1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.3621 of 1994 Shri Rajendrakumar J. Patil Age major, Occ. Lecturer r/o. c/o. Shri J.P. Patil Dwarkanagar, Plot No.14, Pimpalenagar, Amalner, District Jalgaon. Petitioner Versus 1] The Secretary, Khandesh Education Society At and Post & Tq. Amalner, District Jalgaon. 2] The State of Maharashtra Respondents Mr. B.R. Warma, Advocate for the petitioner Mr. R.L. Chabda, Advocate holding for Mr.P.R. Patil, Advocate for the respondent No.1 Mrs. R.K. Ladda, AGP for the respondent No.2. CORAM : B.R. GAVAI & S.V. GANGAPURWALA,JJ. DATE : 14TH JUNE, 2010. ORAL JUDGMENT [PER B.R. GAVAI,J.] :- 1] The petitioner has filed the present petition to the limited extent so far as the denial of back wages is concerned. 2 2] The petitioner was working as an Assistant Teacher. His services came to be terminated vide order dated 12th February, 1993. Being aggrieved thereby, he preferred an appeal bearing Appeal No.5/1993. The said appeal was allowed vide order dated 21st December, 1993, thereby directing reinstatement of the petitioner. However, the learned Tribunal specifically denied the claim of the back wages. 3] Shri Warma, learned counsel for the petitioner submits that the learned Tribunal has grossly erred in denying the claim of back wages. He, therefore, submits since the claim of back wages was specifically made by the petitioner, the same ought to have been allowed. 4] Shri Chabda, learned counsel for the respondent Management submits that the learned Tribunal has rightly denied the claim of back wages. He submits that the Apex Court, in the matter of “ The Manager, R.B.I. Vs. Gopinath Sharma and another” reported in AIR 2006 SC 2614, has held that if the person is not actually working, he is not entitled for back wages. As such, the claim of back wages has been rightly denied by the Tribunal. 5] It is a settled position of law that the claim of back wages can not be granted as a matter of right. It is also a settled law that the initial burden is on the employee to 3 establish that he was not gainfully employed during the period he was terminated. Only after such initial burden is discharged by the employee, the burden would shift upon the employer to establish that the employee is not entitled for back wages. 6] Reliance placed by the management, on the aforesaid judgment of the Apex court in the matter of “Manager, R.B.I. Vs. Gopinath Sharma and another” which lays down the proposition of “No Work No Pay”is also well placed. In that view of the matter, we do not find any substance in the contention raised on behalf of the petitioner that he was entitled for back wages. 7] We find that, in the interest of justice, the petitioner is entitled to continuity of service. We, therefore, while upholding the order of the learned Tribunal of denial of back wages, partly allow the petition by holding that the petitioner would be entitled to reinstatement with continuity in service. The pay fixation of the petitioner be done in accordance with what has been observed by us, hereinabove. Rule is partly made absolute in aforesaid terms with no orders as to costs. [S.V. GANGAPURWALA,J.] [B.R. GAVAI,J.] grt/wp