IMPORTANT POINT
Grant of back wages is not automatic on the termination being declared bad in law. Court has to use discretion.

Judgment :-

R.M. Lodha, J.

Leave granted.

2. In this appeal by special leave, the only question that is required to be considered is whether the Division Bench of the High Court was justified in setting aside the order of the single Judge awarding back wages to the appellant from the date of filing writ petition upto the date of superannuation.

3. Facts are these, very briefly put. The appellant joined the service of the State of Jammu & Kashmir as Assistant Surgeon in 1970. He held various posts in the Directorate of Health Services and was promoted first as Lecturer and then as Assistant Professor in 1981. He was sent on deputation to Stanely Medical College, Madras for undergoing specialized training in Microvascular and Hand Surgery from January, 1986. Thereafter, the appellant proceeded on 30 days leave with effect from March, 1986. According to him, he had sent several applications for extension of leave for undergoing further training and seeking service in foreign country but his representations were not responded to by the state government and his services were illegally terminated without following the procedure prescribed in Jammu & Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (for short `Rules 1956) on September 18, 1987. On the other hand, the stand of the respondents is that after the period of sanctioned leave expired, the appellant did not join duty despite letters and reminders and continued to remain absent. Finally, by a notice dated July 16, 1987, the appellant was asked to show cause why his services should not be terminated for having remained absent unauthorisedly and, thereafter, by order September 18, 1987, his services were brought to an end.

4. The appellant challenged the order of termination by filing writ petition on May 16, 1994 before Jammu & Kashmir High Court. The writ petition was opposed by the present respondents on diverse grounds.

5. The learned single Judge after hearing the parties held that the termination order was violative of the principles of natural justice and the prescribed procedure. Vide order dated December 16, 1998, the learned single Judge set aside the order of termination dated September 18, 1987 and awarded full back wages to the appellant from the date of filing writ petition. The operative order passed by the single Judge reads thus:

"As a result of aforesaid discussion this writ petition be allowed. Government Order No.400-HME of 1987 dated 18.9.1987 terminating the services of the petitioner is hereby quashed to set aside and the petitioner shall be deemed to have been in service from the date of his termination. Now arises the question of back wages. Petitioner is a Doctor by profession and in the background of this case it is ordered that he would only be entitled to back wages from the date he filed the writ petition i.e. 16.6.1994 (sic 16.5.1994) subject of course, to his fulfilling other condition as required under law so as to claim such wages. No costs."

6. The State of Jammu & Kashmir and its functionaries challenged the order of the single Judge in intra court appeal. The Division Bench concurred with the view of the single Judge that the procedure established in Rules 1956 as well as provisions of section 126 of the Constitution of the State were not followed nor any enquiry was held before terminating the services of the appellant. This is what the Division Bench said:

"We are of the considered view that before termination of services of a Government servant, the procedure established under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 as well as the provisions of Section 126 of the Constitution of the State have to be followed. We also concur with the view of learned Single Judge that it was not a case where no enquiry could have been conducted before terminating the services of the petitioner."

7. However, the Division Bench set aside the order of the learned single Judge directing payment