The entitlement to back wages in cases of wrongful termination of service is subject to various factors including the burden of proof on gainful employment, and the adjudicatory authority has discretion in awarding full back wages based on the circumstances of the case.

JUDGMENT :

1. Heard.

2. This appeal is directed against the order dated 19.08.2019 passed by the learned Single Judge only to the extent the learned Single Judge has not granted back wages from the date of termination till the date of reinstatement.

3. Relying upon the Hon’ble Supreme Court decision in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. : (2013) 10 Supreme Court Cases 324, learned counsel for the appellant would submit that once the order of termination/dismissal is illegal entitling reinstatement, grant of back wages is a normal rule and the Court may be required to consider this aspect upon taking into consideration various relevant factors as stated in para 38 of the decision of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. He would submit that the appellant is a low paid employee and belonging to Scheduled Caste. Termination from service was founded on an allegation of misconduct and the learned Single Judge recorded a finding that the date on which appellant solemnized second marriage, specific provision of misconduct was not incorporated in the rule. The rule specifying second marriage as a misconduct was incorporated after the date of solemnization of marriage. Therefore, present is not a case where the reinstatement was ordered considering the order of punishment as disproportionate or on the ground of violation of principles of natural justice but on the ground that no charge-sheet could be issued to the appellant. Learned counsel for the appellant would further submit that the appellant’s conduct in engaging second marriage was based on prevalent form of dissolution of marriage with the first husband and therefore, it cannot be said that the appellant’s conduct was such which amounted to misconduct. Therefore, it is prayed that back wages for the period, during which the appellant remained out of service, be awarded.

4. On the other hand, learned counsel for the respondents would submit that the learned Single Judge after taking into consideration the entire aspects of the matter was of the view that in the circumstances of the case, though consequential benefits of all other forms were entitled to be extended, the payment of actual wages was not granted. He would submit that present is a case where the appellant was alleged to have contracted second marriage. Even if it may not amount to specific misconduct under the service rules, the appellant being in government service was expected to avoid acting in a manner which was unbecoming of a government servant.

5. Relying upon decision of the Hon’ble Supreme Court in the case of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan, he would submit that in any case, an inquiry would be necessary to find out whether the appellant was gainfully employed during the period she was out of employment. As the appellant has not stated in the writ petition that after termination she was not engaged anywhere, in the absence of a proper inquiry, the appellant could not claim entire back wages as a matter of course.

6. We have heard learned counsel for the parties and perused the record.

7. Disciplinary action was initiated on an allegation of misconduct on the ground that the appellant contracted second marriage during subsistence of first marriage. Appellant’s stand was that a prevalent form of dissolution of marriage with the first husband was followed and only thereafter, second marriage was contracted. Learned Single Judge was of the view that the rule which was alleged to be violated and made basis to allege misconduct, was not in force on the date of contracting second marriage. The order dismissing appellant from service was set aside on the ground that there was no misconduct at all. It is not a case where the allegations were grave in nature but because of some technical flaw, the order of termination dismissal was found