KALLAKURICHI TALUK CO-OP HOUSING SOCIETY LTD.versusM. MARIA SOOSAI & ORS.

                        [2010] 6 S.C.R. 320

A   KALLAKURICHI TALUK CO-OP HOUSING SOCIETY LTD.
                                 v.
                    M. MARIA SOOSAI & ORS.
                  (Civil Appeal No. 4357 of 2010)
                           MAY 6, 2010
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

       Labour Laws - Reinstatement with back wages -
   Absence without leave - Deemed as resignation as per Bye-
C Laws and Rules - Reappointment on compassionate ground
  ordered - After re-appointment, employee again going on
  leave without permission - Absertee again deemed as his
  resignation - Writ petition by employee seeking his re-
  instatement in compliance with order of re-appointment -
D Single Judge of High Court dismissing the petition holding
  that the employee concealed the fact of his re-appointment
  - Division Bench of High Court allowing the writ appeal,
  holding that despite the order of re-appointment by
  respondent No. 3, he was not employed and directed
E reinstatement with back wages - In compliance of Division
  Bench order, employee reinstated - Thereafter, again he
  failed to report for work - In departmental inquiry for
  misconduct found guilty - On appeal, held: The decision of
  High Court was based on erroneous facts - On facts, High
F Court order not sustainable so far as payment of back wages
  and other benefits are concerned - Interference with the order
  regarding reinstatement not called for in view of his having
  been found guilty in domestic inquiry - The order is modified
  to the extent that the employee is entitled to full back wages
  from the date of his joining duty on reinstatement in
G compliance of order of Division Bench till the date he failed
  to report for work - Tamil Nadu Co-operative Societies Rules,
  1988 - r. 149(10)(1).

        Respondent No. 1, appointed with the appellant-
H                          320
 KALLAKURICHI TALUK co~oP HOUSING SOCIETY 321
           LTD. v. M. MARIA SOOSAI
Society, remained absent without leave from November, A
1990. Appellant treated him to have resigned from service
as per the Bye-Laws of the Society and r. 149(10)(1) of
Tamil Nadu Co-operative Societies Rules, 1988. After a.
lapse of 5 years, respondent No. 1 raised industrial
dispute. During pendency of the dispute, he was re- B
appointed by respondent No. 3, on compassionate
ground on certain conditions inter-alia that the period of
his absence from duty till the date of his joining duty after
re-appointment, shall be treated as leave without pay.
After his re-appointment, respondent No. 1 was asked to · c
join another Society. After joining there, he again failed
to report for work for about. one year. That Society passed
a resolution to send him back to his parent Society. He
was once again deemed to have resigned from the
services of the Society. After about 3 years of the passing
                                                              0
of the resolution, he filed a writ petition seeking his
appointment in appellant-Society in pursuance of the
order of re-appointment passed by respondent No. 3. He
also sought all the salaries and other benefits from
November, 1990. The writ petition was dismissed by E
Single Judge of High Court on account of suppression
of material facts. Writ appeal, against the same was
allowed by Division Bench of High Court directing to
reinstate respondent No. 1 with back wages from the
date of his dismissal, till the date of his reinstatement,
together with all other attendant benefits. Hence the F
present appeal.

     During pendency of the case before Supreme Court,
the appellant-Society reinstated the respondent in
compliance of the impugned order passed by the G
Division Bench of High Court. The respondent, after
joining, again failed to report for work. He was j>laced
under suspension and domestic inquiry was initiated
against him. Inquiry Officer held that charges against him
were duly proved.                                          H
        322      SUPREME COURT REPORTS              [2010] 6 S.C.R.


