1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.801 OF 1998 IN WRIT PETITION NO.308 OF 1997 ... Pramila R. Dwivedi ..Appellant v/s. The Municipal Corporation of Greater Bombay & ors. ..Respondents ... Mr.S.P.Bharati for the Appellant. Ms.Trupti Puranik for Respondents Nos. 1 to 4. Mr.M.U.Pandey for Respondents Nos. 5 to 9. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 18th March, 2010 P.C.: 1. By this appeal the Appellant challenges the order dated 5th May, 1997 2 passed by the learned single Judge of this court in Writ Petition No.308 of 1997. 2. The relevant facts are that the Appellant was appointed as a part time craft teacher for a period from 13-11-1984 to 30-4-1985 in the school of the Respondents Nos.5 to 9. She was continued as a part time teacher upto 30-6-1989. She was, thereafter, appointed as a full time teacher on probation by order dated 1st April, 1989 for the period from 1st July, 1989 to 30th April, 1990. Her services were terminated on 30th April, 1990 on the ground that her performance was not satisfactory. She was once again appointed on a probation from 30th April, 1990 upto 30th April, 1991. Finally her services were terminated by order dated 30th April, 1991 with effect from 30th April, 1991. 3 3. Feeling aggrieved by that order, she preferred appeal before the Education Officer. The Education Officer decided the appeal by his order dated 31-1-1995. The operative part of the order of the Education Officer reads as under: Smt.Pramila R.Dwivedi, Craft Teacher of Smt.Ramkalidevi Sanmansingh Educational Trust, Bhandup being a permanent teacher cannot be removed without following the proper procedure and enquiry and the Management should, therefore, reinstate her immediately. She may also be given the arrears of pay from 1-5-1991 to date of her reinstatement. This amount of salary from the date of her termination to the date of her reinstatement will be held admissible for the grant and the Management has to bear this expenditure. The Education officer, thus, set aside the termination order and reinstated the Appellant in service and also directed payment of her arrears of salary. He also 4 held that the amount payable to the Appellant by the Management will not be admissible to the grant-in-aid. Against that order, it appears an Appeal was preferred by the Management before the Deputy Municipal Commissioner. The Deputy Municipal Commissioner decided the appeal by order dated 19-12-1996. The Deputy Municipal Commissioner confirmed the order passed by the Education Officer. The operative part of the order of the Deputy Municipal Commissioner reads as under: In the circumstances, I, therefore, pass order that Smt.Pramila R. Dwivedi may be reinstated in service of the Trust with immediate effect as per the order passed by the Education Officer of the Brihanmumbai Mahanagarpalika under No.IED/OD/2126, dated 31-1-1995. 4. Against this order, it appears the Management filed Writ Petition No.308 of 1997 5 in this Court. The learned single Judge upheld the order of the Education Officer granting reinstatement in service to the Appellant, however, the learned single Judge set aside the order holding her entitled to the payment of back wages and instead held that she is entitled to payment of Rs. 25,000/- as compensation. The learned single Judge also held that the amount of Rs. 25,000/- to be paid to the Appellant is admissible to grant-in-aid. 5. It is only the Appellant-teacher who has filed Appeal against this order. The submission of the learned Counsel appearing for the Appellant is that the learned single Judge once having found that the Appellant is entitled to be reinstated in service, could not have held that the Appellant is not entitled to payment of back wages. The 6 learned Counsel submits that once the order of termination is found to be invalid and an employee is found to be entitled to be reinstated, the only consideration on which the order of payment of back wages can be denied is that the concerned employee was gainfully employed during the intervening period. The learned Counsel submits that the consideration that has weighed with the learned single Judge namely that the management was not entirely at fault for the delay in decision on the validity of the termination order, that there are 700 students taking education, that there was some doubt as to which law exactly operate are not relevant consideration for denying the back wages to an employee whose termination has been held to be invalid. 6. We have heard the learned Counsel 7 appearing for the Corporation as also the learned Counsel appearing for the Management. We find that the learned single Judge has made an order denying payment of back wages to the Appellant mainly for two reasons, (i) that there was delay in deciding whether the order of termination is valid or invalid; (ii) because the Management and the teacher were not certain as to which provision of law applies. In our opinion, there can be only one valid consideration for denying payment of back wages to the employee whose termination of service has been held to be invalid that the employee was gainfully employed during the intervening period or awarding of full back wages to the concerned employee will result in failure of justice. We find that none of these considerations have weighed with the learned single judge in denying back wages to the Petitioner- 8 teacher. Therefore, we find that the order of the learned single Judge denying payment of full back wages to the teacher is liable to be set aside. In this Appeal we are not called upon to decide whether the Management is entitled to get reimbursement from the Corporation or not. However, because we find that the learned single Judge has already held that the Management is entitled to get reimbursement from the Corporation and the Corporation has accepted that order and has not filed any appeal, therefore, in our opinion, the Management would be entitled to claim reimbursement from the Corporation. 7. In the result, therefore, the Appeal succeeds and is allowed. The order of the learned single Judge impugned in the Appeal, so far as it denies payment of back wages, is set aside. It is held that the Appellant is 9 entitled to payment of back wages from the date of termination till the date of reinstatement. 8. Appeal disposed of. No order as to costs. (D.K.DESHMUKH, J.) (V.R.KINGAONKAR,J.)