Bombay High Court
Bhagwan Pratisthan Through Its ... vs Bandu Dhrupatrao Dhakne And ... on 19 July, 2022
Bench: Mangesh S. Patil
Review Appln 2 22 & 3 22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION (CIVIL) NO. 2 OF 2022
IN WRIT PETITION/5339/2018
BHAGWAN PRATISTHAN THROUGH ITS EXECUTIVE TRUSTEE AND
ANOTHER
VERSUS
BANDU DHRUPATRAO DHAKNE AND ANOTHER
...
Advocate for the Applicant : Mr. S. S. Randive
Advocate for the Respondent No. 1 : Mr. R. I. Wakde
A.G.P. for the Respondent No. 2 : Mr. S. N. Morampalle
...
REVIEW APPLICATION (CIVIL) NO. 3 OF 2022
IN WRIT PETITION/7374/2018
BANDU DHRUPATRAO DHAKNE
VERSUS
BHAGWAN PRATISTHAN AURANGABAD THROUGH EXECUTIVE
TRUSTEE AND OTHERS
...
Advocate for the Applicant : Mr. R. I. Wakade
Advocate for the Respondent Nos. 1 & 2 : Mr. S.S. Randive
Advocate for the Respondent No. 3 : Mr. S. N. Morampalle.
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 15.07.2022
PRONOUNCED ON : 19.07.2022
PER COURT :
Heard the learned advocates of both the sides in both the review
applications finally.
2. The employee had preferred an appeal under Section 9 of the
Maharashtra Employees of Private School (Conditions of Service)
Regulation Act, 1977 (hereinafter 'the M.E.P.S. Act) challenging the
termination order issued by the management dated 28.02.2017. By the
judgment and order dated 27.12.2017 the Tribunal allowed the
Review Appln 2 22 & 3 22.odt
employee's appeal partly. The termination was set aside. The
management was directed to reinstate him and he was also found
entitled to but only 30% of the back wages from the date of termination
till he was reinstated. Aggrieved by such decision both the sides filed
two separate writ petitions. By a common judgment both the writ
petitions were dismissed.
3. Admittedly, the management challenged the judgment and order
of this Court before the Supreme Court but the Special Leave Petition
was dismissed.
4. The management has filed Review Application No. 2/2022 and has
prayed for modifying/reviewing the order of this Court confirming the
decision of the School Tribunal directing it to pay 30% of the back
wages. Whereas, the employee has preferred Review Petition No. 3/2022
and has requested to allow his writ petition to the extent of his claim for
100% back wages.
5. I have heard the learned advocates of both the sides in extenso.
6. Admittedly, the management had made an unsuccessful attempt to
challenge the judgment and order sought to be reviewed by preferring a
Special Leave Petition before the Supreme Court. It was dismissed. Once
having challenged the judgment and order by preferring an appeal, the
management is not entitled to seek any review. Even no liberty was
solicited and obtained from the Supreme Court while the Special Leave
Petition was being dismissed, to apply to this Court for a review. It is
indeed unbecoming of a party to take such a recourse. The Review
Petition No. 2/2022 is, therefore, frivolous and liable to be dismissed.
7. So far as the employee's review petition is concerned, his learned
advocate would submit that grant of full back wages is the norm. The
parameters have been elaborately considered and laid down in the
Review Appln 2 22 & 3 22.odt
matter of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others; 2014(2) Mh.L.J. 480.
8. The learned advocate would further submit that this Court had
refused to grant full back wages and confirmed the order of the School
Tribunal regarding granting only 30% of the back wages by making
factually erroneous observations. The sole ground mentioned in
paragraph No. 24 of the judgment is that the employee had not made
any specific pleading to the effect that he was not gainfully employed
from the date of suspension till the date of reinstatement. The learned
advocate would refer to the rejoinder filed before the School Tribunal
and particularly paragraph No. 17 wherein it was specifically averred
that he was not gainfully employed from the date of termination till date
that is till the date the rejoinder was filed and also specifically asserted
his claim for full back wages. The learned advocate would submit that in
view of such specific pleadings before the Tribunal, the Tribunal should
have, while setting aside the termination and directing reinstatement,
awarded full back wages. There was absolutely no whisper in the
judgment of the Tribunal as to why the claim was restricted to 30%.
