Bombay High Court
Nagaon Education Society Through Its ... vs The State Of Maharashtra Through ... on 10 October, 2025
2025:BHC-AUG:28581
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11342.25WP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11342 of 2025
Nagaon Education Society,
Through its Secretary
Taluka and District Dhule .. PETITIONER
VERSUS
1] The State of Maharashtra,
Through Principal Secretary,
School Education Department,
Mantralay Mumbai-32
2] The Education Officer Secondary,
Jilha Parishad Dhule,
Division Dhule, District Dhule.
3] S D Bhandane Secondary and Higher Secondary
School, through its secretary
Nimdale, Taluka and District Dhule.
4] Bharatkumar s/o. Murlidhar Patil,
Age: 58 years, Occu. : Retired,
R/o. At Post Nagaon,
Taluka and District Dhule. .. RESPONDENTS
...
Mr.D.S.Bagul, Advocate holding for Mr.D.R.Bagul, Advocate
for the petitioner.
...
CORAM : ARUN R. PEDNEKER, J.
DATE : 10.10.2025
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11342.25WP
ORDER :
1] By the present Writ Petition, the petitioner
challenges the judgment and order dated 06.03.2025
passed by the Presiding Officer, School Tribunal, Nashik in
Appeal No.34/2021. The School Tribunal has directed the
respondent management to pay full back wages to the
respondent no. 4 - Bharatkumar Murlidhar Patil along with
all other consequential benefits attached to his post from
the date of his termination i.e. from 04.10.2021 till the date
of his reinstatement in service on 29.10.2022 and the
petitioner challenges the order of the School Tribunal
limited to this extent only.
Brief facts leading to filing the present writ
petition are as under :
2] The respondent no.4 - Bharatkumar Muridhar
Patil was appointed as an Assistant Teacher on permanent
vacant post on 01.09.1994. Subsequently, the respondent
no.4 was re-appointed on 17.07.1995 and thereafter the
services of the respondent no.4 came to be confirmed. The
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respondent no.4 was appointed on permanent vacant post
on 01.09.1994 and thereafter approval to his appointment
was granted by the concerned Education Officer by order
dated 29.10.1997. The respondent no.4 has rendered 27
years of continuous service and thereafter he was
terminated by order dated 04.10.2021. The said
termination order was challenged before the School
Tribunal under Section 9 of the Maharashtra Employees of
Private Schools [Conditions of service] Regulation Act, 1977
[hereinafter referred as 'MEPS Act'] and Rules made
thereunder. The respondent no.4 was reinstated in service
on 29.10.2022 during the pendency of appeal. On
considering the matter on merits, the Tribunal held that the
impugned order dated 04.10.2021 is illegal and quashed
and set aside the termination by order dated 06.03.2025. It
is further directed by the Tribunal to the Management to
pay full backwages to the respondent no.4 along with all
other consequential benefits attached to his post from the
date of his termination i.e. on 04.10.2021 till the date of his
reinstatement in service i.e. 29.10.2022 i.e. for the period of
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near about one year.
3] The learned counsel for the petitioner has
challenged clause no.3 of the impugned order dated
06.03.2025 and submits that in order to grant back wages it
is necessary for employee to plead that he was not gainfully
employed from date of termination. He further submits that
in the instant case, there was no affidavit by the concerned
employee that he was not employed during termination
period and as such back wages ought not to have been
granted in favour of the respondent no.4. In this regard, the
learned counsel for the petitioner relies upon the judgment
in the case J.K.Synthetics Ltd. Vs. K.P.Agrawal and another
reported in [2007] 2 SCC 433 and in the said judgment, at
para nos. 17 and 18, the Hon'ble Supreme Court has held as
under :
17. There is also a misconception that whenever
reinstatement is directed, 'continuity of service' and
'consequential benefits' should follow, as a matter of
course. The disastrous effect of granting several
promotions as a 'consequential benefit' to a person who
has not worked for 10 to 15 years and who does not have
the benefit of necessary experience for discharging the
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higher duties and functions of promotional posts, is
seldom visualized while granting consequential benefits
automatically. Whenever courts or Tribunals direct
reinstatement, they should apply their judicial mind to the
facts and circumstances to decide whether 'continuity of
service' and/or 'consequential benefits' should also be
directed. We may in this behalf refer to the decisions of
this Court in A.P. SRTC v. S.Narasagoud, A.P.SRTC v.
Abdul Kareem and Rajasthan SRTC v. Shyam Bihari Lal
Gupta.
18. Coming back to back-wages, even if the court finds it
necessary to award back-wages, the question will be
whether back-wages should be awarded fully or only
partially (and if so the percentage). That depends upon the
facts and circumstances of each case. Any income received
by the employee during the relevant period on account of
alternative employment or business is a relevant factor to
be taken note of while awarding back-wages, in addition
to the several factors mentioned in Rudhan Singh and
Uday Narain Pandey. Therefore, it is necessary for the
employee to plead that he was not gainfully employed
from the date of his termination. While an employee
cannot be asked to prove the negative, he has to at least
assert on oath that he was neither employed nor engaged
in any gainful business or venture and that he did not have
any income. Then the burden will shift to the employer.
But there is, however, no obligation on the terminated
employee to search for or secure alternative employment.
Be that as it may.
4] He also relies upon the judgment in the case of
Rajasthan State Road Transport Corporation, Jaipur Vs.
