wp 198-2020.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.198 OF 2020 1. Vidarbha Mahila Welfare Society, Having Reg. No.1403 Through its President, At Jalgaon Jamod, Distt. Buldana. 2. Secretary, Vidarbha Mahila Welfare Having Reg. No.1403 Society, At Jalgaon Jamod, Distt. Buldana. 3. Chaitanya Primary Vidya Mandir, Through its Headmaster, At Jalgaon Jamod, Distt. Buldana. … PETITIONERS VERSUS 1. Arif Kha Baldarkha Sirsate, Aged 30 years, Occu. Service, R/o Wadgaon Gad. Tq. Jalgaon Jamod, Distt. Buldana 2. Education Officer (Primary) Zilla Parishad Buldana, Tq. And Distt. Buldana … RESPONDENT ------------------------------------------------------------------------------------------ Shri P.B. Patil, Advocate for petitioners Shri S.I. Ghatte, Advocate for respondent No.1 Shri N.S. Jadhav, Advocate for respondent No.2 ------------------------------------------------------------------------------------------ 2026:BHC-NAG:11176 wp 198-2020.odt 2 CORAM : PRAVIN S. PATIL , J. DATE D : 25.08.2026 ORAL JUDGMENT 1. Heard. 2. In the present petition, the challenge is to the judgment and order dated 19.10.2019, whereby the learned Tribunal has quashed and set aside the termination order of the respondent-employee dated 09.09.2017 and directed the respondent-Management to pay the back wages from the date of termination till date of reinstatement within three months, and further, if the Management fails to reinstate the respondent- employee within 30 days as directed, then the respondent- employee would be entitled for full salary with effect from 19.10.2019. Learned Tribunal further directed to record the absence of respondent-employee from the date of termination till the date of reinstatement as a period of continuity of service by taking entry of the same in service book of respondent-employee. wp 198-2020.odt 3 3. The petitioner-Management, during the pendency of the present petition, as post from Scheduled Tribe category falls vacant, is willing to reinstate the present petitioner, and in pursuance of the same, the resolution dated 13.08.2026 is placed on record resolving thereby that to reinstate the respondent- employee on his former post as per the judgment of School Tribunal, but only without back wages. 4. It is stated by the petitioners, before the School Tribunal, there was no statement nor affidavit filed by the respondent-employee that he is gainfully employed elsewhere after his termination of the services, and therefore, the order of the School Tribunal directing the back wages from the date of termination till the date of reinstatement is contrary to the settled principles of law. 5. In the present petition, it is further made a statement that as per the information collected by the petitioners, the respondent-employee has been employed under Satpuda wp 198-2020.odt 4 English Primary School at Jalgaon (Jamod) during the pendency of the present petition. This fact is not controverted by the respondent No.1 by filing any reply in the present petition. 6. The petitioner has relied on the judgment of Hon’ble Supreme Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, reported in (2013) 10 SCC 324, more particularly paragraph No.38.3 which reads as under: “38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance 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 plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages 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 the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting wp 198-2020.odt 5 the same or substantially similar emoluments.” 7. The respondent, however, states that considering the fact that after the judgment of the School Tribunal, he has not been reinstated, though he has attempted to join the post from the date of judgment of the School Tribunal till date, he may be granted the back wages in the matter. However, considering the specific ground raised in the petition that he has been employed under Satpuda English Primary School at Jalgaon (Jamod), and same is not denied by the respondent-employee by filing any counter affidavit in the matter, in my considered opinion, as per the judgment of Hon’ble Supreme Court of India, the respondent- employee would not be entitled for back wages. 8. In the facts and circumstances, the judgment and order passed by the School Tribunal, Amravati, dated 19.10.2019, is confirmed except direction to pay the back wages to the respondent-employee as stated in clause 4 and 5 of the operative part of the judgment. wp 198-2020.odt 6 9. In view of the order of this Court of confirming the judgment of the School Tribunal, the Education Officer is directed to consider the proposal forwarded by the petitioner school dated 21.08.2026 positively, and thereby decide the issue of approval of the services of respondent No.1 in the matter. 10. The said proposal be decided by the Education Officer within a period of 45 days from the date of production of this order before the Education Officer. 11. The Writ Petition stands disposed of accordingly. No order as to the costs. (PRAVIN S. PATIL J.) R.S. Sahare Signed by: Mrs. Ranjana Sahare Designation: PA To Honourable Judge Date: 27/08/2026 18:34:39