1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF FEBRUARY 2017 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI WRIT PETITION Nos.29696-29697 OF 2011(S-RES) BETWEEN : 1. [ENTITY], (Recognized by Government Of Karnataka) Behind Rathna Talkies, Housing Board, Nanjangud - 571 301, Represented by its Secretary Smt.Masuda Begum. 2. [ENTITY], The Head Mistress, Age: 48 years, [ENTITY], (Recognized by Government Of Karnataka), Nanjangud - 571 301. Petitioners (By Sri [ENTITY], Advocate) AND: [ENTITY], W/o.K.P.Mahadeva Swamy, Aged about 46 years, 7th Cross, R.P.Road, Nanjangud, Mysore District. Respondent (By Sri [ENTITY] for Sri [ENTITY], Advocate) 2 These writ petition are filed under Articles 226 and 227 of the [ACT] of India praying to quash the impugned order dated 11.05.2011 passed in E.A.T.8/2007 on the file of the Prl. Dist. Judge & Educational Appellate Tribunal, Mysore vide Annexure-A as the same is illegal, opposed to the provisions of Karnataka [ACT], 1983 and etc. These writ petitions, coming on for orders, this day, the Court made the following: ORDER
The petitioners have called into question the judgment, dated 11.05.2011 (Annexure-A) passed by the Educational Appellate Tribunal, Mysore in [CASE NUMBER].
2. The facts of the case in brief are that the respondent was working as an Assistant Teacher in lower primary section in the first petitioner School from 23.06.1992 to 10.04.2006 for a period of 14 years. In the first week of June, 2006 the respondent was not permitted to sign the attendance register and was not permitted to do her work in the School. Her oral requests that she be permitted to resume the work did not lead her anywhere. Finally the petitioners issued the relieving order to her on 25.06.2007, which order she challenged by filing [CASE NUMBER].
3. The petitioners filed the statement of objections in the said appeal proceedings contending that the respondent did not have the requisite qualification to be appointed as the Assistant Teacher. It is their further defence that the petitioner virtually abandoned the work in 2006. As she was pleading with the petitioners that she needs the relieving order for the purpose of joining some other educational institution, the relieving order was issued to her. Now the relieving order is being used, as if the petitioners have terminated her services.
4. Sri [ENTITY], learned counsel for the petitioners submits that the respondent produced the documents and original testimonials and took them back. He submits that the petitioners have not at all removed the respondent from their services. She has voluntarily abandoned the service. It is at her request that the relieving order came to be issued to her in good faith.
5. He submits that the respondent has admitted in the course of her cross-examination that she has not passed the 10th standard and that she had studied only upto 9th standard. Therefore, there is no question of her being continued as the Assistant Teacher. According to him, the relieving order cannot be brought within the ambit of [SECTION] of the [ACT]. He read out para 8 from this Court's decision in the case of [PRECEDENT]:
"8. Therefore, on and from 1.6.995 the Tribunal can exercise only such jurisdiction as has been saved under the [ACT]. [SECTION] of the [ACT], reads as under:-
"Appeals.- (1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal."
6. Sri [ENTITY] appearing for Sri [ENTITY], learned counsel for the respondent submits that there is nothing which the respondent has not disclosed to the E.A.T. It is the case of the respondent that she has studied only upto 9th standard. Knowing fully well that she is competent to teach the lower sections in the School, she was taken as ful-fledged teacher. He takes serious exception to the conduct of the petitioners who did not enter the witness box and who did not argue out their case before the E.A.T. 7, The submissions of the learned counsel have received my thoughtful consideration. The reliance of the petitioner's side on this Court's decision in the case of [PRECEDENT] (supra) does not come to the rescue of the petitioners in any way. In the said case, what was challenged was the suspension order. For challenging the suspension order, different remedies are provided under the [ACT]. The order of removal or dismissal or reduction in rank from service is appeallable only before the E.A.T. On the ground that the termination order is not in the written form, the appeal cannot be resisted. If any other interpretation is put on [SECTION] of the said Act, then the educational institutions may only issue oral orders of removal for the purpose of getting themselves placed beyond the purview of the appeal provided by the Statute.
