Bombay High Court
Rajeshkumar Omkarrao Pachpor vs Late Narayanrao Bhihade Smruti ... on 9 August, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.353/2010
PETITIONER : Rajeshkumar Omkarrao Pachpor
Age : 36 years, Occp: Service,
R/o at post - Telhara, Tq. Telhara,
Distt. Akola.
...VERSUS...
RESPONDENTS : 1. Late Narayanrao Bhihade Smruti Sanstha,
Telhara, through its President, R/o At-post :
Telhara, Tq. Telhara, Distt. Akola.
2. Late Narayanrao Bihade Vidyalaya, Warud
Bu. Tq. Telhara, Distt. Akola, through its
Headmaster.
3. The Education Officer (Secondary), Zilla
Parishad, Akola, Tq. Distt. Akola.
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Shri P.A. Kadu, Advocate for petitioner
Shri Sachin Zoting, Advocate for respondent nos.1 and 2
Shri S.A. Ashrigade, Addl. G.P. for respondent no.3
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CORAM : AVINASH G. GHAROTE, J.
DATE : 09/08/2021
ORAL JUDGMENT
1. Heard Shri P.A. Kadu, learned Counsel for the petitioner,
Shri Sachin Zoting, learned Counsel for the respondent nos.1 and 2
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and Shri S.A. Ashirgade, learned Additional Government Pleader for
the respondent no.3.
2. The petitioner, was appointed as an Assistant Teacher
with the respondent no.1 on 25/6/1996, however, he came to be
terminated by an order dated 8/11/2007, which was challenged
before the learned School Tribunal by way of an appeal bearing
Appeal No.36/2008. The learned School Tribunal, by judgment
dated 29/11/2008, set aside the order of termination and directed
reinstatement of the petitioner, within 30 days from the date of the
judgment on the post of Physical Teacher/PTI, which he was holding
prior to the date of termination. Further direction was issued to
record the continuity of the service of the petitioner in the service
book. The relief of back wages was denied.
3. Against the judgment of the learned School Tribunal
granting reinstatement, the Management - respondent nos.1 and 2
preferred Writ Petition No.1289/2009, which came to be dismissed
on 27/8/2009, and thus the relief of reinstatement as directed by
the learned School Tribunal, came to be confirmed. This was not
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challenged any further by the Management. As against the denial of
the relief of back wages by the learned School Tribunal, the present
petition has been filed.
4. A perusal of the impugned judgment, indicates, that no
reasons whatsoever, have been given by the learned School Tribunal
for refusal of the relief of back wages. Neither the impugned
judgment records a contention on behalf of the Management that for
the period the petitioner was out of employment, he was otherwise
gainfully employed. In fact, the findings rendered by the learned
School Tribunal point out that the petitioner, was forced to go on
leave.
5. The reliance placed by the learned Counsel for the
petitioner on Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324, being
material is quoted as under :-
" 38.3. Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make a
statement before the adjudicating authority or the court of
first instance that he/she was not gainfully employed or
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was employed on lesser wages. If the employer wants to
avoid payment of full back wages, then it has to plead and
also lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing
prior to the termination of service. This is so because it is
settled law that the burden of proof of the existence of a
particular fact lies on the person who makes a positive
averment about its existence. It is always easier to prove a
positive fact than to prove a negative fact. Therefore, once
the employee shows that he was not employed, the onus
lies on the employer to specifically plead and prove that
the employee was gainfully employed and was getting the
same or substantially similar emoluments."
6. This Court, in judgment in Writ Petition No.1289/2009
has observed that the conduct of the Management and its incharge
Headmaster, in the background as narrated therein, appeared to be
most unfair and adamant and the refusal of the incharge
Headmaster, to permit the petitioner, to resume duties when the
Education Officer had visited the institution, having already granted
approval to his appointment has been noted, in para 5 and 6
therein.
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7. In the above view of the matter, it is my considered
opinion that in view of the fact that the Tribunal has not given any
reasons for denying back wages and so also there are no pleadings
by the Management of the petitioner being gainfully employed for
the duration when he was out of service, namely, between
8/11/2007 to 29/11/2008, I deem it appropriate that the petitioner
is entitled to back wages, on par which he was getting prior to his
date of termination.
8. The writ petition is accordingly allowed. Rule is made
absolute in the aforesaid terms. There shall be no order as to costs.
(AVINASH G. GHAROTE, J.)
Wadkar
