Vismay Digambar Thakare v. Ramchandra Samaj Sewa Samiti and Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2708 of 2012. From the Judgment & Order dated 07.05.2010 of the High Court of Judicature at Mombay, Nagpur in M.C.A. (Review) No. 1479 of 2009 in Letters Patent Appeal No. 386 of 2008. Manish Pitale, Wasi Haider, Chander Shekhar Ashri for the Appellant. Satyajit A. Desai, Anagha S. Desai, Vipul Ganda, Somanatha Padhan, Rahul M. Bhangde for the Respondents. The Judgments of the Court was delivered by VISMAY DIGAMBAR THAKARE v. RAMCHANDRA SAMAJ SEWA SAMITI AND ORS. T.S. THAKUR, J.

1Leave Granted.

2This appeal arises out of a judgment and order dated 7th May, 2010 passed by the High Court of Judicature at Bombay, Nagpur Bench, whereby M.C.A. (Review) No.1479 of 2009 in Letters Patent Appeal No.386 of 2008 has been allowed and the judgment of the School Tribunal to the extent the same awarded back wages to the appellant has been set aside.

3When the matter came up before us for hearing on 27th February, 2012, learned counsel for the parties made their submissions extensively but sought liberty to mention the matter again if the parties were able to negotiate an amicable settlement on the question of back wages claimed .by the appellant? Only to recapitulate the line of arguments advanced before us we may mention that learned counsel for the appellant had placed reliance upon the decisions of this Court in U.P. State Brassware Corpn. Ltd. & Anr. v. Uday Narain Pandey (2006) 1 SCC 479, Reetu Marbles v. Brabhakant Shk/a (2010) 2 SCC 70, and Metropolitan Transport Corporation v. V. Venkatesan (2009) 9 SCC 601, to contend that back wages could be awarded to the appellant even in the absence of a specific assertion by the appellant to the effect that he was not gainfully employed during the period he remained out of service. It was argued by learned counsel for the appellant on the strength of the above decisions that back wages could range between 25% to 60%.

4On behalf the respondent-Institution, reliance was placed upon the decision of this Court Kendriya Vidya/aya Sangathan & Anr. v. S.C. Sharma, (2005) 2 SCC 363, in an attempt to demonstrate that unless there was a specific assertion that the appellant was not gainfully employed during the period he remained out of service, no back wages could be awarded in his favour.

5It is not necessary ~or us to pronounce upon the rival A contentions urged by learned counsel for the parties. We say so because the matter was mentioned before us on 28th February, 2012 by the learned counsel for the parties. It was submitted on behalf of the respondent-school and the Simiti that they were willing to pay to the appellant a sum of Rupees one B lakh in full and final settlement of the claim made by him towards back wages. Mr. Manish Pitale, learned counsel for the appellant submitted on instructions that the appellant was ready and willing to accept the said amount in satisfaction of his claim.

6The parties having agreed to a solution, we see no C reason why the same cannot be made a basis for disposal of this appeal in modification of the order passed by the High Court.

7We accordingly, allow this appeal but only iri part and D to the extent that the appellant shall be paid by respondents No.1~Samiti and No.2-lnstitution jointly and severally a sum of Rupees one lakh towards back wages in full and final settlement of the claim of the appellant on that account. The payment shall be made to the appellant within a period of three months from E today failing which the amount shall start earning interest @ 10% p.a. from the date of this judgment till actual payment. The parties to bear their own costs. B.B.B. Appeal partly allowed.