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. CORAM : SHARMILA U. DESHMUKH RESERVED ON : 21st JANUARY, 2026 PRONOUNCED ON : 28th JANUARY, 2026 ------------ 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 19th 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 Vishal Parekar 1/7 VISHAL SUBHASH PAREKAR Digitally signed by VISHAL SUBHASH PAREKAR Date: 2026.01.28 14:36:51 +0530 WP-9363-2023.doc 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 29th 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 Vishal Parekar 2/7 WP-9363-2023.doc 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 Vishal Parekar 3/7 WP-9363-2023.doc 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 20th 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 29th 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 Vishal Parekar 4/7 WP-9363-2023.doc 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 27th September, 2012 and again on 9th 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 Vishal Parekar 5/7 WP-9363-2023.doc 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. Vishal Parekar 6/7 WP-9363-2023.doc 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.) Vishal Parekar 7/7