Holding

The termination under Rule 19(ii) was invalid because the requisite finding that an enquiry was not reasonably practicable was not recorded, and the employee is not entitled to full back wages unless he proves he was not gainfully employed.

Summary

The respondent, a Principal in Kendriya Vidyalaya Sangathan, applied for earned leave with permission to go abroad which was rejected, after which he failed to report for duty for an extended period. The employer declared him absconding and terminated his services under Rule 19(ii) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, without conducting a regular enquiry. The Central Administrative Tribunal quashed the termination, holding that the basic requirements of Rule 19(ii) were not met, and ordered reinstatement with back wages; the High Court affirmed this order. On appeal, the Supreme Court held that the authorities had not recorded a finding that it was not reasonably practicable to hold an enquiry, a prerequisite for invoking Rule 19(ii), and therefore the termination was invalid. The Court also ruled that the employee must prove he was not gainfully employed to claim full back wages, and set aside the High Court’s direction for full back wages. Consequently, the appeal was partly allowed, removing the back‑wage direction while upholding the need for a proper enquiry before termination.

Issues considered

Whether the employer complied with the basic requirement of Rule 19(ii) – a recorded conclusion that it is not reasonably practicable to hold an enquiry – before terminating the employee’s service.
Whether the employee is entitled to full back wages as a natural consequence of setting aside the termination order, in the absence of proof that he was not gainfully employed.
Whether the High Court erred in directing payment of back wages without any evidence or pleadings from the employee.

Legislation cited

Central Civil Services (Classification, Control & Appeal) Rules, 1965s. Rule 14, s. Rule 19(ii)

Subjects

Rule 19(ii)disciplinary proceedingstermination of serviceback wagesabscondingreinstatementadministrative law

Judgment

KENDRIY A VIDY ALAYA SANG ATHAN AND ANR. l- ,,
A
V.

S.C. SHARMA

JANUARY 11, 2005

B [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

Central Civil Services (Classification, Control & Appeal) Rules, 1965;
Rule 19(ilj: .....

C Application for earned leave with permission to go abroad submitted by
employee, a Principal-Rejected by Sanctioning Authority-Employee did not
report for duty for a long period-Disciplinary proceedings-Termination of
services without holding regular enquiry-Correctness of-Held: Since no
reasons recorded by the authorities for not holding the enquiry, the basic
D requirements for application of Rule I 9(ii) not complied with-Hence, Order
of the Courts below in quashing the order of the authority terminating the
services of the employee, does not suffer from any infirmity.

Respondent-employee, a Principal in the appellant-Organisation, "
applied for·sanction of earned leave with permission to go abroad. It was
E rejected by the sanctioning authority. However, the respondent did not
report for duty for quite a long period. In the meantime, disciplinary
proceedings against him was initiated by the authorities and he was
declared absconding from duty and consequently his services were

-
terminated by invoking Rule 19(ii) of the Central Civil Services
(Classification, Control and appeal) Rules. Appeal against the order was
F dismissed by the Appellate Authorities. Respondent challenged the decision
of the Authorities by filing a petition before the Central Administrative
Tribunal (CAT). CAT quashed the order holding that since basic
requirements of Rule 19(ii) of the Rules were not complied with, authorities
were not justified in imposing penalty on the respondent. However, liberty
G was granted to the appellant-employer to initiate disciplinary proceedings
from the stage of serving charge-sheet on the respondent and further
directed them to reinstate the respondent in service with all consequential
benefits including back wages. On appeal, the order was affirmed by the
High Court. Hence the present appeal.

H 374
r KENDRIYA VIDYALA YA SAN GA THAN 1·. S.C. SHARMA 375
It was contended by the appellant that the respondent by giving false A
addresses avoided to receive notices; that since the respondent was not
responding to various notices, it clearly shows that he had abandoned the
job; that even though leave was not granted he did not report on duty in
spite of directions to do so, thus holding a detailed enquiry was not
necessary; that back wages can not be treated as a natural consequence B
whenever an order of termination is set aside by the Courts; that without
any pleadings or evidence direction for back wages could not have been
given and that direction for payment of back wages should have been made
conditional.

