SHRI SANT TUKARAM MAHARARAJ SHIKSHAN SANSTHA AND ANRversusVASANT KISANRAO GHARE AND ORS

                                                                                      WP-9363-2023.doc




                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             APPELLATE SIDE CIVIL JURISDICTION

                                             WRIT PETITION NO.9363 OF 2023

                      Sant Tukaram Maharaj Shikshan Sanstha and Anr.          ...Petitioners
                                  vs.
                      Vasant Kisanrao Ghare and Others                        ...Respondents


                      Mr. Rajendra Khaire i/b. Ms. Ashwini Bandiwadekar, for the Petitioners
                      Mr. Rahul Kadam a/w. Mr. Vedant Babar, for the Respondent No. 1.
                      Ms. Mamta Srivastava, for Respondents-State.
VISHAL
SUBHASH
PAREKAR                                      CORAM :                  SHARMILA U. DESHMUKH
Digitally signed by
                                             RESERVED ON :            21st JANUARY, 2026
VISHAL SUBHASH
PAREKAR
Date: 2026.01.28
                                             PRONOUNCED ON :          28th JANUARY, 2026
14:36:51 +0530



                                                           ------------
                      ORDER :

                      1.        Rule. Rule made returnable forthwith and taken up for hearing

                      2nally with consent.



                      2.        The present Petition impugns the judgment and order dated 19 th

                      December, 2022 passed by the Presiding O8cer, School Tribunal, Pune

                      in Appeal No. 15 of 2020.



                      3.        The Petitioner No. 1 is an Educational Institution running the

                      Petitioner No.2 school which is receiving 100% grant in aid from the

                      State Government. The Respondent No.1 came to be appointed as

                      "Teacher" in Petitioner No. 1 school in the year 1999. In the year 2019,

                      departmental inquiry was initiated against Respondent No. 1 by

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issuing charge sheet which was duly replied by Respondent No.1. The

inquiry committee came to be constituted and Respondent No. 1 failed

to nominate his representative on the inquiry committee. The inquiry

proceeded in which the Respondent No.1 participated without any

complaint or grievance. The inquiry committee held Respondent No. 1

guilty of misconduct and recommended dismissal. On 29 th January,

2020, the Petitioner No. 1 issued an order dismissing Respondent No.

1 from service as against which Appeal came to be 2led before the

School Tribunal which was allowed. Hence, the present Petition.



4.        At the outset, learned counsel for Respondent No. 1 submits

that during pendency of the proceedings, Respondent No. 1 has been

reinstated in the services as directed by the School Tribunal and the

only issue which requires consideration is as regards the grant of

backwages which direction has not been complied with by the

Petitioner management. It is not disputed by learned counsel for the

Petitioners that Respondent No. 1 has been duly reinstated in service.



5.        Learned counsel for the Petitioners would submit that in the

year 2019, the school had directed all teaching and non-teaching

employees to furnish information as regards marriage, name of the

spouse and particulars of children. He submits that in the form


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submitted by Respondent No. 1, it was stated that the Respondent No.

1 has only three children and in the declaration executed subsequently

on 15th October, 2019, the Respondent No. 1 stated that he has four

children and out of them two children were born after Government

Resolution came into force making the Respondent No. 1 ineligible for

the post on which he was working due to birth of more than two

children after 20th March, 2005. He submits that by reason of

furnishing false information to the management, show cause notice

was issued and inquiry was conducted which culminated into dismissal.

He submits that the procedure was duly followed while conducting

inquiry which should not have been interfered by the Tribunal. He

would further submit that it is not the 2nding of the School Tribunal

that the order of dismissal is in contravention of any law and despite

thereof has set aside the order of dismissal. He submits that it is well

settled that the School Tribunal does not have jurisdiction to

substitute its 2nding to exonerate the Respondent No. 1. He would

submit that the School Tribunal erred in holding that the provisions of

Maharashtra Civil Services (Declaration of Small Family) Rules, 2005

are not applicable to the employees working in private school without

considering that the Petitioner No.2 school is fully aided primary

school. He submits that as the Respondent No. 1 was dismissed from

services after the departmental inquiry, the principle of ‘no work no


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pay' applies and the Tribunal was not justi2ed in directing the payment

of full back wages.



