IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT W.P.No.52190/2017 (S-RES) C/W W.P.No.52191/2017 (S-DIS), W.P.No.57861/2017 (S-RES) AND W.P.No.57866/2017 (S-RES) W.P.NO.52190/2017 BETWEEN: 1. RAJAJINAGAR EDUCATION SOCIETY NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. M.C.MODI ROAD (BEHIND MODI EYE HOSPITAL) MAHALAKSHMIPURAM, BANGALORE-560086 REP. BY ITS SECRETARY. 2. THE PRINCIPAL SRI.AUROBINDO FIRST GRADE COLLEGE FOR WOMEN NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR.M.C.MODI ROAD (BEHIND MODI EYE HOSPITAL) 2 MAHALAKSHMIPURAM, BANGALORE-560086. ...PETITIONERS (BY SRI SAMMITH S., ADV.) AND: DR. M BASAVARAJ S/O MUTTAIAH, AGE 42 YEARS R/AT LAKSHMI SRINIVASA NILAYA, NEAR CITY CLUB, SIRA GATE, TUMKUR -572106. …RESPONDENT (BY SRI. K MANJUNATHA RAO BHONSLE, ADV. FOR C/R) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED FINAL ORDER AND JUDGMENT DATED 05.07.2017 PASSED BY THE EDUCATIONAL APPELLATE TRIBUNAL (THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE) IN M.A. (E.A.T.) NO.8 OF 2013 VIDE ANNEX-F AND FOR PREVENTING A PERVERSION OF LAW AND PROCEDURE AND ETC. W.P.NO.52191/2017 BETWEEN: 1. RAJAJINAGAR EDUCATION SOCIETY NO.6/C, 5TH MAIN, 3 WEST OF CHORD ROAD, DR. M.C.MODI ROAD, (BEHIND MODI EYE HOSPITAL) MAHALAKSHMIPURAM, BANGALORE-560086 REP. BY ITS SECRETARY. 2. THE PRINCIPAL SRI. AURUBINDO FIRST GRADE COLLEGE FOR WOMEN, NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. M.C.MODI ROAD, (BEHIND MODI EYE HOSPITAL) MAHALAKSHMIPURAM, BANGALORE-560086. ...PETITIONERS (BY SRI. SAMMITH S., ADV.) AND: SRI DR C MAHADEV S/O SIDDALINGAIAH, AGE 48 YEARS. R/AT NO.5, MEI COLONY, LAGGERE, BANGALORE-58. …RESPONDENT (BY SRI. K MANJUNATHA RAO BHONSLE, ADV. FOR C/R) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED FINAL ORDER AND JUDGMENT DATED 05.07.2017 PASSED BY THE EDUCATIONAL APPELLATE 4 TRIBUNAL (THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE) IN M.A. (E.A.T.) NO.9 OF 2013 VIDE ANNEX-F AND FOR PREVENTING A PERVERSION OF LAW AND PROCEDURE AND ETC. W.P.NO.57861/2017 BETWEEN: DR. C. MAHADEV S/O. SIDDALINGAIAH, AGED ABOUT 52 YEARS, R/AT NO.5, MEI COLONY, LAGGERE, BENGALURU-560 058. ...PETITIONER (BY SRI. K MANJUNATHA RAO BHONSLE, ADV.) AND: 1. THE RAJAJINAGAR EDUCATION SOCIETY (R) NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. M.C. MODI ROAD, (BEHIND MODI EYE HOSPITAL), MAHALAKSHMIPURAM, BENGALURU-560 086, REP. BY ITS SECRETARY. 2. THE PRINCIPAL SRI. AURUBINDO FIRST GRADE COLLEGE FOR WOMEN, NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. M.C. MODI ROAD, 5 (BEHIND MODI EYE HOSPITAL), MAHALAKSHMIPURAM, BENGALURU-560 086. …RESPONDENTS (BY SRI. SAMMITH S., ADV. FOR R1) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 05.07.2017 AT ANNEX- A & B PASSED IN M.A.[EAT] NO.9 OF 2013 BY THE 3RD ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU, BY AWARDING FULL BACK WAGES WITH ALL CONSEQUENTIAL BENEFITS BY ALLOWING THIS WRIT PETITION. W.P.NO.57866/2017 BETWEEN: DR. M. BASAVARAJU S/O MUTTAIAH, AGED ABOUT 46 YEARS R/AT LAKSHIMI SRINIVASA NILAYA, NEAR CITY CLUB, SIRA GATE TUMKUR-572 106. ...PETITIONER (BY SRI. K. MANJUNATH RAO BHOUNSLE, ADV.) AND: 1. THE RAJAJINAGAR EDUCATION SOCIETY (R) NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. MC MODI ROAD, (BEHIND MODI EYE HOSPITAL) 6 MAHALAKSHMIPURAM BENGALURU-560 086 REP. BY ITS SECRETARY. 2. THE PRINCIPAL SRI AURUBINDO FIRST GRADE COLLEGE FOR WOMEN, NO.6/C, 5TH MAIN, WEST OF CHORD ROAD, DR. MC MODI ROAD, (BEHIND MODI EYE HOSPITAL) MAHALAKSHMIPURAM BENGALURU-560 086. …RESPONDENTS (BY SRI SAMMITH S., ADV.) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 05.07.2017 PASSED IN M.A.[EAT] NO.8 OF 2013 BY THE 3RD ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU, BY AWARDING FULL BACK WAGES WITH ALL CONSEQUENTIAL BENEFITS BY ALLOWING THIS WRIT PETITION. THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED ON 11/02/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING. CORAM: HON'BLE MR JUSTICE S.G.PANDIT 7 CAV ORDER In all the above writ petitions, common judgment dated 05.07.2017 in M.A(EAT)No.8/2013 and M.A(EAT)No.9/2013 on the file of the Education Appellate Tribunal (for short, ‘the Tribunal’) and III Additional City Civil and Sessions Judge, Bengaluru is under challenge by the Management as well as by the employees. Hence, all the writ petitions are taken up together and disposed of by this common order. 