Judgment :- Abdul Nazeer, J. In this case, the petitioner has questioned the validity of the order passed by the first respondent-management dated 8.7.2004 (Annexure-‘U’) imposing punishment of his compulsory retirement and the order dated 4.8.2006 in M.A. (EAT).No.20/2004 passed by the Education Appellate Tribunal, Bangalore (Annexure ‘AA’). 2. The petitioner was appointed as a Second Division Assistant in the first respondent-Institution on 3.6.1985. It is not in dispute that his appointment was approved by the Director of Collegiate Education, Bangalore. Disciplinary proceedings were initiated against him by the first respondent-management as per Annexure ‘P’ dated 24.12.2003 on the following charges: “That you Sri Gopalakrishna B.K. while working as Second Division Assistant in Bharatiya Samskrti Vidyapith Arts & Commerce College for Women, Vijayanagar, Bangalore – 560 040, though required to obtain previous sanction of the Principal of the college, did not obtain such sanction, for the period of your absence from duty from 1st January 2003 to 9th December 2003 and thus remained absent unauthorisedly for the said period and that you continued your habit of remaining absent from duty and that thereby by displaying lack of devotion to duty and conducting yourself in a manner unbearing of an employee of Bharatiya Samskrit Vidyapith committed an act of grave misconduct.” He was served with the imputation of charge along with the charge memo. The petitioner sent a reply to the said charge memo as per Annexure ‘R’ dated 11.1.2004. Being not satisfied with the reply, the disciplinary authority appointed an enquiry officer by an order dated 22.1.2004. The enquiry officer after holding an enquiry submitted his report dated 15.4.2004 holding that charges have been proved. The disciplinary authority issued a second show cause notice as per Annexure ‘S’ dated 30.4.2004 and the petitioner sent a reply to the said notice as per Annexure ‘T’ dated 7.6.2004. Considering the reply of the petitioner, the disciplinary authority passed an order as per Annexure ‘U’ dated 8.7.2004 imposing penalty of compulsory retirement from service. The petitioner filed an appeal challenging the said order in appeal No.20/2004 before the Educational Appellate Tribunal (for short ‘Tribunal’), Bangalore. The Tribunal after considering the rival contentions of the parties, has dismissed the appeal by its order dated 4.8.2006 (Annexure ‘AA’). 3. Learned Counsel for the petitioner contends that the petitioner was not well from 20.1.2003 to 30.1.2003. He had submitted leave letters along with medical certificates. The Tribunal after considering the rival contentions of the parties, has dismissed the appeal by its order dated 4.8.2006 (Annexure ‘AA’). 3. Learned Counsel for the petitioner contends that the petitioner was not well from 20.1.2003 to 30.1.2003. He had submitted leave letters along with medical certificates. However, the management did not grant leave. On the other hand, when the petitioner wanted to attend to his duty, he was not permitted to enter the office. Repeated request of the petitioner to permit him to resume the duty did not yield any result. He has complained to the Joint Director as per Annexure ‘H’ on 21.7.2003 in this regard. The Joint Director sent a notice as per Annexure ‘Z’ dated 3.12.2004 calling upon the management to show cause as to how the management has claimed salary of the petitioner from 20.1.2003 till 9.12.2003 though according to the management he was unauthorisedly absent during the said period. It is submitted that the enquiry officer has erroneously held that the charges have been proved. The enquiry officer’s report has been accepted by the disciplinary authority. The Tribunal without noticing the relevant materials on record such as the attendance register has confirmed the order. It is submitted that the orders impugned are perverse in nature. It is further argued that the management before passing the order as per Annexure ‘U’ dated 8.7.2004 has not taken permission of the competent authority as per second proviso to Rule 32 of the Karnataka Educational Institutions (Collegiate Education) Rules, 2003 (‘Rules’ for short). Therefore, the order passed by the disciplinary authority is void and unenforceable. It is further argued that petitioner was not gainfully employed since February, 2003 till this day. Therefore, he is entitled for not only reinstatement with all consequential benefits but also full backwages. 4. On the other hand, Learned Counsel appearing for the first respondent would content that the petitioner had remained unauthorisedly absent. Therefore, the first respondent-Management had no other option but to initiate disciplinary proceedings against him. The enquiry officer after holding an enquiry has held that the charges have been proved. The disciplinary authority has issued a second show cause notice which has been replied by the petitioner. After considering the reply, the disciplinary authority has passed the impugned order at Annexure ‘U’ dated 8.7.2004. The enquiry officer after holding an enquiry has held that the charges have been proved. The disciplinary authority has issued a second show cause notice which has been replied by the petitioner. After considering the reply, the disciplinary authority has passed the impugned order at Annexure ‘U’ dated 8.7.2004. The said order was again challenged by the petitioner before the Tribunal and the Tribunal by its order dated 4.8.2006 at Annexure ‘AA’ has conformed the order of the disciplinary authority. It is argued that the findings recorded by the disciplinary authority, confirmed by the Tribunal are findings of fact based on appreciation of material on record, which does not call for interference. It is further argued that having regard to Rule 33, the management is empowered to pass an order of compulsory retirement of its employee and that proviso to Rule 32 has no application to the facts of this case. He prays for dismissal of the writ petition. 