A.V Haridasan, Member (J).:— In this application filed under Section 19 of the Administrative tribunals Act, the applicant, an ex-employee of Defence Research and Development (DRDL), Hyderabad has challenged the legality, propriety and correctness of the order dated 3.3.1984 of the third respondent (Anncxure-A3) terminating his services and the order dated 6.5.1988 of the second respondent, (Anncxure-A8) dismissing his appeal and confirming the penalty order issued by the third respondent.

2. The material allegations in the application can be briefly stated jas follows. The applicant joined service as a Laboratory Bearer in the D.R.D.L on 4.9.1962 In 1968 he was promoted as Fitter. As he was unwell, he proceeded on medical leave by submitting a leave application w.e.f 4.4.1983 On account of prolonged illness, he continued on medical leave. In the meanwhile, owing to communal riots in the Karwan Sahuarea, where the applicant was residing, he temporarily shifted his residence to another place, but failed to intimate the change of address to the authorities. As his ailment was continuing and his family background was not congenial for his continuance in service on 7.11.1983, he sent a representation seeking voluntary retirement from service. Finding no response, he sent a reminder on 25.2.84 While so, the applicant was served with the impugned order of the third respondent at Annexure-A3, terminating his services w.e.f 13.2.1984 It was slated in this order that a charge memo dated 11.11.1983 sent to him by registered post was returned unserved, that a notification was issued in Deccan Chronicle and Andhra Patrika dated 14.1.1984 directing the applicant to report for duty and to reply the charge memo within a period of 30 days, that as the applicant neither reported for duty nor replied the charge Memo, it was found not possible to conduct an enquiry and that his services therefore stood terminated w.e.f 13.2.1984(AN) for the misconduct of unauthorised absence. The applicant on 28.6.1984 made a representation to the third respondent requesting that his earlier request for voluntary retirement may be accepted. Thereafter, the applicant was again under prolonged illness. The applicant on 6.1.1988 submitted an appeal against the impugned order at Annexure-A3 to the second respondent inter alia contending that he has not been given a reasonable opportunity to defend before terminating his services. This appeal was disposed of by the second respondent by the impugned order at anncxure-A8, holding that the enquiry against the applicant was held by the Disciplinary Authority in accordance with the rules and that the penalty imposed on him was proper and warranted in the ends of justice. It is aggrieved by these orders at Annexure-A3 and A8 that the applicant has filed this application. It has been averred in the application that the third respondent has gone wrong in terminating the services of the applicant, without complying with the provisions of CCS (CCA) Rules in regard to imposition of a major penalty. It has also been averred that the second respondent has not considered the various grounds raised by the applicant in his appeal memorandum. The applicant therefore prays that the impugned orders at Annexure-A3 and A8 may be quashed and the respondents may be directed to reinstate him in service. In the reply statement filed on behalf of the respondents, the impugned order of the third respondent dated 3.3.1984 at Annexure-A3 terminating the services of the applicant without holding an enquiry is sought to be justified on the ground that it was not reasonably practicable to hold an inquiry against the applicant as the charge Memo, dated 11.11.1983 sent to his last known address was returned by the Postal authorities undelivered with the remarks “No such person in this house. Hence returned to sender” and since inspite of a notification published in Deccan Chronicle” and “Andhra Patrika” dated 14.1.1984 directing the applicant to report for duty and to reply to the charge Memo, within a period of 30 days, the applicant remained absent and did not reply to the charge Memo, within the said period of 30 days, the Disciplinary Authority had to take recourse to Rule 19(ii) of the CCS (CCA) Rules, 1965 and to terminate his services after dispensing with the inquiry. The order of the Appellate Authority is also sought to be justified on the ground that the appellate Authority had after careful consideration of all the records, disposed of the appeal with a speaking order.

3. We have carefully gone through the pleadings and the documents produced and have also heard the learned counsel on either side. The short question that arises for consideration in this case is “whether the decision of the third respondent to dispense with the inquiry as provided for in rule 14 of the CCS (CCA) Rules before awarding to the applicant the penalty of removal from service invoking powers under Rule 19(ii) of the CCS (CCA) Rules, 1965 is justified in the circumstances of this case”. The only reason stated by the Disciplinary Authority in the impugned order at Annexure-A3 for dispensing with the inquiry is that the charge Memo, sent to the applicant was returned unserved and that despite publication in Newspapers directing the applicant to report for duty and to reply the charge within a period of 30 days, the applicant did not either report for duty or reply to the charge and that in these circumstances, it was found not practicable to hold the inquiry against the applicant. The stand taken in the reply statement also is that for the reason that the applicant did not even inspite of the notice published in Newspapers, report for duty or reply to the charge, it was found not reasonably practicable to hold an inquiry. Rule 19 of the CCS (CCA) Rules reads as follows:

“Notwithstanding anything contained in Rule 14 Rule 18:

(i) Where any penally is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) Where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or

(iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:

Provided that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule”.

