High Court · 2025
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Ethape( 1 ) 1-WP-6848-2017IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 6848 OF 2017The State Of Maharashtra Through The Joint Director Higher Education, Jalgaon....Petitioner VERSUS1. Bapurao Dhondu Desai Age “ 57 years, Occu. Nil,R/o.-1, Zilla Parishad Colony,Near Shiv College Stop, JalgaonDist: Jalgaon.2. North Maharashtra UniversityJalgaon, Through Vice Chancellor. 3. North Maharashtra University,Jalgaon Through its Registrar. ...Respondents...Mr. P. P. Dawalkar, AGP for Petitioner-State. Mr. Pramod S. Gaikwad Advocate for Respondent No.1.Mr. P. N. Kutti Advocate for Respondent Nos. 2 and 3....CORAM:KISHORE C. SANT, J.DATE:12th FEBRUARY 2025 Ethape( 2 ) 1-WP-6848-2017ORDER :- 1.Herd the learned Advocates for the parties.2.Rule. Rule made returnable forthwith with consent of the partiesheard finally.3.The petitioner is the State Government, who has challenged theorder dated 20th April 2016 passed by the learned Presiding Officer,University and College Tribunal, Aurangabad in Appeal No.NMU-9 of2008 thereby holding respondent No.1 entitled to receive back-wagesfrom the date of termination w.e.f. 24th November 2008 till the date ofhis reinstatement in service. 4.The facts, in short, are that the respondent No.1 was working asHead of the Department with Respondent Nos.2 and 3 i.e. NorthMaharashtra University. When he was in service, he was charged withthe allegations of misconduct, corruption and sexual harassment. Aninquiry was held and after holding inquiry, he came to be terminated.The respondent No.1 challenged the said order by filing an Appealbefore the University and College Tribunal, Aurangabad bearing Appeal
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Ethape( 3 ) 1-WP-6848-2017No.NMU-9 of 2008. The said appeal came to be dismissed by the learnedTribunal. The Respondent No.1 therefore, approached this Court byfiling a Writ Petition No.9988 of 2010. The said writ petition was partlyallowed. The appeal came to be remanded back for fresh decision byfollowing due procedure. After remand, the learned Presiding Officer ofthe Tribunal set aside the termination order and directed to reinstate therespondent No.1. The claim of back-wages was not allowed on theprinciple of “no work no pay”. 5.Respondent No.1 therefore again filed a Writ Petition bearingNo.4718 of 2011 in this Court only to the extent of non-granting ofback-wages. This Court partly allowed the said writ petition andremanded the matter back only for consideration of the back-wages.Paragraph No.5 of judgment dated 15th November 2011 passed by thisCourt in Writ Petition No. 4718 of 2011, reads as under:-“5. With the assistance of the learned counsel I have perused the judgmentdelivered by the learned Presiding Officer, University Tribunal, Aurangabad.The learned Presiding Officer, has come to the conclusion that the enquiryconducted against the petitioner is vitiated. It has also come to theconclusion that the evidence recorded in the departmental enquiry does notsupport the order of dismissal of present petitioner. In the operative partthough the order of termination is quashed and set aside, the learnedPresiding Officer has further directed that the appellant is not entitled for Ethape( 4 ) 1-WP-6848-2017the back-wages in view of the decision of the Supreme Court of India, buthas nowhere discussed about the said judgment of the Apex Court in thebody of the judgment and as to how the same is applicable in the presentmatter. In the whole body of the judgment nowhere transpires that thelearned Presiding Officer has discussed about the entitlement or nonentitlement of back-wages to the petitioner. In such circumstances, theorder to the extent of back-wages deserves to be quashed and set aside.”6.It was specifically observed that, the learned Presiding Officer hasnot discussed anything about the entitlement or non entitlement of back-wages to the petitioner. 7.Till this time, the State was not a party to the appeal before theTribunal. Since there was question of liability to pay the back-wages, thelearned Joint Director of Higher Education, Jalgaon, came to be addedas party Respondent in the appeal. After hearing the parties, now, byway of impugned judgment and order, the Presiding Officer has directedthe Government to pay the amount of back-wages. The University isdirected to calculate the back-wages of the respondent No.1 and forwardthe proposal to the Joint Director of Higher Education, Jalgaon forconsideration and payment of the back-wages. The payment wasdirected immediately. It is this order which is now challenged in this writpetition by the Government. Ethape( 5 ) 1-WP-6848-20178.At the outset, the learned Advocate for the Respondent No.1 pointsout an order dated 21st December 2022 passed by this Court wherein theAGP was directed to take instructions as to whether the State wouldrelease the back-wages of the respondent No.1 and in the event, thepetitioner succeeds in this petition then petitioner would be entitled torecover the amount from respondent No.2 and 3. He submits that, inview of this order, it is clear that it is the Government, who has to paythe amount of back-wages and after determining the liability, it is opento the Government to recover the amount from respondent-University.He thus submits that, this Court has framed an opinion that therespondent No.1 is entitled to receive back-wages and the question as towho is liable to pay the amount is only to be considered. In view of thesame, he submits that now, nothing remained in this writ petition andthe same deserves to be dismissed. This Court will consider thissubmission after the discussion. 