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2005 (1) TMI 646 - SUPREME COURTWhether after dismissal a person is gainfully employed is within his special knowledge and without any pleadings or evidence direction for back wages could not have been given? Held that:- The inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard. Since the present appeal arises from proceedings declaring the respondent as "Absconder" we make it clear that if the appellants are desirous of initiating any departmental proceedings in terms of CAT's order they can do so within two months, if not already done. The proceedings shall be completed within further period of three months i.e. within five months from today. The respondent is directed to cooperate and participate in the departmental proceedings. If he fails to do so it shall be at his own risk and peril. The entitlement of the service benefits, if any, for the period from the initial order of dismissal till final decision is taken will be decided in the departmental proceedings. We make it clear that we have not expressed any opinion on the merits of the case, and/or on the question of entitlement of any service benefit.The appeal is allowed
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