2005 (1) TMI 646 - SC - Indian Laws

Whether after dismissal a person is gainfully employed is within his special knowledge and without any pleadings or evidence direction for back wages could not have been given? Held that - The inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. Since the present appeal arises from proceedings declaring the respondent as Absconder we make it clear that if the appellants are desirous of initiating any departmental proceedings in terms of CAT s order they can do so within two months, if not already done. The proceedings shall be completed within further period of three months i.e. within five months from today. The respondent is directed to cooperate and participate in the departmental proceedings. If he fails to do so it shall be at his own risk and peril. The entitlement of the service benefits, if any, for the period from the initial order of dismissal till final decision is taken will be decided in the departmental proceedings. We make it clear that we have not expressed any opinion on the merits of the case, and/or on the question of entitlement of any service benefit.The appeal is allowed

Summary

Issues:
Challenge to legality of judgment by Division Bench of Punjab and Haryana High Court dismissing writ petition, correctness of order by Central Administrative Tribunal (CAT) in OA No. 124/HK/2001, invoking Rule 19(ii) of Central Civil Services (Classification, Control and Appeal) Rules, 1965, justification for termination of services, quashing of order of punishment by CAT, reinstatement of employee, payment of back wages, entitlement to full back wages.

Analysis:
The judgment dealt with the challenge to the legality of a judgment by a Division Bench of Punjab and Haryana High Court dismissing a writ petition and the correctness of an order by the Central Administrative Tribunal (CAT) in OA No. 124/HK/2001. The respondent, a Principal in Kendriya Vidyalaya Sangathan, had applied for earned leave and permission to go abroad, which was rejected. Subsequently, disciplinary proceedings were initiated against the respondent, leading to the termination of services under Rule 19(ii) of the Rules. The respondent challenged these orders before CAT, alleging lack of material justifying the termination and mala fides. CAT quashed the order of punishment, citing non-compliance with Rules, and directed reinstatement with all benefits, allowing the appellants to initiate disciplinary proceedings afresh.

The High Court concurred with CAT's findings, noting the absence of reasons for dispensing with an inquiry and upheld the direction for payment of back wages from the date of dismissal. The appellants contended that the respondent's non-response to notices justified invoking Rule 19(ii) and questioned the award of back wages without evidence of unemployment post-dismissal. The Court found no legal infirmity in CAT's decision and emphasized the need for a conclusion on the impracticability of an inquiry for Rule 19(ii) application.

Regarding back wages, the Court referenced previous cases emphasizing the discretionary nature of back wages and the need for factual assessment of gainful employment post-dismissal. It held that the respondent had not proven lack of employment post-dismissal, setting aside the High Court's award of full back wages. The Court directed the appellants to initiate departmental proceedings within a specified period and clarified that entitlement to service benefits would be determined during these proceedings. The Court allowed the appeal partially, without costs.

In conclusion, the judgment addressed issues related to the legality of termination under Rule 19(ii), quashing of punishment orders, reinstatement, payment of back wages, and entitlement to full back wages. It underscored the importance of compliance with procedural requirements, the discretionary nature of back wages, and the need for factual evidence regarding post-dismissal employment status. The judgment provided clarity on the initiation of departmental proceedings and the determination of service benefits, without expressing any opinion on the merits of the case.