Vikas Rambhau Rathkanthiwar vs Sadashivrao Patil Shikshan ...
2018 Latest Caselaw 1130 Bom

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

                  WRIT PETITION NO.1091 OF 2012


   Vikas Rambhau Rathkanthiwar,
   R/o. Jaistambh Square,
   Kamptee, District-Nagpur.                                    ,..              Petitioner

                                .. Versus ..

   1]     Sadashivrao Patil Shikshan Sanstha,
          Through its President,
          Yadavrao Bhoyar,
          R/o. Kamptee, District-Nagpur.

   2]     Kamptee Polytechnic College,
          Kamptee, District-Nagpur,
          Through its Principal.

   3]     Deputy Director of Technical
          Education, Sadar, Nagpur.                             ..         Respondents



                      ..........
   Shri H.A. Deshpande, Advocate for Petitioner,
   Ms. N.P. Mehta, A.G.P. for Respondent No.3.
                      ..........

                                CORAM : B.P. DHARMADHIKARI, J.

DATED : JANUARY 30, 2018.

ORAL JUDGMENT :

1] Appeal filed by present petitioner before School

Tribunal questioning his termination from employment on

1.10.1996 is allowed by School Tribunal partly on

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17.10.2011. School Tribunal has granted him

reinstatement with other consequential benefits, except

back wages.

2] Appellant before School Tribunal is petitioner

and he claims back wages for period from 1.10.1996 up

to 28.11.2011.

3] Advocate Shri Deshpande has pointed out

affidavit filed before School Tribunal on 17.10.2011 to

prove entitlement to back wages. He is relying upon the

judgment of Hon'ble Apex Court reported in (2013) 10

SCC 324 [Deepali Gundu Surwase .vs. Kranti Junior

Adhyapak Mahavidyalaya (D.ED.) and others] to

urge that the income which petitioner earned during this

period is disclosed in that affidavit and that can be

deducted from the quantum of back wages. He has also

invited attention to previous history to urge that it was

victimization and after nine years suddenly petitioner

was thrown out of employment. He contends that in this

situation the denial of back wages or reasons in support

thereof given by School Tribunal are unsustainable.

4] Amount earned by petitioner to make both ends

meet during said period or then his refusal to accept

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conditional offer made by management cannot be

viewed as adverse material. He submits that when

management came to this Court in earlier Writ Petition

No.1336/2000, the submission of management that it

would consider present petitioner for providing work in

case vacancy becomes available was taken note of.

In an Letters Patent Appeal filed thereafter, management

made an offer of reinstatement provided petitioner

waives all back wages. Petitioner was not in position to

waive back wages and, therefore, could not join back.

This inability to accept conditional reinstatement or then

amount earned by petitioner when he was out, therefore,

at the most could have been used to bring down the

quantum, but denial thereof is unjustified.

5] Learned A.G.P. Ms. Mehta for respondent no.3

supports the judgment of School Tribunal. She points

out that denial of conditional offer by petitioner brings on

record bargaining capacity and hence the availability of a

proper source of income. This source of income is also

disclosed in affidavit filed before School Tribunal on

17.10.2011. She submits that income disclosed therein

may not be accepted as correct or complete disclosure.

According to her, judgment delivered by School Tribunal

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evaluates all aspects and there is no jurisdictional error.

6] Advocate Shri Deshpande, in brief reply,

submits that management has not disputed the affidavit

dated 17.10.2011 filed before School Tribunal.

7] It is not in dispute that respondent nos.1 and 2

have an unaided institute and petitioner is working in it.

Thus, respondent no.3-State Government is not required

to shoulder the burden of either back wages or salary of

petitioner. The School Tribunal has decided Appeal

No.STN/316/1996 on 17.10.2011, after Writ Petition

No.1336/2000 was disposed of by this Court and matter

was remanded back to it. After remand, petitioner has

filed above mentioned affidavit dated 17.10.2011 to

place on record his activities after his termination. The

assertions therein are on oath and had not been disputed

by respondent nos.1 and 2. He has mentioned that he

was not gainfully employed from 1.10.1996 up to

1.7.1997. After 1.7.1997, he started private tuitions and

during academic years 1997-1998 to 1999-2000, he

could earn Rs.30,000/- per year. Thereafter, till 2004-

2005, he was earning amount of Rs.50,000/- per year.

