{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) NO.509/2003 State of Rajasthan & Ors. Vs. Ramesh Kumar Date of Judgment : 28.9.2010 PRESENT HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr. Yashpal Khileri, Government Counsel. Mr. Sunil Bhandari for Mr. M.R.Singhvi, for the respondent (Caveator). BY THE COURT: (PER HON'BLE A.M. SAPRE, J) This is an intra-court appeal filed by respondent of Writ Petition No.5946/1993 under Section 18 of the Rajasthan High Court Ordinance 1949 against an order dated 28.5.2003 passed by Single Judge in above mentioned writ petition. 2. By the impugned order, the learned Single Judge allowed the writ petition filed by writ petitioner (respondent herein) and while setting aside of the termination order dated 25.9.1993 directed his reinstatement in service with all consequential benefits except award of arrears of salary to the { 2 } extent of 50% from the date of filing of writ petition. 3. So the question that arises for consideration in this writ-appeal is whether learned Single Judge was right in allowing the writ petition and in consequence right in awarding 50% back-wages to the writ petitioner payable from the date of filing writ petition? 4. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and modify the impugned order in appellant's favour to the extent indicated infra. 5. Facts of the case are these. 6. The writ petitioner (respondent herein) was working as Projectionist (Post Mortem) in State services vide his appointment order dated 16.3.1992. On certain allegations, his services were terminated on 25.9.1993. He, therefore, filed a writ petition out of which this appeal arises challenging the legality and propriety of his termination dated 25.9.1993. The main ground of attack to termination was that it was passed without holding any inquiry. It was contended that although the termination was based on certain charges but prior to termination, only show cause notice dated 30.7.1993 imputing charges was served on the writ petitioner but no inquiry was held. It was contended that it was obligatory upon the State Authority to have held a departmental inquiry as per rules by following principle of natural justice and affording an opportunity to the writ petitioner to defend himself before suffering the termination { 3 } order. Since it was not done and hence the termination was bad. Though State defended the termination, the learned Single Judge accepted the contention of writ petitioner and while allowing the writ petition, quashed the termination order. It was held, and rightly, on undisputed facts that since no inquiry was held prior to termination and hence the termination order, which is based on certain unproved charges levelled against the respondent (writ petitioner) is not legally sustainable. It was accordingly set aside. This is what was issued by learned Single Judge as eventual direction in the form of writ of certiorari and mandamus against the appellant herein:- “Therefore, the writ petition of the petitioner deserves to be allowed and hence allowed. The impugned order dated 25.9.1993 is hereby quashed and set aside. The petitioner shall be entitled to consequential reliefs of 50% of the salary and other benefits from the date of filing of this writ petition, i.e. from 14.12.1993 till he is reinstated and, therefore, full salary and benefits.” 7. In our considered view, though we are inclined to uphold that part of the order which set aside the termination order, we are not inclined to uphold the other part of the order, which awards to the writ petitioner 50% of the back- wages from the date of writ petition. 8. It is a trite principle of law that award of back- wages/arrears of pay cannot be claimed by a dismissed { 4 } employee as of right as a consequential relief no sooner the termination order is set aside. In other words, a right to claim back-wages by way of arrears is not statutory but it is the sole discretion of the Court to consider as to whether in a particular case back-wages should be awarded to an employee once the termination is held illegal and if so how much and for which period. It is ruled that burden is on the employee to prove that he was not gainfully employed after termination and remained unemployed throughout. The employer too has a right to prove to the contrary by adducing evidence. The Court is then required to record a categorical finding on this issue and it is only then a direction to pay back-wages can be issued. 9. In the writ petition, since parties cannot adduce evidence and hence it is not possible to record any categorical finding on such issues of fact. We have however noticed in this case that writ petitioner in the writ petition did not make any averment that he was not gainfully employed anywhere after his termination and remained unemployed. Likewise, learned Single Judge while awarding back-wages to the extent of 50% did not record any finding about writ petitioner's unemployment after termination of his services. In the absence of any averment in the writ petition so also finding, we are of the view that direction in so far as it relates to payment of 50% back-wages to writ petitioner from the date of filing of writ petition is not legally and factually sustainable. It deserves to be set aside. { 5 } 10. So far as challenge to finding regarding setting aside of the termination is concerned in our opinion, it deserves to be upheld for the reason that admittedly termination was based on no inquiry. Any termination if found to be stigmatic in nature, the same cannot be upheld unless it is based on an inquiry by following principle of natural justice. Learned counsel for the appellant was not able to show that any inquiry was held prior to termination. In this view of the matter, this part of the impugned order has to be upheld. It is accordingly upheld. 11. In the light of the foregoing discussion, the appeal succeeds and is partly allowed. Impugned order is modified to the extent that direction to pay 50% of back-wages payable from the date of filing of writ petition to the writ petitioner by the appellant are set aside. In other words, the appellants are held not liable to pay any back-wages to the writ petitioner except to reinstate the respondent in service. We however make it clear that appellant would be at liberty to hold departmental inquiry in case if they so wish into the allegations/charges which were levelled against the writ petitioner in accordance with the rules applicable to the writ petitioner consequent upon his reinstatement in service pursuant to impugned order and then pass appropriate orders in accordance with law. ( DINESH MAHESHWARI ),J. ( A. M. SAPRE ),J. /tarun/