Partly allowing the appeal, the Court c
HELD: I.I. The basic requirement for application of Rule 19(ii) in
the background of Rule 14 of the Central Civil Services (Classification,
Control and Appeal) Rules is that a conclusion has to be reccrded that it
is not reasonably practicable to hold the inquiry proceedings. Such a
finding does not appear to have been recorded. Therefore, the views D
expressed by CAT as affirmed by the High Court do not suffer from any
-, infirmity. (378-FJ

-+ 1.2. 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 E
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. Hence 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. (379-D-EJ F
P.G./. of Medical Education and Research, Chandigarh v. Raj Kumar,
JT (2001) l SC 336; Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya
and Anr., (2002] 6 SCC 41; Indian Railway Construction Co. Ltd. v. Ajay
Kumar, (2003] 4 SCC 579 and MP. State Electricity Board v. Jarina Bee,
(Smt.), (2003] 6 sec 141, relied on. G
2. Since the present appeal arises from proceedings declaring the
--;. respondent as "Absconder" it is clarified that if the appellants are desirous
of initiating any departmental proceedings in terms of CA T's order they
can do so within two months, if not already done. The proceedings shall H
be completed within further period of three months. The respondent is
376 SUPREME COURT REPORTS [2005) I S.C.R.

A direcC-ed 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.
It is clarified that no opinion is expressed on the merrts of the case, and/
B or on the question of entitlement of any service benefit. (379-F-GJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 271 of2005.

From the Judgment and Order dated 21.2.2003 of the Punjab and
Haryana High Court in C. W.P. No. 2965-CAT of 2003.
c S. Rajappa for the Appellant.

Sudhir Nandrajyog for the Respondent.

The Judgment of the Court was delivered by

D ARIJIT PASAYAT, J. Heard learned counsel for the parties.

Leave granted. I

Appellants call in question legality of the judgment rendered by a •
E Division Bench of the Punjab and Haryana High Court dismissing the
appellant's writ petition CWP No.2965-CAT of 2003. Appellants had
questioned correctness of the order dated 27 .11.2002 passed by the Central
Administrative Tribunal, Chandigarh Bench (in short 'CAT') in OA No.124/
HK/2001.

p Background facts in a nutshell which are essential are as under:

Respondent joined service as Principal in the appellant-Kendriya
Vidyalaya Sangathan. In December 1996 he applied for sanction of earned
leave with permission to go abroad. He sent letter dated 6.3.1997 for grant
of permission and sanction ofleave from 10.3.1997 to 7.7.1997. His application
G for leave was rejected by appellant no.3 vide telegram dated 13.3.1997. His
request for permission to go abroad was also declined by the Commissioner,
Kendriya Vidyalaya Sangathan, New Delhi (appellant no.2 herein) vide letter
dated 17.5.1997 on the ground that disciplinary proceedings were contemplated
against him. Respondent no. I did not report back for duty till 2.7.1997. In
H the meanwhile, proceedings under the Central Civil Services (Classification,
Control and Appeal) Rules, 1965 (for short, the Rules) were initiated against
KENDRIYA VIDYALAYA SANGATHAN v. S.C. SHARMA [PASAYAT ,J.) 377
tJ him and vide order dated 5.5.1999, he was declared as absconding from duty A
and his services were terminated by invoking Rule I 9(ii) of the Rules. Appeal
filed by him against the order of punishment was dismissed by appellant no.2
vide order dated 14/19.6.2000.

Respondent challenged orders dated 5.5.1999 and _14/19.6.2000 before
the CAT- on the ground that no material was available with appellant no.3 B
which could justify invoking of Rule 19(ii) and he could not have passed the
order of dismissal from service without holding regular enquiry in accordance
... with the procedure prescribed under the Rules. He also levelled allegation of
ma/a jides against appellant no.3 and pleaded that all the actions taken by the
said appellant should be declared nullity.
c
In their reply, the appellants justified the invoking of Rule l 9(ii) on the
ground thai respondent no. I did not respond to the notices issued by appellant
no.3 and did not offer any explanation for his wilful absence from duty for
a long period of more than 2 years.
D
. CAT quashed the order of punishment as well as the appellate order by
holding that the various provisions of Rules were not complied with. It was
held that the appellants failed to prove that it was not reasonably practicable
...
to hold the enquiry. With reference to Rule 19 it was held that the basic
requirements of that provision were not complied with. Imposition of penalty
was held to be not in order, in the absence of disciplinary enquiry proceedings. E
However, liberty was granted to the appellants to initiate disciplinary
proceedings from the stage of serving a charge sheet on the respondent on
the acts of misconduct which may be though fit for such proceedings and
thereafter hold enquiry proceedings in accordance with the Rules. Tribunal
further directed that respondent-employee was to be re-instated in service
with all consequential benefits from the date of dismissal from service.
F