This Court having refused to cause any interference in the order of the
Tribunal under an erroneous belief of absence of claim is a matter which
is a formal defect and is required to be corrected by undertaking a
review.
9. The learned advocate for the employee would further submit that
as laid down in the matter of Deepali (supra) the onus was on the
management to refute the specific averments in the rejoinder regarding
the employee being not gainfully employed. It having failed to controvert
such pleadings, it had miserably failed to discharge the onus and the
employee should have been awarded full back wages.
10. The learned advocate for the management would submit that in
Review Appln 2 22 & 3 22.odt
the appeal memo filed by the employee before the School Tribunal there
was absolutely no whisper about he having remained unemployed since
the date of termination. As laid down in the matters of U.P. State
Brassware Corpn. Ltd and Anr. Vs. Udai Narain Pandey; A.I.R. 2006
Supreme Court 586 and Talwara Co-Operative Credit Service Society Ltd.
Vs. Sushil Kumar; 2008 A.I.R. SCW 6532 an employee is not
automatically entitled to claim back wages. Onus is on him to prove that
he was not gainfully employed. In the matter in hand the respondent
having failed to discharge the onus, irrespective of the reasoning given
by this Court in the order under review he is not entitled to make request
for review.
11. The law as regards back wages in cases of wrongful termination of
services has been culled out by the Supreme Court by referring to catena
of judgments including the decision in the matter of U.P. State Brassware
Corpn. Ltd (supra), in the matter of Deepali (supra). The principles laid
down in paragraph No. 33 and particularly in clause 1 to 3 are as under :
33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service,
reinstatement with continuity of service and back wages is
the normal rule.
ii) The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the nature of
misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
iii) Ordinarily, an employee or workman whose services are
Review Appln 2 22 & 3 22.odt
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 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 averments 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.
12. It is to be borne in mind that unlike the matters before the Labour
Court and Industrial Tribunal where a question under Section 11 A of the
Industrial Disputes Act, 1947 crop up which are original proceedings
where there would be pleadings and even the parties would be required
to lead evidence, oral as well as documentary. In the matter in hand the
parties were before the School Tribunal in a statutory appeal under
Section 9 of the M.E.P.S. Act. Going by the nature of the proceeding, the
parties were only expected to file appeal memo, replies and rejoinders
and may be surrejoinder. Bearing in mind such state of affairs, when
admittedly, though not in the appeal memo but in the rejoinder the
employee had specifically pleaded that he was not gainfully employed
since the date of termination and had also put up a claim for entire back
Review Appln 2 22 & 3 22.odt
wages, the observation of this Court in paragraph No. 24 of the
judgment are certainly factually incorrect.
13. However, simultaneously, it is to be borne in mind that though in
the matter of Deepali (supra) it has been recognized that claim for full
back wages is a norm or rule, there are several other factors which are
required to be looked into apart from the bare pleadings. In adjudicating
the issue regarding back wages, length of service, nature of misconduct,
financial condition of the employer and few such similar factors are also
to be required to be taken into consideration. Though to the extent of
pleadings, it can be said that the employee in the matter in hand in his
rejoinder had made a specific pleading and claimed full back wages, the
rest of the factors have not been addressed either before the Tribunal or
apparently even before this Court when the writ petitions were decided.
14. If such is the state of affairs, in my considered view, with a limited
power in exercise of review, it would be inappropriate rather difficult
even to undertake any review and reconsider the request of the
employee for full back wages. Therefore, the Review Petition of the
employee is also liable to be dismissed.
15. The Review Petition No. 2/2022 is dismissed with costs of Rs.
5000/- (Rs. Five Thousand only).
16. The Review Petition No. 3/2022 is dismissed.
(MANGESH S. PATIL, J.)
mkd/-
