1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4659 OF 2001 Shri. Dadasu B. Survase .. Petitioner Vs The State of Maharashtra and others .. Respondents Shri. A.R. Kapadnis for the petitioner Abdul Rab Shaikh i/b S.G. Kudle for respondent nos. 3 and 4 CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 15th September, 2009 P.C.: 1. Heard the learned counsel for the petitioner ­ original complainant, the learned counsel for respondent nos. 3 and 4 and the learned AGP for respondent nos. 1 and 2. 2. The petitioner was appointed as a peon in 1994 in the educational institution run by respondent nos. 3 and 4. He came to be terminated in the year 1998. Being aggrieved by the termination, he preferred an appeal before the School Tribunal, Solapur. By order dated 6th December, 2009 passed by the School Tribunal, RMA wp4659­09.sxw 2 Solapur, the appeal preferred by the petitioner came to be allowed, termination came to be set aside and respondent nos. 3 to 4 were directed to reinstate the petitioner in service as a peon with continuity of service but without back wages. The petitioner being aggrieved by the fact that no back wages were granted, has preferred this petition. Thus, the petition is only limited to the issue of back wages. 3. As far as back wages is concerned, the Supreme Court in Kendriya Vidyalaya Sangathan Vs S.C. Sharma (S.C.), 2005(104) FLR 863 observed that when a person seeks back wages, the initial burden is on him to prove that during the intervening period, he was not gainfully employed. Only when he succeeds in doing so, back wages can be granted to him. The learned counsel for the petitioner tried to contend that the petitioner was reporting to the school but he was not allowed to sign the muster and as all along, he was reporting to the school, there was no question of the petitioner seeking employment elsewhere. As far as this aspect is concerned, in the appeal preferred by the petitioner before the Tribunal, it is seen that there is no pleadings on this aspect. Thus, RMA wp4659­09.sxw 3 there is no material found to support this contention. Thus, the petitioner has failed to plead or show that in the intervening period, he was not gainfully employed. 4. The learned counsel for the petitioner submitted that once the person is reinstated, the order of back wages would automatically follow. In support of this contention, he has placed reliance on decision of the Supreme Court in case of P.V.K. Distillery Limited Vs Mahendra Ram, 2009(1) CLR 883. I have perused the said decision. In fact, in the said case, the Labour Court order granting full back wages was set aside and only 50% back wages was given. This was done after referring to various earlier decisions including U.P. State Brassware Corp Ltd and Haryana Urban Development Authority. 5. In U.P. State Brassware Corp. Ltd Vs Uday Narain Pandey, 2006 I CLR 39 SC, it is observed that, "the person is not entitled to get something only because it would be lawful to do so". It is further observed that, "although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of RMA wp4659­09.sxw 4 the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and / or for a period that was spent unproductively". 6. In the case of Haryana Urban Development Authority V Om Pal, 2007 II CLR 856 SC, it is stated that, it is now also well­settled that despite a wide discretionary power conferred upon the Industrial Courts under Section 11A of the 1947 Act, the relief of reinstatement with full back wages should not be granted "automatically" only because it would be lawful to do so. Grant of relief would depend on the fact situation obtaining in each case. It will depend upon several factors" 7. Thus, on perusal of the decision in case of P.V.K. Distillery Ltd Vs Mahendra Ram (Supra), I find that it does not lay down a law in absolute terms to the effect that the right to claim back wages must necessarily follow an order directing reinstatement. 8. The learned counsel for the petitioner also relied on two decisions of two learned single judges of this court i.e in case of Zarin Nozer Desai Vs M.S. Rawat and another, 2007(6) Mh. L. J. 769 and RMA wp4659­09.sxw 5 Ramnath Govind Sonavane Vs The Secretary, Janata Shikshan Prasarak Mandal Chandanpuri & Ors, 2000(3) ALL MR. 372. As far as these decisions are concerned, the facts therein are not similar to the facts in the present case and hence, the said decisions cannot help the petitioner in any manner. 9. In view of above facts, the order passed by the School Tribunal, Solapur does not call for any interference. Writ petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp4659­09.sxw 6 RMA wp4659­09.sxw