Point of Law : Where employer wants to deny backwages to employee or contest employee’s entitlement to get consequential benefits, it is upon the employer to plead and prove that employee was gainfully employed during the intervening period.

JUDGMENT :

1. By way of the present writ petition, it is prayed that the order dated 14.09.2005 passed by the Rajasthan Non-Government Educational Institutional Tribunal, Jaipur in appeal No. 21/2001 whereby, the order of termination of Respondent No. 1 dated 09.11.2000 was quashed and the petitioner was directed to reinstate respondent No.1 with all consequential benefits, be quashed and set aside.

2. The Mayo College, Ajmer is an educational institute which was founded in the year 1875 by Sir Richard Bourke, the 6th Earl of Mayo, who was also the Viceroy of India until 1872. It is one of the oldest educational institutions in the country, which was set up as a public boarding school, offering education to the then elite. While the character of the institute changed post-independence, but one thing that remained constant was the nature of the establishment in being an eminent institute of learning. At the outset, it is pertinent to note that Mayo College is an unaided, non-governmental educational institution receiving no grant from either the State or the Central Government and is affiliated to the Central Board of Secondary Education, New Delhi.

3. Succinctly stated, the facts of the present case are as follows:

(i) That respondent No.1, Smt. Pushpa Sisodiya, was employed as a Class-IV worker in Mayo College Girl’s School, Ajmer.

(ii) That in the year 2000, on account of a dispute qua the grant of bonus to the employees of the institute; a Sangharsh Samiti was constituted to start an agitation against the Management of the College, wherein respondent No.1, Smt. Pushpa Sisodiya had an instrumental role in organizing the said agitation.

(iii) That on 19.10.2000, a meeting of the employees was held at the Main Gate of the College wherein they informed the Management of their demands qua the grant of bonus and threatened to go on strike from 22.10.2000, if their demands were not positively met.

(iv) That in response, the Management informed the employees that the constitution of the said Samiti was illegal. Furthermore, they categorically told the employees that the decision for payment of bonus would be given in accordance with the decision to be taken by the State Government. Accordingly, the Management asked the employees to resume their duties, or else, disciplinary proceedings would be initiated against them.

(v) That on 22.10.2000, the Management issued a notice to the said Samiti declaring certain services as essential, including those within the mess and hospital of the petitioner-institute.

(vi) That on 23.10.2000, the Annual Prize Giving Function was held in Mayo College Girls School. It was attended by a large number of visitors, including dignitaries, parents and distinguished stake-holders. However, despite the notice by the management declaring certain services as essential, the said function was wholly disturbed by the Samiti, wherein the role of respondent No.1 was instrumental. Furthermore, as a result of the said agitation, the students along with the parents, guardians and visitors were put to severe discomfort.

(vii) That as a response, the Management issued a notice to call off the strike and for the non-payment of salary of the employees involved therein.

(viii) That on 03.11.2000, a show cause notice was issued to Respondent No. 1 as to why her services should not be terminated. In response, vide letter dated 06.11.2000, respondent No.1 admitted to the fact of her involvement and participation in the strike against the institution.

(ix) That as a result, on 09.11.2000, a unanimous decision was taken by the Governing Council of Mayo College, Ajmer that the continuation of the services of Smt. Pushpa Sisodiya was not in the interest of the institution. Accordingly, an order qua the termination of the services of Smt. Pushpa Sisodiya was passed.

(x) That aggrieved by the said termination order, Smt. Pushpa Sisodiya preferred an appeal before the Rajasthan Non-Government Educational Institutional Tribunal, wherein vide or