    A         Disposing the appeal, the Court

             HELD: 1. The decision of the Division Bench of the
        High Court imp_ugned in the instant appeal, cannot be
        sustained at least as far as payment of back wages and
    B other benefits are concerned. The conduct of the
'       respondent No.1 does not justify the relief given to him
        by virtue of the impugned order. Despite the fact that the
        Single Judge pointed out that the prayer made in the Writ
        Petition could not be granted on account of suppression
    C of material facts which ran counter to such prayer, the
        Division Bench appears to have lost sight of the same.
        As the facts reveal, the respondent No.1 unilaterally
        stopped coming to work without submitting any leave
        application or prior intimation and that too not for a day
        or two, but for months on end. The decision of the
    D Appellant-Society to re-appoint the respondent No.1 on
        compassionate grounds leading to the order of
        respondent, No. 3 permitting the Appellant-Society to re-
      . appoint him, was in itself a concession made to the
        respondent No.1 which he misused subsequently. [Para
    E 17] (331-C-G]

            2. Even after he was released from the Vijayapuram
      Society on 24th February, 1997, the Respondent No.1
      remained silent till 30th September, 2000, when he filed
    F the writ petition for a direction to appoint him to a suitable
      post in the Appellant-Society or the Sankarapuram Taluk
      Co-operative Housing Society pursuant to the order
      passed by respondent No. 3. Despite the maximum
      latitude shown to him by allowing him to rejoin his duties
    G in the Appellant-Society pursuant to the impugned order
      passed by Division Bench of High Court, the Respondent
      No.1 again failed to report for work, as a result he was
      placed under suspension and a domestic enquiry was
      conducted in which he was found to be guilty of the
    H charges brought against him. [Para 18] [331-H; 332-A-C]
  KALLAKURfCHl TALUK CO-OP HOUSING SOCIETY 323
            LTD. v. M. MARIA SOOSAI        , . . ·· '·
       3'. The Division Ben.ch of tl:te High Court does not A
  appear to have ·conside,red the events which occurre~ ·
  after the respondent No.1 was retnstated in service.
  pursuant to the order passed by respondent No. 3. The'
' fact that thereafter, on account of his failure to report for
  duties for more than one year, the respondent No.1 was B
  once again deemed to have resigned from the services
  of the Society u/r. 149(10)(1) of Tamil Nadu Co-operatiV.e
  Societies Rules, 1988 appears to have been overlooked,
  by the High Court. The Division Bench of the High Court
  does not also appear to have taken into consideration the c
  fact that the respondent No.1 remained silent for about
  three years, when he filed Writ Petition for a direction for
· his appointment. [Para 19] [332-D-G]

      4. The events, prior to the date when the respondt?f\t o
                                                             ...
. No. 1 joined the service after the order passed by    the
  respondent No. 3, and thereafter, were not seriously
  considered by the Division Bench of the High Court
  which proceeded on the basis that despite the order
  passed by the respondent No. 3, the Respondent No.1
  had not been given appointment, which fact was entirely E
  erroneous. [Para 20] '[332-H; 333-A·B]
     Novartis India· Limited vs. State of West Bengal (2009)
 3 sec 124, distinguished.

      5. In the circumstances of the case, the judgment and F
 order of the Division Bench of the High Court cannot be
 sustained. However, having regarcl to t.he fact that a
 domestic inquiry was conducted against the. respondent
 No.1, in which he was found guilty, interference with that
 part of the order impugned, directing reinstatement is not G
 called for, but the Court is not inclined to maintain the
 order of the Division Bench of the High Court regarding
 payment of back wages. [Para 21] [333-D-E]

                                                               H
    324      SUPREME COURT REPORTS                [2010] 6 S.C ..R.


A         6. In the circumstances of the case, the Court is
    inclined to modify the part of the impugned order
    directing payment of back wages by directing that the
    Respondent No.1 will be entitled to full wages only for the
    period between the date when respondent No. 1 joined
B   duty pursuant to impugned judgment and the date when
    he failed to join duty for which departmental inquiry was
    initiated, and other connected benefits, if any. As far as
    payment of full salary for the period under suspension
    undergone by the respondent No.1 during which period
c   he was being paid subsistence allowance is concerned,
    the same will depend on the final order to be passed in
    the disciplinary proceedings already initiated against the
    respondent No.1. (Para 23] [334-A-C]

                         Case Law Reference:
D
          (2009) 3 sec 124        Distinguished.        Para 20

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4357 of 2010.

