C.W.P No. 17707 of 2003 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 17707 of 2003 Date of decision : November 14, 2008 The Managing Committee, Prem Chand Markanda S.D College for Women, Jalandhar. ...... Petitioner through Mr.Ashwani Chopra, Sr. Advocate with Mr.N.D.Kalra, Advocate v. Presiding Officer, Punjab State College Tribunal and others ...... Respondents through Mr.S.A.Sharma, Advocate CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This writ petition has been filed against the orders of the Punjab State College Tribunal dated 23.9.2003 (Annexure P-18), and that of the Director of Public Instructions (Colleges) dated 8.2.1994 (Annexure P- 12) setting aside the termination of the services of respondent No.3. On 11.11.2003, the following order was passed :- “ Shri Ashwani Chopra, Senior Advocate limits his argument to the question of payment of back-wages and interest with respect to respondent No.3 Amarjit Singh. On this limited question, we issue notice of motion to the aforesaid respondent for 25.11.2003. C.W.P No. 17707 of 2003 ::2:: Dasti order.” Consequently, the dispute now has narrowed down only to the entitlement of respondent No.3 to back-wages since he has admittedly been taken back in service. As regards entitlement of respondent No.3 to back-wages, learned Senior Counsel for the petitioner has drawn my attention to C.M No.2680 of 2008 alongwith which a letter dated 17.8.2006 (Annexure A-1) from the Principal, Sant Hira Dass Kanya Maha Vidyalaya Kala Sanghian (Kapurthala) has been annexed, which shows that respondent No.3 worked from January 1996 to 17.3.1996, September 1996 to 14.4.1997, October 1997 to March 1998, September 1998 to March 1999, August 1999 to March 2000, August 2000 to 23.2.2001, August 2001 to March 2002 and from September 2002 to January 2003. The total amount of salary, granted to respondent No.3, has also been shown therein. Learned Senior Counsel for the petitioner further argued that in J.K.Synthetics Ltd vs K.P.Agrawal and another, 2007(2) RSJ 353, the Hon'ble Supreme Court held as follows :- “18. Coming back to back-wages, even if the court finds it necessary to award back-wages, the question will be whether back-wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back- wages, in addition to the several factors mentioned in C.W.P No. 17707 of 2003 ::3:: Rudhan Singh (supra) and Udai Narain Pandey (supra). Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. 19. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee......” C.W.P No. 17707 of 2003 ::4:: He has also relied upon Muir Mills Unit of N.T.C (U.P) Ltd vs Swayam Prakash Srivastava and another, 2007(2) RSJ 401, wherein the Hon'ble Supreme Court has held as follows :- “17. The High Court failed to appreciate that respondent No.1 having worked as a probationer for just a year had enjoyed over 15 years of wages without having worked for the same and that in the facts and circumstances even if the termination was held to be illegal, these wages paid should have been held, to be treated as compensation in lieu of reinstatement.” Learned counsel, thus, argued that respondent No.3 was infact not entitled to any back-wages. In reply, learned counsel for respondent No.3 has submitted that the order of termination of his services was set aside as far back as on 8.2.1994 and thereafter it is the petitioner who has prolonged the litigation (and the agony of respondent No.3) and, therefore, it is a fit case where back-wages should be awarded to respondent No.3 notwithstanding the fact that he was able to earn some money as shown in Annexure A-1 (supra). In my opinion, keeping in view the judgments of the Hon'ble Supreme Court, noted above, it would be in the interest of justice to order that the award of full back-wages to respondent No.3 be set aside and the petitioner be directed to pay to respondent No.3 sixty percent of the back- wages, after deducting the amount of money earned by him, as shown in Annexure A-1. Ordered accordingly. The writ petition stands disposed of. ( AJAY TEWARI ) November 14, 2008. JUDGE `kk' C.W.P No. 17707 of 2003 ::5::