  In    addition,        he    started      functioning             as      educational




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consultant from academic session 2005-2006 and got

Rs.30,000/- per year as such consultant and Rs.50,000/-

per year from private tuitions till 2006-2007. From

academic session 2007-2008, he was earning Rs.50,000/-

per year as educational consultant and Rs.50,000/- per

year through private tuitions. His total income for

session 2009-2010 was Rs.1,00,000/- per year from

consultancy business and Rs.50,000/- from private

tuitions.

8] Appellant-Petitioner therefore has placed on

record a heavy growth in his income. After judgment of

School Tribunal mentioned (supra), he has chosen to join

back respondent nos.1 and 2 and is presently working

with them. Judgment of School Tribunal is of same date

i.e. the date on which affidavit placing on record details

of income has been sworn and, thereafter. The School

Tribunal has mentioned that affidavit in paragraph 28 of

its judgment.

9] Judgment delivered by Hon'ble Apex Court in

case of Deepali Gundu Surwase (supra), particularly

paragraphs 23, 25, 37 and conclusions in paragraph 38

show that normal rule, in such circumstances, is to award

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back wages. Here, the question of burden does not arise

as petitioner has already filed an affidavit before School

Tribunal pointing out the sources as also income

generated therefrom. Hon'ble Apex Court has found that

if the income from such other source is not at par with

wages and wages are more, the amount by which wages

exceeds such income, can be directed to be paid. In

other words, amount of back wages can be reduced by

income earned during the period. Here, there is no

finding by School Tribunal or then any reply by

management showing that amount payable as wages

would have been less than the income reflected in

affidavit.

10] The fact that management was aware of its

responsibility or liability is apparent from statement

made on 27.3.2001 in Writ Petition No.1336/2000. It is

also apparent from conditional offer given to present

petitioner in Letters Patent Appeal. In paragraph 28, the

School Tribunal has, after considering affidavit, concluded

that petitioner earned considerable amount for which he

was required to pay income tax. It has also found that

there is no record to gather what amount of salary he

would have received during said period had he not been

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terminated. It has, therefore, preferred to follow

principle of 'no work, no pay'.

11] Liability to pay income tax cannot be a factor

relevant to decide entitlement or otherwise towards back

wages. If wrongful termination is established, the

employee needs to be paid wages. However, if during

said period, he has earned amount which was hardly

sufficient to meet his needs, that amount can also be

ignored. Here, in affidavit, petitioner has disclosed

sizable income and it cannot be said that the disclosure

is incorrect. Burden to demonstrate falsity therein was

upon respondent nos.1 and 2, they failed to do so.

Petitioner could have disclosed lesser amount and the

School Tribunal then could not have observed that he

was required to pay income tax.

12] The period for which back wages are payable is

from 1.10.1996 till 28.11.2011 i.e. almost 15 years. It is

settled law that in such situation, 1/3 of the wages need

to be granted as back wages. Similarly, considering the

fact that petitioner lost his employment and then

struggled to earn livelihood, fact that he may have

earned some/sizable amount during said period may not

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be that decisive. The income disclosed by him,

therefore, need not be deducted from the back wages

payable to him.

13] Taking overall view of the matter, I find refusal

of School Tribunal to grant back wages to petitioner

unsustainable. Respondent nos.1 and 2 have to pay back

wages that is 1/3 of the total amount of back wages

which are due and payable to petitioner for period

1.10.1996 to 28.11.2011. Respondent nos.1 and 2 shall

accordingly complete the exercise of calculating the

wages for said period as per law within four weeks after

communication of this order to them and, thereafter,

shall arrange to pay one third of the same to petitioner

within next two months. If the amount is not paid,

petitioner will be entitled to interest calculated at 8% on

said amount from today till its realization.

14] Writ Petition is thus partly allowed. Rule made

absolute accordingly. No costs.

JUDGE Gulande