Bangalore District Court
James Kumar A vs The Secretary Bodhinikethan Trust on 9 January, 2025
IN THE COURT OF THE XXVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-9) AT BENGALURU.
Dated this the 9th day of January, 2025.
PRESENT:
Sri HAREESHA A., B.A., LL.B.,
XXVII Additional City Civil and Sessions Judge,
Bengaluru.
M.A (EAT). No.11/2021
APPELLANT : James Kumar A.
S/o. Arul Muthu,
Aged about 38 years,
Residing at No.181, Byrathi
Doddagubbi Post,
Bengaluru - 562 149.
(By Sri M.C.B., Advocate)
-VERSUS-
RESPONDENT : The Secretary,
Bodhinikethan Trust, CMI
Ashram, K. Narayanapura,
Kottanuru Post, Bengaluru
- 560 077.
(By Sri R.R.K., Advocate)
JUDGMENT
This appeal is direct against the order dated:
30.01.2016 passed by the respondent by terminating the appellant from the service. The appellant sought to set aside the impugned order and direct the respondent to reinstate the appellant into service with continuity of service and all consequential benefits, including back Cont'd..
-2- M.A. EAT. No.11/2021 wages from the date of termination until the date of reinstatement.
2. The brief facts which is relevant for disposal of the present appeal is thus;
The respondent, Bodhinikethan Trust, operates Kristu Jayanti College, a reputed educational institution in the State, which employs 34 office staff members and over 100 teaching staff members. The appellant was appointed as office staff in the administration on 03.06.2003, and later, in recognition of his dedicated service and administrative experience, was made a permanent employee on 01.06.2006. The appellant maintains that, after serving continuously for 12 years with a flawless record, the respondent terminated his employment on 30.01.2016 without providing any valid reason. The respondent claims that, the service of the appellant was terminated on the ground that, his name was found place in FIR registered by Hennuru Police in connection with a criminal case filed by one Sri. Srinivasa, in Crime No. 79/15, alleging that on 09.03.2015, a group of unknown individuals assaulted Cont'd..
-3- M.A. EAT. No.11/2021 African nationals. The appellant contends that there were no allegations implicating him in any criminal activity, nor was there any connection between the incident and his duties at the college. The respondent, without verifying the charges, allegedly prohibited the appellant from reporting to work starting on 12.03.2015. No show-cause notice or charge sheet was issued to the appellant at that time. The appellant subsequently approached the Labour and Conciliation Officer on 09.06.2015. During the pendency of these proceedings, the respondent paid subsistence allowances from 04.08.2015 and issued a show-cause notice, falsely accusing the appellant of unauthorized absence and involvement in the criminal case. The appellant replied to the show-cause notice, denying all charges. However, the respondent was not satisfied with the appellant's response and ordered a domestic enquiry, appointing Mr. Aloysius Edward as the enquiry officer.
3. The enquiry officer conducted the inquiry and submitted a report in which he found the charges Cont'd..
-4- M.A. EAT. No.11/2021 against the appellant to be substantiated. On the basis of the enquiry report, the respondent issued a second show-cause notice, without granting the appellant further opportunity to defend himself, and terminated the appellant's service with effect from 30.01.2016. Subsequent to the termination, the Labour and Conciliation Officer closed the proceedings, giving the appellant the liberty to raise the dispute before the Labour Court. The appellant raised the industrial dispute before the 3rd Additional Labour Court, Bengaluru, under Section 10(4-A) of the Industrial Disputes Act, 1947. The dispute was dismissed as non- maintainable, and the writ petition filed against the dismissal was also rejected, though the appellant was granted the liberty to file an appeal before the appropriate authority under Section 94 of the Karnataka Education Act, 1983.
4. The appellant contends that the respondent has failed to follow the established procedure for termination and that the enquiry was conducted in violation of the principles of natural justice. The enquiry officer was Cont'd..
-5- M.A. EAT. No.11/2021 appointed with a predetermined outcome, and the appellant was not given an adequate opportunity to defend himself. Moreover, the appellant was not provided with the documents produced by the respondent during the enquiry. Further, the appellant asserts that, despite reporting for duty on 12.03.2015, the respondent unlawfully refused him permission to continue working, citing his involvement in the criminal case. The appellant claims that had he truly been absent from duty, the respondent should have issued a formal notice or show-cause notice. Instead, the respondent proceeded with an enquiry based on false charges. Additionally, the appellant contends that in connection with the assault on African nationals, the police had not identified him in the complaint, and his name was included in the FIR based solely on assumptions and presumptions. The criminal case, which was heard by the 1st ACMM, Bengaluru, in CC No. 15484/2015, ultimately resulted in an acquittal on 18.07.2016. The appellant submits that the charges against him are unfounded, and the termination was made without just cause. The respondent's actions were Cont'd..
