1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION WRIT PETITION NO. 4900 OF 1999 Maharashtra Shikshan Sanstha. .... Petitioner. V/s. State of Maharashtra & Ors. .... Respondents. ....... Mr. A.M. Joshi for the Petitioner. Mr. R.M. Patne, A.G.P. for Respondents 1 and 2. Mr. Chandrakant Bidkar for Respondent 3. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 04TH APRIL 2008. P.C. :- The Petitioner is a public charitable trust registered under the Bombay Public Trusts Act, 1950 and is conducting an educational institution by the name of Sarvajanik Vidya Mandir and Junior College at Pen in the District of Raigad. The Third Respondent was engaged as an Assistant Teacher on a probationary basis by a communication dated 10th June 2005 for the academic years 1995-1996 and 1996- 2 1997. His services were approved by the Educational Officer on 29th January 1996. On 3rd May 1997, the Third Respondent was relieved from service during the probationary period. The case of the management is that there was a reduction in the number of students following which the services of the Third Respondent were terminated. The School Tribunal was of the view that the certificate dated 3rd May 1997, at Exhibit 15, was not an order of termination but only stated that the Third Respondent was relieved from service. The School Tribunal awarded reinstatement with full back wages. The Petition filed by the management came up for admission on 20th September 1999 when a direction was issued by a learned Single Judge to the management to re-instate the teacher within a period of one week. The learned Single Judge was of the view that despite the order of the School Tribunal directing reinstatement within two months from the receipt of the order, there was a non-compliance by the management and that prima-facie amounted to contempt. On 29th September 1999, the petition was admitted when the learned Single Judge recorded that the teacher had been taken back on 3 service on 24th September 1999. An interim stay was granted to the order for payment of back wages. The position before the Court is that the Respondent teacher has continued in service from 24th September 1999 until date. Counsel appearing on behalf of the Respondent teacher states that she still continues to be in service. Fairly, on behalf of the management, the challenge to the order of reinstatement has not been pressed at the hearing, having regard to the fact that the teacher has continued in service for a period of over eight years. The order for the payment of back-wages has however been questioned on the ground that in view of the law laid down by the Supreme Court, the burden was upon the teacher to establish that she had not been gainfully employed during the period since the date of the termination until she was re-instated. This submission would have to be accepted having regard to the judgment of the Supreme Court in Kendriya Vidyalaya Sangathan V/s. S.C. Sharma (2005 2 SCC 363). In the aforesaid judgment, the Supreme Court has held as follows :- “When the question of determining the entitlement of a 4 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.” The Supreme Court has followed the law laid down in the earlier decision in paragraph 14 :- “ In P.G.I. of Medical Education and Research V/s. Raj Kumar this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus : (SCC p.57, para 9) “9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.” Again at para 12, this Court observed : (SCC p.58) “12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.” The Supreme Court has followed the law laid down in the earlier 5 decision in paragraph 15 :- “ The position was reiterated in Hindustan Motors Ltd. V/s. Tapan Kumar Bhattacharya (2002 6 SCC 41 : 2002 SCC (L & S) 818), Indian Rly. Construction Co. Ltd. V/s. Ajay Kumar (2003 4 SCC 579 : 2003 SCC (L & S) 528) and M.P. SEB V/s. Jarina Bee (2003 6 SCC 141 : 2003 SCC (L & S) 833).” In the present case, the Respondent teacher had not discharged the initial burden that she was not gainfully employed between the date of the order of the termination and the date of the reinstatement. In the circumstances, the order for the payment of back wages suffers from an error apparent on the record and would have to be interfered with. The petition is allowed, in part, to the extent to which the School Tribunal has directed the payment of back wages to the Respondent. The direction in regard to the payment of back wages is set aside. There has been no challenge to the order of reinstatement, as noted above. 6 In the circumstance of the case, there shall be no order as to costs. -----