bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 5856 OF 2008 PETITION NO. 5856 OF 2008 PETITION NO. 5856 OF 2008 Tulja Bhavani Shikshan Sanstha & ors. ... Petitioners v/s Iqbal Mohamad Mulla & ors. ... Respondents Mr.R.D.Soni i/by M/s.Ram & Co. for the petitioners. Mr.Suresh S. Pakale for the Respondent No.1. Mr.A.H.Palekar, A.G.P. for Resp.Nos.3 and 4. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 12TH SEPTEMBER, 2008 12TH SEPTEMBER, 2008 12TH SEPTEMBER, 2008 P.C. P.C. P.C.: 1. Rule. Rule made returnable forthwith by consent. 2. The petition challenges the order of the School Tribunal dated 15.7.2008. By this order the School Tribunal has granted the respondent No.1 reinstatement with continuity of service and full back wages. 3. The facts involved in this case are as under:- . Respondent No.1 has been working with the petitioners from 1999. It is the petitioners’ case that from 13.2.2003 the respondent No.1 remained absent and 2 abandoned his services. On 19.1.2004 the School Tribunal, preferred Appeal No.4 of 2007 under the M.E.P.S. Act. In the written statement the petitioners contended that the appointment order produced by the 1st respondent was fabricated and forged. It is also contended that the 1st respondent had abandoned his service since he was carrying on a business as he had a licence to run a mutton shop. 4. The Tribunal, on the basis of the pleadings and evidence on record, has held that the petitioners have failed to prove that there was an abandonment of service on the part of the respondent No.1. The Tribunal has also concluded that the muster register which was produced by the petitioners shows that the 1st respondent was the senior-most teacher working in the school from 27.7.1999. The Tribunal has not accepted the contentions of the petitioners that the appointment order was fabricated in view of other documents on record. The Tribunal has, therefore, held that there was a termination of service of the 1st respondent and that it had been effected without following the procedure prescribed under Section 37 of the M.E.P.S.Rules, 1981. No enquiry had been held against the respondent No.1 prior to termination of services. The Tribunal has also held as a matter of fact that no 3 warning or charge-sheet was issued to the respondent No.1 at any point of time. The Tribunal had, therefore, rightly found that the petitioners have illegally terminated the services of the 1st respondent and that therefore he was entitled to reinstatement with continuity of service. 5. As regards back wages, the learned counsel for the petitioners points out that there is neither a pleading in the appeal nor is there any averment in any affidavit filed by the 1st respondent before the Tribunal that he was not gainfully employed after his services were terminated. The learned counsel points out that it is well settled now that an employee who claims back wages must plead and prove that he was not gainfully employed during the period of unemployment with the employer. 6. A perusal of the appeal indicates that there is no pleading in the appeal with respect of the 1st respondent being out of work or not in gainful employment after 13.2.2003. Such an averment ought to have been made in the appeal especially since the appeal has been filed on 19.1.2004. No affidavit has been filed by the 1st respondent indicating that he was not gainfully employed and stating the manner in which he was able to survive during his period of unemployment 4 with the petitioners. In my opinion, therefore, the School Tribunal has erred in granting full back wages to the 1st respondent when considering this aspect of the matter. 7. The impugned order of the School Tribunal is set aside with regard to the back wages only. 8. The other part of the order declaring that the termination of the services of the 1st respondent dated 13.2.2003 was illegal and bad in law is upheld. The reinstatement granted to the 1st respondent is also upheld. The appeal is however remanded to the School Tribunal for a consideration in respect of back wages payable to the 1st respondent. 9. The School Tribunal will decide this appeal within three months from today. 10. The School Tribunal will permit the parties to amend their pleadings, if necessary, and to file documents with respect to the gainful employment of the respondent No.1 and lead oral evidence as well, if necessary. 11. Rule made absolute partly. Writ petition disposed 5 of. 12. The Chairman of the petitioners, who is present in Court, instructs Mr.Soni that the respondent No.1 should attend the school and report for duty from 1st October, 2008.