-6- M.A. EAT. No.11/2021 arbitrary, procedurally flawed, and in violation of natural justice. Therefore, the appellant sought to set aside the order to termination and to instate the appellant with all consequential benefits.
5. Upon service of notice, the respondent entered appearance through their authorized representative and filed their objections, questioning the maintainability of the appeal. The respondent contends that the appellant was initially appointed as office administration staff on 01.07.2003, and his appointment was renewed by letter dated 01.06.2006, after the completion of the probationary period. The respondent further asserts that the appellant was suspended by the appointing authority on 05.08.2015, pending an enquiry into allegations of unauthorized absence and involvement in a criminal offense. The respondent maintains that an enquiry was conducted by the Secretary of Kristu Jayanti College, who appointed Dr. Aloysius Edward J., Dean of the Faculty of Commerce and Management, as the enquiry officer. A show-cause notice was issued to the appellant on 05.08.2015, detailing the charges Cont'd..
-7- M.A. EAT. No.11/2021 against him. The respondent claims that the appellant was absent from work on the afternoon of 12th March 2015, without informing or intimating his colleagues or the management staff of the respondent.
6. The respondent admits that the appellant replied to the show-cause notice on 20.08.2015, wherein the appellant referred to the registration of an FIR by the CCB Police against him, alleging involvement in the assault of foreign nationals in Byrathi Village. The incident was widely reported in the media, and upon investigation, the police filed a charge sheet against the accused, which led to a case being registered in the 1st Additional Chief Metropolitan Magistrate Court, Bengaluru, under CC No. 15484/2015. The respondent further contends that the enquiry proceedings were conducted in a fair and impartial manner. The enquiry officer concluded that the charge of unauthorized absence against the appellant was substantiated. Additionally, the appellant's involvement in a criminal offense was also found to be established. The enquiry officer observed that, as the college is a reputed Cont'd..
-8- M.A. EAT. No.11/2021
educational institution committed to maintaining
discipline, the presence of an individual alleged to be involved in a criminal activity would disrupt the college environment and negatively affect both students and staff. Based on these findings, the respondent issued an order of termination on 30.01.2016, which was duly served to the appellant. The respondent also asserts that the appellant accepted a gratuity payment of Rs. 65,798/- in full settlement. The respondent further maintains that the termination was carried out in accordance with the institution's service rules and, therefore, prays for the dismissal of the appeal with exemplary costs.
7. To substantiate his claim, the appellant appeared as PW.1 and presented documents Ex.P.1 to P.6 in support of his case. On behalf of the respondent, the enquiry officer, Dr. Aloysius Edward, was examined as RW.1. The enquiry officer filed an affidavit reiterating the statements made in the objection filed by the respondent's Secretary, and documents Ex.R.1 to R.13 were marked during the enquiry.
Cont'd..
-9- M.A. EAT. No.11/2021
8. I have carefully considered the arguments presented by both parties and have thoroughly examined the entire evidence adduced by the appellant and respondent in support of their respective claims. The point that would arise for my consideration are as below-
POINTS
1. Whether the appellant proves that, the impugned order is amenable to question in appeal under Section 94 of the Karnataka Education Act, 1983?
2. Whether an enquiry officer has justified in holding that, the charges against the appellant regarding unauthorized absent and involvement of crime is proved?
3. Whether the respondent justified in terminating the appellant from his service as appellant involved in a criminal case?
4. Whether the appellant has made out any ground to set aside the impugned order?
Cont'd..
-10- M.A. EAT. No.11/2021
5. Whether the appellant is entitled for the relief sought for in the appeal?
6. What order or decree?
9. My findings on the above Points are as under -
POINT No.1 - In the Affirmative;
POINT No.2 - In the Negative;
POINT No.3 - In the Negative;
POINT No.4 - In the Affirmative;
POINT No.5 - Partly in the Affirmative; POINT No.6 - As per final order, for the following -
REASONS
10. POINT No.1: The appellant has challenged the termination order dated 30.01.2016, passed by the respondent, which removed the appellant from service on the grounds of unauthorized absence from duty and alleged involvement in a criminal case, as per the findings of the inquiry officer. The appellant has specifically contended that, despite reporting for duty on 12.03.2015, the respondent refused to permit him to resume work without assigning any reason.