E       From the Judgment & Order dated 27.06.2007 of the High
    Court of Judicature at Madras in W.A. No. 3748 of 2004.

          N. Sheba, Sriram J. Thalapathy and Adhi Venkataraman
    for the appellant.
F         T. Harish Kumar and Anitha Shenoy for the Respondents.

          The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. 1. Leave granted.
G        2. This appeal is directed against the judgment and order
    passed by the Division Bench of the Madras High Court on 27th
    June, 2007, in Writ Appeal No.3748 of 2004, arising out of the
    judgment and order dated 9th January, 2003, in Writ Petition
    No.17237 of 2000. By the said order the Respondents in the
H   Writ Petition were. directed to reinstate the Respondent No.1
 KALLAKURICHI TALUK CO-OP HOUSING SOCIETY 325
  LTD. v. M. MARIA SOOSAI [ALTAMAS KABIR, J.]

herein in service with back wages from the date of his                  A
dismissal from service till the date of reinstatement together
with all attendant benefits; within eight weeks from the date of
receipt of a copy of the order.

      3. In order to appreciate the submissions made on behalf          8
of the respective parties and the relief prayed for in the appeal,
it is necessary to briefly set out the facts leading to the filing of
the writ petition before the High Court.

     4. There is no dispute that the Respondent No.1, M. Maria
Soosai, was appointed as an Accountant in the Appellant                 C
Society on 9th March, 1984. From 22nd July, 1990, the
Respondent No.1 failed to report for duty without permission
and without submitting any leave application. Consequently, the
said Respondent was treated to have resigned from service
as per the Bye-laws of the Appellant Society and in accordance          D
with Rule 149(10)(1) of the Tamil Nadu Co-operative Societies'
Rules, 1988, hereinafter referred to as 'the 1988 Rules'. On
29th March, 1995, after a lapse of about 5 years, the
Respondent No.1 raised a dispute before the Labour Court at
Cuddalore, being l.D. No.44of1995, questioning the decision             E
of the Appellant Society to treat him as having resigned from
service since 1990.

     5. While the proceedings were pending before the Labour
Court, the Society sought permission of the. Registrar (Housing)        F
and the Deputy Registrar (Housing), Respondent Nos.2 and 3
herein, to re-appoint the Respondent No.1 on compassionate
grounds. Accordingly, on 27th July, 1995, the Respondent No.2
permitted the Appellant Society to re-appoint the Respondent
No.1 upon certain conditions, which are as follows :-

     "1. He will not.be paid from 22.7.90 till he joins duty and        G
     this period be treated as leave without pay.

     2. The employee should withdraw the case pending before
     the Labour Court.
    326      SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A         3. The employee shall be transferred to Sankarapuram Co-
          operative Housing Society as soon as the said Society is
          started.

          4. He should join duty in. the place appointed by the
          Special Officer and he should not claim seniority."
8
         Certain other conditions were suggested by the
    Respondent No.3 for re-appointing the Respondent No.1, which
    are as under :-

c         "1. The period between 22. 7.1990 and 7.5.95 shall be
          treated as leave without pay.

          2. He should involve in society work and collect all the
          pending loans.

D         3. As soon as Sankarapuram Taluk Co-op Hsg. Society
          is started, he should go and work there."

