REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2708   of 2012 (Arising out of S.L.P. (C) No.21197 of 2010)

Vismay Digambar Thakare  …Appellant

Versus

Ramchandra Samaj Sewa Samiti & Ors. …Respondents

J U D G M E N T  

T.S. THAKUR, J.

1. Leave Granted.

2. This 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.

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3. When 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  Shkla  

(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%.   

4. On behalf the respondent-Institution, reliance was placed  

upon the decision of this Court Kendriya Vidyalaya 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.    

5. It  is  not  necessary  for  us  to  pronounce  upon  the  rival  

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 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.  

6. The parties having agreed to a solution, we see no reason  

why the same cannot be made a basis for disposal of this appeal  

in modification of the order passed by the High Court.  

7. We accordingly, allow this appeal but only in part and to  

the extent that the appellant shall be paid by respondents No.1-

Samiti and No.2-Institution 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 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.                           

……….………..……………..…J.                   (T.S. THAKUR)

…………………………….………J.                   (GYAN SUDHA MISRA)

New Delhi March 2, 2012