IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3021 OF 2009 Vidya Ashok Mankar ...Petitioner Vs. Maharashtra Mandal (B.A.R.C.) Shikshan Sanstha, Through the Secretary & Ors. .. Respondents --- Shri Mandar V. Limaye for Petitioner ---- CORAM: V.M. KANADE J. DATED 8TH APRIL, 2009 P.C. 1. Heard the Learned Counsel appearing on behalf of the Petitioner. 2. The Petitioner is challenging the judgment and order passed by the Presiding Officer, School Tribunal, Mumbai, whereby the School Tribunal was pleased to direct the Respondents to reinstate the Petitioner without payment of back-wages. It is admitted position that the Petitioner has been reinstated about three months ago. The Petitioner has challenged the non-payment of back-wages by the management pursuant to the order passed by the Tribunal. 3. The learned Counsel on behalf of the Petitioner submitted that the Petitioner had worked for 24 years in the said school and her performance was upto the mark and no adverse remarks were ever communicated to the Petitioner during the said period and, thereafter, her services were illegally terminated. This contention of the Petitioner was accepted by the Tribunal. However, the Tribunal was pleased to hold that the Petitioner was not entitled to get back-wages relying on the judgment of the Apex Court in the case of Kentriya Vidyalaya Sangathan vs. S.C. Sharma (2005) 2 S.C.C. 363. The Learned Counsel for the Petitioner submitted that the management had not led any evidence or had not produced any material to show that the Petitioner had gainfully employed. He further submitted that the Tribunal had not given any opportunity to the Petitioner to bring on record the material to show that she was not gainfully employed. He submitted that the ratio laid down by the Apex Court in the case of Kentriya Vidyalaya Sangathan (Supra) is not applicable to the present case. 4. It is not possible to accept the contention made by the learned Counsel for the Petitioner. The services of the Petitioner were terminated on 30th June, 2008. She has been reinstated somewhere in January, 2009. In her appeal, the admitted position is that no pleadings were made that she was not gainfully employed. No evidence was led by the Petitioner on that count. The Apex Court in the case of Kentriya Vidyalaya Sangathan (Supra) has held that the initial burden is on the employee to show that she was not gainfully employed and, thereafter, the said burden would be shifted on the employer. In the said case also the Petitioner-employee had neither pleaded nor placed any material on that point and, therefore, the Apex Court was of the view that the High Court in the said case had erred in relying that the payment of back wages was a natural consequence which has been followed after the order of reinstatement was passed. In the present case also, the Petitioner had neither pleaded nor placed it on record that she was not gainfully employed. The ratio in the case of Kentriya Vidyalaya Sangathan (Supra), therefore, squarely applies to the facts of the present case. Therefore, in my view, the Trial Court is justified in not awarding back wages to the Petitioner. 5. The learned Counsel for the Petitioner also relied on the rule 11 (2) (c) of the MEPS Act. He submitted that the rule prescribed that once an order of reinstatement was passed, the Tribunal had to order payment of back wages. Rule 11(2) (c) reads as under: “11. (1).... (2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,-- (a)... (b)... (c) to give arrears of emoluments to the employee for such period as it may specify;” Perusal of the said rule, clearly discloses that the discretion is vested in the Tribunal to consider grant of back-wages which is evident from the language of the said section itself. This submission, therefore, also cannot be accepted. Writ petition is accordingly dismissed. V.M. KANADE J.