2010, claiming 100% back wages.
4. Accordingly, we have heard Adv. Shri Sambhare for the employer, Adv. Shri Meghe for the employee and learned AGP for the Education Officer.
5. It is not in dispute that because of the directions issued by the learned Single Judge, the post which was allowed to be lapsed in the year 1994-95 has been now sanctioned and is available since 2011. The order of the State Government specifically mention that said post of ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:50:02 ::: 4 lpa22.10.odt part time librarian is revived from 08/08/1995 but grants for it shall be released perspectively by the State Government. The employee, therefore, is now holding sanctioned post of 'part time librarian' and he is receiving his current salary through public revenue.
6. During pendency of the Writ Petition while considering the prayer clause 'A', direction was issued and employer was asked to deposit back wages. The employer accordingly deposited full back wages in obedience to the directions of the School Tribunal. The employee then sought leave to withdraw that amount and that application was also allowed. With the result, the employee has received full back wages and in view of final judgment, he is obliged to refund half of it to the management.
7. In this situation, Adv. Shri Meghe on behalf of the employee submits that after 08/08/1995, petitioner has not received wages at all and the back wages are also up to the date of the judgment delivered by the School Tribunal. He points out that as a part time librarian, meager sum is payable to the employee and in this situation, it is difficult for him to refund it. He submits that in this peculiar circumstances as there is no fault on the part of the employee, recovery should not be permitted.
8. Adv. Mr. Sambhare submits that for work done wages have ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:50:02 ::: 5 lpa22.10.odt been paid to the employee. He further states that after the directions issued by the learned Single Judge, the employer is entitled to receive lack excess amount received by the employee. He pointed that in appeal before the Single Judge, there was no assertion of absence of any gainful employment.
9. Adv. Mr. Meghe in reply submits that absence of gainful employment or not pleading that absence cannot be fatal in the present facts.
10. Appeal before the School Tribunal is required to be filed within 30 days of cause of action. It is decided on the basis of appeal memo and reply thereof. No oral evidence as such is adduced. Appeal No. 46/2002 filed by the employee in the present matter has been decided on 28/11/2007 i.e. almost after 5 years. It is well known that in the Judgment before the Hon'ble Apex Court in the case of U.P. State Brassware Corpn. Ltd. and Another Vs. Uday Narayan Pandey 2006 SCC 479, the burden was upon the employer to show availability of gainful employment.
11. In this situation, we cannot permit recovery from the ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:50:02 ::: 6 lpa22.10.odt person who was out of employment for more than 5 years and was contesting the cases before various Courts. At the same time, we cannot expect the employer also to shoulder the burden entirely. Post of part time librarian was sanctioned and available in the earlier academic year. In later academic year, there was no sanction but then there was no rejection thereof. 2011 order of the State Government in reviving that post / sanction retrospectively from 1995 shows that the workload was continuously available since then. Had there been a timely sanction, perhaps the employer would not have been constrained to terminate the appellant.
12. In this situation, taking overall view of the matter we direct the Education Officer to reimburse the employer 50% back wages paid by it. Thus, in this situation, since the recovery has become necessary for no fault on the part of the employee and employer, we find that interest of justice can be met with only by partially modifying the impugned judgment delivered by the learned Single Judge.
13. Accordingly, we direct that the management shall pay full back wages to respondent No.1 till the date of the judgment of ::: Uploaded on - 12/10/2017 ::: Downloaded on - 13/10/2017 00:50:02 ::: 7 lpa22.10.odt the School Tribunal. 50% thereof shall be reimbursed to it by respondent No.2 Education Officer within four months after it submits the bill therefor.
14. With these directions, we dispose of both the letters patent appeals. No costs.
JUDGE JUDGE
MP Deshpande
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