ORDER : ASHOK S. KINAGI, J. IN WP No.61255/2016 AND WP No.37741/2016: These writ petitions are filed by the petitioners challenging the judgment dated 02.06.2016 passed in MA (EAT) No.04/2007 by the learned Educational Appellate Tribunal and III Additional City Civil and Sessions Judge, Bengaluru City (CCH-25) (‘EAT’ for short). 2. Brief facts leading rise to the filing of these writ petitions are as follows: 2.1. Sri. G.Basavaraju (petitioner in WP No.61255/2016) was appointed as a Second Division Assistant on 12.10.1989. He was promoted as a Central Store Keeper on 22.09.1994. The said Basavaraju has not committed any irregularities or shown misconduct at any point of time. An enquiry was initiated against Basavaraju, alleging misconduct. The Enquiry Officer submitted a report on 27.09.2005 holding that the charges levelled against Basavaraju are proved. Based on the report submitted by the Enquiry Officer, the Management passed an order dismissing Basavaraju from service vide order dated 23.01.2007. Basavaraju, aggrieved by the order of dismissal, preferred an appeal in MA (EAT) No.4/2007. 3. The Management filed a statement of objections contending that, Basavaraju did not respond properly to the show-cause notice. Charges were framed against him and by supplying the articles of charges, list of documents and list of witnesses, enquiry was conducted and an Enquiry Officer provided sufficient opportunity to Basavaraju. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show- cause notice to Basavaraju. Basavaraju has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 4. The learned EAT, based on the pleadings of the parties, framed the following issues: 1. Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under The Karnataka Education Act 1983? 2. Whether the dismissal order dtd.23.1.2007 against the appellant by the respondent is in accordance with law? 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 5. To substantiate his case, Basavaraju examined himself as PW-1 and marked 22 documents as Exs.P1 to P22. On the other hand, the Management examined their Manager as RW-1 and marked 37 documents as Exs.R1 to R37. 6. 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 5. To substantiate his case, Basavaraju examined himself as PW-1 and marked 22 documents as Exs.P1 to P22. On the other hand, the Management examined their Manager as RW-1 and marked 37 documents as Exs.R1 to R37. 6. The learned EAT, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The appeal was partly allowed without costs and Basavaraju was ordered to be reinstated with immediate effect without consequential benefits and backwages vide judgment dated 02.06.2016. 7. Basavaraju, aggrieved by the impugned judgment, filed a writ petition in WP No.61255/2016 and the Management filed a writ petition in WP No.37741/2016. 8. Heard the arguments of the learned counsel for Basavaraju and the learned counsel for the Management. 9. Learned counsel for Basavaraju submits that, the EAT, while setting aside the order of termination, could have ordered for backwages. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Basavaraju and dismiss the writ petition filed by the Management. 10. Per contra, learned counsel for the Management submits that, Basavaraju instigated/threatened the non- teaching employees of the Medical College and told them to stop working and join the strike and he delivered the speeches against the Management and caused a sudden strike. Thus, it amounts to a misconduct under Rule 10(13) read with Rule 10(25) and (14) of Ananda Social and Educational Trust Institutions Employees' Service Rules, 1986 and he has also abused with the filthy language. The said aspect was not properly considered by the EAT and committed an error in ordering for reinstatement. Hence, on these grounds, he prays to dismiss the writ petition filed by Basavaraju and allow the writ petition filed by the Management. 11. Perused the records considered the submissions of the learned counsel for the parties. 12. It is an undisputed fact that Basavaraju was working as a Store-keeper in the Management. Hence, on these grounds, he prays to dismiss the writ petition filed by Basavaraju and allow the writ petition filed by the Management. 11. Perused the records considered the submissions of the learned counsel for the parties. 12. It is an undisputed fact that Basavaraju was working as a Store-keeper in the Management. Though allegations are made against Basavaraju alleging that he instigated the non-teaching employees of the medical college and hospital i.e., Nurses, Attenders and Ayahs and told them to stop working and join the strike and also delivered the speeches against the Management and caused a sudden strike, also abused with the filthy language, with the loud voice; pushed aside and manhandled the then Chairman and he remained unauthorised absent. Basavaraju was kept under suspension and enquiry was initiated in 2003 and report was submitted in 2005. The Management issued a show- cause notice in the month of March 2006 along with the enquiry report. Basavaraju replied to the show-cause notice issued in March 2006. The Management dismissed Basavaraju from service on 23.01.2007. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. Admittedly, the Management has not placed any record to establish that the Enquiry Officer has taken prior approval for continuing the enquiry. The EAT has placed reliance on the judgment of the Hon'ble Apex Court in the case of Prem Nath Bali Vs. Registrar High Court of Delhi and Another , AIR 2016 SC 101 and held that, the suspension of a delinquent employee shall not remain in force for more than six months as laid down in Section 92(3)(b) of the Act and RW-1 admitted that they had expected to complete the enquiry within six months, but they could not complete it. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. So, the EAT, taking into consideration, the entire evidence on record, has rightly held that the enquiry proceedings initiated by the Management against Basavaraju were not as per the Rules approved under the Karnataka Education Act and the dismissal order dated 23.01.2007 against Basavaraju by the Management is not in accordance with the law. The EAT was justified in setting aside the order of termination. 13. Insofar as the backwages are concerned, Basavaraju has examined himself as PW-1 before the EAT, but from the evidence of PW-1, he has nowhere deposed that he was not gainfully employed during from the period of dismissal till reinstatement. It is settled law that, grant of backwages is not automatic, even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The award of backwages is a discretionary power that depends on the facts and circumstances of each case and must be exercised based on justice, equity and good consensus. In the instant case, the person has failed to prove that he was not gainfully employed and had no earning to support himself during the period he was out of service. In the absence of evidence by Basavaraju regarding his unemployment, the EAT was justified in declining to grant the backwages. Thus, EAT has rightly passed the impugned judgment. Thus, I do not find any error in the impugned judgment. IN WP No.37739/2016 AND WP No.62320/2016: 14. These writ petitions are filed by the petitioners challenging the judgment dated 02.06.2016 passed in MA (EAT) No.2/2007 by the learned EAT. 15. Brief facts leading rise to the filing of these writ petitions are as follows: 15.1. Sri. Thus, I do not find any error in the impugned judgment. IN WP No.37739/2016 AND WP No.62320/2016: 14. These writ petitions are filed by the petitioners challenging the judgment dated 02.06.2016 passed in MA (EAT) No.2/2007 by the learned EAT. 15. Brief facts leading rise to the filing of these writ petitions are as follows: 15.1. Sri. B.V.Venkatesh (petitioner in WP No.62320/2016) was appointed as an Attender on 30.01.1985. He has not committed any irregularities or shown misconduct at any point of time. An enquiry was initiated against Venkatesh alleging misconduct. The Enquiry Officer submitted a report on 02.04.2005 holding that the charges levelled against Venkatesh are proved. Based on the report submitted by the Enquiry Officer, the Management passed an order dismissing Venkatesh from service vide order dated 23.01.2007. Venkatesh, aggrieved by the order of dismissal, preferred an appeal in MA (EAT) No.2/2007. 16. The Management filed a statement of objections contending that, Venkatesh did not respond to the show- cause notice. Charges were framed against him and by supplying the articles of charges, list of documents and list of witnesses, enquiry was conducted and an Enquiry Officer provided sufficient opportunity to Venkatesh. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Venkatesh. Venkatesh has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 17. The learned EAT, based on the pleadings of the parties, framed the following issues: 1. Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under The Karnataka Education Act 1983? 2. Whether the dismissal order dtd.23.1.2007 against the appellant by the respondent is passed by the competent person and it is in accordance with law? 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 18. To substantiate his case, Venkatesh examined himself as PW-1 and marked 16 documents as Exs.P1 to P16. On the other hand, the Management examined their Manager as RW-1 and marked 19 documents as Exs.R1 to R19. 19. 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 18. To substantiate his case, Venkatesh examined himself as PW-1 and marked 16 documents as Exs.P1 to P16. On the other hand, the Management examined their Manager as RW-1 and marked 19 documents as Exs.R1 to R19. 19. The EAT, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The appeal was partly allowed without costs and Venkatesh was ordered to be reinstated with immediate effect without consequential benefits and backwages vide judgment dated 02.06.2016. 20. Venkatesh, aggrieved by the impugned judgment, filed a writ petition in WP No.62320/2016 and the Management filed a writ petition in WP No.37739/2016. 21. Heard the arguments of the learned counsel for Venkatesh and the learned counsel for the Management. 