1 wp40.11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 40 OF 2011 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. V.D. Hon, Advocate for the petitioner. Mr. V.P. Golawar, Advocate for respondent. 1. Heard finally with consent. 2. Advocate Mr. Hon for petitioner points out that the respondent-employee has already superannuated. He further states that the material on record reveals the entries made in cash book by him and inspite of those entires, finding of no-misappropriation has been reached. According to him, looking to the serious misconduct of misappropriation of funds of society, the respondent was dismissed from services. In the alternative and without prejudice to this, he states that there is nothing on record to grant 100% back wages to him. 3. Advocate Mr. Golewar for respondent states that the entires in cash book were pencil entires i.e. rough entries and actual amount has not been received. There is concurrent finding that actual amount has not been 2 wp40.11 received. Dismissal is found to be unjust. Grant of back wages is in accordance with law. The petitioner in fact reinstated the respondent on 21.12.2010. 4. The fact shows that the petitioner had reinstated the respondent on 21.12.2010. Concurrent finding is misappropriation has not been established. The portion of letter on which Mr. Hon relied upon has heading "receipt of amount" and correctness of of those entries has not come on record. I therefore do not find anything wrong with the concurrent findings. 5. In view of the reported judgment of Hon'ble Apex Court reported at "(2006)1 Supreme Court Cases 479" ( U.P. State Brassware Corpn. Ltd. and another V/s Uday Narain Pandey), the burden to show the entitlement of back wages is upon the respondent. That burden has not been discharged in the present matter. Labour Court has drawn inference of absence of employment because of age of respondent. 6. In this situation, I find interest of justice can be met with by directing his reinstatement with continuity and 50% back wages. 7. In view of the fact that the respondent has superannuated on 31.01.2011 and was reinstated by the petitioner on 21.12.2010, the impugned judgment of the 3 wp40.11 Labour Court dated 14.07.2010 is modified and the petitioner is directed to reinstate the respondent with continuity and 50% back wages till date of his reinstatement. 8. The Petition is thus partly allowed. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE. 15.02.2011 gas/wp40.11