Bombay High Court
The President Khandesh College ... vs Gajendra Kashinath Shahane & Ors on 6 October, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 43 OF 1995
1 The President/ Chairman,
Khandesh College Education Society,
M.J.College, Jalgaon-425002.
2 The Principal,
Khandesh College Education Society,
Industrial Training Institute (I.T.I.),
Jalgaon-425002.
...PETITIONERS
-VERSUS-
1 Gajendra Kashinath Shahane,
Age : 28 years, Occupation : Service,
R/o N-9/P-G-2/20/3, Old CIDCO,
Nasik-422009.
2 The Member of the School Tribunal,
Nasik Region, Nasik.
3 The State of Maharashtra.
...RESPONDENTS
...
Advocate for Petitioners : Shri V T Chaudhary.
Advocate for Respondent No.1 : Shri N.K.Kakade.
AGP for Respondent 3 : Shri P.N.Kutti.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 06th October, 2016
Oral Judgment :
1 Respondent Nos.2 and 3 being formal parties, stand deleted
from these proceedings.
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2 The Petitioner/ Management is aggrieved by the judgment
dated 30.04.1994 delivered by the School Tribunal, Nashik in Jalgaon
Appeal No.3/1991 by which the Petitioner is directed to reinstate
Respondent No.1/ Employee with continuity and all benefits w.e.f.
31.07.1989.
3 While admitting this petition, this Court has not stayed the
impugned judgment. Pursuant to the impugned judgment, the Petitioner
has reinstated the Respondent/ Employee in service. However, from
07.06.1999, the Respondent/ Employee is untraceable and has not
reported for duties. Despite this matter being on the board for 14 months
for final hearing on several occasions in between 18.06.2015 till today, the
learned Advocate for the Respondent/ Employee submits that no contact
could be established with the Respondent/ Employee and there are no
further instructions.
4 Considering the fact that this Court did not stay the impugned
judgment and the Respondent/ Employee was reinstated in service, I do
not find it appropriate to cause any interference in the impugned
judgment to the extent of the order of reinstatement. At the same time,
the statement of the Petitioner/ Management is recorded in the light of
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page 96-W of the petition paper book that the Respondent/ Employee is
not reporting for duties and is absconding from 07.06.1999. This,
therefore, would amount to abandonment of service.
5 Insofar as the payment of 100% back wages granted by the
School Tribunal is concerned, Shri Chaudhary, learned Advocate for the
Petitioner/ Management, strenuously submits that the Respondent/
Employee had not filed any affidavit before the School Tribunal to contend
that he was unemployed after his purported oral termination w.e.f.
31.07.1989 and that he failed to acquire alternate employment despite
making efforts to secure such employment. Yet, the School Tribunal has
mechanically granted the back wages.
6 Shri Kakade, learned Advocate for the Respondent/
Employee, submits that once the termination is held to be illegal, grant of
back wages is a natural relief which the Employee cannot be deprived of.
He further submits that it is an admitted position that the Respondent/
Employee was kept out of employment orally and there was no
termination order. If the act of the Management of keeping the Employee
away from work illegally is established, the back wages should be
naturally granted.
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7 The Honourable Supreme Court, in the matter of J.K.
Synthetics Limited vs. K.P.Agrawal, 2007(2) SCC 433, has observed in
paragraph 18 as under:-
"18. Coming back to back wages, even if the court finds it
necessary to award back wages, the question will be
whether back wages should be awarded fully or only
partially (and if so the percentage). That depends
upon the facts and circumstances of each case. Any
income received by the employee during the relevant
period on account of alternative employment or
business is a relevant factor to be taken note of while
awarding back wages, in addition to the several
factors mentioned in Rudhan Singh [(2005) 5 SCC
591, G.M. Haryana Roadways vs. Rudham Singh]
and Uday Narain Pandey [(2006) 1 SCC 479,
U.P.State Brassware Corpn. Ltd. vs. Uday Narain
Pandey]. Therefore, it is necessary for the employee to
plead that he was not gainfully employed from the
date of his termination. While an employee cannot be
asked to prove the negative, he has to at least assert
on oath that he was neither employed nor engaged in
any gainful business or venture and that he did not
have any income. Then the burden will shift to the
employer. But there is, however, no obligation on the
terminated employee to search for or secure
alternative employment. Be that as it may."
8 It is, therefore, evident from the observations reproduced
above that unless an employee leads evidence or steps into the witness
box to plead unemployment and establishes that he was unable to earn
anything, the back wages cannot be granted. As such, taking into account
that there was no pleading or evidence before the School Tribunal to the
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extent of supporting the claim for back wages and considering the fact
that the School Tribunal has not adduced even a single sentence in
support of granting back wages, the impugned judgment to the extent of
grant of back wages deserves to be quashed and set aside.
9 In the light of the above, this Writ Petition is partly allowed.
The direction of the School Tribunal to the extent of payment of back
wages is quashed and set aside. In the event, the Respondent/ Employee is
entitled for any retiral benefits till 07.06.1999 from which date he has
abandoned employment and considering that he had joined service on
22.08.1986, the Management shall make the said payment of retiral
benefits in the event the Respondent/ Employee appears and makes a
request to the Management by way of staking a claim.
10 Rule is made partly absolute in the above terms.
11 It is made clear that the issue as to whether, the Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act, 1977
is applicable to the Industrial Training Institute, has not been dealt with by
this Court in this petition considering the peculiar facts as recorded above.
kps (RAVINDRA V. GHUGE, J.)