5. Having regard to the rival contentions of the Learned Counsel for the parties, the question for consideration is whether the order of the disciplinary authority at Annexure ‘U’ dated 8.7.2004, confirmed by the Tribunal at Annexure ‘AA’ dated 4.8.2006 require interference? 6. As noticed above, the submission of the Learned Counsel for the petitioner is two fold. The first submission is that the order of the disciplinary authority, conformed by the Tribunal is perverse for non-consideration of the material on record. The second submission is that the order of the disciplinary authority is invalid and unenforceable in law because the management has not taken prior permission of the competent authority under second proviso to Rule 32 before passing the order imposing penalty. If it is held that the order of the disciplinary authority is invalid for not taking prior permission of the competent authority, it is unnecessary to consider the first contention of the petitioner. Therefore, let me first consider as to whether order of the disciplinary authority is invalid for want of prior approval of the competent authority. 7. Section 46 of the Karnataka Education Act, 1983 (‘Act’ for short) provides for the powers and functions of the managing committee. Sub-Section 2(c) of Section 46 provides for taking disciplinary action against the teacher and other employees, which is as under: “46. 7. Section 46 of the Karnataka Education Act, 1983 (‘Act’ for short) provides for the powers and functions of the managing committee. Sub-Section 2(c) of Section 46 provides for taking disciplinary action against the teacher and other employees, which is as under: “46. Power and functions of the Managing Committee: (1) Subject to the provisions of the Act and the Rules prescribed thereunder, the Managing Committee shall have the following powers and functions, namely: (a) xxxx xxxx xxxx (b) xxxx xxxx xxxx (c) to take disciplinary action against the teachers and other employees except the head of the institution. (d) xxxx xxxx xxxx (e) any other matters which may be prescribed.” Sub-Section (2) of Section 46 states that any decision or action taken by the managing committee shall be communicated by the Secretary to the Governing Council within 15 days therefrom. Any decision or action taken and so communicated shall be deemed to be the decision or action taken by the Governing Council unless the Governing Council within a period of twenty-one days from the date of receipt of the communication rescinds or modifies it. Section 92 of the Act provides for dismissal, removal etc, of its employees. It states that subject to such Rules as may be made, no teacher or other authority of a private educational institution shall be dismissed or reduced in rank except in accordance with the conditions of service governing him, after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in 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. Section 145 is the rule making power of the State Government for carrying out the purposes of the Act. 8. The Karnataka Educational Institutions (Collegiate Education) Rules, 2003 has been made in accordance with Sub-Section (1) of Section 145 of the Act, which has come into force with effect from 7.8.2003. Rule 32 provides for the nature of penalties, which may be imposed for good and sufficient reasons on the employees. The said Rule is as under: “32. 8. The Karnataka Educational Institutions (Collegiate Education) Rules, 2003 has been made in accordance with Sub-Section (1) of Section 145 of the Act, which has come into force with effect from 7.8.2003. Rule 32 provides for the nature of penalties, which may be imposed for good and sufficient reasons on the employees. The said Rule is as under: “32. Nature of Penalties:- One or more of the following penalties for good and efficient reasons and as hereinafter provides may be imposed on the employees, namely.- .(i) fine, in the case of peons and attenders only; .(ii) censure, (iii) withholding of increments; (iv) withholding of promotions; (v) recovery from pay of the employees in whole or part of any pecuniary loss caused by negligence or breach of orders of the Board of Management, the State Government, the Central Government or any other State Government, any person, body or authority to whom the services of the employee had been lent; .(vi) reduction to a lower stage in a time scale of pay for a specified period with further direction as to whether or not the employee will earn increments to pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect on postponing the future increments of his pay; (vii) reduction to a lower time scale of pay, grade, post or service which shall, unless otherwise directed, be a bar to the promotion of the employee to the time scale of pay, grade, post or service from which he was reduced with or without further directions regarding.