22. Learned counsel for Venkatesh submits that, the EAT, while setting aside the order of termination, could have ordered for backwages. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Venkatesh and dismiss the writ petition filed by the Management. 23. Per contra, learned counsel for the Management submits that, Venkatesh instigated the non-teaching staff of the Medical College and forced them to stop working and join the strike. Thus, it amounts to a misconduct under Rule 10(2),(12),(13),(25),(8),(18),(13) and (17) of the Ananda Social and Educational Trust Institutions Employees' Service Rules, 1986 and he has also assaulted and put to fear of death two of the employees of the Management. The said aspect was not properly considered by the EAT and committed an error in ordering for reinstatement. Hence, on this ground, he prays to dismiss the writ petition filed by Venkatesh and allow the writ petition filed by the Management. 24. Perused the records considered the submissions of the learned counsel for the parties. 25. It is an undisputed fact that Venkatesh was working as an Attender in the Management. Hence, on this ground, he prays to dismiss the writ petition filed by Venkatesh and allow the writ petition filed by the Management. 24. Perused the records considered the submissions of the learned counsel for the parties. 25. It is an undisputed fact that Venkatesh was working as an Attender in the Management. Though allegations are made against Venkatesh alleging that he instigated the non-teaching staff of the Medical College and forced them to stop working and join the strike, and also and put to fear of death two of the employees of the Management. Venkatesh was kept under suspension in 2002 and report was submitted in 2005. The Management issued a show-cause notice in the month of March 2006 along with the enquiry report. The Management dismissed Venkatesh from service on 23.01.2007. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. Admittedly, the Management has not placed any record to establish that the Enquiry Officer has taken prior approval for continuing the enquiry. The EAT has placed reliance on the judgment of the Hon'ble Apex Court in the case of Prem Nath Bali (Supra) and held that, the suspension of a delinquent employee shall not remain in force for more than six months as laid down in Section 92(3)(b) of the Act and RW-1 admitted that they had expected to complete the enquiry within six months, but they could not complete it. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. So, the EAT, taking into consideration the entire evidence on record, has rightly held that the enquiry proceedings initiated by the Management against Venkatesh were not as per the Rules approved under the Karnataka Education Act and the dismissal order dated 23.01.2007 against Venkatesh by the Management is not in accordance with the law. The EAT was justified in setting aside the order of termination. 26. Insofar as the backwages are concerned, Venkatesh has examined himself as PW-1 before the EAT, but from the evidence of PW-1, he has nowhere deposed that he was not gainfully employed during the period of dismissal till reinstatement. It is settled law that, grant of backwages is not automatic even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The award of backwages is a discretionary power that depends on the facts and circumstances of each case and must be exercised based on justice, equity and good consensus. In the instant case, the person has failed to prove that he was not gainfully employed and had no earning to support himself during the period he was out of service. In the absence of evidence by Venkatesh regarding his unemployment, the EAT was justified in declining to grant the backwages. Thus, EAT has rightly passed the impugned judgment. Thus, I do not find any error in the impugned judgment. IN WP No.55075/2016 AND WP No.37740/2016: 27. These writ petitions are filed challenging the judgment dated 02.06.2016 passed in MA (EAT) No.3/2007 by the learned EAT. 28. Brief facts leading rise to the filing of these writ petitions are as follows: 28.1. Sri. C.Siddaraju (petitioner in WP No.55075/2016) was appointed as a Second Division Assistant on 08.12.1987. He has not committed any irregularities or shown misconduct at any point of time. 28. Brief facts leading rise to the filing of these writ petitions are as follows: 28.1. Sri. C.Siddaraju (petitioner in WP No.55075/2016) was appointed as a Second Division Assistant on 08.12.1987. He has not committed any irregularities or shown misconduct at any point of time. An enquiry was initiated against Siddaraju alleging misconduct. The Enquiry Officer submitted a report on 04.08.2005 holding that the charges levelled against Siddaraju are proved. Based on the report submitted by the Enquiry Officer, the Management passed an order dismissing Siddaraju from service vide order dated 23.01.2007. Siddaraju, aggrieved by the order of dismissal, preferred an appeal in MA (EAT) No.3/2007. 