4. This provision in the CCS (CCA) Rules has been enacted in line with the exclusionary provision contained in the second proviso to the Article 311 (2) of the Constitution of India. It is Clause (ii) of Rule 19 of the CCS (CCA) Rules that is relied on by the respondents to justify the termination of the services of the applicant without holding an inquiry. The Supreme Court has in Union of India v. The Tulsiram Patel, 1985 (2) SLR 576 (SC) observed as follows:

“130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not ‘impracticable’. According to the Oxford English Dictionary ‘practicable’ means “Capable of being but into practice, carried out in action, effected, accomplished, or done; feasible”, Webster's Third New International Dictionary defines the word ‘practicable’ inter alia as meaning “possible to practice or perform: capable of being put into practice, done or accomplished: feasible”. Further, the words used or not “not practicable” but “not reasonably practicable”. Webster's Third New International Dictionary defines the word ‘reasonably’ as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the Government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear or reprisal as to prevent them from doing so or where the Government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also not be reasonably practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty…………..

5. According to their Lordships, the circumstances where the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation only the inquiry can be dispensed with. Coming to the facts of this case, can it be said that a reasonable man acting as disciplinary authority would in the circumstances of the case, reasonably find that it was not practicable to hold the inquiry. It a delinquent Government servant remains absent on receipt of the charge Memo, or does not. reply to the charge Memo, the procedure laid down in the CCS (CCA) Rules is to conduct an inquiry exparte. Sub Rule 20 of rule 14 of the CCS (CCA) Rules lays down as follows:

“If the Government servant to whom a copy of the articles of charge has been delivered, does net submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.”

6. In this case since a notice was published in the local Newspapers, publication can be taken as sufficient service of the memorandum of charge. As the applicant did not turn up inspite of this, in terms of Sub Rule 20 of rule 14 of the CCS (CCA) Rules, the inquiring authority should have conducted the inquiry ex parte. The procedure for conducting the ex parte inquiry is also contained in the Government instruction No. 6 below rule 14 of the CCS (CCA) Rules in Swamy's Compilation of CCS (CCA) Rules sixteenth edition. In this Government instruction, it has been clearly mentioned that in ex parte proceedings, the entire gamut of inquiry has to be gone. into. Apart from the fact that the applicant did not respond to the charge. Memo, there is absolutely no circumstance which rendered the conduct of an inquiry ex parte reasonably not practicable. Since ex parte proceedings are to be held only when the delinquent is absent or does not co-operate, the absence of the applicant ‘per se’ would not and could not have rendered the conduct of the inquiry reasonably not practicable. The satisfaction of the disciplinary authority that it is not reasonably practicable to hold an inquiry must be reached on a rational basis and not in an irrational or arbitrary manner. None of the circumstances as illusted by their. Lordships in Tulsiram Patel's case existed in this case. Therefore, the decision of the third respondent not to hold an inquiry was absolutely arbitrary and unreasonable. Therefore, we have no hesitation to hold that the decision of the third respondent not to hold an inquiry is unsustainable and to strike down the impugned order at Annexure-A3 as unsustainable in law.

7. Through the respondents have in the reply statement contended that the order of the appellate authority at Annexure-A8 has been passed after careful consideration of the records and evidence in the case, a mere reading of the order would clearly establishes that the appellate authority has not applied his mind to the facts of the case at all, because it has been stated in the appellate order at Annexure-A8 that the inquiry against the applicant has been properly conducted in accordance with the procedure laid down in the CCS (CCA) Rules, 1965 while even according to the order of the disciplinary authority, no such inquiry was held. Hence the impugned order at Annexure-A8 also has to be struck down.

8. In the normal course, when an order of termination of service of an employee is set aside on the ground of illegality, the Government servant would be, in addition to the relief of reinstatement, be entitled to get the back, wages. But in this case, the conduct of the applicant renders himself ineligible for the grant of back wages. Though the impugned order at Annexure-A3 terminating his services was served on him in March, 1984 itself, he has filed the appeal only on 6.1.1988 Though it has been averred in the application that he was unwell during the period, we are of the view that the applicant is not entitled to the benefit of grant of back wages. If the appellate authority has rejected the appeal submitted by him on the ground that it was time barred, probably, the applicant would have been without any remedy at all. Therefore, we are of the view that no back wages need be paid to the applicant for the period during which he was out of service. In the conspectus of facts and circumstances, we allow the application, set aside the impugned order dated 3.3.1984 (Annexure-A3) passed by the third respondent terminating the services of the applicant as also the order dated 6.5.1988 (Annexure-A8) of the second respondent and direct the respondents to reinstate the applicant in service forthwith, at any rate, within a period of one month from the date of communication of this order. The period between the date of termination of services of the applicant by the impugned order at Annexure-A3 and the date of reinstatement should be regularised by granting leave of any sort including extraordinary leave or leave without allowance. We make it clear what except leave salary, if any, the applicant is not entitled to get any back wages or allowances during that period. We also make it clear that in case the respondents consider it necessary to proceed against the applicant on the bais of the memorandum of the charges dated 11.11.1983, they are at liberty to do so, in accordance with law, fully complying with the provisions contained in the CCS (CCA) Rules in that regard. There is no order as to costs.

9. Order accordingly.