8. I may usefully refer to the Division Bench decision of this Court in the case of [PRECEDENT]. Para 17 of the said decision is extracted hereinbelow:
"17. The Act was enacted to provide for the planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organization, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. [SECTION] of the Act is a self contained code in so far as the terms and conditions of service of employees in private educational institutions are concerned. It sets out under what circumstances any punishment could be imposed on an employee or a servant of an educational institution and prescribes an elaborate procedure before any such penalty is imposed. [SECTION] of the Act mandates that every order imposing a penalty on a employee shall be communicated to the employee in the prescribed manner and until it is done it is not a valid order and it has no effect whatsoever. It is based on past experience, where the employee of an educational institution was left in the lurch, by termination of his employment, without a written order being communicated to him, so that he is prevented from having any legal remedy. Therefore, the legislature wanted to communicate a strong message to such educational institutions that such illegal acts would not put an end to a legal and valid relationship of master and servant. It has no legal effect and their obligations to the employee continues. It is to act as a deterrent and nip at the bud such mischievous tendencies this provision is made. That does not mean that in law where there is no termination order, he cannot avail the remedy provided under the Act. Therefore, the legislature has consciously avoided the word "written" order in the entire scheme of the Act, and a remedy is provided against both written or oral orders, in [SECTION] of the Act. [SECTION] provides a remedy to such aggrieved persons. A separate forum by way of an Educational Appellate Tribunal is constituted under the Act in every District to adjudicate the disputes between an employee of an educational institution and its management. Thus, the act provides a comprehensive machinery for adjudication of disputes to an aggrieved employee of an educational institution."
9. Admittedly, the respondent has worked for an un- broken period of 14 years in the services of the petitioners. It is improbable that she would have abandoned the services and requested the Management to issue her the relieving order. This assessment is all the more so taking into account two factors:
(a) The petitioners did not enter the witness box (b) They did not argue out their case.
10. There is full justification for setting aside the relieving order, dated 25.06.2007. As the respondent does not meet the prescribed eligibility criteria to be appointed as an assistant teacher, the E.A.T. has done some balancing act by directing the respondent's reinstatement but not as an assistant teacher but as a peon. The E.A.T. cannot be found to be at fault for moulding and granting the relief. Therefore those parts of the order, which set aside the relieving order, dated 25.06.2007 and which direct her appointment as peon and which grant the continuity of service and other benefits, are upheld.
11. However the E.A.T.'s direction for the payment of 50% of backwages requires modification. No specific reasons are assigned for awarding 50% of the backwages. To answer whether the backwages are to be paid and if so at what rate, I need to refer to the Hon'ble Supreme Court's decision in the case of [PRECEDENT]. In the said decision, the Apex Court has culled out the following propositions from the catena of decisions:-
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under [SECTION] of the [ACT] and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
38.5. The cases in which the competent court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under [SECTION] or [SECTION] of the [ACT] and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always keep in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in [PRECEDENT].
38.7. The observation made in [PRECEDENT] that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
12. The perusal of the aforesaid decision reveals that the reinstatement with continuity of service and back wages is a normal rule and that they can be denied to the employee/workman only under certain circumstances like if he is gainfully employed, if the prolongation of the litigation is at his instance, etc.
13. The ends of justice would be met by my modifying the impugned orders insofar as they pertain to the payment of backwages as follows:-
i) The respondent shall file an affidavit to the effect that she was not gainfully employed from 25.06.2007 till the date of her reinstatement. If she does not file such an affidavit with the petitioner No.1 within ten days from the date of the issuance of the certified copy of today's order, she shall not be entitled to the backwages.
ii) If she files such an affidavit, it is thereafter that the petitioner No.1 shall make the necessary enquiries and satisfy itself as to whether or not the respondent was gainfully employed. If she was gainfully employed during the period in question or any part thereof, the respondent is not entitled to the backwages for the said period or for any part thereof, as the case may be. The respondent is entitled to the backwages for the period for which she was not gainfully employed. As held by the Apex Court in the case of [PRECEDENT] (supra), the onus of proving that she is not gainfully employed cannot be placed on the employee, as the same amounts to compelling him/her to prove the negative, which is not possible and hence not permissible. Once, the respondent files the affidavit that she was not gainfully employed, the burden of showing that she was gainfully employed shifts on to employer.
14. This petition is allowed in part, that is, to the extent indicated hereinabove. No order as to costs.
JUDGE Cm/-