( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2647 OF 2008 Municipal Council, Bhusawal, Tq. Bhusawal, Dist.Jalgaon, through its Chief Officer. PETITIONER VERSUS Tukaram Kisan Patil, Plot No. 52, Kasturi Nagar, Near Surana Building, Bhusawal, Tq. Bhusawal, District Jalgaon. RESPONDENTS ..... Mr. G.V. Wani, advocate for the petitioner. Mr. P.N. Kutti, advocate for the respondent. ..... WITH WRIT PETITION NO. 4850 OF 2008 Tukaram Kisan Patil, R/o New Area Ward, Opp. School No. 5, Weekly Bazar, Bhusawal, Tq. Bhusawal, District Jalgaon. PETITIONER VERSUS Municipal Council, Bhusawal, ( 2 ) Tq. Bhusawal, Dist. Jalgaon, through its Chief Officer. RESPONDENT ..... Mr. P.N. Kutti, advocate for the petitioner. Mr. G.V. Wani, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th July, 2009] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally with the consent of the learned counsel for the parties. 2. Both these petitions are being disposed of together in as much as they arise out of the same set of judgements rendered by the Labour Court and the Industrial Court at Jalgaon. 3. Indisputably, the employee (Tukaram) was initially appointed as Peon in Municipal school. The employee (Tukaram) allegedly committed misappropriation of Rs. 32,000/- after he was promoted and was working as ( 3 ) a Junior Clerk on establishment of the Municipal school. He allegedly tendered resignation on 10th July, 1993 due to the detection of such misappropriation. There is no dispute about the fact that he deposited the amount, which was allegedly misappropriated. The respondent lateron resiled and approached the Labour Court with Complaint (ULP) No. 44/1995 alleging that his resignation was obtained by the superior officers under duress. He alleged that he was compelled to plead guilty to the charge of misappropriation and his apology in writing alongwith resignation were procured from him. He contended that the resignation is non-est due to the undue influence exercised by the concerned officers of the Municipal Council. 4. The complaint application was resisted by the Municipal Council on the ground that the Labour Court had no jurisdiction. It was contended that the complainant was required to file appeal as provided under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). It was submitted by the ( 4 ) Municipal Council that an inquiry was conducted regarding charge of misappropriation committed by the employee. Instead of facing the inquiry, he admitted the guilt and resigned the post. Thus, the Municipal Council submitted that voluntarily, the employee resigned from the service and his resignation was accepted on 23rd July, 1993. It was denied, therefore, that the resignation is outcome of undue influence, duress or pressure exercised on the employee. 5. The learned Judge of the Labour Court held that the jurisdiction was available in as much as the provisions of the MEPS Act are not applicable to the Municipal schools. The learned Judge of the Labour Court held that the resignation dated 16-06-1993 was not voluntarily given by the employee (Tukaram) and was procured from him under threat of prosecution. The learned Judge of the Labour Court came to the conclusion that the resignation was hastily obtained and his confessional statement was got involuntarily recorded. The employee was, therefore, directed to be reinstated in service, holding that the Municipal Council ( 5 ) (employer) committed unfair labour practices under Item-1 of Schedule-IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short, “the MRTU & PULP Act”). The learned Judge of the Labour Court, however, held that the employee was not entitled to claim backwages. The complaint application was accordingly partly allowed to the extent of relief of reinstatement. 6. The employer (Municipal Council) preferred revision application (ULP) No. 2/2006 being aggrieved due to adverse order of reinstatement of the employee (Tukaram) whereas the employee (Tukaram) preferred revision application (ULP) No. 11/2006 being aggrieved due to denial of the backwages. By the impugned judgement dated 02-02-2008, the learned Member of the Industrial Court, Jalgaon dismissed the revision application filed by the Municipal Council whereas partly allowed the revision application filed by the employee (Tukaram). The Industrial Court held that the employee was entitled to get payment of 50% backwages from the date of order passed on his delay condonation ( 6 ) application i.e. 08-03-1995 onwards. The Municipal Council challenges the concurrent judgements whereby the reinstatement of the employee (Tukaram) is allowed and also the part of the judgement of the Industrial Court whereby 50% of the backwages are allowed to him. The employee (Tukaram) challenges the denial of 50% of the backwages and seeks recovery of full backwages alongwith reinstatement in service. 7. Heard learned counsel. 8. So far as question of reinstatement of the employee is concerned, it may be mentioned that there are concurrent findings of both the Courts below. The learned Judge of the Labour Court elaborately discussed the circumstances and evidence placed on record. The material placed on record indicate that the Municipal Council did not produce minutes of the meeting dated 16-06-1993 in order to demonstrate that the subject of alleged misappropriation committed by the employee was considered and a particular action was contemplated. The version of PW Deochand Pawar, who is Principal of ( 7 ) the Municipal High School, indicated that resignation of the employee was required to be tendered to the Municipal Council. The employee was required to give one month’s notice or if such resignation was to operate instantaneously then to deposit salary of three (3) months. The inquiry committee was appointed for conducting inquiry into charges of misappropriation. It was admitted by PW Deochand Pawar that statements of witnesses were not recorded by the inquiry committee. The material on record tends to show that the employee was influenced to tender his resignation or to face criminal prosecution for alleged misappropriation of the municipal funds. 