P. D. DESAI, J. ( 1 ) THERE are two petitioners in this case and both of them sere employed as teacher in a school the management of which is represented by the first and second respondents herein. It appears that with effect from the term commencing from June 1978 the school management wanted to close down two classes because of want of adequate number of pupils Each petitioner was therefore served with a notice dated February 4 1978 informing him that in view of the above-mentioned circumstances he would stand relieved on and with effect from the commencement of the June 1978 term. It is not in dispute that before terminating the services of the petitioners as aforesaid no reasonable opportunity of showing cause against the action proposed to be taken in regard to him was given to any of the two petitioners as required by sec. 36 (1) (a) of the Gujarat Secondary Education Act 1972 (hereinafter referred to as the Act ). Each petitioner thereupon made an application under sec. 38 (1) to the Tribunal constituted under the Act. The Tribunal found that the termination of the services of the petitioners being in violation of the mandatory provisions of sec. (36) (1) (a) the orders terminating the services of the petitioners were illegal. The Tribunal also found that prior written permission of the District Education Officer was not taken by the school management as required by Regulation 10a of the Gujarat Secondary Education Regulations 1974 (hereinafter referred to as the Regulations) before it took the decision regarding reduction of classes and termination of services of the petitioners and that such approval was accorded by the said officer only on April 11 1978 This aspect of the matter also appears to have influenced to some extent the decision of the Tribunal with regard to the validity of the termination orders. As regards the relief to be granted to the petitioners the Tribunal noted that the relief of reinstatement was not pressed on behalf of the petitioners in view of the fact that in the meantime they had been absorbed in other school under the orders of the District Education Officer and that the relief which the petitioners wanted was confined to back wages for the period during which they had remained unemployed consequent upon the illegal termination of their services. The Tribunal however refused to grant the relief of back wages on the following ground:"both the applicants have accepted jobs in other schools and therefore the question of reinstating them does not arise. Unless an order of reinstatement is passed they would not be entitled to the relief of back wages. They would be entitled to the back wages provided they would be reinstated back in the opponent school. They are not entitled to the same for the period for which they have remained unemployed by way of back wages. At the most they would be entitled to compensation for illegal termination of Services as provided in Regulation 33. However they are not entitled to any compensation under that Regulation. . . . . . . . . Under this regulation (Regulation 43) the provision contained in Regulation 33 would not apply and therefore the applicants would not be entitled to claim any compensation from the opponent-school management. . . . . . . . . . . . . . . . . . I am unable to agree with him because the order of back wages follows the order of reinstatement. No order for back wages can be passed without directing reinstatement of the applicants. If the applicants do not pray for the order of reinstatement it would be difficult to pass an order for back wages". The Tribunal under the circumstances dismissed the applications made by the petitioners in so far as the relief with regard to back wages in concerned. It is this decision of the Tribunal which is under challenge herein. ( 2 ) NOW I am unable to appreciate and agree with the reasoning and conclusion of the Tribunal on the question of award of back wages on the facts and in the circumstances of the case. Sec. 36 sub-sec. (1) provides two safeguards against dismissal or removal or reduction in rank or termination otherwise of a headmaster teacher or member of non-teaching staff of a registered private secondary school and those safeguards are contained in clauses (a) and (b) of the said sub-section. The school in the instant case being an educational institution established and administered by a minority clause (b) of the said sub-section is not applicable having regard to the provisions of sec. 40a. The school in the instant case being an educational institution established and administered by a minority clause (b) of the said sub-section is not applicable having regard to the provisions of sec. 40a. Clause (a) of the said sub-section however is indubitably applicable although it was sought to be feebly contended on behalf of the school management that in cases of termination of services on account of closure of classes it was not required to comply with the provisions of clause (a ). ( 3 ) IN Special Civil Application No. 652 of 1979 decided on March 8 1979 which was a case of termination of services of the principal of a school on account of the closure of such school it has been held that sec. 36 (1) takes within its sweep not only cases of dismissal removal or reduction in rank but also cases of termination otherwise. Therefore even in cases of termination simpliciter it would be necessary to follow not only the terms of the contract but also the provisions of sec. 36 (1 ). Therefore if the services of a teacher are terminated in violation of the provisions of sec. 36 (1) (a) such termination would be illegal even though the termination might have been made on account of the closure of the school. The decision in the aforesaid writ petition has been in terms confirmed in Letters Patent Appeal No. 174 of 1979 which was decided on July 25 1979 The Division Bench in its order in terms observed that :. . . . the words otherwise terminated occurring in sec. 36 (1) of the Gujarat Secon dary Education Act 1972 are wide enough to cover even the case of a situation arising out of closure of a registered school. It would thus appear that the provisions of sec. 36 (1) (a) were applicable in the instant case and that a dispute having been brought before the Tribunal under its original jurisdiction under sec. 38 (1) it had wide jurisdiction to decide whether the termination was wrong unlawful or not justified and to pass a just order bearing in mind the four-fold interests of the teachers student community the management and the public interest represented by the Education Department or the Board as held by this Court in S. S. K Trust v. P. N. Patel 18 G. L. R. 615. As observed in the said case at page 630 sec. 39 (9j gives the widest jurisdiction to the tribunal to decide the dispute and to give suitable directions as to reinstatement if the termination is found to be wrong or unlawful or otherwise unjustified. At page 631 it has been observed that a just order of reinstatement with back wages which the Tribunal has to pass under such circumstances would necessarily imply power in the Tribunal to apportion the compensation amount and to direct that the school management which passes wrongful orders either perversely mala fide or in the absence of any prima facie case should bear the burden of such back wages. It would thus appear to be beyond any doubt or dispute now that in case of termination of services either by way of penalty or otherwise of a member of the teaching or non-teaching staff in contravention of the provisions of sec. 36 (1) the Tribunal has wide jurisdiction to order reinstatement with back wages and to give suitable directions as to who should bear the burden of back wages. ( 4 ) REFERENCE might also be made at this stage to certain principles governing the award of relief of reinstatement and back wages which have been evolved in the field of industrial jurisprudence since as held in S. S. A. Trust case the power conferred upon the Tribunal under the Act is analogous to the power conferred upon the authorities constituted under the Industrial Disputes Act 1947 It is well-settled so far as Industrial Jurisprudence is concerned that the normal rule is that in cases of wrongful dismissal the dismissed employee is entitled to reinstatement. Even in cases where a long time has elapsed and the employer has meanwhile engaged other workmen who might have been made permanent an order of reinstatement has been made once it was found that the termination was illegal and unjustified. In Punjab National Bank Ltd. v. All India Punjab National Bank Employees Federation A. I. R. 1960 S. C. 160 it was pointed out that hardship which ensues in such cases is brought about by the precipitated action of the employer himself and that therefore he cannot be allowed to benefit thereby. There can however be cases where it would not be expedient to follow this normal rule and to direct reinstatement. There can however be cases where it would not be expedient to follow this normal rule and to direct reinstatement. One of the grounds on which the order of reinstatement cannot be ordered is when it is found that the dismissed employee occupied a position of some confidence with the employer and the employer states that he had lost confidence in the employer (See Assam Oil Co. Ltd. v. Its Workmen A. I. R. 1960 S. C. 1264 Ruby General Insurance Co. Ltd. v. Chopra 1970 (1) Labour Law Journal 63 and Hindustan Steels Ltd. v. A. K. Roy A. I. R. 1970 S. C. 1401.) However as held in L. Michael v. Johnson Pumps Ltd. A. I. R. 1975 S. C. 661 which was a case of apparent termination simpliciter of the services of an employee on the ground of loss of confidence:". . . it is clear that loss of confidence is often a subjective feeling or individual reaction to an objective set of facts and motivations. The Court is concerned with the latter and not with the former. . . . . . . . . Such belief or suspicion of the employer should not be a mere whim or fancy. It should be bonafide and reason able. It must rest on some tangible basis and the power has to be exercised by the employer objectively in good faith which means honestly with due care and prudence". In the light of the aforesaid guidelines therefore reinstatement may not be ordered for example in a case of loss of confidence where on an objective set of facts and circumstances the Tribunal finds that there is a reasonable and bonafide apprehension resting on some tangible basis in the mind of the school management in that regard in the context of an employee who can be said to be occupying position of some confidence. Reinstatement is also not ordered sometimes when it is found that the employee whose dismissal is unlawful had not only participated in an illegal strike but also prevented other workmen from joining duty during the strike period. The case of Workmen of charottar Gramodhar Sahakari Mandal Led. v. Charottar Gramodhar Sahakari Mandal Ltd. 15 (1967) Indian Factories and Labour Reports 395 is an instance in the point. The case of Workmen of charottar Gramodhar Sahakari Mandal Led. v. Charottar Gramodhar Sahakari Mandal Ltd. 15 (1967) Indian Factories and Labour Reports 395 is an instance in the point. Both these exceptions having regard to the character of employment and nature of duties to be performed and even in view of the practical realities of the situation would not ordinarily be attracted in case of teaching and a large section of non-teaching members of the staff of a secondary school. It would thus appear that save and except a minimal few almost in 11 cases of wrongful dismissal of a member of such staff the Tribunal will have to order reinstatement. If there is a rare case where reinstatement cannot be ordered on recognized principles the Tribunal will have to award adequate