2. W.P.Nos.52190/2017 and 52191/2017 are by the Management i.e., Rajajinagar Education Society (R) and another, challenging the judgment by which the employees appeal is allowed, setting aside the order of termination dated 30.05.2013 with a direction to the Management to reinstate the employees with all consequential service benefits with backwages of 40% from the date of their termination till the date of judgment. Whereas, the employees are before this Court 8 in W.P.Nos.57861/2017 and 57866/2017 questioning the judgment insofar as granting only 40% backwages with a prayer to grant 100% backwages. 3. The parties to the above writ petitions would be referred to as they stood before the Educational Appellate Tribunal. The Management was the respondent and the employees were appellants before the Tribunal. 4. Heard learned counsel Sri.K.Manjunatha Rao Bhonsle for employees and learned counsel Sri.Sammith.S., for Management. Perused the writ petition papers. 5. The employees approached the Tribunal under Section 94 of the Karnataka Education Act, 1983 (for short, ‘1983 Act’) questioning the order of termination dated 30.05.2013 with further prayer to reinstate them into service with full backwages and all consequential benefits. The Tribunal on the pleadings of 9 the parties in both the appeals framed the following issues: “IN M.A.(EAT) No.8/2013: 1) Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under the Karnataka Education Act, 1983? 2) Whether the dismissal order dated 30.05.2013 against the appellant by the respondent is in accordance with law? 3) Whether the appellant is entitled for reinstatement with all benefits of regular services? 4) To what order the parties are entitled? IN M.A.(EAT) No.9/2013: 1) Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under the Karnataka Education Act, 1983? 10 2) Whether the dismissal order dated 30.05.2013 against the appellant by the respondent is in accordance with law? 3) Whether the appellant is entitled for reinstatement with all benefits of regular services? 4) To what order the parties are entitled?” 6. The Tribunal answered issue No.2 in the Negative and issue No.3 partly in the affirmative and set aside the order of termination with 40% backwages and other consequential benefits. While setting aside the order of termination, the Tribunal held that no charge memo was issued and enquiry was conducted by providing an opportunity to the petitioners to defend themselves in terms of the Service Rules of the Institutions or in terms of provisions of 1983 Act. 11 7. Learned counsel Sri.S.Sammith appearing for the Management during the course of hearing submitted that the Management would restrict its prayer only to the extent of granting 40% backwages and it would not question the reinstatement ordered by the Tribunal. Further, learned counsel for the Management would submit that in pursuance to the Tribunal’s judgment, the employees were reinstated and one of the employee has retired on attaining the age of superannuation. 8. Learned counsel Sri.K.Manjunatha Rao Bhonsle for employees would contend that the Tribunal committed grave error in not granting full backwages and in restricting the backwages to 40%. It is submitted that when the Tribunal on examination of the material on record comes to the conclusion that there was no enquiry and termination was illegal, the employees would be entitled for full backwages. He submits that the Tribunal has given a definite finding that the 12 respondents have not issued articles of charges and no opportunity was afforded before passing the order of termination. In the said circumstances, the employees would be entitled for reinstatement with full backwages. 