J. K. BISWAS, J. ( 1 ) BY this writ petition dated 27th August 2002 the petitioner challenged the decision contained in paragraph 3 (i) of the order dated 14th May 2002 (annexure P-14 ). It was given by the General Manager (Pres) of the respondent 'airport Authority of India'. The impugned decision is quoted below: (I) Payment of Salary for the stay away period: Sri Das was not on the roll of AAI from 17. 10. 85 to 16. 11. 99. Though he claimed that he did not take alternate employment during this period, the fact remains that he did not work in AAI during this period. And therefore, after careful consideration of the above as well as the AAI Rules, his request for payment of salary for the stay away period is not agreed to. However, as a special case, it has been decided to consider this period as 'dies-non' so that he does not lose effect of previous service in calculation of his CPP, Gratuity etc. at the time of his superannuation. ( 2 ) IN 1985 the petitioner was working as A. E. (E), and was posted at the Headquarters, in Delhi, of the respondent authority. Since after expiry of sanctioned earned leave he continued to remain on medical leave, he was asked to appear before a Medical Board. Such Board by its report dated 11th August 1985 declared him fit to resume duty. The authority by a letter dated 9th September 1985 called upon him to report for duty. As he did not resume duty, by a letter dated 17th October1985, the authority informed him that he was continuing to remain absent unauthorisedly or without proper authority. By this letter he was directed to report for duty on or before 30th October 1985. It was mentioned in this letter that on his failure to report for duty it would be deemed that he voluntarily abandoned his service and his name would be struck off the rolls with effect from 1st November 1985. ( 3 ) THE Petitioner having not resumed duty on or before 30th October 1985 in terms of the respondent's letter dated 17th October 1985, his service stood terminated with effect from 1st November 1985. ( 3 ) THE Petitioner having not resumed duty on or before 30th October 1985 in terms of the respondent's letter dated 17th October 1985, his service stood terminated with effect from 1st November 1985. ( 4 ) BY filing a writ petition Civil Rule No. 5715 (W) of 1986 the decision contained in the letter dated 27th October 1985 was challenged by the petitioner before this Court. By a judgment and order dated 10th November 1995 Aurn Kumar Dutta, J. (as he then was) was pleased to allow this writ petition in part. His Lordship was pleased to direct the respondent authority to reinstate the petitioner without back wages. ( 5 ) BEING aggrieved the petitioner preferred an appeal (F. M. A. T. No. 3687 of 1985 ). By judgment and order dated 9th August 1996 Bhagabati Prasad Banerjee and Dibyendu Bhusan Dutta, JJ. (as they then were) were pleased to set aside the single Bench decision dated 10th November 1995. The writ petition was remitted to the single Bench for hearing afresh. ( 6 ) AFTER fresh hearing, by judgment and order dated 13th August 1999 Sujit Kumar Sinha, J. (as he then was) was pleased to grant the petitioner again part relief. The relevant portions of this judgment and order dated 13th August 1999 are quoted below:the respondent, Airports Authority of India, is directed to reinstate the writ petitioner in service at Delhi or any other Airport where a suitable post is lying vacant within six weeks from the date of communication of this order. In so far as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent, Airport Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its Rules, allow him half of the salary and other benefits during the period from 17th October 1985 till 10th November, 1985 (sic ). Such payment shall be made only on condition that the writ petitioner reports for duty and not otherwise. In considering as to the entitlements of the writ petitioner under this order, the respondent, Airport Authority of India, shall also take into account as to whether during this period the writ petitioner had obtained alternative employment and it shall do so only after giving to the writ petitioner an opportunity of being heard and by passing a reasoned order. In considering as to the entitlements of the writ petitioner under this order, the respondent, Airport Authority of India, shall also take into account as to whether during this period the writ petitioner had obtained alternative employment and it shall do so only after giving to the writ petitioner an opportunity of being heard and by passing a reasoned order. The Rule is disposed of accordingly. There will be no order as to costs. It is made clear that all the points available to the parties relating to the payment of the back wages and other entitlements of the petitioner are left open. ( 7 ) IN compliance with the judgment and order dated 13th August 1999, by issuing an order dated 1st November 1999 the respondent authority reinstated the petitioner. There is no dispute that the petitioner resumed duties, on reinstatement, with effect from 17th November 1999. ( 8 ) AFTER the petitioner's reinstatement, the matter regarding his back wages for the period from 17th October 1985 to 16th November 1999 was taken up for decision by the competent authority. After considering the matter, by the impugned decision the authority denied him the benefit of back wages, for the reasons quoted before. ( 9 ) MR. Basu, learned senior counsel, appearing for the petitioner assails