compensation to the employee to whom reinstatement has been denied. It must be made clear however that this compensation payable in a case where wrongful termination is found but reinstatement is not ordered on relevant grounds stands on a different footing than compensation awardable under Regulation 33 in a case where the service of a permanent or temporary employee is terminated by the management in accordance with the provisions of sec. 36. ( 5 ) IT would not be out of place to point out at this stage that it is now settled beyond any doubt or dispute that ordinarily an employee whose service has been illegally terminated will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. In Hindustan Tin Works Pvt. Ltd. v. Its Employees A. I. R. 1979 S. C. 75 it has been observed that where termination of service is found to be invalid it would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. If thus the employer is found to be in the wrong the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. It would be profitable to extract and cite the following pertinent observations from the said decision in order to appreciate the correct legal position in this regard :"speaking realistically where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation his capacity to sustain himself throughout the protracted litigation is itself such awesome factor that he may not survive to see the day when relief is granted. More so in our system where the laws proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself ultimately he is to be told that though he will be reinstated he will be denied the back wages which would be due to him the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily therefore a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. . . . . . . . . . . . . . . . . . If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer there is no justification for not awarding them full back wages which were very legitimately due to them. . . . . . . . . . . . . . . . . . . . In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. . . . . . . . . . . . . . . . . . . . In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority that something is to be done according to the rules of reason and justice according to law and not humour. It is not to be arbitrary vague and fanciful but legal and regular. These guidelines laid down with regard to award of back wages in adjudication under the industrial law will apply with full force to the Tribunal constituted under the Act when it considers the questions of award of back wages. ( 6 ) AGAINST the background of the aforesaid legal position the questions will require consideration whether in the instant case the Tribunal exercised its discretion in refusing back wages to the petitioners keeping in view all the relevant principles and circumstances in a judicial and judicious manner. The Tribunal rightly found that the provisions of sec. 36 (1) (a) having not been complied with the termination of the services of the petitioners was wrongful and unjustified. The petitioners therefore would have been ordinarily entitled to the relief of reinstatement with full back wages. However the petitioners having found suitable alternative employment meanwhile the relief of reinstatement or for compensation in lieu of reinstatement was not pressed on their behalf. The only question which survived for consideration before the Tribunal therefore was with regard to back wages. The Tribunal refused to award back wages on the ground that an order of back wages follows an order of reinstatement and that since in the instant case an order of reinstatement is not passed the petitioners were not entitled to the relief of back wages. The Tribunal refused to award back wages on the ground that an order of back wages follows an order of reinstatement and that since in the instant case an order of reinstatement is not passed the petitioners were not entitled to the relief of back wages. The question is whether the approach of the Tribunal is correct in law as well as on the facts and in the circumstances of the case. ( 7 ) AN ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such cases is to claim damages and not to seek the relief of a declaratory judgment because personal service is not capable of enforcement. In case of members of teaching and non-teaching staff of secondary schools this might have been the legal position prior to the enactment of the Act. However even under the legal position then obtaining the concerned member of staff could legitimately be awarded damages for wrongful termination which were ordinarily equivalent to wages for the notice period. Therefore even if the Act were not enacted and a dispute as to wrongful termination had been raised before a Civil Court and the Civil Court had found the termination to be wrongful it would surely have awarded damages to the affected party. Of course such damages could not have been equal to nor could they be styled as back wages properly so called; but there is no manner of doubt that the aggrieved party would have been compensated in howsoever a small measure. It is to be presumed as the Tribunal appears to have done that by the enactment of this beneficent legislation which constitute the Tribunal as the sole authority to determine such disputes a teacher whose services are found to have been wrongfully terminated is not entitled even to that small relief ? It would thus appear that even if the Tribunal had not been invested with the wide jurisdiction to order reinstatement it could not have dismissed at least the claim for compensation although it could have denied the wider relief of full back wages. Tested even by standards of the ordinary law of master and servant therefore the impugned decision dismissing the claim altogether is not justified. ( 8 ) THE legal position however has undergone a sea change since the enactment of the