[Cites 3, Cited by 0]
Bombay High Court
Shri Sant Tukaram Mahararaj Shikshan ... vs Vasant Kisanrao Ghare And Ors on 28 January, 2026
2026:BHC-AS:4091
WP-9363-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.9363 OF 2023
Sant Tukaram Maharaj Shikshan Sanstha and Anr. ...Petitioners
vs.
Vasant Kisanrao Ghare and Others ...Respondents
Mr. Rajendra Khaire i/b. Ms. Ashwini Bandiwadekar, for the Petitioners
Mr. Rahul Kadam a/w. Mr. Vedant Babar, for the Respondent No. 1.
Ms. Mamta Srivastava, for Respondents-State.
VISHAL
SUBHASH
PAREKAR CORAM : SHARMILA U. DESHMUKH
Digitally signed by
RESERVED ON : 21st JANUARY, 2026
VISHAL SUBHASH
PAREKAR
Date: 2026.01.28
PRONOUNCED ON : 28th JANUARY, 2026
14:36:51 +0530
------------
ORDER :
1. Rule. Rule made returnable forthwith and taken up for hearing
finally with consent.
2. The present Petition impugns the judgment and order dated 19 th
December, 2022 passed by the Presiding Officer, School Tribunal, Pune
in Appeal No. 15 of 2020.
3. The Petitioner No. 1 is an Educational Institution running the
Petitioner No.2 school which is receiving 100% grant in aid from the
State Government. The Respondent No.1 came to be appointed as
"Teacher" in Petitioner No. 1 school in the year 1999. In the year 2019,
departmental inquiry was initiated against Respondent No. 1 by
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issuing charge sheet which was duly replied by Respondent No.1. The
inquiry committee came to be constituted and Respondent No. 1 failed
to nominate his representative on the inquiry committee. The inquiry
proceeded in which the Respondent No.1 participated without any
complaint or grievance. The inquiry committee held Respondent No. 1
guilty of misconduct and recommended dismissal. On 29 th January,
2020, the Petitioner No. 1 issued an order dismissing Respondent No.
1 from service as against which Appeal came to be filed before the
School Tribunal which was allowed. Hence, the present Petition.
4. At the outset, learned counsel for Respondent No. 1 submits
that during pendency of the proceedings, Respondent No. 1 has been
reinstated in the services as directed by the School Tribunal and the
only issue which requires consideration is as regards the grant of
backwages which direction has not been complied with by the
Petitioner management. It is not disputed by learned counsel for the
Petitioners that Respondent No. 1 has been duly reinstated in service.
5. Learned counsel for the Petitioners would submit that in the
year 2019, the school had directed all teaching and non-teaching
employees to furnish information as regards marriage, name of the
spouse and particulars of children. He submits that in the form
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submitted by Respondent No. 1, it was stated that the Respondent No.
1 has only three children and in the declaration executed subsequently
on 15th October, 2019, the Respondent No. 1 stated that he has four
children and out of them two children were born after Government
Resolution came into force making the Respondent No. 1 ineligible for
the post on which he was working due to birth of more than two
children after 20th March, 2005. He submits that by reason of
furnishing false information to the management, show cause notice
was issued and inquiry was conducted which culminated into dismissal.
He submits that the procedure was duly followed while conducting
inquiry which should not have been interfered by the Tribunal. He
would further submit that it is not the finding of the School Tribunal
that the order of dismissal is in contravention of any law and despite
thereof has set aside the order of dismissal. He submits that it is well
settled that the School Tribunal does not have jurisdiction to
substitute its finding to exonerate the Respondent No. 1. He would
submit that the School Tribunal erred in holding that the provisions of
Maharashtra Civil Services (Declaration of Small Family) Rules, 2005
are not applicable to the employees working in private school without
considering that the Petitioner No.2 school is fully aided primary
school. He submits that as the Respondent No. 1 was dismissed from
services after the departmental inquiry, the principle of 'no work no
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pay' applies and the Tribunal was not justified in directing the payment
of full back wages.