         6. On being reinstated in service by the order of, the
    Respondent No.3 dated 7th September, 1995, the Respondent
E   No.1 was relieved from his duties under th3 Appellant Society
    and was asked to join in the Vijayapuram Co-operative House
    Building Society. The Respondent No.1 thereupon joined the
    services of the Vijayapuram Co-operative House Building
    Society on 11th September, 1995, and worked there till 7th
F   January, 1996. From 8th January, 1996, after having barely
    worked for about four months, the Respondent No.1 again failed
    to report for work with the Vijayapuram Co-operative House
    Building Society. Thereafter, on 24th February, 1997, a
    Resolution was adopted by the Board of Directors of the
G   Vijayapuram Co-operative House Building Society, Chinna
    Salem, and by Resolution 7 it was resolved that the Respondent
    No.1 be sent back to his parent society on account of his failure
    to report for work from 8th January, 1996 to 24th February,
    1997, without any prior intimation and without applying for leave.
    It was also noted that within a short tenure of fo:.ir months
H   service, the Respondent No.1 had obtained consumer loan of
 KALLAKURICHI TALUK CO-OP HOUSING SOCIETY 327
 , LTD. v. M. MARIA SOOSAI [ALTAMAS KABIR, J.]
                                           '
Rs.20,990/- in respect whereof there were outstanding dues of           A
Rs.19,900/-. Furthermore, he had al;:>o obtained Rs.1,500/-
towards festival advance. The said Resolution was duly
confirmed by the President of the Vijayapuram Co-operative
House Building Society on 24th February, 1997.

     7. On 30th September, 2000, the Respondent No.1 filed              B
Writ Petition No.17237 of 2000 for a direction upon the
Respondents therein to issue an order of appointment to him
to a suitable post in the Appellant Society or Sankarapuram
Taluk Co-operative Housing Society, pursuant to the order
passed by the Registrar (Housing) on 27th September, 1995,              C
and also the order of the Respondent No.3 dated 11th Augus.t,
1995, and for providing all salaries and other benefits from 2nd
November, 1990. The said writ petition came to be dismissed
on 9th January, 2003, on the ground that the Respondent No.1
in his writ petition suppressed the fact that he had joined his         D
duties under the Vijayapuram Cooperative House Building
Society pursuant to the order passed by the Respondent No.3                 \'

on 7th September, 1995.                    '

     8. Writ Appeal No.3748 of' 2004 was filed by the                   E
Respondent No.1 against the order of the learned Single Judge
dismissing his Writ Petition. On 18th August, 2003, the said
Writ Appeal was allowed with a direction to reinstate the
Respondent No.1 in service with back wages from the date of
his dismissal till the date of reinstatement, together with all other   F
attendant benefits, within 8 weeks from the date of receipt of a
copy of the order.

    9. It is the said order which has been challenged in the
present proceedings.
                                                                        G
      10. Appearing on behalf of the Appellant Society, Ms. N.
Shobha, learned Advocate, submitted that having regard to the
conduct of the Respondent No.1 from 1995 onwards, the
learned Single Judge had quite rightly dismissed the writ
petition filed by the Respondent No.1, inter calia, for issuance        H
           328     SUPREME COURT REPORTS                   [2010) 6 S.C.R.


     .A    of a writ in the nature of Mandamus to direct the Respondents
           to issue an order of appointment to a suitable post either in
 .'.,.ii   the Appellant Society or in the Sankarapuram Taluk Co-
."    ~
. I•
           operative Housing Society which had since come into
           existence and was made Respondent No.4 in the writ petition
      8    and for a further direction to pay all his arrears and other
           benefits alleged to be due from 2nd November, 1990. Ms.
           Shobha submitted that in his order dated 9th January, 2003,
           the learned Single Judge, while dismissing Writ Petition
           No.17237 of 2000, noted the fact that after the Respondent
           No.1 was deemed to have resigned from service, he was re-
      c    appointed on 7th September, 1995, and that he joined his
           duties on 11th September •. 1995, which meant that the
           Appellant had given due effect to the orders which were alleged
           not to have been given effect to in the writ petition. Without
           taking into consideration the said fact and the other facts as
      D    indicated hereinabove, including the fact that the Respondent
           No.1 had once again failed to report for work from 8th January,
           1996 to 24th February, 1997, the Division Bench quite
           erroneously came to a finding that the Appellant Society had
           not passed orders appointing the Respondent No.1 despite the
      E    orders passed by the Deputy Registrar. (Housing) on 1Oth
           March, 1997, directing the Appellant Society to do so.

