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..
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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 willCont’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..
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