Karnataka High Court

Rajajinagar Education Society vs Sri Dr C Mahadev on 24 February, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

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
                                                1
THROUGH        LEGAL     REPRESENTATIVES            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
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.