9. In “U.P. Government through Collector, Allahabad v. J.R. Bhatta” (AIR 1956 ALLAHABAD 439), a Division Bench of Allahabad High Court succinctly dealt with the issue pertaining to undue influence. It was held that the undertaking obtained from the employee (stenographer) by the Deputy Registrar was not enforceable for want of consideration and because it was ( 8 ) induced by undue influence. It has been held that the relation subsisting at the time between the Deputy Registrar and the servant was such that the former was in a position to dominate the will of the latter. The Deputy Registrar used that position to obtain an unfair advantage over the servant since his consent to give the written undertaking was obtained in return for what the Registrar was bound even otherwise to do, namely, to expedite disposal of the application for leave which was admittedly due to the servant. The Division Bench held that such a contract is unenforceable for want of consideration, since the consideration was unreal and the act of the servant was result of undue influence which could be gathered from the circumstances. Similar is the fact situation obtained in the present case. The resignation of the employee (Tukaram) seems to have been obtained when he was caught in rather precarious situation. The concurrent findings of the Labour Court and the Industrial Court are not demonstratedly shown to be perverse. Consequently, the order of reinstatement of the employee (Tukaram) need not be interfered with in the exercise of the supervisory jurisdiction under ( 9 ) Articles 226 and 227 of the Constitution. 10. The Municipal schools are not covered by the provisions of the MEPS Act. This Court in “Tita T. Verghese v. Headmistres, Vidya Mandir English Primary School, Bombay and others” 2002 (3) Mh.L.J. 57, held that the schools of the Municipal Corporation of Greater Bombay are not covered under the MEPS Act. In this view of the matter, there is no jurisdictional error committed by the Labour Court and the Industrial Court while entertaining the complaint application and the revision filed by the employee (Tukaram). 11. Before adverting to the question of legality and propriety of relief pertaining to grant of backwages, let it be noted that in the body of his complaint (ULP) No. 44/1995, the employee did not plead at all that he was not gainfully employed during the relevant period and, therefore, was entitled to seek recovery of backwages. There is no whisper about claim for backwages. The impugned judgement of the Labour ( 10 ) Court did not show any reason for denial of the backwages to the employee (Tukaram). He did not state before the Labour Court that he was not gainfully employeed during the relevant period. The revisional Court, however, granted 50% of the backwages without recording sufficient reasons. What is observed by the learned Member of the Industrial Court is that “the ends of justice would be served if 50% backwages is granted in favour of the original complainant considering the facts and circumstances of the case”, and for such reason, the relief was granted. In fact, the learned Member of the Industrial Court noticed that the complaint application did not show any pleading about the claim for backwages. The learned Member of the Industrial Court observed : “In the present case in hand, it is not disputed that neither the complainant has made any averment in his complaint or in his affidavit that he was not in gainful employment after his termination so also has not adduced oral evidence to prove that during the pendency of the complaint, he was not in ( 11 ) gainful employment nor the original respondent M.C. Has taken any stand in written statement in respect of gainful employment of the original complainant during the pendency of the complaint so also has not proved by adducing oral evidence before the ld. Labour Court that the original complainant was in gainful employment during the pendency of the main complaint.” 12. The learned Member of the Industrial Court seems to have committed patent error while putting a part of the blame on the Municipal Council. The Municipal Council was not under obligation to adduce any oral evidence to prove that the complainant (employee) was in gainful employment during the pendency of the main complaint. No such burden of proof could be casted on the Municipal Council unless the employee had pleaded absence of gainful employment and had discharged the initial burden to prove such a fact. 13. The Apex Court in “U.P. State Brassware Corporation Ltd. and another v. Udai Narain Pandey, 2006 (108) FLR 2011, held : ( 12 ) “It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.” It is explicit, therefore, that the plea has to be raised by the workman and has to be substantiate by him. For, the employer has no business to go after the employee after his dismissal from service and watch whether he is gainfully employed elsewhere or continued to be without any employment as such. Needless to say, in view of the Apex Court judgement, it is for the employee to plead and prove that there was absence of gainful employment during the period of his wrongful termination and reinstatement. The Apex Court in “M.D. Balasaheb Deesai Sahakari S.K. Ltd. And Kashinath ( 13 ) Ganapati Kambale” 2009 (120) FLR 510, “Municipal Council, Sujanpur and Surinder Kumar” 2006-II-LLJ 240 and “Kendriya Vidyalaya Sangathan and another v. S.C. Sharma” 2005-II-LLJ 153, reiterated the principles to be applied while granting backwages. The question of backwages depends on the circumstances of each case. Here is a case in which the petitioner did not specifically plead in his application before the Labour Court that he was a sufferer due to disengagement of work and was not able to earn livelihood, partly or fully. 14. Faced with legal position and the peculiar fact situation, Mr. Kutti submits that the claim for backwages would be given up by the employee (Tukaram) if the Municipal Council will reinstate him (employee). 15. For the foregoing reasons, I have no hesitation in holding that the part of the impugned judgement rendered by the Industrial Court to the extent of grant of 50% of the backwages is contrary to the settled ( 14 ) principles of law and will have to be quashed. 16. In the result, writ petition No. 2647/2008 is partly allowed. The impugned judgement of the Industrial Court, to the extent of grant of the 50% of the backwages to the employee, is quashed and that the judgement of the Labour Court is restored. The writ petition No. 4850/2008 is dismissed. The amount of the 50% backwages, if has been paid by the Municipal Council to the employee (Tukaram), then it may be adjusted in the future payments due to be paid to the employee (Tukaram), or may be otherwise recovered in accordance with due process of law. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP2647-4850-08