Usman Subhan Khatik vs State Of Maha And Ors

The petitioner has challenged the judgment and order dated 02.08.2003 rendered by the learned Presiding Officer, School Tribunal, Nashik, in Appeal No. JAL-8/2001.

The petitioner possesses the educational qualifications of B.A., B.Ed. (Physical) and belongs to the Other Backward Class (OBC) category. The petitioner was appointed as an Assistant Teacher in Shri Krishna Madhyamik Vidyalaya at Bharwas, Taluka Amalner, District Jalgaon on 01.08.1993, a school run and managed by the Sandipani Shikshan Mandal.

Thereafter, the respondent school started receiving 100% government financial grants in the year 1996. Despite receiving grant-in-aid, the management deducted 30% from the salaries of employees, including the petitioner. The petitioner objected to this deduction and paid only a partial sum while asking for more time. The objection to these illegal demands invited a wrath from the Head Master and the President of the Trust.

On 25.07.2000, at approximately 07:00 a.m., the Chairman and the Head Master assaulted the petitioner within the school premises. The petitioner was confined in the school until 05:00 p.m. and subsequently lodged a police complaint at the Marvad Police Station at 06:00 p.m. Following the incident, the petitioner was prevented from entering the school premises or signing the muster roll.

Due to the severe physical and mental torture inflicted by the respondents, the petitioner suffered serious illness and repeatedly communicated inability to report immediately by sending telegrams and medical leave applications by registered post. Upon recovering the health, the petitioner attempted to resume the duties on 19.08.2000, however, the respondent management refused for the same. Instead, the management suspended the petitioner on 21.09.2000, issued a chargesheet with seven allegations on 10.11.2000 and terminated the services vide dismissal order dated 15.02.2001.

Aggrieved by the same, the petitioner presented Appeal No. JAL-8/2001 before the School Tribunal at Nashik. The School Tribunal delivered its judgment on 02.08.2003, concluding that the inquiry was vitiated, unfair and in gross violation of Rules 36 and 37 of the MEPS Rules 1981. It held that the charge of moral turpitude was not proved since the girl's father had withdrawn the allegations and it further noted that the petitioner was ready to join however, was kept out by the management. While setting aside the dismissal and ordering reinstatement with continuity of service, the Tribunal refused the petitioner’s prayer for back wages. Being aggrieved, the petitioner approached this Court.

Ms. Ansari, the learned counsel for the petitioner submits that the School Tribunal committed a grave error in law while refusing to grant back wages after holding the termination order to be illegal and setting it aside. It is submitted that once an order of dismissal is declared unlawful, the rule is to restore the employee to the original post with all consequential benefits, making it obligatory for the Tribunal to award full back wages.

The learned counsel for petitioner further submits that the petitioner was ready and willing to discharge the duties, however, was prevented from doing so by mala fide actions of the respondent management. Furthermore, since the management failed to establish any of the charges, the petitioner cannot be penalized with a denial of back wages. As such, prayed to allow the petition.

Per contra, Mr. Patil, the learned counsel for the respondent supports the order of the School Tribunal to the extent of the denial of back wages submitting that the award of back wages is not a consequence of reinstatement, rather a discretionary relief that depends on the facts and circumstances of each case. The petitioner did not discharge the initial burden of pleading and proving gainfully employed during the period.

The learned counsel further submitted that since the petitioner failed to establish the fact of gainfully unemployed, the School Tribunal was justified in withholding the back wages. The the petitioner remained absent on false medical grounds, causing educational loss to the students and damaging the institution's reputation. As such, prayed for dismissal of the petition.

Upon considering the submissions of learned counsel for litigating sides and perusing the material on record, the issue that arises for determination before this Court is whether the School Tribunal was justified while refusing to award back wages to the petitioner while setting aside the order of dismissal.

At the outset, it is a well-settled principle that the grant of back wages is not an automatic, mechanical or mandatory consequence of an order of reinstatement. While reinstatement aims to restore the employee to the original status, the grant of back wages involves the exercise of judicial discretion, which is guided by facts, equity and established legal principles.

The basic requirement for claiming back wages is that the employee must initially plead and establish a prima facie case about not gainfully employed during the period remained out of service. It is pertinent to note that the appeal memo submitted by the petitioner is detailed. Although the extensive length of the appeal memo, there is no pleading, statement or averment to indicate that the petitioner was not gainfully employed during the relevant period. The memo contains assertions regarding the management's alleged high-handedness, the illegality of the domestic inquiry and the merits of the charges, however, it is silent on the aspect of non-employment of the petitioner.

The Hon’ble Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Vidyalay [2014(2) Mh. L. J. 480], held that reinstatement with continuity of services and back-wages is a normal rule. While deciding such issue, the adjudicating authority or the Court may take into consideration the length of service of the employee / workman, the nature of misconduct, if any, found proved against the employee / workman, the financial condition of the employer and similar other factors. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or make a statement before the Court of first instance that he / she was not gainfully employed. While countering the same, the employer must lead cogent evidence to prove that the employee / workman was gainfully employed. Once the employee proves that he was not employed, the onus lies is on the employer specifically to plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

In the present case, the petitioner has failed to state in the pleadings that was left without any source of income or alternative employment from the date of termination till reinstatement. In absence the same, bare assertion to this effect in the pleadings, the initial burden of proof resting upon the employee has not been discharged.

Considering the absence of necessary pleadings and the absence of supporting evidence to demonstrate financial dependency or non-employment, the School Tribunal was justified while not exercising the discretion awarding back wages. The decision rendered by the Tribunal does not suffer from any perversity that warrants interference by this Court.

In view of the above, I find no merit in the challenge raised by the petitioner. The School Tribunal, while protecting the petitioner's employment status by setting aside the dismissal, balanced the equities while denying the back wages.

Consequently, the writ petition is dismissed.

Rule is discharged. No order as to costs.

Pending civil applications, if any, also stand disposed of.