                 11. Ms. Shobha submitted that it is soon thereafter on 10th
           March, 1997, that the Deputy Registrar (Housing) wrote to the
      F    Society requesting it to compassionately consider the request
           that the Respondent No.1 could be appointed in the Appellant
           Society, subject to the order of the Registrar (Housing).

               12. Ms. Shobha indicated that the said order of the Deputy
          Registrar {Housing) was only a request and the fact remains
     · G that on his failure to report for duties for more than one year
          from 8th January, 1996, in addition to his earlier absence from
         ·duties between 1990 and 1995, the Vijayapuram Cooperative
          House Building Society resolved that Respondent No.1 be sent
          back to his parent Society, the Appellant herein. Ms. Shobha
       H
   KALLAKURICHI TALUK CO-OP HOUSING SOCIETY 329
    LTD. v. M. MARIA SOOSAI [ALTAMAS KABIR, J.]

  frankly stated that in view of his conduct, the Appellant had A
  rightly not passed any order of reinstatement pursuant to the
  impugned order of the Division Bench of the High Court since
  the Respondent No.1 was, once again, deemed to have
  resigned from service under Rule 149(10)(1) of the 1988 Rules.
  Ms. Shobha urged that the question of reinstatement with full B
  back wages from the date of dismissal, namely, 1Oth October,
  1.990, till the date of his reinstatement, which would mean a
  period of about 20 years, despite the fact that the Respondent
  No.1 had been re-appointed in July, 1995, on certain terms and
  conditions and had himself stayed away from his duties, even       c
  thereafter, was unjust and inequitable, besides being
  erroneous, and could not be sustained.

            13. Ms. Shobha submitted that one of the conditions for
       the re-appointment of the Respondent No.1 was that he would
       not be paid from 22nd July, 1990, till he rejoined service and D
       the said period would be treated as leave without pay, but if
       the order of the Division Bench in the Writ Appeal No.3749 of
  · 2004, is to be accepted as it is, it would mean that payment of
       salaries and other emoluments would have to be made for the
                                                                      E
.",,-said
  -·;.
            period as well.

            14. Ms. Shobha submitted that during the pendency of the
      Special Leave Petition, one G. Anbalagan was appointed as
      Special Officer of the Appellant Society. By his letter dated 24th
      November, 2007, the Special Officer reinstated the F
      Respondent No.1 in the service of the Society without prejudice
      to its rights and contentions in the pending Special Leave
      Petition. Pursuant thereto, the Respondent No.1 rejoined duty
      on 6th December, 2007, but, once again, he failed to report
 '..'-19r work from 16th February, 2009 and committed other acts G
·· ''Of misconduct. As a result, the Respondent No.1 was again
      placed under suspension on 4th March, 2009, and a charge .
      memo dated 13th April, 2009, was issued to him. Thereafter,
      a domestic inquiry was conducted by the Appellant Society in
      respect of the charge memo and by his report dated 19th H
     330     SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A    October, 2009, the Inquiry Officer held that the charges against
     the Respondent No.1 had been duly proved. In the affidavit filed
     by the Special Officer, it has also been indicated that the copy
     of the Inquiry Report had been duly sent to the Respondent No.1
     seeking his comments and that on receipt of the same, the
B    proceedings would be conducted against the Respondent No.1
     in accordance with law. Ms. Shobha submitted that during this
     period, the Respondent No.1 was being paid subsistence
     allowance as per the rules and in the said circumstances, the
     direction to reinstate the Respondent No, 1 in service with back
c    wages during the pendency of the inquiry, was not only wrong,
     but improper and the same was liable to be quashed.

