IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M. No.658 of 2009 in/and L.P.A. No.208 of 2009 Date of decision: 19.5.2009 Amarjit Singh. -----Appellant Vs. The Managing Committee, Prem Chand Markanda S.D. College for Women and others. -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE JITENDRA CHAUHAN Present:- Mr. A.S. Khinda, Advocate for the appellant. ------ ORDER: 1. Delay condoned. Heard on merits. 2. This appeal has been preferred under Clause X of Letters Patent against judgment of learned Single Judge, with a grievance that backwages for the period the appellant was not in service, should not have been restricted to 60%. 3. Case of the appellant is that he was working as a Tabla Player with the respondent - an aided college, since 1989. He was relieved from service in the year 1993, by accepting his resignation. He filed an appeal before the Director, Public Instructions, stating that he had never intended to tender resignation, on which he was directed to be taken back in service. LPA Nos.208 of 2009 The College preferred appeal to the Tribunal under the provisions of the Punjab Affiliated Colleges (Security of Service of Employees), Act, 1974, which was dismissed. The appellant was held entitled to backwages with interest @ 12% per annum. He was allowed to join service. 4. The College, however, preferred writ petition on the issue of backwages and direction to pay interest @ 12% per annum on backwages. 5. Learned Single Judge modified the award of backwages and limited the relief for backwages to 60%, after deducting the amount earned by the appellant during the period of unemployment. 6. We have heard learned counsel for the appellant. 7. Learned counsel for the appellant submitted that once the plea that he only intended to seek leave and did not intend to tender resignation, was accepted, there was no reason to set aside the award of backwages with interest. 8. We do not find any merit in the submissions made. Apart from the finding of the learned Single Judge that the workman did not discharge the burden of proving that he was not employed in terms of law laid down by the Hon’ble Supreme Court in J.K. Synthetics v. K.P. Agrawal and another (2007) 2 SCC 433, it cannot be disputed that there is no rule that backwages must follow reinstatement. Several circumstances have to be taken into account while considering the claim for 2 LPA Nos.208 of 2009 backwages, including the fact that the employee did not render any service during the period in question. He was relieved from service in the year 1993 and was ordered to be taken back vide order dated 8.2.1994, against which, appeal remained pending before the Tribunal for almost 19 years. During all this period, the employee did not render any service. The management of the College could not be held responsible for delay in disposal of the appeal and could not be mechanically required to pay for the entire period for which the employee did serve the management. Observations of the Hon’ble Supreme Court in the above judgment in this regard 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 Court shall lose much of their significance. Although direction to pay full back wages on a declaration that the order of termination was 3 LPA Nos.208 of 2009 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 back wages cannot be the natural consequence.” 4 LPA Nos.208 of 2009 9. Dismissed. (ADARSH KUMAR GOEL) JUDGE May 19, 2009 (JITENDRA CHAUHAN) ashwani JUDGE 5