IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.253 of 2009 (O&M) Date of decision: 25.5.2009 Hari Singh. -----Appellant Vs. The State of Punjab and another. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Mr. Dinesh Bagga, Advocate for the appellant. ------ ORDER: 1. This appeal has been preferred under Clause X of Letters Patent against judgment of learned Single Judge, directing reinstatement of the appellant without monetary benefits for the period he remained out of service. The appellant has been granted the benefit of notional increments etc. till the date of his retirement and refixation of salary and other consequential benefits. 2. The appellant was employed with the Punjab Police. Charge sheet dated 2.12.1966 was given to him, containing five charges. After due inquiry, charge Nos. i), ii) and iii), which are as follows, were held to be proved:- LPA Nos.253 of 2009 “i) Absent from headquarters during suspension period. ii) For not handing over the record of V. Khan- Khana, Tehsil NAwanshahar despite repeated direction from Consolidation Officer. iii) Misplacement of the record of the same village.” On that basis, the appellant was dismissed from service vide order dated 27.8.1986. The appellant preferred writ petition, which was allowed on the ground that the order of dismissal was vitiated by delay in passing of the order. The delay was sought to be justified by the State on account of inter-departmental correspondence. 3. L.P.A. No.382 of 2009 filed by the State, against reinstatement has been dismissed on 18.5.2009. 4. We have heard learned counsel for the appellant. 5. Only submission made is that once the appellant has been held to be entitled for reinstatement, he was entitled for all backwages. 6. We do not find any merit in this submission. The charges against the appellant were held to be proved. The learned Single Judge held the appellant entitled for reinstatement without backwages with a finding that delay vitiated dismissal. It is well settled that mere fact that the order of dismissal is set aside, is not enough to direct arrears of pay for the period an 2 LPA Nos.253 of 2009 employee was out of service. Decision on such an issue has to be taken having regard to facts and circumstances. Various factors including that the employee did not serve or was gainfully employed during that period and also any other special reason have to be kept in mind. Burden of proving that the employee was not employed during the relevant period, is on the employee. In the present case, there is nothing to show that the workman was not employed. The learned Single Judge having taken a decision, not to grant arrears of pay, for the period the employee remained out of service, we do not find any ground for interference with the same. Reference may be made to observations of the Hon’ble Supreme Court in J.K. Synthetics v. K.P. Agrawal and another (2007) 2 SCC 433, are:- “15. But the manner in which “back wages” is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, this Court following Allahabad Jal Sansthan v. Daya Shankar Rai, (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363 held as follows: ( Uday Narain Pandey case (supra) , SCC p. 480 d - g ) “A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial 3 LPA Nos.253 of 2009 Court shall lose much of their significance. 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 realising 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. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. 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. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full 4 LPA Nos.253 of 2009 back wages cannot be the natural consequence.” 7. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE May 25, 2009 (JITENDRA CHAUHAN) ashwani JUDGE 5