29. The Management filed a statement of objections contending that, Siddaraju did not respond to the show- cause notice. Charges were framed against him and by supplying the articles of charges, list of documents and list of witnesses, enquiry was conducted and an Enquiry Officer provided sufficient opportunity to Siddaraju. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Siddaraju. Siddaraju has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 30. The learned EAT, based on the pleadings of the parties, framed the following issues: 1. Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under the Karnataka Education Act 1983? 2. Whether the dismissal order dtd.23.1.2007 against the appellant by the respondent is in accordance with law? 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 31. To substantiate his case, Siddaraju examined himself as PW-1 and marked 11 documents as Exs.P1 to P11. On the other hand, the Management examined their Manager as RW-1 and marked 17 documents as Exs.R1 to R17. 32. The EAT, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. 32. The EAT, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The appeal was partly allowed without costs and Siddaraju was ordered to be reinstated with immediate effect without consequential benefits and backwages vide judgment dated 02.06.2016. 33. Siddaraju, aggrieved by the impugned judgment, filed a writ petition in WP No.55075/2016 and the Management filed a writ petition in WP No.37740/2016. 34. Heard the arguments of the learned counsel for Siddaraju and the learned counsel for the Management. 35. Learned counsel for Siddaraju submits that, the EAT, while setting aside the order of termination, could have ordered for backwages. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Siddaraju and dismiss the writ petition filed by the Management. 36. Per contra, learned counsel for the Management submits that, Siddaraju participated in the strike, remained unauthorisedly absent, instigated other employees of the Management and prevented them from working, and also assaulted and threatened one of the employees of the Management. Thus, it amounts to misconduct under the Rules 10(2), 10(12), 10(13), 10(25)(14), 10(25)(20), 10(25)(5), 10(25)(20), 10(25)(17), 10(25)(32) of the Ananda Social and Educational Trust Institutions Employees' Service Rules, 1986. The said aspect was not properly considered by the EAT and committed an error in ordering for reinstatement. Hence, on this ground, he prays to dismiss the writ petition filed by Siddaraju and allow the writ petition filed by the Management. 37. Perused the records considered the submissions of the learned counsel for the parties. 38. It is an undisputed fact that Siddaraju was working as a Second Division Assistant in the Management. Allegations are made against Siddaraju alleging that he participated in the strike, remained unauthorisedly absent, instigated other employees of the Management and prevented them from working, and also assaulted and threatened one of the employees of the Management. Siddaraju was kept under suspension for more than six months and the enquiry report was submitted in 2005. The Management dismissed Siddaraju from service on 23.01.2007. Siddaraju was kept under suspension for more than six months and the enquiry report was submitted in 2005. The Management dismissed Siddaraju from service on 23.01.2007. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. Admittedly, the Management has not placed any record to establish that the Enquiry Officer has taken prior approval for continuing the enquiry. The EAT has placed reliance on the judgment of the Hon'ble Apex Court in the case of Prem Nath Bali (Supra) and held that, the suspension of a delinquent employee shall not remain in force for more than six months as laid down in Section 92(3)(b) of the Act and RW-1 admitted that they had expected to complete the enquiry within six months, but they could not complete it. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. So, the EAT, taking into consideration the entire evidence on record, has rightly held that the enquiry proceedings initiated by the Management against Siddaraju were not as per the Rules approved under the Karnataka Education Act and the dismissal order dated 23.01.2007 against Siddaraju by the Management is not in accordance with the law. The EAT was justified in setting aside the order of termination. 