Bombay High Court
Ravindra Kashirao Deshmukh vs Shivaji Education Society, ... on 5 October, 2017
Bench: B.P. Dharmadhikari
1 lpa22.10.odt
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.
of 201
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,
2 lpa22.10.odt
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
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
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
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
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
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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
