LPA No.194 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.194 of 2003 Date of decision: 02.02.2010 The Punjab Cooperative Cotton Marketing and Spinning Mill Federation Limited. ............Appellant Versus S.P. Dahiya and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Puneet Kansal, Advocate for the appellant. ALOK SINGH, J. 1. This appeal has been filed against the judgment dated 11.3.2003 passed by learned Single Judge, thereby allowing the writ petition and quashing the order dated 3.2.1998 terminating the service of the petitioner/respondent No.1 and directed the appellant to pay him salary for the period 18.12.1996 onwards and reinstate him with continuity of service with all other consequential benefits. 2. The brief facts of the present case are that petitioner was appointed as Chief Executive with the appellant Company LPA No.194 of 2003 -2- vide order dated 17.12.1995. The appointment letter provides that writ petitioner would remain on probation for two years which can be extended for further one year at the discretion of the Mills management. During the probation period, Management has right to terminate his services without notice. Due to some reasons, petitioner was called by respondent No.4 at the Headquarter at Chandigarh and was asked to resign from the post on 13.12.1996. Petitioner refused to resign because of the fact he has accepted the job after resigning from his previous job which is permanent in nature. Respondent No.4 again called the petitioner at Chandigarh and asked him to resign. Feeling aggrieved, petitioner submitted representation to the Hon'ble Cooperation Minister, Punjab on 23.12.1996 mentioned therein the hardships being faced by him. The Hon'ble Cooperation Minister directed the Registrar Cooperative Societies to look into the matter. Feeling annoyed, respondent No.4 issued charge-sheet to the petitioner and ultimately petitioner was removed from service vide impugned order dated 8.4.1997 by respondent No.4. 3. We have heard learned Counsel for the appellant and perused the record. 4. Having heard learned Counsel for the appellant and having gone through the impugned judgment, we find that learned Single Judge has given cogent reasons while allowing the writ petition quashing the order terminating the service of the petitioner. Learned Counsel for the appellant could not LPA No.194 of 2003 -3- point out any illegality or jurisdictional error in the impugned judgment while setting aside the termination order. 5. Learned Counsel for the appellant then argued that order of reinstatement does not mean that order of back-wages is automatic. 6. In the matter of Kendriya Vidyalaya Sangathan and another vs. S.C. Sharma reported in (2005) 2 SCC 363, the Hon'ble Apex Court held as under:- “Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was a natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” 7. In the matter of Allahabad Jal Sansthan vs. Daya Shankar Rai and another reported in (2005) 5 SCC 124, the Hon'ble Apex Court held as under:- “A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can LPA No.194 of 2003 -4- be granted or denied. The Labour Court and/or Industrial Tribunal before which the industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. Inter alia, a pleading to the effect that he had been sitting idle or had not obtained any other employment in the interregnum must be raised by the workman seeking back wages.” 8. In the matter of U.P. State Brassware Corpn. Ltd. and another vs. Uday Narain Pandey reported in (2006) 1 SCC 479, the Hon'ble Apex Court held as under:- “No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputedly, 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.” LPA No.194 of 2003 -5- 9. In the matter of J.K. Synthetics Ltd. vs. K.P. Agrawal and another reported in (2007) 2 SCC 433, the Hon'ble Apex Court held as under:- “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. There has also been a noticeable shift in placing the burden of proof in regard to back wages. There is also a misconception that whenever reinstatement is directed, “continuity of service” and “consequential benefits” should follow, as a matter of course. The disastrous effect of granting several promotions as a “consequential benefit” to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “continuity of service” and/or “consequential benefits” should also be directed.” 10. Learned Counsel for the appellant has submitted that no material was produced by the writ petitioner that he was LPA No.194 of 2003 -6- sitting idle for such a long period and was not employed anywhere. 11. In view of the judgment cited by learned Counsel for the appellant, we are of the view that in the peculiar facts and circumstances of the case, order of back-wages w.e.f. 18.12.1996 should have not been passed. 12. In view of the above, appeal is allowed in part. Order of the learned Single Judge quashing impugned orders is confirmed. However, order directing to pay salary w.e.f. 18.12.1996 is set aside. No order as to costs. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 02.02.2010 JUDGE ashish