Cont'd..
-11- M.A. EAT. No.11/2021 Subsequently, an inquiry officer was appointed, and charges were framed against the appellant, accusing him of unauthorized absence and involvement in a criminal case.
11. The respondent has argued that the appeal against the impugned order is not maintainable under Section 94 of the Karnataka Education Act, 1983. Therefore, before addressing the respondent's contentions, it is pertinent to refer to the relevant provisions of the Act. Section 92 deals with dismissals and removals etc., which reads thus;
Section 92 - Dismissal, Removal, etc. (1) Subject to such rules as may be made in this behalf no teacher or other employee of a private educational institution shall be dismissed, removed or reduced in rank except,-
(a)in accordance with the conditions of service governing him;
(b)after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in Cont'd..
-12- M.A. EAT. No.11/2021 respect of the said charges, and where it is proposed after such inquiry to impose on him such penalty, it may impose such penalty, on the basis of the evidence adduced during such inquiry: Provided that this sub-section shall not apply to temporary employees or to the dismissal, removal or reduction in rank of a teacher or other employee on the ground of misconduct which has led to his conviction on a criminal charge involving moral turpitude. (2) No order imposing any penalty other than those referred to in sub-section (1) shall be passed except after,-
(a)the teacher or employee is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation which he may wish to make; and
(b)such representation, if any, is taken into consideration.
Cont'd..
-13- M.A. EAT. No.11/2021 (3) (a)A teacher or other employee may be placed under suspension by the managing committee,- (i)where disciplinary proceeding against him is contemplated or is pending; or
(ii)where a case against him in respect of any criminal offence is under investigation or trial.
(b) No such suspension shall remain in force for more than six months:
Provided that if the enquiry is not completed within the period of six months, the secretary shall report the matter to the competent authority, who may permit extension of the period of suspension beyond six months, if he is satisfied that the enquiry could not be so completed due to circumstances beyond the control of the Governing Council.
(c)the Managing Committee placing an employee under suspension shall forthwith report to the competent authority the circumstances in which the order was made.
(d)Subject to such rules as may be prescribed, every employee placed under suspension under Cont'd..
-14- M.A. EAT. No.11/2021
this section shall be entitled to such
subsistence allowance as may be prescribed.
12. Section 94 of the provision empowers to aggrieved person to approach the appellate authority against the order of dismissal, removals or reduction in rank. Section 94 reads thus;
94. 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.
(2) The provisions of sections 4 and 5 of the Limitation Act, 1963 shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employees has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date,-
Cont'd..
-15- M.A. EAT. No.11/2021
(a)by him against such dismissal or removal or reduction in rank or termination; or
(b)by him or by the Governing Council against any order made in any appeal referred to in clause (a);is pending before any officer, such appeal shall, notwithstanding anything in sub- section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under sub-section (1) or transferred under sub- section (3) after giving the parties the opportunity of being heard. (5) In respect of an order imposing a penalty other than those specified in sub-section (1) of section 92, on any teacher or other employee, an appeal shall lie to the competent authority within three months from the date of communication of the order imposing such penalty.
(6) The competent authority shall dispose of an appeal preferred under sub-section (5) after Cont'd..
-16- M.A. EAT. No.11/2021 giving the parties the opportunity of being heard.
(7) An appeal against an order of the competent authority under subsection (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final.
11. Section 99 reads thus;
99. Termination of service. An employee of a private educational institution who has been confirmed and whose services are retrenched or terminated by the Governing Council for reasons other than as a measure of punishment shall be entitled to compensation at the rate of fifteen days salary for every completed year of service subject to minimum of three months salary and maximum of fifteen months salary.
13. The learned counsel for the respondent has argued that termination is not an order appealable under Section 94 of the Karnataka Education Act, 1983. It is indeed true that termination simpliciter is not appealable under Section 94. However, as per Section 99 of the Act, an Cont'd..