39. Insofar as the backwages are concerned, Siddaraju has examined himself as PW-1 before the EAT, but from the evidence of PW-1, he has nowhere deposed that he was not gainfully employed during from the period of dismissal till reinstatement. It is settled law that, grant of backwages is not automatic even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. It is settled law that, grant of backwages is not automatic even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The award of backwages is a discretionary power that depends on the facts and circumstances of each case and must be exercised based on justice, equity and good consensus. In the instant case, the person has failed to prove that he was not gainfully employed and had no earning to support himself during the period he was out of service. In the absence of evidence by Siddaraju regarding his unemployment, the EAT was justified in declining to grant the backwages. Thus, EAT has rightly passed the impugned judgment. Thus, I do not find any error in the impugned judgment. IN WP No.55073/2016 AND WP No.37742/2016: 40. These writ petitions are filed challenging the judgment dated 02.06.2016 passed in MA (EAT) No.5/2007 by the learned EAT. 41. Brief facts leading rise to the filing of these writ petitions are as follows: 41.1. Sri. Shivalingaswamy (petitioner in WP No.55073/2016) was appointed as a Physical Education Instructor on 30.12.1989. He has not committed any irregularities or shown misconduct at any point of time. An enquiry was initiated against Shivalingaswamy alleging misconduct. The Enquiry Officer submitted a report on 07.11.2005 holding that the charges levelled against Shivalingaswamy are proved. Based on the report submitted by the Enquiry Officer, the Management passed an order dismissing Shivalingaswamy from service vide order dated 23.01.2007. Shivalingaswamy, aggrieved by the order of dismissal, preferred an appeal in MA (EAT) No.5/2007. 42. The Management filed a statement of objections contending that, Shivalingaswamy did not respond to the show-cause notice. Charges were framed against him and by supplying the articles of charges, list of documents and list of witnesses, enquiry was conducted and an Enquiry Officer provided sufficient opportunity to Shivalingaswamy. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Shivalingaswamy. Shivalingaswamy has submitted a reply. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Shivalingaswamy. Shivalingaswamy has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 43. The learned EAT, based on the pleadings of the parties, framed the following issues: 1. Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under The Karnataka Education Act 1983? 2. Whether the dismissal order dtd.23.1.2007 against the appellant by the respondent is in accordance with law? 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 44. To substantiate his case, Shivalingaswamy examined himself as PW-1 and marked 17 documents as Exs.P1 to P17. On the other hand, the Management examined one Gurappa as RW-1 and their Manager as RW- 2 and marked 19 documents as Exs.R1 to R19. 45. The EAT, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The appeal was partly allowed without costs and Shivalingaswamy was ordered to be reinstated with immediate effect without consequential benefits and backwages vide judgment dated 02.06.2016. 46. Shivalingaswamy, aggrieved by the impugned judgment, filed a writ petition in WP No.55073/2016 and the Management filed a writ petition in WP No.37742/2016. 47. Heard the arguments of the learned counsel for Shivalingaswamy and the learned counsel for the Management. 48. Learned counsel for Shivalingaswamy submits that, the EAT, while setting aside the order of termination, could have ordered for backwages. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Shivalingaswamy and dismiss the writ petition filed by the Management. 49. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Shivalingaswamy and dismiss the writ petition filed by the Management. 49. Per contra, learned counsel for the Management submits that, Shivalingaswamy instigated and threatened non-teaching employees of the Medical College and told them to stop working and join the strike and he delivered the speeches against the Management and caused a sudden strike and he has also abused with the filthy language; he has changed his designation from Physical Instructor to Physical Director without any order from the competent authority and also indulged in anti-institutional activities. Thus, it amounts to misconduct under the Rule 10(2) read with Rule 17 of the Ananda Social and Educational Trust Institutions Employees' Service Rules, 1986. The said aspect was not properly considered by the EAT and committed an error in ordering for reinstatement. Hence, on this ground, he prays to dismiss the writ petition filed by Shivalingaswamy and allow the writ petition filed by the Management. 50. Perused the records considered the submissions of the learned counsel for the parties. 51. It is an undisputed fact that Shivalingaswamy was working as a Physical Education Instructor in the Management. Allegations are made against Shivalingaswamy that Shivalingaswamy instigated and threatened non-teaching employees of the Medical College and told them to stop working and join the strike and he delivered the speeches against the Management and caused a sudden strike and he has also abused with the filthy language; he has changed his designation from Physical Instructor to Physical Director without any order from the competent authority and also indulged in anti- institutional activities. The enquiry was commenced in 2002 and the dismissal order was passed in 2007. Shivalingaswamy was kept under suspension from 2002 till 2007. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. Admittedly, the Management has not placed any record to establish that the Enquiry Officer has taken prior approval for continuing the enquiry. The EAT has placed reliance on the judgment of the Hon'ble Apex Court in the case of Prem Nath Bali (Supra) and held that, the suspension of a delinquent employee shall not remain in force for more than six months as laid down in Section 92(3)(b) of the Act and RW-2 admitted that they had expected to complete the enquiry within six months, but they could not complete it. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. So, the EAT, taking into consideration the entire evidence on record, has rightly held that the enquiry proceedings initiated by the Management against Shivalingaswamy were not as per the Rules approved under the Karnataka Education Act and the dismissal order dated 23.01.2007 against Shivalingaswamy by the Management is not in accordance with the law. The EAT was justified in setting aside the order of termination. 52. Insofar as the backwages are concerned, Shivalingaswamy has examined himself as PW-1 before the EAT, but from the evidence of PW-1, he has nowhere deposed that he was not gainfully employed during the period of dismissal till reinstatement. It is settled law that, grant of backwages is not automatic even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The award of backwages is a discretionary power that depends on the facts and circumstances of each case and must be exercised based on justice, equity and good consensus. In the instant case, the person has failed to prove that he was not gainfully employed and had no earning to support himself during the period he was out of service. In the absence of evidence by Shivalingaswamy regarding his unemployment, the EAT was justified in declining to grant the backwages. Thus, EAT has rightly passed the impugned judgment. Thus, I do not find any error in the impugned judgment. IN WP No.61253/2016 AND WP No.37743/2016: 53. These writ petitions are filed challenging the judgment dated 02.06.2016 passed in MA (EAT) No.6/2007 by the learned EAT. 54. Brief facts leading rise to the filing of these writ petitions are as follows: 54.1. Sri. G.M.Narayanappa (petitioner in WP No.61253/2016) was appointed as a Helper on 05.05.1988. He has not committed any irregularities or shown misconduct at any point of time. An enquiry was initiated against Narayanappa alleging misconduct. The Enquiry Officer submitted a report on 20.06.2005 holding that the charges levelled against Narayanappa are proved. Based on the report submitted by the Enquiry Officer, the Management passed an order dismissing Narayanappa from service vide order dated 23.01.2007. Narayanappa, aggrieved by the order of dismissal, preferred an appeal in MA (EAT) No.6/2007. 55. The Management filed a statement of objections contending that, Narayanappa did not respond to the show-cause notice. Charges were framed against him and by supplying the articles of charges, list of documents and list of witnesses, enquiry was conducted and an Enquiry Officer provided sufficient opportunity to Narayanappa. The Enquiry Officer, after recording the evidence of the witnesses, submitted a report to the Management. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Narayanappa. Narayanappa has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 56. After the receipt of enquiry report from the Enquiry Officer, the Management issued another show-cause notice to Narayanappa. Narayanappa has submitted a reply. It was not satisfactory and hence, the order of dismissal was passed by the Management. Hence, prays to dismiss the appeal. 56. The learned EAT, based on the pleadings of the parties, framed the following issues: 1. Whether the enquiry proceedings initiated/conducted by the respondent against the appellant were not as per Rules approved under The Karnataka Education Act 1983? 2. Whether the dismissal order dtd.23.1.2007 against the appellant by the respondent is in accordance with law? 3. Whether the appellant is entitled for reinstatement with all benefits of regular service? 4. To what order the parties are entitled? 57. To substantiate his case, Narayanappa examined himself as PW-1 and marked 12 documents as Exs.P1 to P12. On the other hand, the Management examined their Manager as RW-1 and marked 20 documents as Exs.R1 to R20. 58. The EAT, after recording the evidence, hearing on both sides and after assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and issue No.4 as per the final order. The appeal was partly allowed without costs and Narayanappa was ordered to be reinstated with immediate effect without consequential benefits and backwages vide judgment dated 02.06.2016. 59. Narayanappa, aggrieved by the impugned judgment, filed a writ petition in WP No.61253/2016 and the Management filed a writ petition in WP No.37743/2016. 60. Heard the arguments of the learned counsel for Narayanappa and the learned counsel for the Management. 