the impugned decision by contending that the principle and/or rule governing a case of unauthorised absence was wrongly applied by the authority for the purpose of denying the benefit of back wages to the petitioner for the period in question. He submits that in terms of the judgment and order dated 13th August 1999 the question that was required to be decided by the authority was: Whether for the period in question the petitioner should be paid, towards back wages, any amount not exceeding 50% of the total wages to which he would have been otherwise entitled, had he not been ousted from service by the wrongful termination order dated 17th October 1985. He submits that the authority was required to consider the question, keeping in view, whether, during the period in question the petitioner was gainfully employed elsewhere and the question of the petitioner's not working or of applying the rule governing a case of unauthorised absence, could not arise at all. ( 10 ) MR. He submits that the authority was required to consider the question, keeping in view, whether, during the period in question the petitioner was gainfully employed elsewhere and the question of the petitioner's not working or of applying the rule governing a case of unauthorised absence, could not arise at all. ( 10 ) MR. Dhar, learned counsel appearing for the respondents, disputes the correctness of the contentions raised on behalf of the petitioner. He submits that keeping in view the past conduct of the petitioner that he had remained unauthorisedly absent for a considerable period, the period following his termination of service till the date of his reinstatement in terms of the Court's judgment and order dated 13th August 1999, was required to be dealt with following the provisions contained in regulation 31 of the International Airports Authority of India (Leave) Regulations, 1983 (hereinafter referred to as the Leave Regulation 1983 ). He submits that the competent authority by applying this rule actually extended to the petitioner certain benefits, like continuity of his service, although he would not have been otherwise entitled to such benefits. He also submits that as the petitioner remained absent during the period in question and the absence was without any authority of law, the regulation was correctly applied by the respondent authority. ( 11 ) AFTER hearing the learned counsel for the parties and perusing the materials on record, and after considering the relevant regulation of the Leave Regulation, 1983, I am of the view that the decision given by the respondent authority cannot be sustained. My conclusion is based on the reasons recorded hereinafter. ( 12 ) REGULATION 31 of the Leave Regulations, 1983 is the relevant regulation, which the authority admittedly relied on while giving the impugned decision dated 14th May 2002. The said regulation 31 is quoted below:treatment of unauthorised absence: (1) an employee who is absent from duty without any authority, shall not be entitled to the pay and allowance during the period of such absence. Unauthorised absence of this kind, apart from resulting in loss of pay and allowance for the period of such absence would also constitute a break in service, entailing forfeiture of past service, unless the break itself is condoned and treated as dies-non. Unauthorised absence of this kind, apart from resulting in loss of pay and allowance for the period of such absence would also constitute a break in service, entailing forfeiture of past service, unless the break itself is condoned and treated as dies-non. If the break is condoned and treated as dies-non by the competent authority, the service rendered prior to unauthorised absence will counted for all purpose, but the period of break itself will not count for any purpose. (2) The consequence of unauthorised absence from duty which is not condoned in any manner would be as follows: (i)pay and allowances: No pay and allowance are admissible during the period of unauthorised absence. (ii)increment: The period of such an unauthorised absence would not count for increment. (iii)leave: The period of unauthorised absence would not count for earning leave. (iv)cpf and Gratuity: The period of unauthorised absence would be ignored for the purpose of entitlement of CPF benefits. The interruption in service caused by unauthorised absence would entail forfeiture of past service for purpose of entitlement to gratuity. (v)the unauthorised absence of an employee would result in the lapse of the previous service for service benefits like L. T. C. etc. to which employees are entitled to only after they put in a specified length of continuous service or certain amount of minimum continuous service. Due to unauthorised absence an employee shall be required to put in the minimum of specified length of continuous service after the unauthorised absence for entitlement of such concessions. (vi)if an employee remains absent without any intimation/prior permission for a period of two months he will be deemed to have abandoned his job and his service will be terminated without any notice. ( 13 ) PROVISIONS contained in regulation 31 apply only to cases of unauthorised absence. It mainly speaks about the various consequences of condoned and uncondoned unauthorised absence from duty. It lastly indicates the stage at which the service of an employee would stand terminated on the basis of a fiction of abandonment of the employment by the employee. It is therefore ex facie clear that this