6. Per contra, learned counsel for the Respondents would submit
that the inquiry came to be initiated against the Respondent No. 1 by
applying the Government Resolution dated 20 th March, 2005 whereas
it is well settled that Maharashtra Civil Services Rules will not apply to
the Assistant Teacher whose services are governed by the provisions
of MEPS Act and Rules. He would further submit that the Tribunal has
noted the decision of the Court in the case of Chhaya Deepak
Chahare vs. Director of Education, Pune and Ors. 1 in identical facts
holding that there is nothing in the Government Resolution to show its
applicability to the institution that are brought on grant in aid by the
State Government. He submits that in any event as the Respondent
No. 1 has already reinstated, there is no requirement of going into the
aspect of validity of the termination of the services. He would further
submit that in so far as the grant of back wages is concerned, the
Respondent No. 1 had filed an affidavit before the School Tribunal
stating that the Respondent No. 1 is not engaged in any Government
or private employment from his termination with effect from 29 th
March, 2020 and he has not earned any salary or benefits. He tenders a
copy of the affidavit which is taken on record. He submits that the
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Tribunal has rightly noted that it is not the case of the management
that the Respondent No. 1 was gainfully employed and has rightly
granted back wages. He would further submit that it needs to be
noted that initially the management had admittedly terminated the
services of the Petitioners of 27 th September, 2012 and again on 9 th
February, 2015 which was set aside by the Tribunal and this is the third
attempt in dismissing services of the Appellant.
7. Rival contentions now fall for determination.
8. It is not disputed at the bar that Respondent No. 1 has been
reinstated in the services of Petitioner No. 2 school. The validity of
reinstatement of Respondent No.1 is therefore rendered academic.
Despite thereof, it needs to be noted that the Petitioners by applying
the Government Resolution of 20th March, 2005 held the Respondent
No. 1 to be not qualified for the job which fact according to the
management was suppressed by Respondent No.1 and the same
amounts to misconduct. Even if the charge was of misconduct, the
basis was the applicability of Government Resolution of year 2005 and
as the Government Resolution itself was not applicable, there was no
question of misconduct. The Petitioner No. 2 is 100% grant in aid
school and the applicability of the Government resolution in the
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context of the birth of a child after cut off date was specifically
considered by this Court in Chhaya Deepak Chahare (supra) wherein
this Court had held that the said resolution would be applicable in case
of Government servants and there is nothing in the Government
resolutions that shows that it is applicable to the institutions that are
receiving grant in aid from the State Government. The decision is a
sufficient answer to the charge levelled upon the Respondent No. 1
and the Tribunal has rightly directed reinstatement of the Respondent
No. 1.
9. In so far as the grant of back wages is concerned, learned
counsel for Respondent No. 1 has tendered the affidavit of
Respondent No. 1 stating that he was not gainfully employed from the
date of termination i.e. 29th January, 2020. In the case of Dipali Gundu
Survase vs. Kranti Junior Adhyapak Mahavidyalaya and Ors. 2 the
Hon'ble Apex Court has held that while deciding the issue of back
wages, ordinarily an employee desirous of getting back wages has to
either plead or make statement before the adjudicating authority or
the Court 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 be plead and lead cogent evidence to prove that
employee / workmen was gainfully employed and was getting wages
2 (2013) 10 SCC 324.
WP-9363-2023.doc
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
existence of the particular fact lies on the person who makes a positive
assertion about his existence and it is easier to prove the positive fact
then to prove negative fact. Therefore, once the employee shows that
he was not employed the onus lies on the employer to plead and prove
that the employee was gainfully employed and getting some and or
subsequently similar emoluments.
10. In light of the aforesaid proposition of law, once the employee
by filing the affidavit has pleaded that he is not gainfully employed,
the burden was upon the employer to prove the gainful employment.
In the present case, learned counsel for the Petitioners have not been
able to demonstrate any evidence brought on record by the
Petitioners to show that the Respondent was gainfully employed. In
the absence of such evidence, there is no warrant for interference with
the grant of full back wages by the Tribunal.
11. In light of above discussion, there is no merit in the Petition. Writ
Petition stands dismissed. Rule is discharged.
(SHARMILA U. DESHMUKH, J.)