Before the High Court it was submitted by the present appellants that
the authorities were justified in invoking Rule I9(ii) as the respondent did
not respond to the notices issued and did not offer any explanation for his
wilful absence from duty for a long period of more than two years. G
High Court concurred with the views of the Tribunal that the disciplinary
• authority had not recorded reasons for dispensing with the enquiry and no
material was produced to show that there existed reasons which justified
dispensing with regular enquiry. The High Court further found that direction
given for payment of back wages from date of dismissal was in order. It held H
378 SUPREME COURT REPORTS [2005] I S.C.R.

A that though the respondent-employee had not pleaded or produced any evidence
that after dismissal from service, he was not gainfully employed, back wages
can not be denied and it was not necessary to place any material, as payment
of back wages was natural and consequential corollary whenever any order
of tenn ination is set aside.

B In support of the appeal Mr. S. Rajapa, learned co;.msel submitted that
the view of the High Court is not in order. The fact that the respondent was
not responding the various notices clearly shows that he had abandoned the
job and by giving false addresses avoided to receive notice. Even though
leave was not granted he did not join in spite of directions to do so. Therefore,
C there was no justification or necessity to hold a detailed enquiry or to take
a decision in the matter of imposition of penalty. Alternatively, it was submitted
that back wages can not be treated as a natural consequence whenever an
order of tennination is set aside. 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. It was further
D submitted that the direction for payment should have been made conditional
till the final decision in the disciplinary proceedings which the appellant
I
intended to take.
>
In response, learned counsel for the respondent submitted that the order
of CAT as affinned by the High Court does not suffer from any legal infinnity
E on the background facts as noticed by CAT and the High Court.
We find that for application of Rule l 9(ii) in the background of Rule
14 of the Rules the basic requirement is that a conclusion has to be recorded
that it is not reasonably practicable to hold the inquiry proceedings. Such a
F finding does not appear to have been recorded. Therefore, the views expressed
by the CAT as affirmed by the High Court do not suffer from any infinnity.

The residual question relates to direction for back wages.

In P. G. l. of Medical Education and Research, Chandigarh v. Raj Kumar,
G JT (200 I) I SC 336, this Court found fault with the High Court in setting
aside the award of the Labour Court which restricted the back wages to 60%
and directing payment of full back wages. It was observed thus:

"The Labour Court being the final Court of facts came to a
conclusion that payment of 60% wages would comply with the
H requirement of law. The finding of perversity or being erroneous or
·f
KENDR!YA VIDYALAYA SANGATHAN 1'. SC. SHARMA [PASAYAT, J.] 379
not in accordance with law shall have to be recorded with reasons in A
order to assail the finding of the Tribunal or the Labour Court. It is
not for the High Court to go into the factual aspects of the matter and
there is an existing limitation on the High Court to that effect."
Again at paragraph 12, this Court observed:
"Payment of back wages having a discretionary element involved in B
it has to be dealt with, in the facts and circumstances of each case and
no straitjacket formula can be evolved, though, however, there is
statutory sanction to direct payment of back wages in its entirety."
The position was reiterated in Hindustan Motors Ltd. v. Tapan Kumar
Bhattacharya and Anr., [2002] 6 SCC 41, Indian Railway Construction Co. C
Ltd. v. Ajay Kumar, [2003] 4 SCC 579 and M.P. State Electricity Board v.
Jarina Bee (Smt.), [2003] 6 SCC 141.
Applying the above principle, 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 D
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 E
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 CA T's order they can do ~ i within
two months, if not already done. The proceedings shall be completed within p
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 G
merits of the case, and/or on the question of entitlement of any service benefit.
The appeal is allowed to the aforesaid extent with no order as to costs.

S.K.S. Appeal partly allowed.