S. Sivaraj vs The Managing Director, Tamil Nadu Forest Plantation Corporation Limited, The Regional Manager, Tamil Nadu Forest Plantation Corporation Limited, Virudachalam Region and The Forest Range Officer, Virudachalam Range, Tamil Nadu Forest Plantation Corporation Limited

D. Murugesan, J.—The appellant, while he was working as a Forest Watcher in the Tamil Nadu Forest Plantation Corporation Limited, was

transferred to Keelsevur Beat (Panruti Range) from Semakottai Beat (Vridhachalam Region) and was relieved on 6.7.90. He applied for sick

leave on 16.7.90 for a period of 30 days from 10.7.90 to 8.8.90. It appears that he extended the said leave again for the periods from 9.8.90 to

7.9.90, 8.9.90 to 7.10.90, 8.10.90 to 7.11.90 and 8.11.90 to 23.11.90 by subsequent leave applications except, according to the respondents,

submitting the leave application for the period from 8.10.90 to 7.11.90. Placing reliance on Regulation 16 of the Tamil Nadu Forest Plantation

Corporation (Leave) Regulations, 1977, it was ordered that the appellant was no more an employee of the Corporation by the proceedings of the

Managing Director of the respondent Corporation dated 14.10.90.

The said order was questioned by the appellant before the learned single Judge. By the impugned order dated 23.3.99, the learned single Judge

set aside the said order and directed reinstatement of the appellant with continuity of service, but without backwages and attendant benefits on the

ground that the rule of law is very clear that the conduct of the appellant should be recorded in his service register and antecedents with regard to

the punishments in his previous service should be in writing before terminating the services outright. Questioning that portion of the order in denying

the backwages etc., the present appeal has been filed.

At the outset, we may point out that as against the order setting aside the order of termination and the consequential direction for reinstatement,

the same has been given effect to, as the respondent Corporation has not preferred any appeal and, therefore, the said order has become final.

Mr. K. Kulandaivel, learned Counsel for the appellant has submitted that inasmuch as the order of termination was set aside on the ground that

it was ex facie illegal, the learned single Judge ought to have directed the payment of backwages and other attendant benefits as well to the

appellant. Hence the denial of backwages and other attendant benefits in the facts and circumstances of the case is unjustified. For the said

proposition, the learned Counsel relied upon the judgments of the Supreme Court in Jasbir Singh Vs. Punjab and Sind Bank and Others, and

Union of India (UOI) Vs. Madhusudan Prasad, .

Mr. S. Rajasekar, learned Additional Government Pleader for the respondents, on the other hand, would submit that the termination is on the

basis of Regulation 16(a) of the Tamil Nadu Forest Plantation Corporation (Leave) Regulations, which contemplates that in case an employee fails

to report for duty within a period of 15 days after the expiry of the leave, he shall be treated as having left the service from the date he was due to

return to work. He would further submit that the appellant had not worked for the period from 10.7.90 till he was reinstated pursuant to the order

of this Court and, therefore, he is not entitled to any backwages.

We have carefully considered the submissions made by the learned Counsel on either side. It is true that the Supreme court in the decision in

Madhusudan Prasad case (supra), while considering the case of dismissal of a CRPF employee, set aside the order of dismissal and directed the

backwages also to be paid on the ground that no notice was served on him preceding his termination. Similarly, the Supreme Court in Jasbir Singh

case (supra) also directed the reinstatement of the employee with backwages on the ground that the employee concerned was acquitted in the

criminal case initiated under Sections 409 and 201 IPC and whether the departmental proceedings could have been continued and only in the said

circumstances, the Supreme Court ordered the payment of backwages as the employees were kept out of service for no fault of theirs.

In the given case, as rightly contended by the learned Counsel for the appellant that inasmuch as the order dated 14.10.90 was set aside and the

same was not questioned by the respondent-Corporation, it has become final and such order has also been given effect to. Whether by virtue of

the above, the appellant would be automatically entitled to backwages. For the entitlement of backwages, it is to be seen that in terms of

Regulation 16(a), an employee, who has applied for leave, does not report for duty within a period of 15 days on the expiry of his leave, he should

have been treated as having left the service from the date he was due to return to work. By that regulation the respondent-Corporation could treat

such an employee as having left the services. The learned single Judge, however, set aside the order only on the ground that ""if the workman or

employee is in the habit of committing such offence previously, the rule of law is very clear that his conduct should be recorded in his service

register and antecedents with regard to the punishments in his previous service should be in writing before terminating the services outright. In the

present case, the respondent-Corporation failed to do so and the mandatory provision has not been followed"".

It is not as if the learned Judge had set aside the order on the ground that neither a show cause notice was issued nor any enquiry was

conducted, but it is only on the ground that the respondents ought to have recorded the antecedents of the appellant in the service register. In the

circumstances, it cannot be held that the order dated 14.10.90 was passed without a show cause notice or an enquiry so as to be treated as ex

facie illegal. The order of termination was set aside only on procedural lapses. Hence the judgments relied upon by the learned Counsel for the

appellant have no bearing on the facts of this case.

In fact the Supreme Court has considered the entitlement of an employee for backwages when the order of dismissal is set aside in the decision

in Banshi Dhar Vs. State of Rajasthan and Another, , wherein the Supreme Court observed that no hard and fast rule can be laid down in regard

to the grant of backwages and each case has to be determined on its own facts. In the decision in Muir Mills Unit of N.T.C. (U.P) Ltd. Vs.

Swayam Prakash Srivastava and Another, , the Supreme Court has reiterated the same law by holding that the payment of full backwages is not a

natural consequence of setting aside an order of termination of services.

It is not a rule of thumb that in every case where reinstatement is ordered, the payment of backwages is a natural consequence. It depends on

the facts of each case. On the facts and circumstances of this case, we are of the considered view that the termination which was set aside by this

Court is purely on the ground of procedural irregularity and such order will not confer an automatic right for the appellant to draw backwages.

For the foregoing reasons, the writ appeal fails and it is, accordingly, dismissed. No costs.