HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.319 of 2009 (O&M) Date of Decision: 02.02.2011 **** Darshan Singh . . . . Petitioner VS. Managing Director, Pepsu Road Transport Corporation & Ors. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers 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? **** Present: Mr. RS Chauhan, Advocate for the petitioner Ms. Simarjeet Kaur, Advocate for Mr. HNS Gill, Advocate for the respondent **** SURYA KANT, J. (ORAL) (1). The petitioner seeks a mandamus to direct the respondents to count the service period, during which he is deemed to have remained in service, towards the ‘qualifying service’ for the purpose of pensionary benefits. (2). In order to appreciate the controversy, suffice it to mention that the petitioner joined the respondent No.2- Corporation as a Conductor w.e.f. 02.09.1975. His services were terminated on 15th April, 1976 which prompted him to raise an ‘industrial dispute’ before the Labour Court, who vide its Award dated 9th February, 1978 (Annexure P1) held the petitioner entitled to re- CWP No.319 of 2009.doc - 2 – instatement with continuity of service but without backwages. The petitioner was re-instated in service but was again retrenched w.e.f. 11.02.1980. He again raised an industrial dispute which was answered in his favour by the Labour Court vide Award dated 12.08.1985 (Annexure P2), the operative part whereof, reads as follows:- “ He is ordered to be reinstated with continuity of service but without back wages. In order to prevent the mischief of fraud being committed by him again it is ordered that he will not be given the duty of conductor or any other duty which requires handling of cash. He will be provided such duty where he will not be required to deal with cash, like as Chowkidar, etc. He is directed to report for duty within thirty days after the publication of the award. The reference stands disposed of accordingly. No order as to costs.” (Emphasis applied) (3). It may thus be seen that on both the occasions the petitioner was directed to be reinstated with continuity of service though the backwages were denied. The second Award was also implemented and the petitioner was reinstated in service and he continued to serve till he retired on attaining the age of superannuation w.e.f. 29.02.2008. There is indeed no serious dispute that while CWP No.319 of 2009.doc - 3 – releasing the retiral benefits to the petitioner, the respondents have excluded the period during which the petitioner remained out of actual service. The respondents have excluded the aforesaid period on the premise that though the Labour Court reinstated him with continuity of service but no wages having been paid to him that the said period cannot be counted towards the ‘qualifying service’. (4). Having heard learned counsel for the parties at some length and on perusal of the two Labour Court Awards, I am of the considered view that the period of 10-years 5- months and 3-days during which the petitioner remained out of service but was subsequently ordered to be reinstated in service without any backwages, has to be counted towards the qualifying service for the purpose of pension/retiral benefits. (5). The consequences of a deeming fiction are well known in law. The deemed event would be assumed to have actually happened though literally it never existed. True it is that the petitioner did not serve the Corporation during the period when he was out of service but having been reinstated with continuity of service, the petitioner shall be deemed to have continued in service during that period also. The non-payment of wages would not denude CWP No.319 of 2009.doc - 4 – the petitioner from the benefit of length of service though with the denial of backwages the petitioner cannot be paid anything for the said period except the notional benefits. Since the Awards passed by the Labour Court declare that the petitioner continued in service during the period when he was actually out of service, the said period has to be counted towards the ‘qualifying service’. (6). For the reasons afore-stated, the writ petition is allowed and the respondents are directed to re-determine the retiral benefits of the petitioner on the basis of his entire length of service which shall include the period during which he was out of service but was later on re-instated with continuity of service. (7). The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. The arrears thereof shall also be paid to the petitioner within the stipulated period. (8). Ordered accordingly. Dasti. 02.02.2011 vishal shonkar (S u r y a K a n t) Judge