- (a) seniority and pay in the scale of pay, grade, post or service to which the employee is reduced; (b) conditions of restoration to the scale of pay, grade or post or service from which the employee was reduced and his seniority and pay on such restoration to the scale of pay, grade, post or service; (viii) compulsory retirement; (ix) removal from service which shall not be disqualification for future employment; (x) dismissal from service which shall ordinarily be a disqualification for future employment; Provided that in the absence of special and adequate reasons to the contrary to the mentioned in the order of the disciplinary authority, no penalty other than those specified in clauses (vi) to (x) shall be imposed for an established charge of corruption: Provided further that every order of private management regarding suspension, dismissal or removal from service, etc., shall be issued after prior approval by the Competent Authority which approved the appointment.” (underlining is by me) 9. Rule 33 of the Rules states that the Board of management may impose any penalties specified under Rule 32 on any of the employees. For ready reference, Rule 33 is as under: “33. Disciplinary Authorities: (1) The Board of Management may impose any of the penalties specified under Rule 32 on any employee. (2) Without prejudice to the provision of sub-rule (1) but subject to the provisions of sub-rule (3) - (a) the head of the institution may impose any of the penalties specified in clauses (i) and (ii) of Rule 32; (b) the Board of Management may impose any of penalties specified in clauses (iii) to (v) of Rule 32. (3) The Board of management shall be competent to impose penalties (i) to (x). (4) Notwithstanding anything contained in these rules, no penalty specified in clauses (vi) to (x) of Rule 32 shall be imposed by any authority lower than Appointing Authority.” 10. As noticed above, the appointment of the petitioner has been admittedly approved by the competent authority. The disciplinary authority has passed an order as per Annexure ‘U’ dated 8.7.2004 imposing penalty of compulsory retirement from service. It is not the case of the first respondent-management that it has obtained approval of the competent authority before passing the said order. Learned Counsel for the first respondent would contend that having regard to Rule 33, the management need not take prior approval of the competent authority before issuing the order of punishment. There is no merit in the said submission. As stated above, Rule 33 states that the Board of management may impose any of the penalties specified in Rule 32 on any employee. Sub-rule (2) of Rule 33 states that without prejudice to the provisions of sub-rule (1) but subject to the provisions of sub-rule (3), the head of the institution may impose any penalties specified in clause (i) and (ii) of Rule 32; the Board of management may impose any penalties prescribed in clauses (iii) to (v) of Rule 32. Sub-rule (3) of Rule 33 states that the Board of management shall be competent to impose penalties (i) to (x). Sub-rule (4) states that no penalty specified in clauses (vi) to (x) shall be imposed by any authority lower than appointing authority. Sub-rule (3) of Rule 33 states that the Board of management shall be competent to impose penalties (i) to (x). Sub-rule (4) states that no penalty specified in clauses (vi) to (x) shall be imposed by any authority lower than appointing authority. The second proviso to Rule 32 states that every order of private management regarding suspension, dismissal or removal from service, etc., shall be issued after prior approval by the competent authority which approved the appointment. Thus, the power granted to the management to suspend, dismiss or removal from service is not absolute. A conjoint reading of Rules 32 and 33 makes it clear that before imposing penalty of suspension, dismissal or removal, etc., from service, the management has to take approval of the competent authority which had approved the appointment. It is settled that when the statute requires an action to be taken in a particular manner, the same has to be taken in the same manner. Since the management has not taken prior approval of the competent authority before passing the order, the order of punishment at Annexure ‘U’ is invalid. In Ramaswamy Naidu Vidyalayam/The Education Agency Vs. Remberts Packiam and Others (2004 (5) SLR 311), the Madras High Court was considering a similar question. It has held thus: “That apart, though Section 22 of the Act confers power on the petitioner/Management to dismiss, discharge or terminate the service of the first respondent/teacher the same is not complete and absolute unless prior approval is obtained from the competent authority for the same. In other words, the management would be precluded from discharging or punishing the first respondent/teacher by way of dismissal without obtaining prior approval of competent authority, and consequently, such proposal of dismissal itself would be void and inoperative. In other words, the management would be precluded from discharging or punishing the first respondent/teacher by way of dismissal without obtaining prior approval of competent authority, and consequently, such proposal of dismissal itself would be void and inoperative. The position is, therefore, manifest that while the management has the discretion to initiate departmental enquiry and pass an order proposing to dismiss, discharge or terminate a teacher, such proposal remains in an inchoate stage till the management obtains the prior approval from the competent authority for such proposal to dismiss, discharge or terminate the service of the teacher inasmuch as, the proposal for such dismissal, discharge or termination would remain only as a proposal to put an end of the de facto relationship between the Management and the teacher till the prior approval is obtained from the competent authority for such proposal, by which, the proposal to put an end to the de facto relationship matures and results to end the de jure relationship.” In the light of the above discussion, I am of the view that the order of the disciplinary authority as also the order of the Tribunal impugned herein are invalid and are liable to be quashed. Having come to the conclusion that the order of punishment is non-est, it is unnecessary to consider the other contentions urged by the Learned Counsel for the petitioner. 