6.        Per contra, learned counsel for the Respondents would submit

that the inquiry came to be initiated against the Respondent No. 1 by

applying the Government Resolution dated 20 th March, 2005 whereas

it is well settled that Maharashtra Civil Services Rules will not apply to

the Assistant Teacher whose services are governed by the provisions

of MEPS Act and Rules. He would further submit that the Tribunal has

noted the decision of the Court in the case of Chhaya Deepak

Chahare vs. Director of Education, Pune and Ors. 1 in identical facts

holding that there is nothing in the Government Resolution to show its

applicability to the institution that are brought on grant in aid by the

State Government. He submits that in any event as the Respondent

No. 1 has already reinstated, there is no requirement of going into the

aspect of validity of the termination of the services. He would further

submit that in so far as the grant of back wages is concerned, the

Respondent No. 1 had 2led an a8davit before the School Tribunal

stating that the Respondent No. 1 is not engaged in any Government

or private employment from his termination with eEect from 29 th

March, 2020 and he has not earned any salary or bene2ts. He tenders a

copy of the a8davit which is taken on record. He submits that the
1    WP No. 1841 of 2015

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Tribunal has rightly noted that it is not the case of the management

that the Respondent No. 1 was gainfully employed and has rightly

granted back wages. He would further submit that it needs to be

noted that initially the management had admittedly terminated the

services of the Petitioners of 27 th September, 2012 and again on 9 th

February, 2015 which was set aside by the Tribunal and this is the third

attempt in dismissing services of the Appellant.



7.        Rival contentions now fall for determination.



8.        It is not disputed at the bar that Respondent No. 1 has been

reinstated in the services of Petitioner No. 2 school. The validity of

reinstatement of Respondent No.1 is therefore rendered academic.

Despite thereof, it needs to be noted that the Petitioners by applying

the Government Resolution of 20th March, 2005 held the Respondent

No. 1 to be not quali2ed for the job which fact according to the

management was suppressed by Respondent No.1 and the same

amounts to misconduct. Even if the charge was of misconduct, the

basis was the applicability of Government Resolution of year 2005 and

as the Government Resolution itself was not applicable, there was no

question of misconduct. The Petitioner No. 2 is 100% grant in aid

school and the applicability of the Government resolution in the


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context of the birth of a child after cut oE date was speci2cally

considered by this Court in Chhaya Deepak Chahare (supra) wherein

this Court had held that the said resolution would be applicable in case

of Government servants and there is nothing in the Government

resolutions that shows that it is applicable to the institutions that are

receiving grant in aid from the State Government. The decision is a

su8cient answer to the charge levelled upon the Respondent No. 1

and the Tribunal has rightly directed reinstatement of the Respondent

No. 1.



9.        In so far as the grant of back wages is concerned, learned

counsel for Respondent No. 1 has tendered the a8davit of

Respondent No. 1 stating that he was not gainfully employed from the

date of termination i.e. 29th January, 2020. In the case of Dipali Gundu

Survase vs. Kranti Junior Adhyapak Mahavidyalaya and Ors. 2 the

Hon'ble Apex Court has held that while deciding the issue of back

wages, ordinarily an employee desirous of getting back wages has to

either plead or make statement before the adjudicating authority or

the Court that he/she was not gainfully employed or was employed on

lesser wages. If the employer wants to avoid payment of full back

wages, then it has to be plead and lead cogent evidence to prove that

employee / workmen was gainfully employed and was getting wages
2    (2013) 10 SCC 324.

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equal to the wages he/she was drawing prior to the termination of

service. This is so because it is settled law that the burden of proof of

existence of the particular fact lies on the person who makes a positive

assertion about his existence and it is easier to prove the positive fact

then to prove negative fact. Therefore, once the employee shows that

he was not employed the onus lies on the employer to plead and prove

that the employee was gainfully employed and getting some and or

subsequently similar emoluments.



10.       In light of the aforesaid proposition of law, once the employee

by 2ling the a8davit has pleaded that he is not gainfully employed,

the burden was upon the employer to prove the gainful employment.

In the present case, learned counsel for the Petitioners have not been

able to demonstrate any evidence brought on record by the

Petitioners to show that the Respondent was gainfully employed. In

the absence of such evidence, there is no warrant for interference with

the grant of full back wages by the Tribunal.



11.       In light of above discussion, there is no merit in the Petition. Writ

Petition stands dismissed. Rule is discharged.



                                             (SHARMILA U. DESHMUKH, J.)



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