9. Per contra, learned counsel Sri.S.Sammith for Management would submit that there is no material whatsoever on record and not even averments by the employees that they were not gainfully employed. Further, learned counsel would submit that backwages is not automatic, on setting aside the order of termination. He submits that it is for the petitioners initially to establish that they were not earning and they were not gainfully employed anywhere and thereafter burden would shift to disprove the same. In the instant case, referring to the pleadings and evidence of the parties before the Tribunal, he submits that there is no averment much less evidence regarding gainful employment or otherwise. Learned counsel for the 13 Management submits that one of the employee Sri.Mahadev is an actor and he invites attention of this Court to the documents produced along with memo dated 11.02.2025 in that regard. 10. It is further submitted that the said employee Sri.Mahadev was earning and he has not disclosed with regard to his earning before the Tribunal. In the above circumstances, learned counsel Sri.S.Sammith would pray for remand of the matter to the Tribunal only with regard to backwages and further he submits that on remand, before commencement of proceedings before the Tribunal, the Management would pay a sum of Rs.2,00,000/- each to the employees towards backwages to show the bonafide of the Management. Learned counsel Sri.S.Sammith also places reliance on the decision of the Hon'ble Apex Court in the case of RAJASTHAN STATE ROAD TRANSPORTATION CORPORATION, JAIPUR VS. PHOOL CHAND (DEAD) 14 THROUGH LEGAL REPRESENTATIVES1 as well as KENDRIYA VIDYALAYA SANGATHAN VS. S.C.SHARMA2 in support of his contention that when there being no material with regard to gainful employment or otherwise, the Tribunal could not have awarded 40% backwages. 11. Having heard the learned counsel appearing for the parties and on perusal of the entire writ petition papers, the only point that would arise for consideration is as to, “Whether the Tribunal is justified in granting 40% backwages and as prayed by the Management, is it a matter for remand?” 12. The answer to the above point would be that the Tribunal is not justified in granting 40% of backwages without there being material on record and the matter needs to be remanded for the purpose of 1 (2018) 18 SCC 299 2 (2005) 2 SCC 363 15 determining backwages with an opportunity to the parties to adduce evidence in that regard, for the following reasons: I have gone through the Trial Court records as well as the writ petition papers. On going through the appeal memo filed before the Tribunal, it is seen that except stating the ground that order of termination is illegal; no enquiry has been held; no articles of charge have been issued; and terminated without obtaining prior permission from the Department of Collegiate Education, there is no averment with regard to their unemployment, gainful employment or any other averments with regard to backwages. Both the employees have led their evidence before the Tribunal. In the evidence also the employees except stating that termination/dismissal from service is illegal, arbitrary, without jurisdiction, without affording any opportunity and without conducting enquiry, stated only that they 16 would be entitled for reinstatement with full backwages and all consequential benefits. The employees have failed to lay any foundation or basis to claim the backwages. 13. On setting aside the termination, grant of backwages is not automatic. Granting of backwages depends on several factors such as the unemployment of the employee, whether the employee was employed anywhere else, the financial capacity of the employer and several other considerations. 14. The Hon'ble Apex Court in RAJASTHAN STATE ROAD TRANSPORTATION CORPORATION (supra) was considering the question as to whether the High Court and labour Court were justified in awarding backwages to the deceased workman after setting aside his dismissal order, held it to be bad in law. At 17 paragraphs 11, 12 and 13, the Hon'ble Apex Court has held as follows: “11. In our considered opinion, the courts below completely failed to see that the back wages could not be awarded by the Court as of right to the workman consequent upon setting aside of his dismissal/termination order. In other words, a workman has no right to claim back wages from his employer as of right only because the Court has set aside his dismissal order in his favour and directed his reinstatement in service. 