Phool Chand (Dead) Through Legal Representatives
reported in [2018] 18 SCC 299 more particularly at para
no.12 and submits that it is necessary for the workman in
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such cases to plead and prove with the aid of evidence that
after his dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain himself
or/and his family. The employer is also entitled to prove it
otherwise against the employee, namely, that the employee
was gainfully employed during the relevant period and
hence not entitled to claim any back wages. Initial burden
is, however, on the employee.
5] Having considered the submissions of the
petitioner, it is necessary to note the judgment of Supreme
Court in the case of Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya reported in [2013] 10 SCC
324 at para no.38 has observed that in the case of wrongful
termination of service, reinstatement with continuity of
service and back wages is the normal rule. The proposition
of law is quoted in para no.38 in the case of Deepali Gundu
Surwase [supra] is noted below :
38. The propositions which can be culled out from
the aforementioned judgments are:
38.1. In cases of wrongful termination of service,
reinstatement with continuity of service and back wages is
the normal rule.
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38.2. 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.
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
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.
38.4. The cases in which the Labour
Court/Industrial Tribunal exercises power Under Section
11-A of the Industrial Disputes Act, 1947 and finds that
even though the enquiry held against the
employee/workman is consistent with the rules of natural
justice and/or certified standing orders, if any, but holds
that the punishment was disproportionate to the
misconduct found proved, then it will have the discretion
not to award full back wages. However, if the Labour
Court/Industrial Tribunal finds that the employee or
workman is not at all guilty of any misconduct or that the
employer had foisted a false charge, then there will be
ample justification for award of full back wages.
38.5. The cases in which the competent Court or
tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the principles
of natural justice or is guilty of victimizing the employee or
workman, then the court or Tribunal concerned will be
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fully justified in directing payment of full back wages. In
such cases, the superior courts should not exercise power
Under Article 226 or 136 of the Constitution and interfere
with the award passed by the Labour Court, etc., merely
because there is a possibility of forming a different opinion
on the entitlement of the employee/workman to get full
back wages or the employer's obligation to pay the same.
The courts must keep in view that in the cases of
wrongful/illegal termination of service, the wrongdoer is
the employer and the sufferer is the employee/workman
and there is no justification to give a premium to the
employer of his wrongdoings by relieving him of the
burden to pay to the employee/workman his dues in the
form of full back wages.
38.6. In a number of cases, the superior courts
have interfered with the award of the primary adjudicatory
authority on the premise that finalization of litigation has
taken long time ignoring that in majority of cases the
parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants cannot
be blamed or penalised. It would amount to grave injustice
to an employee or workman if he is denied back wages
simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The courts should bear in mind that in most
of these cases, the employer is in an advantageous position
vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer i.e. the employee or workman, who can ill afford
the luxury of spending money on a lawyer with certain
amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works (P) Ltd. V. Employees.
38.7. The observation made in J.K. Synthetics
Ltd. v. K.P.Agrawal that on reinstatement the
employee/workman cannot claim continuity of service as
of right is contrary to the ratio of the judgments of three
Judge Benches referred to hereinabove and cannot be
treated as good law. This part of the judgment is also
against the very concept of reinstatement of an
employee/workman.
6] In the case of Deepali Gundu Surwase [supra]
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the Supreme Court has observed that the observation made
in J.K. Synthetics Ltd. v. K.P.Agrawal that on reinstatement
the employee/workman cannot claim continuity of service
as of right is contrary to the ratio of the judgments of three
Judge Benches and cannot be treated as good law. This part
of the judgment is also against the very concept of
reinstatement of an employee/workman. In the case of
K.S.Ravindran Vs. Branch Manager, New India Assurance
Company Limited reported in [2015] 7 SCC 222, the
Hon'ble Supreme Court has referred the judgment in the
case of Mohan Lal Vs. Bharat Electronics Ltd. reported in
[1981] 3 SCC 225 has held at para no.17 as under :
17. ..... But there is a catena of decisions which rule that
where the termination is illegal, especially where there is an
ineffective order of retrenchment, there is neither termination
nor cessation of service and a declaration follows that the
workman concerned continues to be in service with all
consequential benefits. No case is made out for departure
from this normally accepted approach of the courts in the
field of social justice and we do not propose to depart in the
case."
7] Coming to the facts of the present case, the
Tribunal has held that the respondent no.4 is illegally
terminated from service after rendering 27 years of service
on permanent post and the services of the respondent no.4
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were terminated without conducting an enquiry. It is
further observation by the Tribunal that the management by
passing resolution dated 29.10.2022 has reinstated the
respondent no.4 in service from 29.10.2022. As such, the
only issue that remain before the Tribunal that the salary
from 04.10.2021 to 29.10.2022.
8] The termination of the respondent no.4 was
illegal. In the case of Deepali Gundu Surwase [supra], so
also, in the case of Mohan Lal Vs. Bharat Electronics Ltd.
[supra] the Supreme Court has observed that the
observation made in J.K. Synthetics Ltd. v. K.P.Agrawal is
not good law. Thus, although there was no affidavit by the
employee/respondent no.4 that he was not employed for
the period he was out of service i.e. near about one year,
no efforts were made by the management to demonstrate
that the employee was in service. The employee is
reinstated by the management within one year and
employee was on permanent employment at the petitioner-
Institute which is receiving grant in aid. After rendering 27
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years of service, it cannot be held that the respondent no. 4
was gainful employed during interregnum period of one
year when he was illegally terminated so as to deny him the
benefits of back wages. Considering the same, no
interference is called in the impugned order, as such, the
Writ Petition is dismissed.
[ARUN R. PEDNEKER]
JUDGE
DDC