-17- M.A. EAT. No.11/2021 employee of a private educational institution who is retrenched or terminated by the Governing Council for reasons other than as a measure of punishment is entitled to compensation as prescribed therein. On the other hand, if the termination was effected as a punitive measure, it cannot be treated as termination simpliciter to deny the employee their right of appeal under Section
94. The Hon'ble High Court of Karnataka, in the case of Management of M.S. Ramaiah Medical College v. Dr. M. Somashekar, reported in ILR 2004 KAR 34, has clarified this legal position. The Court held as thus;
"10.An imposition of punishment, by way of dismissal/removal/reduction in the rank, to be valid, has to be preceded by a disciplinary enquiry, as required under Section 92(1)(b). But all terminations, not preceded by a disciplinary enquiry, are not necessarily terminations simpliciter. Any termination on the ground 'services no longer required', if on examination by the Tribunal is found to be punitive in nature, passed either to victimise the employee or as a disciplinary measure, will be 'dismissal or removal'. If the order of dismissal, removal or reduction in rank is passed as a punishment, after a fair and proper domestic enquiry, it will Cont'd..
-18- M.A. EAT. No.11/2021 be valid, subject however to principle of
proportionality (of punishment). On the other hand, if the order, though termed as termination or retrenchment is really intended to be punitive, either without holding any enquiry or to victimise the employee, then it will be illegal and liable for interference. If the employee is not able to satisfy the Tribunal that the order appealed against is by way of penalty and the Tribunal is satisfied that the order is a termination simpliciter or is a retrenchment, the appeal will have to be rejected.
11.We may sum up the position regarding remedies available to an employee (including a teacher) of a private educational institution thus:
(i) The remedy against an order imposing the penalty of dismissal, removal or reduction in rank, is by way of appeal to the Educational Appellate Tribunal under Section 94(1).
(ii) The remedy against an order imposing any other penalty, is by way of an appeal to the Competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7).
(iii) The remedy against any order of management which is not punitive in nature, is by way of revision to the State Government under Section 131."
Cont'd..
-19- M.A. EAT. No.11/2021
14. Therefore, it is evident that if the appellant successfully establishes that the impugned order, although described as termination simpliciter, is in essence punitive in nature, he would be entitled to maintain the present appeal. In the case at hand, it is an admitted fact that the respondent framed specific charges against the appellant, alleging unauthorized absence from duty and involvement in criminal activities. These charges led to the initiation of disciplinary proceedings, culminating in the issuance of the impugned order of termination.
15. It is a settled principle of law that the true nature of an order is to be determined by examining its substance and effect rather than the terminology used by the employer. When allegations are made against an employee, and a formal inquiry is conducted to substantiate such allegations, the resulting termination cannot be considered termination simpliciter, as it carries the stigma of misconduct and is inherently punitive. It appears that, the characterization of the order as termination simpliciter is a mere facade to avoid scrutiny under the appellate jurisdiction. In view Cont'd..
-20- M.A. EAT. No.11/2021 of the foregoing discussion, I am of the considered opinion that the present appeal is maintainable against the impugned order, accordingly. Point No.1 is answered in the affirmative.
16. POINTS No.2 and 3 : The appellant got examined as PW- 1 and in his chief examination has filed an affidavit reiterating the petition averments, asserting that he was appointed as office staff by the respondent on 03.06.2003, and his probationary period was confirmed on 01.06.2006. Ex.P.1 to Ex,P.7 undeipsuted documents were marked. The appointment letter is marked through respondnet witness as Ex.R.3, and the employer-employee relationship is undisputed. However, the respondent contends that the appellant was terminated due to unauthorized absence and his involvement in a criminal case. During cross- examination, PW.1 denied the respondent's allegations of unauthorized absence from 13.03.2015 and his arrest in connection with an assault case on 09.03.2015. He maintained that he reported to the principal regarding his duties.
Cont'd..
-21- M.A. EAT. No.11/2021
17. The respondent examined the Enquiry Officer as RW.1, who provided details of the disciplinary proceedings. He deposed that the appellant was suspended on 05.08.2015 pending an inquiry into allegations of unauthorized absence and involvement in a criminal case. The inquiry revealed that the appellant was absent without notice from the afternoon of 12.03.2015 and was implicated in FIR No. 79/2015 and CC No. 15484/2015 for assaulting foreign nationals. RW.1 testified that the inquiry was conducted fairly, and the charges were found true. As per the service rules, the appellant was terminated on 30.01.2016. Further he deposed that, from the date of suspension, till the date of termination, the respondent has paid allowance to the appellant. The respondent has produced authorization letter is marked as Ex.R.1, copy of the Service Rules for teaching and Administrative Staff is marked as Ex.R.2, the appointment letter dated:
01.06.2006 is marked as Ex.R. 3, the reply notice dated:
20.08.2015 is marked as Ex.R. 4, The attendance register for the year 2015 is marked as Ex.R. 5, and relevant portion of the register is marked as Ex.R.5(a) to Cont'd..