12. It is necessary for the workman in such cases to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earning to maintain himself or/and his family. The employer is also entitled to prove it otherwise against the employee, namely, that the employee was gainfully employed during the relevant period and hence not entitled to claim any back wages. Initial burden is, however, on the employee. 13. In some cases, the Court may decline to award the back wages in its entirety whereas 18 in some cases, it may award partial, depending upon the facts of each case by exercising its judicial discretion in the light of the facts and evidence. The questions, how the back wages are required to be decided, what are the factors to be taken into consideration awarding back wages, on whom the initial burden lies, etc. were elaborately discussed in several cases by this Court wherein the law on these questions has been settled. Indeed, it is no longer res integra. These cases are, M.P. SEB v. Jarina Bee [M.P. SEB v. Jarina Bee, (2003) 6 SCC 141 : 2003 SCC (L&S) 833] , Haryana Roadways v. Rudhan Singh [Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 : 2005 SCC (L&S) 716] , U.P. State Brassware Corpn. Ltd. v. Uday NarainPandey [U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 : 2006 SCC (L&S) 250] , J.K. Synthetics Ltd. v. K.P. Agrawal [J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433 : (2007) 1 SCC (L&S) 651] , Metropolitan Transport Corpn. v. V. Venkatesan [Metropolitan Transport Corpn. v. V. Venkatesan, (2009) 9 SCC 601 : (2009) 2 SCC (L&S) 719] , Jagbir Singh v. Haryana State Agriculture Mktg. Board [Jagbir Singh v. Haryana 19 State Agriculture Mktg. Board, (2009) 15 SCC 327 : (2010) 1 SCC (L&S) 545] and Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] .” 15. In KENDRIYA VIDYALAYA SANGATHAN (supra), the Hon'ble Apex Court while considering the entitlement of backwages at paragraphs, 14, 15 and 16, it is held as follows: “14. In P.G.I. of Medical Education and Research v. Raj Kumar [(2001) 2 SCC 54 : 2001 SCC (L&S) 365 : JT (2001) 1 SC 336] this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus : (SCC p. 57, para 9) “9. The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter 20 and there is an existing limitation on the High Court to that effect.” Again at para 12, this Court observed : (SCC p. 58) “12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.” 15. The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya [(2002) 6 SCC 41 : 2002 SCC (L&S) 818] , Indian Rly. Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] and M.P. SEB v. Jarina Bee [(2003) 6 SCC 141 : 2003 SCC (L&S) 833] . 16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring 21 on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” 16. In the light of the above decisions of the Hon'ble Apex Court as well as in the fact situation of the present case, I deem it appropriate to remand the appeals back to the Tribunal only insofar as determination of entitlement of backwages of the employees, with a direction to the Tribunal to provide sufficient opportunity to both the parties to adduce their evidence insofar as entitlement or otherwise of backwages. Hence, the following: ORDER a) W.P.Nos.52190/2017 and 52191/2017 filed by the Management are allowed in part, setting aside the portion of the judgment granting 40% backwages and the appeals in M.A.(EAT)No.8/2013 and M.A.(EAT)No.9/2013 are remanded back 22 to the Educational Appellate Tribunal, Bengaluru City to determine the entitlement of backwages or otherwise of the employees on providing opportunity to the parties to adduce evidence in that regard. b) The judgment under challenge with regard to setting aside of termination order and direction to reinstate the employees is confirmed. c) As undertaken by the Management, the Management shall pay a sum of Rs.2,00,000/- each to both the employees towards backwages, within one month from today, which shall be adjusted on determination of their entitlement before the Tribunal. 23 d) In view of the above order, the writ petitions filed by the employees in W.P.Nos.57861/2017 and 57866/2017 stand disposed of in the above terms. Sd/- (S.G.PANDIT) JUDGE NC. CT:bms