Bombay High Court
Devendra S/O Baijnath Tiwari vs Anil S/O Shyamsunder Agrawal And ... on 11 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CONTEMPT PETITION NO. 73 OF 2019
IN
WRIT PETITION NO. 733 OF 2017
Devendra s/o Baijnath Tiwari
Vs.
Anil s/o Shyamsunder Agrawal and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. A.D. Mohgaonkar, Advocate for petitioner.
Mr. A.C. Dharmadhikari, Advocate for respondent Nos.1 & 2.
Mr. K.L. Dharmadhikari, AGP for respondent Nos.3 & 4.
CORAM : MANISH PITALE J.
DATE : 11.04.2022.
When the petition is called out for
hearing, Mr. A.C. Dharmadhikari, learned counsel
appearing for respondent Nos.1 and 2 has handed
over a pursis along with documents to show that in
compliance with the direction given in the order
dated 23.03.2022, an amount of ₹ 5,00,000/- has 5,00,000/- has
been indeed paid to the petitioner. The pursis is taken
on record.
2. During the course of the arguments, the
learned counsel appearing for respondent Nos. 1 and
2 has relied upon the judgment of the Division Bench
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of this Court in the case of Kohali Rural Education
Society and anr. Vs. State of Maharashtra and Ors. ,
(judgment and order dated 24.08.2016) passed in
Writ Petition No.6274/2015, to contend that insofar
as the liability of payment of back-wages is
concerned, since the post in question on which the
petitioner was appointed was a sanctioned post and
the School is 100% grant-in-aid school with a further
assertion on the part of the respondent No.1, that the
said post remained vacant throughout the litigation
between the petitioner and respondent No.1 and no
bills were raised as regards salary for that post during
the aforesaid period, till reinstatement of the
petitioner, as per directions given in the aforesaid
judgment of the Division Bench of this Court, the
State ought to bear the burden of payment of back-
wages to the petitioner. A perusal of the aforesaid
judgment of the Division Bench of this Court shows
that the relevant portion reads thus :
"On hearing the learned Counsel for the parties, we
find that it would be necessary to direct the
respondent nos.1 and 2, in the circumstances of the
case, to release the salary in favour of the
respondent no.3. In the case before the Hon'ble
Supreme Court, the liability to pay the salary was
specifically fastened on the Management and the
State Government was discharged of its liability to
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pay the salary. Such is not the case here. In the case
before the Hon'ble Supreme Court, the
Management had sought the salary by filing a
petition and the said petition was withdrawn before
a second petition for the same relief was filed.
Though in the peculiar facts before the Hon'ble
Supreme Court, the Hon'ble Supreme Court had
held that the Management would be liable to pay
the salary and the State Government would not be
liable to reimburse it to the Management, the
Hon'ble Supreme Court has observed that generally
it would be for the State Government to release the
salary to a discharged employee of a grant-in-aid
school. In the instant case, though this Court had
directed the Management to pay the salary to the
respondent no.3, this Court had kept the issue in
regard to the reimbursement of the salary by the
petitioners from the State exchequer, open. The
issue in regard to the payment of salary by the
Management was not foreclosed by the judgment in
the writ petition. It is rightly submitted on behalf of
the petitioners that since the petitioners had not
employed any other employee in the place of the
respondent no.3 as the Headmaster and had not
secured the salary for such other employee, it
would be necessary for the respondent nos.1 and 2
to pay the salary of one employee i.e. the
respondent no.3 in this case. The post on which the
respondent no.3 was appointed was a sanctioned
post and his promotion was approved. If that is so,
the respondent no.2 could not have declined to
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reimburse the salary to the petitioners. In the facts
of this case, we are of the view that it would be
necessary for the respondent nos.1 and 2 to pay the
salary to the respondent no.3.
3. In the case of Nutan Vidarbha Shikshan
Mandal and anr. Vs. Ambadas Sitaram Satange and
anr.) and connected petitions (Writ Petition
No.5108/2013), the learned Single Judge of this
Court in similar circumstances, held as follows:
"In the impugned judgment there is a direction to pay
back-wages to the respondent No.1 from 23/05/2011
till his reinstatement. By the interim directions issued
by this Court in Writ Petition No.3382/2015 the
respondent No.1 is receiving his regular salary
pursuant to his reinstatement. Insofar as the question
of back-wages is concerned the Education Officer
would be required to examine the entitlement of the
Management to receive grants for that period. If it is
found that there was no other appointment made on
the post that was held by the respondent No.1 and
further his post was duly sanctioned, then the
Education Officer would be liable to release salary
grants in that regard."
4. The learned counsel appearing for
respondent Nos.1 and 2 submits that in fact bills for
payment of back-wages to the petitioner were
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submitted to the respondent No.3 - Education Officer,
but the same were returned. In fact, a letter dated
05.03.2022 was addressed by the respondent Nos.3 -
Education Officer to the Deputy Secretary of the
School Education and Sports Department at Mumbai,
seeking guidance in the context of the directions
given by the Division Bench of this Court in the
aforesaid case i.e. Writ Petition No.6274/2015 (Kohli
Rural Education Society and anr. Vs. State of
Maharashtra and Ors.).
5. This Court is of the opinion that in view of
the clear dictum laid down by the Division Bench of
this Court in the aforesaid judgment and a similar
direction given by the learned Single Judge of this
Court dated 10.12.2019 passed in Writ Petition
No.5108/2013 in the case of Nutan Vidarbha
Shikshan Mandal and anr. Vs. Ambadas Sitaram
Satange and anr.) and connected petitions, the
respondent No.3 - Education Officer, ought not to
have sought any guidance from the Deputy Secretary
of the concerned Ministry. The bills submitted by the
respondent Nos.1 and 2 ought not to have been
returned.
6. In view of the above, respondent Nos.1
and 2 are directed to re-submit the bills within a
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period of one week from today to the respondent
No.3 - Education Officer. It is further directed that
the respondent No.3 shall verify the bills and pass
appropriate orders for release of the back-wages
payable to the petitioner from the salary grant, in
terms of law laid down by this Court in the aforesaid
Division Bench judgment of this Court in the case of
Kohli Rural Education Society (Supra) and judgment
of the learned Single Judge of this Court in the case
of Nutan Vidarbha Shikshan Mandal and anr.
(Supra).
7. Let the exercise be completed within a
period of six weeks from re-submission of the bills
and appropriate orders be passed and consequential
action be taken.
8. Needless to say that the amount of
₹ 5,00,000/- has5,00,000/- paid by the respondent No.1 to the
petitioner will be adjusted when the actual
disbursement of the amounts takes place to the
petitioner.
9. It is made clear that no further time will
be granted to the respondents to complete the
aforesaid exercise, as the petitioner has been
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struggling for payment of back-wages for a long
period of time.
10. List for further consideration on
06.06.2022.
JUDGE
Prity
Digitally signed
by PRITY S
GABHANE
PRITY S
Date:
GABHANE 2022.04.12
14:50:20
+0530