-22- M.A. EAT. No.11/2021
(c), the copy of the findings of the enquiry officer dated:
28.01.2016is marked as Ex.R.6, the termination letter dated: 30.01.2016 is marked as Ex.R.7, Gratuity Calculation certificate is marked as Ex.R.8, Voucher is marked as Ex.R.9, copy of the "The Times of India"
dated: 13.03.2015 and "The Hindu" dtd: 13.03.2015 are marked as Ex.R.10 and 11, The Domestic Enquiry Proceedings records are marked as Ex.R.12 and 13.
18. RW.1, the Enquiry Officer, deposed that he was appointed by the management of the respondent institution, and he claimed to have produced his appointment order in evidence, though the same is absent from the record. He further stated that the appointment of the Enquiry Officer and the procedural framework of the enquiry were communicated to the appellant prior to its initiation. However, no evidence was adduced by the respondent to prove that such communication was made to the appellant. RW.1 also testified that the enquiry proceedings involved a domestic employee, Ms. Jalaja, who represented both the management and the appellant before the enquiry Cont'd..
-23- M.A. EAT. No.11/2021 authority. This dual representation, in the view of the court, constitutes a patent illegality, as one person cannot represent both parties in a disciplinary enquiry.
19. In his cross-examination, RW.1 admitted that the charge against the appellant was related to his alleged involvement in a criminal case, specifically the implication in a murder. However, he conceded that no documentary evidence was produced to substantiate this charge. He acknowledged that the allegation stemmed from newspaper reports, and he pleaded ignorance regarding the specific details of the criminal case or whether the complainant appeared before him during the enquiry. RW.1 further admitted that on 12.03.2015, the appellant reported for duty, but the management denied him permission to resume work. This admission supports the appellant's contention that the respondent management unjustly refused him permission to work without cause or a formal notice, thereby strengthening his case.
20. Upon careful examination of the evidence presented by the respondent, it is evident that the principal ground Cont'd..
-24- M.A. EAT. No.11/2021 for the appellant's termination from service was the allegation of his involvement in a criminal case of assault. The records reveal that the said criminal case was initially registered against unknown persons, and the appellant's name was later included as Accused No.
4. Notably, the case, bearing CC No. 1548/2015, culminated in the acquittal of the appellant by a judgment dated 18.07.2016, as evidenced by Ex.P.2.
21. In this context, it is imperative to underline the settled position of law that mere allegations of involvement in a criminal case cannot serve as a sufficient ground for the dismissal, removal, or termination of a permanent employee. The principle of presumption of innocence applies until guilt is established beyond reasonable doubt, as reiterated by the Hon'ble Supreme Court in M.S. Bindra v. Union of India & Ors., (1998) 7 SCC 310, which held that disciplinary actions premised on unsubstantiated allegations violate principles of natural justice.
22. It is true that an educational institution has the discretion to employ individuals of exemplary character Cont'd..
-25- M.A. EAT. No.11/2021 and antecedents, but mere allegations of involvement in a criminal case, particularly in the absence of moral turpitude, cannot justify dismissal from service. In the present case, the criminal case against the appellant pertained to a charge of assault, which, as the records suggest, arose out of a drunken altercation and does not involve offenses of moral turpitude such as murder, kidnapping, robbery, or crimes against women. Such charges, unless substantiated by a conviction, cannot be deemed sufficient to impose the severe penalty of termination.
23. Apart from that the respondent failed to substantiate the appellant's alleged unauthorized absence. While the respondent claimed that the appellant remained absent from duty starting 12.03.2015, RW.1 admitted during cross-examination that the appellant had reported for duty on the said date, but permission to resume work was denied by the respondent. This admission unequivocally supports the appellant's contention that his absence was not unauthorized but was rather a consequence of the respondent's refusal to allow him to Cont'd..
-26- M.A. EAT. No.11/2021 resume his duties without any valid reason or issuance of a show-cause notice.
24. The enquiry officer's role in the proceedings also raises concerns about the fairness and impartiality of the enquiry. RW.1, who acted as the enquiry officer, also appeared as a witness for the respondent and defended the impugned termination order issued by the Secretary of respondnet institution. Such conduct undermines the principle of neutrality, as emphasized by the Hon'ble Supreme Court in State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772, which held that an enquiry officer must act as an independent adjudicator and refrain from adopting a prosecutorial stance. The Hon'ble Apex Court held thus-
"28. An inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Cont'd..
-27- M.A. EAT. No.11/2021 Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
25. Moreover, the respondent has failed to demonstrate that the procedural safeguards essential to disciplinary proceedings were adhered to. There is no evidence on record to show that the appointment of the enquiry officer or the charges against the appellant were duly communicated to him. The appellant was also not provided with adequate assistance or representation during the enquiry proceedings, which violates the principles of natural justice as enunciated in Union of India v. Mohd. Ramzan Khan, (1991) 1 SCC 588. In the cross-examination of RW-1, it was revealed that a Cont'd..
-28- M.A. EAT. No.11/2021 domestic employee, appointed to assist the appellant during the enquiry, also represented the respondent management. This situation violates the principle that the same person cannot represent or assist both the management and the employee before the enquiry officer, as it conflicts with the fundamental principles of natural justice. The doctrine of natural justice ensures fairness in legal and administrative proceedings, including the right to a fair hearing and the requirement for impartiality. It demands that there be no bias or conflict of interest in any proceedings. In the context of a domestic enquiry, if the same individual is allowed to represent both parties (the management and the employee), it creates a clear conflict of interest. Such dual roles undermine the fairness of the enquiry and may lead to a reasonable apprehension of bias.
26. The principle of "audi alteram partem" (the right to be heard) is central to natural justice. This principle mandates that each party involved in a proceeding must have an equal opportunity to present their case and be heard. If one party is represented by someone who is Cont'd..
-29- M.A. EAT. No.11/2021 also assisting the opposing party, this violates the fairness of the process, as the individual may have divided loyalties or interests, casting doubt on the impartiality of the enquiry. Therefore, the appointment of the same person to assist both the appellant and represent the respondent management in the enquiry raises concerns regarding the fairness of the proceedings and the violation of natural justice. Such an act could lead to the conclusion that the enquiry was not conducted impartially, affecting the integrity of the decision-making process.
27. It is also significant to note that the enquiry proceedings were based on allegations arising from a criminal case that concluded in the appellant's acquittal. The judgment of acquittal (Ex.P.2) clearly establishes that the appellant was not found guilty of any offense. Furthermore, the enquiry officer admitted that no documentary evidence was presented to substantiate the allegations of the appellant's involvement in the criminal case, and the reliance on newspaper reports alone cannot form the basis for a finding of misconduct, Cont'd..
-30- M.A. EAT. No.11/2021 as held in Roop Singh Negi v. Punjab National Bank & Ors., (2009) 2 SCC 570, wherein it held as below-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
Cont'd..
-31- M.A. EAT. No.11/2021
28. The respondent though produced the attendance
register (Ex.P.5) to support its contention of
unauthorized absence, no evidence was led through the person responsible for maintaining the register. The absence of corroborative evidence renders the respondent's claim unsubstantiated. In view of the aforementioned reasons, it is apparent that the enquiry officer failed to establish, through cogent evidence, that the appellant was guilty of unauthorized absence or any misconduct warranting termination. The respondent's reliance on an unsubstantiated criminal case and its subsequent refusal to permit the appellant to resume duties further erodes the validity of the termination order. Accordingly, the findings of the enquiry officer and the impugned termination order cannot be sustained, being in violation of natural justice and established legal principles. Accordingly, I constrained to answer Points No.2 and 3 in the negative.
29. POINTS No.4 and 5 : In light of my findings on Points No. 2 and 3, it is clear that the impugned order dated 30.01.2016, by which the respondent terminated the Cont'd..
-32- M.A. EAT. No.11/2021 appellant's service, is illegal and is therefore liable to be set aside.
30. The appellant has sought reinstatement and consequential benefits, including back wages from the date of termination until the date of reinstatement. During the cross-examination of PW-1, it was established that the appellant did not seek any employment after his termination. The respondent, in turn, has raised the contention that the appellant was gainfully employed after his termination, attempting to deny his claim for back wages, but no evidence placed to substantiate that claim. It is a well-settled position of law that if the termination is found to be illegal, the employee is entitled to back wages. The court has the discretion to determine the proportion of back wages to which the employee is entitled based on the facts and circumstances of the case. The Hon'ble Supreme Court in National Gandhi Museum v. Sudhir Sharma (2021) 12 SCC 439 in which it was held that the fact whether an employee after dismissal from service was gainfully Cont'd..
