Case Note & Summary
The petitioners, officers of the Irrigation Department of Maharashtra, challenged the order of the Maharashtra Administrative Tribunal dated 8.8.2005. The Tribunal had set aside the termination of services of respondent no.1, Aashish Dabhade, with effect from 7.3.2002 and directed payment of full back wages from that date. The petitioners argued that the Tribunal could not grant back wages without enquiring whether the respondent was gainfully employed during the period, relying on the Supreme Court judgment in Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 104 FLR 863, which held that the burden to show lack of gainful employment is on the employee. The respondent's counsel contended that the period of absence (11.8.1995 to 6.3.2002) had been treated as extraordinary leave without pay, so no further enquiry could be conducted. The High Court held that the Tribunal's order granting full back wages was unsustainable because no enquiry was made into gainful employment. However, the court rejected the respondent's argument that the treatment of absence as leave barred a fresh enquiry, noting that the petitioners had terminated services retrospectively. The court allowed the writ petition in part, setting aside the back wages portion, and granted liberty to the petitioners to conduct a fresh enquiry into the respondent's alleged misconduct of unauthorized absence.
Headnote
A) Service Law - Back Wages - Gainful Employment - Order of full back wages set aside as Tribunal did not enquire whether respondent was gainfully employed - Burden on employee to show lack of gainful employment - Reliance on Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 104 FLR 863 (Paras 2-3)
B) Service Law - Misconduct - Absence from Duty - Liberty granted to petitioners to hold fresh enquiry into respondent's absence from 11.8.1995 to 6.3.2002 - Mere treatment of period as extraordinary leave without pay does not bar enquiry (Paras 4-6)
Issue of Consideration
Whether the Maharashtra Administrative Tribunal could grant full back wages to the respondent without enquiring into whether he was gainfully employed during the period of termination.
Final Decision
Writ petition is partly allowed. The order of the Maharashtra Administrative Tribunal granting full back wages to respondent no.1 is set aside. The petitioners are at liberty to hold a fresh enquiry into the alleged misconduct of the respondent in having remained absent from 11.8.1995 to 6.3.2002, in accordance with law. No order as to costs.
Law Points
- Back wages cannot be granted without employee showing lack of gainful employment
- burden of proof on employee
- Tribunal's order set aside for lack of enquiry
- liberty to conduct fresh enquiry into misconduct
Case Details
2010 LawText (BOM) (03) 148
Writ Petition No.4975 of 2009
S.A. Bobde, Smt. Vasanti A. Naik
V.G. Palshikar for petitioners, N.S. Khandewale for respondent no.1
Chief Engineer Irrigation Department, Gosikhurd Project Nagpur; Superintending Engineer, Nagpur Irrigation Circle; Executive Engineer Chandrapur Medium Project Division No.1, Chandrapur
Aashish s/o Vasantrao Dabhade; State of Maharashtra through Secretary Irrigation Department
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Nature of Litigation
Writ petition challenging order of Maharashtra Administrative Tribunal granting full back wages to respondent after setting aside termination.
Remedy Sought
Petitioners sought to set aside the Tribunal's order granting full back wages and sought permission to hold a fresh enquiry into respondent's misconduct.
Filing Reason
Petitioners challenged the Tribunal's order dated 8.8.2005 which set aside termination and granted full back wages without enquiring into gainful employment.
Previous Decisions
Maharashtra Administrative Tribunal by order dated 8.8.2005 set aside termination of respondent w.e.f. 7.3.2002 and directed payment of full back wages from that date.
Issues
Whether the Tribunal could grant full back wages without enquiring into whether the respondent was gainfully employed during the period of termination.
Whether the petitioners can conduct a fresh enquiry into the respondent's absence from 11.8.1995 to 6.3.2002 despite the period being treated as extraordinary leave without pay.
Submissions/Arguments
Petitioners argued that back wages cannot be granted without enquiring into gainful employment, relying on Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 104 FLR 863, and sought permission to hold a fresh enquiry into respondent's absence.
Respondent argued that the period of absence was treated as extraordinary leave without pay, so no further enquiry can be conducted.
Ratio Decidendi
Back wages cannot be granted without the employee demonstrating that he was not gainfully employed during the period of termination; the burden to prove lack of gainful employment lies on the employee. Mere treatment of absence as extraordinary leave does not bar a fresh enquiry into misconduct.
Judgment Excerpts
the order granting back wages could not have been made without enquiring into the question whether the respondent was gainfully employed for the entire period.
We accordingly hold that the order of the Tribunal granting full back wages to the respondent no.1 is not sustainable.
It is not possible to accept the contention raised on behalf of the respondent no.1 merely because the period of absence was treated as 'extra ordinary leave without pay'
Procedural History
The respondent's services were terminated w.e.f. 7.3.2002. He challenged the termination before the Maharashtra Administrative Tribunal, which by order dated 8.8.2005 set aside the termination and directed full back wages. The petitioners filed the present writ petition on 3.3.2010 challenging that order.
Acts & Sections
- Central Civil Services (Classification Control & Appeal) Rules, 1965:
