1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 941 OF 2009 . M/s. Jogeshwari Kelvani Mandal & Anr. ..Petitioners. vs. Smt. Ranjan M. Parikh & Ors. ..Respondents. .... Mr. Suresh Kumar J. Panicker, for Petitioners. Mr. M.P. Vashi, for Respondent No.1. Ms. S. Shreedharan, AGP, for Respondent Nos. 2 & 3. .... CORAM : S.J.KATHAWALLA, J. DATE : 5TH AUGUST 2009. P.C. This petition is filed by the petitioner impugning the order of the Presiding Officer, School Tribunal, Mumbai dated 30 th March 2009, whereby the order passed by the petitioners dated 14 th March 2007, terminating the services of respondent no.1, Headmistress of respondent no.2-school is quashed and set aside. 2. At the outset, the learned Advocate appearing for the petitioners has drawn attention of this Court to the operative part of the impugned order which reads thus :- 2 “The appeal is allowed. The termination order dated 14.03.2007 is hereby quashed and set aside. All the respondents are directed to reinstate the appellant on her original post of Head Mistress along with all consequential benefits including continuity of service and full back wages from the date of her termination till the date of her superannuation. The respondents are also directed to prepare bills and the pension case of appellant and submit it to the Education Department. The Education Inspector shall consider the same as per rules. Respondents to comply with this order within six weeks from the date of this order. No order as to costs.” 3. The learned Advocate for the petitioners has next contended that it is clear from the order, more particularly, paragraph 4 that though the words used are “the respondents”, the only order/directions against petitioners is to prepare bills and the pension case of appellant (respondent no.1 herein) and submit it to the Education Department who shall consider it as per rules. It is 3 submitted that the petitioners have already paid to the respondent no.1 Rs.2,99,158/- being her wages from 28 th February 2006 to 14 th March 2007. Since the respondent no.1 has attained here super-annuation on 8 th September 2007, the petitioners have already prepared pension case of the appellant and submitted them to the Education Department. It is submitted by the petitioners that a combined reading of paragraphs 3 and 4 of the impugned order shows that it is the respondent nos. 2 and 3 who are ordered to pay the back wages to respondent no.1 from 14 th March 2007 upto 8 th September 2007. However since the Presiding Officer, School Tribunal has without applying his mind wrongly used the words “All the respondents” and “The respondents” in the impugned order, the present petition is filed by the petitioners only as and by way of abundant caution, because the petitioners apprehend that the Deputy Director of Education and/or the Education Inspector may contend that the petitioners are also directed to pay back wages from 14 th March 2007 upto 8 th September 2007. Admittedly, the Deputy Director of Education or the Education Inspector have till date not taken any such contention as apprehended 4 by the petitioners and the question therefore of entertaining the writ petition on a mere apprehension and filed by way of ‘abundant caution’ does not arise. 4. Though the petitioners have contended before this Court that the petition is filed by them only by way of abundant caution, they insisted that without prejudice to that contention they would submit that though the arguments in the present matter had commenced before the School Tribunal on 23 rd January 2009, by an additional affidavit dated 11 th February 2009, the respondent no.1 contended before the Appellate Tribunal that she was not at all gainfully employed during the entire period of her termination and was surviving without any income of her own, which she is prohibited to do under the law. The learned Advocate appearing for the petitioners has relied upon the decision of the Hon’ble Apex Court in Kendriya Vidyalaya Sanghathan and Anr. v/s. S.C. Sharma, reported in 2005 LLR 275. He has relied on paragraph 11 of the said judgment which reads as under :- “11. Applying the above principle, the inevitable 5 conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” From the aforesaid paragraph, in my view it is clear in the present case that the respondent no.1 has complied with the requirement as found in the decision of the Hon’ble Apex Court by filing her affidavit dated 11 th February 2009. After respondent no.1 filed her affidavit the petitioner could have brought on record material to revert her claim which the petitioners have not done. Instead the petitioners have contended that once the arguments commenced, respondent no.1 cannot be allowed to file her affidavit and plead that during her entire period of termination, she was not gainfully 6 employed and had no income of her own. I see no legal bar against respondent no.1 from filing such an affidavit within a few days after the arguments commenced in the matter. 5. In view thereof, I see no merits in the submissions made by the learned Advocate for the petitioners in support of the admission of the writ petition. Writ petition is accordingly dismissed. 6. Mr. Vashi, learned Advocate for respondent no. 1 has requested that I should clarify that the petitioners have to pay certain amounts to respondent no.1 under earlier orders passed by this Court. Needless to add that if the respondent no.1 is entitled to receive any dues payable to her under any orders, respondent no.1 is always entitled to recover the same by taking out appropriate proceedings. [ S.J.KATHAWALLA, J. ]