          15. On the other hand, Ms. Anitha S~enoy, learned
     Advocate appearing for the Respondent No.1, submitted that
     although an attempt has been made on behalf of the Appellant
D    Society to blame the Respondent No.1 for his alleged lapses,
     it was the Appellant Society which had not acted in terms of
     the conditions imposed by the Registrar (Housing) in his order
     dated 27th July, 1995, indicating that the Respondent No.1
     would be transferred to the Sankarapuram Taluk Co-operative
E    Housing Society as soon as the said Society was started. Ms.
     Shenoy urged that the Sankarapuram Taluk Co-operative
     Housing Society was started on 26th June, 1998 but pursuant
     to the order passed by the Division Bench of the ,'i1adras High
     Court on 27th June, 2007, the Respondent No.1 was reinstated
F    in service not in the Sankarapuram Housing Society as agreed
     upon, but in the Appellant Society.

          16. Countering the submissi'on made on beQalf of the
     Appellant society that the Respondent No.1 must be deemed
G    to have resigned from service as per the bye-laws of the
     Appellant Society and Rule 149(10)(i) of the 1986 Rules, Ms.
     Shenoy submitted that even when an employee is deemed to
     have abandoned his service, the employer was under a duty
     to conduct a departmental enquiry before dispensing with his
     services. In this regard reference was made to the decision of
H.
  KALLAKURICHI TALUK CO-OP HOUSING SOCIETY 331
   LTD. v. M. MARIA SOOSAI [ALTAMAS KABIR, J.]
this Court in Novartis India Limited vs. State of West Bengal,     A
[(2009) 3 sec 124), wherein the dismissal of an employee for
not joining the place to which he had been transferred, fell for
consideration and it was held that the same was hit by the
principles of natural justice and such d,ismissal could only be
effected after holding a pomestic enquiry/ disciplinary            B
proceeding. Mr. Shenoy urged that if not from 1990, the
respondent No.1 was certainly entitled to back wages, from
February, 1997, when he was sent back from the Vijayapuram
Co-operative House Building Society to the Appellant Society.

       17. Having carefully considered the submissions made on C
  behalf of the respective parties, we are inclined to agree with
  Ms. Shobha that the decision of the Division Bench of the High
  Court in Writ Appeal No.3748 of 2004, impugned in the instant
  appeal, cannot be sustained at least as far as payment of back
  wages and other benefits are concerned. The conduct of the D
  Respondent No.1 does not justify the relief given to him by virtue
  of the impugned order. Despite the fact that the learned Single
  Judge pointed out that the prayer made in the Writ Petition
  could not be granted on account of suppression of material facts
  whicl;I ran counter to such prayer, the Division Bench appears E
  to have lost sight of the same. As the facts reveal, the
  Respondent No.1 unilaterally stopped coming to work without
  submitting any leave application or prior intimation and that too
 ·not for a day or two, but for mof"\ths on end. It is, in fact,
. surprising as to why a decision was taken to consider his case F
  on a compassionate basis, despite !aches of his own making.
  The decision of the Appellant Society to re-appoint the
  Respondent No.1 on compassionate grounds leading to the ·. ·
  order of the Registrar (Housing) dated 27th July, 1995,
  permitting the Appellant Society to re-appoint him, was in itself. G
  a concession made to the Respondent No.1 which he misused
  subsequently.

     18. Even after he was released from the Vijayapuram
 Society on 24th February, 1997, the Respondent No, 1
                                                                    H
    332      SUPREME COURT REPORTS                   [2010) 6 S.C.R.


A remained silent till 30th September, 2000, when he filed Writ
  Petition No.17237 of 2000 for a direction upon the
  Respondents therein to appoint him to a suitable post in the
  Appellant Society or the Sankarapuram Taluk Co-operative
  Housing Society pursuant to the order passed by the Registrar
B (Housing) on 27th September, 1995. Despite the maximum
  latitude shown to him by allowing him to rejoin his duties in the
  Appellant Society on 6th December, 2007, the Respondent
  No.1 again failed to report for work from 16th February, 2009,
  as a result he was placed l.mder suspension and a domestic
c enquiry was conducted in which he was found to be guilty of
  the charges brought against him.