61. Learned counsel for Narayanappa submits that, the EAT, while setting aside the order of termination, could have ordered for backwages. The EAT committed an error in declining and denying to grant backwages and consequential reliefs. Hence, the judgment passed by the EAT is arbitrary and erroneous. Hence, on this ground, he prays to allow the writ petition filed by Narayanappa and dismiss the writ petition filed by the Management. 62. Per contra, learned counsel for the Management submits that, Narayanappa neglected in his duties and went on strike without prior notice and instigated other employees of the Medical College and told them to stop working and join the strike; he has also assaulted and threatened two of the employees. 62. Per contra, learned counsel for the Management submits that, Narayanappa neglected in his duties and went on strike without prior notice and instigated other employees of the Medical College and told them to stop working and join the strike; he has also assaulted and threatened two of the employees. Thus, it amounts to misconduct under the Rules of Ananda Social and Educational Trust Institutions Employees' Service Rules, 1986. The said aspect was not properly considered by the EAT and committed an error in ordering for reinstatement. Hence, on this ground, he prays to dismiss the writ petition filed by Narayanappa and allow the writ petition filed by the Management. 63. Perused the records considered the submissions of the learned counsel for the parties. 64. It is an undisputed fact that Narayanappa was working as a Helper in the Management. Allegations are made against him that he neglected in his duties and went on strike without prior notice and instigated other employees of the Medical College and told them to stop working and join the strike; he has also assaulted and threatened two of the employees. The enquiry was commenced in 2003, the enquiry report was submitted on 20.06.2005 and the dismissal order was passed on 23.01.2007. Narayanappa was kept under suspension from 2003 till 2007. The employee was kept under suspension much against Section 92(3)(b) of the Karnataka Education Act. The Enquiry Officer could have taken six months to conclude the whole enquiry and in the event if he is not able to complete the enquiry during the said period, it could have been continued the same with the prior approval of the Governing Council. Admittedly, the Management has not placed any record to establish that the Enquiry Officer has taken prior approval for continuing the enquiry. The EAT has placed reliance on the judgment of the Hon'ble Apex Court in the case of Prem Nath Bali (Supra) and held that, the suspension of a delinquent employee shall not remain in force for more than six months as laid down in Section 92(3)(b) of the Act and RW-1 admitted that they had expected to complete the enquiry within six months, but they could not complete it. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. The Management cannot enjoy and perpetuate the illegality on the poor employee by keeping him under suspension for more than six months. Considering the entire material placed on record, the EAT recorded its finding that no proper enquiry was conducted and the report is not properly defended in the trial and further, the Management has not chosen to examine the primary witnesses which affects the sustainability of its charges. So, the EAT, taking into consideration the entire evidence on record, has rightly held that the enquiry proceedings initiated by the Management against Narayanappa were not as per the Rules approved under the Karnataka Education Act and the dismissal order dated 23.01.2007 against Narayanappa by the Management is not in accordance with the law. The EAT was justified in setting aside the order of termination. 65. Insofar as the backwages are concerned, Narayanappa has examined himself as PW-1 before the EAT, but from the evidence of PW-1, he has nowhere deposed that he was not gainfully employed during the period of dismissal till reinstatement. It is settled law that, grant of backwages is not automatic even if a termination order is set aside. The employee must prove that he was not gainfully employed during the period of dismissal by providing evidence of his unemployment. The initial burden of proof lies with the employee to show that he was not gainfully employed and had no earnings to support himself during the period he was out of service. The award of backwages is a discretionary power that depends on the facts and circumstances of each case and must be exercised based on justice, equity and good consensus. In the instant case, the person has failed to prove that he was not gainfully employed and had no earning to support himself during the period he was out of service. In the absence of evidence by Narayanappa regarding his unemployment, the EAT was justified in declining to grant the backwages. Thus, EAT has rightly passed the impugned judgment. Thus, I do not find any error in the impugned judgment. 66. Accordingly, I proceed to pass the following: ORDER i. The writ petitions are dismissed ii. The judgments passed by the EAT in MA (EAT) Nos.4/2007, 2/2007, 3/2007, 5/2007 and 6/2007 are hereby confirmed; iii. Pending IAs, if any, are disposed of accordingly.