9.Learned AGP vehemently argued that this Court has made veryclear that the Tribunal has to consider the entitlement of the respondentNo.1 by considering legal position. However, there is no discussion or Ethape( 6 ) 1-WP-6848-2017findings recorded by the learned Tribunal except saying that “no workno pay” principle is not applicable in the present case as the respondentNo.1 is not a workman. 10.The learned AGP relied upon the judgment in the case of MohanMoreshwar Agashe Vs. The Managing Director, Maharashtra StateElectricity Distribution Company Ltd. And Anr. passed by this court atPrincipal Seat in Writ Petition No.7763 of 2013 dated 3rd March 2017.His second submission is that, It was for the respondent No.1 to showthat he was not gainfully employed. There is nothing produced onrecord by the respondent No.1, except argument to show that he wasnot gainfully employed. Such burden could not have been shifted on thepetitioner. In support of his submission, he relied upon the order dated12th November 2024 passed by this Court in Writ Petition No.1959 of2022 in the case of Pandurang Tukaram Dhumse Vs. Shri SaibabaSansthan Vishwasta Vyavastha. His third submission is that, theGovernment i.e. State was not a party in the proceeding before theTribunal. The Government was added only after the second remand.When only question was of back-wages that was to be decided. He relied Ethape( 7 ) 1-WP-6848-2017upon the judgment of this Court in the case of The President, BhagwanShikshan Prasarak Mandal, Georai Dist. Beed and Anr. Vs. Dr.ShrihariRamrao Dhond and Ors. passed in Writ Petition No.333 of 2021 dated18th August 2021. On relying on these judgments, he submits that, it is afit case to remand the matter back to the learned University and CollegeTribunal, Aurangabad for decision afresh on the aspect of back-wages bykeeping in view the direction passed by this Court in Writ PetitionNo.4718 of 2011 and more particularly in view of paragraph No.5. Thelearned AGP also shows that for some period, the respondent No.1 wasworking with one College namely, Kamalakka Patil Art, Science andCommerce College, Amlaner, Dist Jalgaon. He was even in-chargeprincipal of this College for a period of 02.08.2010 till 26.02.2011 andthereafter again from 01.05.2012 to 31.07.2012. This clearly shows that,he was gainfully employed. 11.The learned Advocate for the respondent No.1 argued that thepetitioner was very much a party before the Tribunal when the questionof back-wages was to be decided. The post on which the respondentNo.1 was working was a sanctioned post and thus it is the liability of the Ethape( 8 ) 1-WP-6848-2017Government to pay the salary to Respondent No.1. The learned Advocatefurther submits that though he was shown to have worked, the saidperiod is only on nine months whereas the period of termination is of 29months. The post where he was working as in-charge principal was in aCollege which was not receiving grants. He was only working onhonorary basis and was not getting complete salary. He thus submits thatthe present writ petition deserves to be dismissed. 12.Mr.Kutti, the learned Advocate for the Respondent Nos.2 and 3-University submits that the fair opportunity ought to have been given tothe parties in view of the judgment passed by this Court in Writ PetitionNo. 4718 of 2011. 13.Looking to the order passed in Writ Petition No.4718 of 2011, thisCourt had specifically directed to consider the matter of back-wages inthe light of the questions referred in the judgment. It is seen from theorder that, this Court finds that the observations that the RespondentNo.1 is not a workman and therefore, the principle of “no work no pay”would not be applicable certainly is perverse. The principle of “no work Ethape( 9 ) 1-WP-6848-2017no pay” is well accepted principle in the service law. So far as the otherissue is concerned, this Court finds that wrongly a burden was placed onthe petitioner to show that the respondent No.1 was not gainfullyemployed. In fact, it is for the concerned person to specifically show thathe was not gainfully employed. As rightly pointed out the learned AGPthat there is no pleading to the effect that the respondent No.1 was notgainfully employed. That issue is raised for the first time in theargument. The learned Presiding Officer failed to appreciate even thisaspect. Now, the respondent has submitted that though he was workingin some other College for some period, he was not getting salary. Thisargument can hardly be accepted. The person cannot work on two postat the same time and thus this argument suffers from fallacy. 14.This Court thus, in all, finds that the directions given in paragraphNo.5 of the judgment in Writ Petition 4718 of 2022 were not properlyconsidered by the learned Presiding Officer. Even after remand, thelearned Presiding Officer has not considered this aspect specifically. Ethape( 10 ) 1-WP-6848-201715.Considering all these aspects, this Court finds that the petitiondeserves to be partly allowed. The matter is therefore remanded back fordecision afresh. So far as back-wages is concerned, the learned PresidingOfficer shall decide this question keeping in view the judgment passedby this Court on 15th November 2011 in Writ Petition No.4718 of 2011and more particularly in paragraph No.5. 16.With this, writ petition is partly allowed. 17.As the parties are in litigation since long, the learned PresidingOfficer is expected to decide this question within three months afterremand of the matter. 18.The learned Presiding Officer shall also keep in mind that it isliability of the respondent No.1 to show that he was not gainfullyemployed.19.Rule is accordingly made absolute in above terms. 20.Civil Applications, if any, also stand disposed off. [KISHORE C. SANT, J.]