-33- M.A. EAT. No.11/2021 employed is something which is within his special knowledge and further held as below-
"Considering the principle incorporated in Section 106 of the Indian Evidence Act, 1872, the initial burden is on the employee to come out with the case that he was not gainfully employed after the order of termination. It is a negative burden. However, in what manner the employee can discharge the said burden will depend upon on peculiar facts and circumstances of each case. It all depends on the pleadings and evidence on record. Since, it is a negative burden, in a given case, an assertion on oath by the employee that he was unemployed, may be sufficient compliance in the absence of any positive material brought on record by the employer."
31. In the present case, the appellant, in his evidence and during cross-examination, asserted that he remained unemployed from the date of his termination and was dependent on his father's income for his livelihood. This assertion further supports the appellant's claim for back wages, as he has not secured alternative employment Cont'd..
-34- M.A. EAT. No.11/2021 during the period of unemployment following his wrongful termination. Admittedly, the appellant served the respondent institution from 03.06.2003 to 31.01.2016, for more than 12 years, without any blemish on his record. Further, there have been no allegations of misconduct or misbehavior by the appellant on the college campus. Given this, it is only fair and just to direct the respondent to pay the appellant 50% of the back wages along with service benefits from the date of termination. Accordingly, Point No. 4 is answered in the Affirmative, and Point No. 5 is answered partly in the Affirmative. [
32. POINT No.2 : For the aforesaid reasons and discussion, I proceed to pass the following -
ORDER The appeal filed under Section 94 of the Karnataka Education Act, 1983 is hereby allowed, with cost of Rs.10,000/-.
The order of termination bearing No. Nil dated: 30.01.2016 passed by the respondent is hereby set aside.
Cont'd..
-35- M.A. EAT. No.11/2021 The respondent is directed to reinstate the appellant into service with continuity, within a period of three months from the date of this order.
The appellant is entitled to receive 50% of back wages for the period commencing from the date of termination until the date of reinstatement.
Any gratuity or final settlement amount already received by the appellant shall be duly adjusted towards the back wages payable by the respondent.
(Dictated to the Stenographer Grade-III, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 9 th day of January, 2025.) (HAREESHA. A) XXVII Additional City Civil and Sessions Judge, Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PETITIONER:
Examined on:
P.W.1 : James Kumar A. 19.02.2024
2. DOCUMENTS MARKED ON BEHALF OF PETITIONER:
Ex.P.1 : Certified Copy of the petition filed in dispute No.11/2016.
Ex.P.2 : Certified Copy of judgment passed in CC No.15484/2015.
Cont'd..
-36- M.A. EAT. No.11/2021
Ex.P.3 : Certified Copy of order passed in I.D
No.15/2016.
Ex.P.4 : Certified Copy of award passed in I.D
No.15/2016.
Ex.P.5 : Order passed by the Hon'ble High Court
of Karnataka in W.P No.23569/2018.
Ex.P.6 : Termination Letter dated: 31.01.2016.
1. WITNESS EXAMINED FOR THE RESPONDENT:
Examined on:
R.W.1 : Aloysius Edward 26.10.2024
2. DOCUMENTS MARKED ON BEHALF OF RESPONDENT:
Ex.R.1 : The Authorization Letter. Ex.R.2 : Copy of Service Rules for Teaching and Administrative Staff.
Ex.R.3 : The Appointment Letter dated:
01.06.2006.
Ex.R.4 : Reply notice dated: 20.08.2015. Ex.R.5 : The Attendance Registrar for the year 2015.
Ex.R.5(a) : The relevant portion of the register. to (c) Ex.R.6 : Copy of findings of the enquiry officer dated: 28.01.2016.
Ex.R.7 : Termination Letter dated: 30.01.2016. Ex.R.8 : Gratuity Calculation Certificate.
Ex.R.9 : Voucher.
Cont'd..
-37- M.A. EAT. No.11/2021
Exs.R.10 : Copy of 'The Times of India' and 'The and R.11 Hindu' dated:13.03.2015.
Exs.R.12 : The Domestic Enquiry Proceedings
and R.13 Records.
(HAREESHA A.)
XXVII Additional City Civil and Sessions Judge, Bengaluru.
Cont'd..