Act. Tested even by standards of the ordinary law of master and servant therefore the impugned decision dismissing the claim altogether is not justified. ( 8 ) THE legal position however has undergone a sea change since the enactment of the Act. The right of a school management inherent in the relationship of master and servant to fire a members of teaching or non-teaching staff of a registered private secondary school subject at the highest to the conditions of contract is now severely restricted by the provisions of sec. 36 (1) which has been superimposed by the legislature. Besides under sec. 38 (1) the Tribunal has been constituted as the authority for the decision of any dispute including dispute arising out of an alleged wrongful unlawful or unjustified termination. Under sec. 38 (2) read with section 40 (1) jurisdiction of the State Government and of the Civil Court to decide such a dispute has been expressly taken away. Under sec. 39 (4) duty has been cast upon the Tribunal to entertain and decide inter alia disputes of the nature referred to in sec. 38 (1 ). Under sec. 39 (8) the decision of the Tribunal has been made final and it has been provided that no suit shall lie in any civil court in respect of the matters decided by it. Under sec. 39 (9) widest jurisdiction has been conferred upon the Tribunal to give suitable directions as to reinstatement when termination is found to be wrong unlawful or otherwise unjustified. Under this branch of law therefore having regard to the provisions of sec. 36 (1) 38 (1) 39 (4) and 39 (9) a member of teaching or nonteaching staff of a registered private secondary school who is wrongfully dismissed is entitled to a declaration of unlawful termination and restoration to service and other consequential benefits such as back wages etc. It needs to be emphasized however that each one of these reliefs although inextricably interconnected with the other is an independent relief and that the question of grant of one or the other depends upon considerations relevant to each relief. Undoubtedly the relief of declaration is the main relief and therefore unless the termination is found to be illegal or wrongful or otherwise unjustified the question of granting consequential reliefs would not arise. Undoubtedly the relief of declaration is the main relief and therefore unless the termination is found to be illegal or wrongful or otherwise unjustified the question of granting consequential reliefs would not arise. However once the main relief is granted the Tribunal in exercise of its judicial discretion will be required to grant one or more of the consequential reliefs bearing in mind the circumstances of the case and relevant legal principles. ( 9 ) AGAINST this background let us examine the question relating to award of back wages in the instant case. The Tribunal has in terms found the termination to be wrongful inter alia being in violation of sec. 36 (1) (a ). Therefore the main relief or the relief which constitutes the foundation for granting the consequential reliefs has been given to the petitioners and they were entitled to claim the consequential reliefs. However as the petitioners found suitable alternative employment meanwhile they did not press for the relief of reinstatement to which they would have been otherwise entitled because no other exceptional circumstances are pleaded or proved. Could the petitioners for having voluntarily opted to give up such relief under the aforesaid circumstances be legitimately penalized by denying to them the other consequential relief of back wages on the sole ground that since no order of reinstatement is made they would not be paid their full back wages ? Could the school management which has obviously acted arbitrarily and in patent disregard of statutory provisions be legitimately allowed to benefit for its wrong by such denial merely because the petitioners have opted not to press the relief of reinstatement under special circumstances of the case ? Even if the petitioners themselves had not given up the relief of reinstatement but the Tribunal had refused to grant such relief on the ground of their having been gainfully employed elsewhere in a similar position without any loss (assuming that on such a ground relief of reinstatement could be refused on which question this Court should not be taken to have expressed any opinion) could the Tribunal at the same time have legitimately refused the just relief of compensation for their wrongful termination ? Is it conceivable that this benevolent legislation enacted with the end in view of ameliorating the conditions of service of the much exploited class of secondary teachers has authorised the Tribunal to deny to an aggrieved teacher adequate compensation equivalent at least to full back wages in a case where wrongful termination is found but reinstatement is not ordered under special circumstances especially when under the ordinary law some compensation at least would have been given and under Regulation 33 a fairly generous compensation is payable to permanent teachers even if termination is in accordance with sec. 36 ? The answers to these questions cannot but be in the negative In taking the view that it has done the Tribunal with respect has failed to appreciate not only the content and extent of the remedy available under the ordinary law but also under the special law which it was administering. The Tribunal also overlooked that once the main relief of declaration of unlawful termination is granted the right to consequential reliefs arises and that the question of granting each consequential relief has to be independently examined in the light of the relevant legal principles and on the facts and in the circumstances of each case. The Tribunal further overlooked that mere denial of the relief of reinstatement on a relevant ground does not necessarily disentitle the aggrieved teacher