regulation has not manner of application for deciding a question relating to an employee's entitlement to back wages on reinstatement in service as a result of setting aside of the termination order by the Court. It is therefore ex facie clear that this regulation has not manner of application for deciding a question relating to an employee's entitlement to back wages on reinstatement in service as a result of setting aside of the termination order by the Court. Hence the impugned decision cannot be sustained, as it was given by wrongly applying regulation 31 of the Leave Regulations, 1983. ( 14 ) THE contentions of the parties, as noted before, give rise to one more question: whether the dies-non proposition can be applied at all for determining an issue of back wages. ( 15 ) AS we know, the effect of setting aside a termination order by the Court is: as if, the termination order was never there. The consequent reinstatement of the employee, of course, entitles him to the continuity of service for all purposes, from the date of termination; and hence to back wages, unless any provision of law, or the concerned Court order, provides otherwise. ( 16 ) THE relationship of master and servant having remained served during the period between the dates of termination and reinstatement, the person, qua an employee, would be simply unable to prevent a working day from becoming dies-non. Unless the reinstatement requires or empowers the master to take a decision for condoning or not condoning a break in the continuity of service, the concept of dies-non, generally a concomitant of unauthorised absence, will be quite alien to any issue that requires a determination as an effect of reinstatement. Generally the reinstatement does not require or empower the master to take a decision either to condone or not condone any break in service continuity. ( 17 ) THE requirement of giving back wages, or of taking a decision for the same, pre-supposes the servant's service continuity from the date of termination. Back wages cannot be denied by saying that all the days falling between the date of termination and the date of reinstatement would be dies-non, that is, days which do not count for legal or other purposes. Such a decision will be contrary to the principal act of reinstatement which, of course, mandates the counting of the intervening days for the only legal purpose of continuity of service. Questions relating to back wages arise only as an effect of the continuity of service. Such a decision will be contrary to the principal act of reinstatement which, of course, mandates the counting of the intervening days for the only legal purpose of continuity of service. Questions relating to back wages arise only as an effect of the continuity of service. The word dies-non has come into use in the service jurisprudence in the context of leave. ( 18 ) HENCE, in my opinion, the 'dies-non' proposition has no manner of application in determining the issue of back wages on the reinstatement of an employee or servant consequent upon setting aside of the termination by the Court. ( 19 ) IN this case the Court while directing the respondents to reinstate the petitioner left the question of back wages to the authority's decision. The Court, however, observed that back wages would be limited to 50% of the total wages to which the petitioner would have been entitled, had his service not been terminated. The authority was directed to take a decision on the question, after considering the fact of the petitioner's gainful employment elsewhere, if any, during the period in question. Such Court order, admittedly, attained finality; it was also substantially complied with. Therefore the authority was required to decide: (a) Whether in terms of any rule the petitioner would be entitled to any back wages unto a maximum of 50%; (b) If no rule is in force to resolve the question, the whether, in the facts and circumstances of the cases, the petitioner should be paid back wages not exceeding 50%, and if so, what should be the amount, and if not, on what grounds and for what reasons. ( 20 ) WHILE the requirement was as indicated above, the authority took the decision to deny the petitioner the benefit of back wages: (a) first by applying a regulation of the Leave Regulation, 1983, when it had no application to issue; and (b) secondly, on a wrong basis that during the period in question the petitioner did not work, when the question of back wages is necessarily determined always on the admitted factual position that during the period in question the servant did not render service to the master. Hence the decision cannot be said to be a decision taken according to law. ( 21 ) FOR the foregoing reasons this writ petition is allowed. Hence the decision cannot be said to be a decision taken according to law. ( 21 ) FOR the foregoing reasons this writ petition is allowed. The impugned decision contained in paragraph 3 (i) of the order dated 14th May 2002 is hereby quashed. On the question of back wages, the respondents are hereby directed to take a decision afresh, after giving an opportunity of hearing to the petitioner. The decision shall be taken as expeditiously as possible, and preferably within a period of 30 (thirty) days from the date of receipt of copies of this judgment and order by them. In the facts and circumstances of the case there will be no order as to costs. Urgent Xerox certified copy of this judgment and order, if applied for, may be supplied. Petition allowed.