1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2100 OF 2009 (Shri Sunil Prabhakarrao Anasane & Anr. vs. Ravindra Maroti Kinnake & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JULY 09, 2010. Heard Shri Khamborkar, learned counsel for the petitioners, Shri Shende, learned counsel for respondent No.1 and Mrs. Wasnik, learned AGP for respondent No. 2. Shri Shende, learned counsel states that this matter was before this Court in 2009 and this Court had then given time to the petitioners to consider the proposal of Respondent No. 1 whereby Respondent No. 1 had agreed to waive 50% of the back wages, if he is reinstated back in service. Shri Khamborkar, learned counsel informs that for the reasons disclosed in the additional affidavit, the said proposal cannot be accepted by the management. Shri Khamorkar, learned counsel states that Respondent No. 1 was only a probationer and his services were terminated for unsatisfactory work. The reasons thereof could not be placed 2 before the School Tribunal as there was no Presiding Officer for quite some time and the counsel or the petitioners did not file written statement before the School Tribunal. He points out that along with additional submissions, the documents under signature of Respondent No. 1 admitting his misconduct of reporting for duty under influence are placed and those documents are sufficient to uphold the order of termination. Shri Shende, learned counsel states that School Tribunal has found that unsatisfactory service was not substantiated and reason for termination was alleged unauthorized absence for about one month. He states that before proceeding on leave, an application dated 23.03.2006 giving reason of illness was submitted and after the illness was over, Respondent No. 1 reported for duty on 23.04.2006 along with Medical certificate dated 22.04.2006 but then he was not allowed to join his duties and ultimately was terminated by order dated 27.07.2006. He further states that the unsatisfactory performance is not disclosed in writ petition before this Court and alleged ground of reporting for duty under influence is given for the first time in additional affidavit and the documents accompanying it are also produced for the first time 3 before this Court. The perusal of orders passed by me on 11.11.2009 shows that after hearing respective counsel then, because of the proposal given by Respondent No. 1 to waive 50% back wages, the matter was adjourned. The additional affidavit stating that proposal of Respondent No. 1 is not acceptable is filed on 07.07.2010 and in it, it is alleged that Medical Certificate alleged by Respondent No. 1 was never supplied. The documents under signature of Respondent No. 1 are also produced to show the apology tendered on 13.01.2006 for reporting on duty allegedly under influence on 12.01.2006. The said apology is being disputed by Respondent No.1. It shows that on 12.01.2006 at about 10.00 P.M., President of the society visited the School and found Respondent No. 1 under influence. If this was the reason for holding services to be not satisfactory, it ought to have appeared in writ petition as a fact and a ground. The School Tribunal has found specifically that there was no instance of any unsatisfactory service. I am, therefore, not in a position to accept that document and additional affidavit for the first time as an indication of unsatisfactory performance. The School Tribunal has found that 4 Respondent No. 1 made an application on 23.03.2006 and also reported for work on 23.04.2006. In writ petition, there is no dispute about the facts and in rejoinder filed on 11.08.2009, it is contended by the petitioners that such applications were never received and Respondent No. 1 remained absent without any leave. Though Respondent No. 1 was a probationer and his services are terminated during probation, reason given therein of unsatisfactory service is not substantiated at all, on the contrary efforts are being made later on that too not at the earliest possible opportunity, to produce some records to show some unsatisfactory service. I, therefore, do not find anything wrong with the consideration of this aspect by the School Tribunal. The School Tribunal has granted full back wages without expressly recording a finding that the appellant before it was without any source of income. The grant is thus mechanical. In view of this position, the same cannot be sustained. The order of School Tribunal is, therefore, modified and Respondent No. 1 is reinstated in service with continuity and 30% back wages. Writ Petition is thus partly allowed. However, there shall be no order as to costs. 5 Shri Khamborkar, learned counsel for the petitioners requests that the interim order staying the judgment of School Tribunal may be continued for a period of four weeks more. Shri Shende, learned counsel for respondent No. 1 is opposing the request. However, upon the petitioners depositing the amount of back wages with the Registry of this Court within a period of three weeks from today, the said interim order shall continue to operate for a period of four weeks and it shall cease to operate automatically thereafter. JUDGE *GS.