from claiming the relief of just compensation for having been illegally prevented by the management from working and earning unless it is shown that he was gainfully employed during the period of his enforced idleness. In my opinion therefore the decision of the Tribunal refusing full back wages to the petitioners from the date of wrongful termination of their services till the date of their reemployment proceeds upon a total misconception of law. ( 10 ) THE foregoing discussion would show that the decision of the Tribunal in so far as it refused the relief of full back wages to the petitioners during the aforesaid period suffers from an apparent error of law and that to that extent it requires to be quashed and set aside. ( 10 ) THE foregoing discussion would show that the decision of the Tribunal in so far as it refused the relief of full back wages to the petitioners during the aforesaid period suffers from an apparent error of law and that to that extent it requires to be quashed and set aside. The Tribunal has found that the first petitioner was absorbed in another school with effect from July 25 1978 and that the second petitioner was so absorbed with effect from July 10 1978 The petitioners would therefore be entitled to full back wages for the period from June 10 1978 till their respective dates of reemployment in another school. It was not the case of the school management before the Tribunal nor it is its case before me that during the aforesaid period the petitioner were gainfully employed anywhere. No other cogent or relevant ground was urged before the Tribunal or before me. It is under these circumstances that this Court is of the opinion that award of full back wages for the aforesaid period is the only just and proper order which could be made. Having regard to the fact that the order of termination was passed in patent disregard of the mandatory provisions of sec. 36 (1) (a) and that the petitioners had to fight their legitimate battle right upto this Court in order to get the relief to which they were obviously entitled on account of the intransigent attitude of the school management it would be just and reasonable to direct that the school management shall bear the burden of back wages. The public revenue cannot be saddled with the liability of back wages for the obvious fault of the school management. However in order to ensure that the relief granted by this Court is not frustrated and that the petitioners have not still to fight a further battle in order to recover back wages from the school management the third respondent herein is directed to pay to each petitioner the amount of back wages calculated in accordance with the aforesaid directions and to deduct the amount so paid from the next instalment of the grant payable to the school management. The payment will be made within a period of one month from the receipt of the writ. The payment will be made within a period of one month from the receipt of the writ. The first and second respondents will give discharge certificate and servicebooks to the petitioners bringing the same in accordance with this dicision and if the service-books ale already given to the petitioners they will be corrected accordingly. Writ will issue accordingly to the respondents as expeditiously as possible. ( 11 ) BEFORE parting with the case it requires to be mentioned that on behalf of the school management a lame attempt was made to attack the finding of the Tribunal with regard to the violation of the provisions of sec. 36 (1) (a ). The argument advanced in this behalf was that the petitioners were in any event heard by the third respondent before he permitted closure of classes by his order dated April 11 1978 and that therefore the petitioners were already afforded a reasonable opportunity of being heard before the termination was made. This is a somewhat extra-ordinary argument. Sec. 36 (1) (a) in terms provides that the person whose services are to be terminated must be given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The opportunity has to be afforded before the action is taken and not thereafter. Besides it has to be afforded by the manager and not by some other person In the instant case no opportunity was afforded by the manager before the order of termination was passed. Therefore the school management cannot take shelter behind the hearing given by the third respondent which was in a totally different context namely in regard to the application of the school management for closure of certain classes in the school. ( 12 ) FOR the foregoing reasons the writ petition succeeds and it is allowed. Rule is made absolute in terms of the relevant directions given in the body of this judgment. The first and second respondents shall pay the costs of this petition to the petitioners. The costs also will be paid by the third respondent out of the next instalment of the grant payable to the school. A copy of this judgment will be forwarded to the Tribunal under the seal of this Court. PETITION allowed. The first and second respondents shall pay the costs of this petition to the petitioners. The costs also will be paid by the third respondent out of the next instalment of the grant payable to the school. A copy of this judgment will be forwarded to the Tribunal under the seal of this Court. PETITION allowed. Editors note: letters Patent Appeal No. 247 of 1979 summarily dismissed on 27- 1979 coram: B. J. DIVAN C. J. and B. K. MEHTA J. Per Court:we agree with the reasoning and the conclusion of our learned brother P. D. Desai J. and we accordingly dismiss the Letters Patent Appeal. Mr. Barot makes an oral application for leave to appeal to the Supreme Court under Art. 133 of the Constitution of India. In our opinion there is no substantial question of law of general importance which is needed to be decided by the Supreme Court and hence the oral application is rejected. .