          19. The Division Bench of the High Court does not appear
    to have considered the events which occurred after the
    Respondent No.1 was reinstated in service on 7th September,
D   1995, to the effect that the Respondent No.1 had again failed
    to report for work from 8th January, 1996 till 24th February,
    1997, when a direction was given by the Division Bench to the
    Registrar (Housing) to consider the appointment of the
    Respondent No.1 in the Appellant Society. The fact that
E   thereafter, on account of his failure to report for duties for more
    than one year from 8th January, 1996, the Respondent No.1
    was once again deemed to have resigned from the services
    of the Society under Rule 149(10)(1) of the 1988 Rules,
    appears to have been overlooked by the High Court. The
F   Division Bench of the High Court does not also appear to have
    taken into consideration the fact that the Respondent No.1
    remained silent till 30th September, 2000, when he filed Writ
    Petition No.17237 of 2000 for a direction for his appointment
    and that despite being allowed to rejoin his duties in the
G   Appellant Society on 6th December, 2007, the Respondent
    No.1 again failed to report for work from 16th February, 2009,
    as a result of which he was placed under suspension and a
    domestic inquiry was conducted.

          20. The events, prior to 11th September, 1995, and
H
 KALLAKURICHI TALUK CO-OP HOUSING SOCIETY 333
  LTD. v. M. MARIA SOOSAI [ALTAMAS KABIR, J.]
thereafter, were not seriously considered by the Division Bench A
of the High Court which proceeded on the basis that despite
the order passed by the Deputy Registrar (Housing) on 27th
September, 1995, the Respondent No.1 had not been given
appointment, which fact was entirely erroneous, as would be
evident from what has been mentioned hereinbefore. The B
decision of this Court in Novartis India Limited's case (supra)
cited by Ms. Shenoy is not of any help to the case of the
Respondent No.1 since in the said case the order of dismissal
of the employee was passed as he did not join the post to
which he had been transferred. In the instant case, the           c
Respondent No.1 joined the post to which he had been
transferred, but, thereafter, stopped reporting for work without
any application for leave or prior intimation.

      21. In such circumstances, the judgment and order of the
Division Bench of the High Court impugned in this appeal D
cannot be sustained and must necessarily be set aside.
However, having regard to the fact that a domestic inquiry was
conducted against the Respondent No.1, in which he was found
guilty, we do not propose to interfere with that part of the order
impugned directing reinstatement, but we are not inclined to E
maintain the order of the Division Bench of the High Court
regarding payment of back wages. Ever since his appointment
on 9th March, 1984, as an Accountant in the Appellant Society,
the Respondent No.1 has shown lack of interest in his duties
under the Appellant Society and stopped attending his duties F
as and when he felt like without permission and without
submitting any leave application. This habit did not show any
signs of improvement on his re-appointment in service on 27th
July, 1995, or the subsequent order by which he was allowed
to rejoin his duties in the Appellant Society on 6th December, G
2007.

     22. In these circumstances, while not interfering with the
order of reinstatement passed by the Division Bench of the High
Court, which was duly acted upon, we are inclined to modify
that part of the said order directing payment of back wages.      H·
    334      SUPREME COURT REPORTS                [2010] 6 S.C.R.

A       23. In the circumstances, we allow the appeal in part and
   modify the order of the Division Bench of the High Court in Writ
   Appeal No.3748 of 2004, by directing that the Respondent No.1
 · will be entitled to full wages only for the period between 6th
   December, 2007 and 15th February, 2099, and other connected
s benefits, if any. As far as payment of full salary for the period
   under suspension undergone by the Respondent No.1 during
   which period he was being paid subsistence allowance is
   concerned, the same will depend on the final order to be passed
   in the disciplinary proceedings already initiated against the
c Respondent No.1.
          24. The appeal is disposed of in the above terms. There
    will, however, be no order as to costs.
    K.K.T.                                   Appeal disposed of.




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