11. The last submission of the Learned Counsel for the petitioner is that the petitioner has been kept out of service without a valid order. Therefore, he is entitled for reinstatement with all consequential benefits and full backwages. In view of my conclusion that the order of the disciplinary authority as also the order of the Tribunal are invalid, the petitioner is entitled for reinstatement with all consequential benefits. But the question again is whether he is entitled for full backwages? 12. The award of backwages is no longer considered to be the natural consequence of reinstatement. It has undergone significant change in the last two decades. Therefore, no precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed. It depends upon the facts and circumstances of each case. One of the important factors, which have to be taken into consideration, is the length of service that an employee had rendered with the employer. Therefore, no precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed. It depends upon the facts and circumstances of each case. One of the important factors, which have to be taken into consideration, is the length of service that an employee had rendered with the employer. If the employee has rendered a considerable period of service and his services were wrongfully terminated, he may be awarded full or partial backwages keeping in view the fact that at his age and the qualification possessed by him, he may not be in position to get another employment. The Apex Court in G.M. Haryana Roadways vs. Rudhan Singh (2005) 5 SCC 591 , was considering the payment of backwages to a workman under the Industrial Disputes Act. it has been held as under: “There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Sec.25-F of the Act, entire backwages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification requires for the job and the like should be weighed and balanced in taking a decision regarding award of backwages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial backwages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of backwages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly in appropriate. Another important factor, which requires to be taken into consideration, is the nature of employment. Another important factor, which requires to be taken into consideration, is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year.” 13. The Apex Court in U.P. State Brassware Corporation Limited Vs. Uday Narain Pandey (2006) 1 SCC 479 ), has held as under: “No precise formula can be laid down as to under what circumstances payment of entire backwages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full backwages cannot be the natural consequence.” 14. In J.K. Synthetics Vs. K.P. Agrawal (2007) 2 SCC 433 ), the Apex Court has held as under: “18. Coming back to backwages, even if the Court finds it necessary to award backwages, the question will be whether backwages should be awarded fully or only partially (and if so the percentage). That depends upon the fact and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding backwages, in addition to the several factors mentioned in Rudhan Singh (supra) and Uday Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. 15. In the present case, the petitioner had been working with the second respondent since 3.6.1985. His appointment was approved by the competent authority. The order of punishment imposed on him was illegal. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. 15. In the present case, the petitioner had been working with the second respondent since 3.6.1985. His appointment was approved by the competent authority. The order of punishment imposed on him was illegal. He was worked for about 18 years without any blemish till he was compulsorily retired. It is the case of the petitioner that he was not gainfully employed from the day he was prevented by the management to attend to his duty till this day. The management has not produced any material to show that petitioner was gainfully employed during the aforesaid period. Considering the age of the petitioner, the nature and length of the service he has rendered, I am of the view that he is entitled for 50% of the backwages. 16. In the result, I pass the following: ORDER (i). The writ petition succeeds and it is accordingly allowed. The order passed by the disciplinary authority dated 8.7.2004 (Annexure ‘U’) as also the order passed by the appellate authority dated 4.8.2006 (Annexure ‘AA’) are hereby quashed. (ii). The first respondent is directed to reinstate the petitioner to the post in which he was working within a period of eight weeks from the date of receipt of a copy of this order. (iii). The petitioner is entitled for all consequential benefits. (iv). I further direct the first respondent to pay 50% of the backwages to the petitioner from 1.2.2003 till the date of his reinstatement within a period of three months from the date of receipt of a copy of this order. No costs.