Oral Judgment: (S.A. BOBDE, J.) Rule returnable forthwith. Heard by consent of parties. 2] Petitioners have challenged the order of the Maharashtra Administrative Tribunal dated 8.8.2005 setting aside the order of termination of services of the applicant/ respondent no.1 w.e.f. 7.3.2002 and directing payment of full back wages from 7.3.2002. 3] Shri Palshikar, learned counsel for the petitioners submitted that the order granting back wages could not have been made without enquiring into the question whether the respondent was gainfully employed for the entire period. To support his contention, he relied on the judgment reported in 2005(104)FLR 863 Kendriya Vidyalaya Sangathan and another ..vs.. S.C.Sharma, in relation to an employee governed by Central Civil Services (Classification Control & Appeal ) Rules 1965, wherein the Apex Court held that back wages could not have been ordered without the employee showing that he was not gainfully employed and that the burden to demonstrate this was on the employee. We accordingly hold that the order of the Tribunal granting full back wages to the respondent no.1 is not sustainable. 4] Shri Palshikar, learned counsel for the petitioner further submitted that respondent has been reinstated and the petitioner do not intend to disturb him except in accordance with law. He therefore, seeks permission to hold a fresh enquiry into the alleged misconduct of the respondent in having remained absent for a period from 11.8.1995 to 6.3.2002. 5] Shri Khandewale, learned counsel for respondent no.1 however, submitted that this period has already been treated by the government as 'extra ordinary leave without pay' and therefore, respondent's absence has been held to be authorized, hence, no enquiry can be conducted into it. It is not possible to accept the contention raised on behalf of the respondent no.1 merely because the period of absence was treated as 'extra ordinary leave without pay' and petitioners had terminated the services, retrospectively w.e.f. 11.8.1995, by dispensing with an enquiry under the Rules. Since that termination was found to be illegal, the government was constrained to treat the absence as 'extra ordinary leave without pay' for that period. This can not be held as implied condonation of the alleged unauthorized absence of the respondent no.1. We accordingly find that the petitioners will be entitled to hold a fresh enquiry in accordance with law in respect of the said period of unauthorized absence. This can not be held as implied condonation of the alleged unauthorized absence of the respondent no.1. We accordingly find that the petitioners will be entitled to hold a fresh enquiry in accordance with law in respect of the said period of unauthorized absence. Hence the impugned order is set aside with the following directions. Petitioners shall be entitled to hold an enquriy into the alleged misconduct of the respondent no.1 wherein the respondent shall be specifically allowed to plead and prove that he was not gainfully employed during the period from 11.8.1995 to 6.3.2002 for which he had been reinstated with back wages. All issues are left open. Rule is made absolute in the above terms.