IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.95 of 2007 Date of Decision: 9.01.2009 The Union of India and others Appellants Versus Balram Respondent CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Kamal Sehgal, Advocate for the appellants Ms. Shashi Ghuman, Advocate for the respondent ….. Jasbir Singh, J. A learned Single Judge of this Court has by his judgment and order dated 15.11.2006 quashed order dated 7.10.1995 (P-3), vide which, respondent (petitioner) was dismissed from service. Appellate and revisional orders dated 31.1.1996 and 26.8.1996, dismissing the appeal and revision respectively of the respondent were also set aside. It was further ordered that the respondent be reinstated in service with full consequential benefits, including salary, increment, promotion etc. Directions were also issued to do the needful within a period of three months from the date of receipt of certified copy of the order by the authorities, referred to above. On 25.4.2007, in this appeal following order was passed:- Letters Patent Appeal No.95 of 2007 “Limited to the question of grant of back wages, notice of motion be issued to the respondent, returnable on 2.8.2007. Notices of the applications for condonation of delay in filing and refiling the appeal be also issued to the respondents for that date.” After hearing counsel for the parties, we propose to condone delay in filing and refiling of this appeal. Now, it is to be seen whether respondent (petitioner) is entitled to get full back wages for the period, he remained out of service or not? It is apparent from the records that the respondent proceeded on leave in the month of December 1994. He was to return back on duty on 14.1.1995. Without any leave, he remained absent till 10.6.1995. In the meantime, warrant of arrest was also issued against him on 9.2.1995, which was later on got cancelled. For the above mis- conduct, departmental enquiry, under Section 11(1) of Central Reserve Police Force Act, 1949 read with Rule 27 of Central Reserve Police Force Rules, 1955 was instituted against the respondent (petitioner) on the following article of charges:- “Article-I That the said No.89032001 S/K Bal Ram while functioning as a member of the Force, committed an act of neglect of duty/ misconduct in his capacity as a member of the Force, u/s 11(1) of CRPF Act, 1949 in that 2 Letters Patent Appeal No.95 of 2007 he overstayed leave from 14.1.95 to 10.5.95 without sanction of leave / permission of the competent authority. Article-II That, the said No.890320031 S/K Balram, while posted in 32 Bn. CRPF, Srinagar committed an act of ‘Disobedience’ in his capacity as a member of the force u/s 11(1) of CRPF Act 1949 in that he remained OSL for 148 days from 14.1.95 to 10.6.95 without proper permission ignoring the directions issued vide letter No.1.II-10/ 95-32-EC-II dated 21.1.95 and 10.2.95 to join duties immediately. He had reported for duties only after issue of a Warrant of Arrest against him on 9.2.95 which was later on got cancelled.” It is an admitted fact that before the enquiry officer, the respondent pleaded guilty, with regard to charges framed against him. On receipt of enquiry report, the competent authority supplied a copy of the enquiry report to the respondent and he was also provided an opportunity to submit his defence, if any, with regard to findings given against him by the enquiry officer. The respondent by moving an application dated 16.9.1995 again pleaded guilty and failed to bring any new facts to the notice of the punishing authority. Thereafter, order dismissing him from service, was passed on 7.10.1995. Respondent (petitioner) failed in appeal and revision. Respondent (petitioner ) filed Civil Writ Petition No.2771 of 1997 in this Court primarily on the ground that before passing the 3 Letters Patent Appeal No.95 of 2007 order of dismissal, during pendency of departmental enquiry, vide order dated 28.8.1995, absence period in question was ordered to be treated as extra ordinary leave (without pay). Record reveals that by taking note of the same, the learned Single Bench set aside the order of dismissal and also consequential orders passed in appeal and revision. Reinstatement was ordered with all consequential benefits, including payment of salary for the period respondent remained out of service. So far as reinstatement is concerned, it has become final. As noticed earlier, notice of motion in this petition was issued, limited to the question of grant of back wages only. Counsel for the appellants vehemently contended that grant of full back wages, for the period respondent remained out of service, was not justified. It was the respondent (petitioner), who was responsible for overstaying his period of leave. On account of his disobedience shown to the orders passed by the competent authorities, departmental enquiry was instituted against him. Merely because in the meantime, period of absence was ordered to be treated as extra ordinary leave (without pay), it does not absolve the petitioner of disobedience shown by him to the orders passed by the authorities. He further submitted that for the period, the respondent (petitioner) has not worked with the appellants, he was not entitled to get wages for the same. It was also brought to our notice that in the writ petition, it has no where been stated that after his dismissal, the respondent (petitioner) was not gainfully employed any where. Counsel for the 4 Letters Patent Appeal No.95 of 2007 appellants prayed that the appeal be allowed and order granting back wages to the respondent (petitioner) be set aside. Prayer made has vehemently been opposed by Ms.Shashi Ghuman, Advocate appearing for the respondent (petitioner). By making reference to the order, dismissing the respondent (petitioner), dismissing his appeal and revision, she argued that the orders passed were the result of highhandedness on the part of the appellants. Despite noticing that absence period has been ordered to be treated as extra ordinary leave (without pay), the appellate authority failed to intervene and set aside order passed by the punishing authority, dismissing the respondent (petitioner) from service. She further argued that as the authorities were negligent in passing the order of dismissal, the same has been set aside on merits and not on any technical ground, as such, on reinstatement, full wages have rightly been allowed in favour of the respondent (petitioner). After hearing counsel for the parties and on perusing the record, we are of the opinion that grant of full back wages in favour of the respondent (petitioner), by the learned Single Bench, was not justified. In U.P.State Brassware Corpon. Ltd. And another v. Uday Narain Pandey, (2006) 1 Supreme Court Cases 479, their Lordships of the Supreme Court, dealing with a similar situation, have observed as under:- 17. Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that 5 Letters Patent Appeal No.95 of 2007 although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. It was further opined ‘that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case and grant of full back wages is not automatic.’ Similarly, in M.L.Binjolkar v. State of M.P., (2005) 6 Supreme Court Cases 224, taking note of the facts of that case, the Hon’ble Supreme Court, on reinstatement, granted back wages only to the extent of 50%. In the above said case, 559 employees were compulsorily retired by the State of Madhya Pradesh. Order passed against them, was set aside by the Tribunal and they were held entitled to get full back wages for the period they remained out of service. Matter went before the High Court and it was ordered that 50% of the back wages and other allowances shall be paid to the above said 6 Letters Patent Appeal No.95 of 2007 employees. Order was affirmed by the Hon’ble Supreme Court in the judgment, referred to above. It is apparent from the records that before the authorities concerned, respondent (petitioner), has failed to give any satisfactory explanation for the period of his absence i.e. 148 days. Departmental proceedings were initiated against him on two counts firstly; for remaining absent for the period, referred to above and secondly, showing disobedience, in not joining service, in response to the order passed by the competent authority. During pendency of departmental enquiry, absence period was ordered to be treated as extra ordinary leave (without pay). We feel that above said fact was not sufficient to wash away the element of disobedience shown by the respondent to the order passed by the higher authority. Before the enquiry officer and also before the punishing authority, respondent (petitioner) pleaded guilty to the charges issued against him. We feel that for getting order of dismissal, passed against him, the respondent (petitioner) was also responsible to some extent. Contention of learned counsel for the appellants that in writ petition filed by the respondent (petitioner), he has failed to state that during period of his dismissal, he was not gainfully employed any where, appears to be correct. Before the learned Single Bench also, no such plea was raised at the time of arguments. In view of above fact, on this aspect, virtually no finding was given by the learned Single Bench. 7 Letters Patent Appeal No.95 of 2007 It is not in dispute that the respondent (petitioner) is able- bodied person. He has a family. It is therefore evident that he could not afford to sit idle at home for a long period of about 13 years. At the time of arguments, counsel for the respondent, on our query, hesitantly admitted that during the period, in dispute, respondent (petitioner), was engaged in the business of selling vegetables. In view of facts mentioned above, we feel that grant of full back wages to the respondent (petitioner), for the period he remained out of service, was not justified. We are of the opinion that ends of justice would be met in case respondent (petitioner) is held entitled to get salary and amount of increment(s) due, to the extent of 50% for the period, in dispute. We are not interfering so far as the directions issued with regard to promotion are concerned. With above mentioned modifications, this appeal stands disposed of. No costs. (JASBIR SINGH) JUDGE 9.01.2009 (T.S.THAKUR) gk CHIEF JUSTICE 8