IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 2610 of 2008 Date of decision: 22nd May, 2008 The Punjab State Cooperative Handloom Federation (WEAVCO) … Petitioner Versus Registrar Cooperative Societies, Punjab, Chandigarh and others. … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.K.Sharma, Advocate, for the petitioner. Mr. A.R.Takkar, Advocate with Mrs. Ritam Aggarwal, Advocate for respondent No.3. KANWALJIT SINGH AHLUWALIA, J. By way of this common judgment, we will be deciding two civil writ petitions, i.e. CWP No. 2610 of 2008 titled The Punjab State Cooperative Handloom Federation v. Registrar Cooperative Societies, Punjab, Chandigarh & others, and CWP No. 4697 of 2008 titled Raman Kumar Sharma v. State of Punjab and others, as both the management and the workman are aggrieved against the order passed by Additional Registrar (G), Cooperative Societies, Punjab, Chandigarh on 25.05.2007, whereby he ordered reinstatement of the workman-Raman Kumar Sharma but declined grant of back wages. CWP No. 4697 of 2008 has been filed by Civil Writ Petition No. 2610 of 2008 the workman as he is aggrieved against the denial of back wages, whereas, CWP No. 2610 of 2008 has been preferred by the management feeling aggrieved against the reinstatement of the workman. For facility of reference, we have gathered the facts from CWP No. 2610 of 2008 titled The Punjab State Cooperative Handloom Federation v. Registrar Cooperative Societies, Punjab, Chandigarh & others. It has been averred in the writ petition that on 28th January, 2003, Registrar Cooperative Societies, Punjab in the review meeting of WEAVCO, took a decision for abolition of seven posts of employees, which had been declared surplus by WEAVCO and for seeking their options for voluntary retirement under the voluntary retirement scheme. The Board of Directors of WEAVCO, on 31st October, 2003 took a decision to retrench the services of the surplus staff and in pursuance of the same, services of Raman Kumar Sharma-respondent No.3 (workman), after complying with Section 25 of the Industrial Disputes Act, were retrenched vide Annexure P-1 dated 27.04.2005. The case of management is that the services of the workman- respondent No.3 were retrenched because he was a junior most handloom expert and was declared surplus along with six other employees of the petitioner-society by the Board of Directors. Aggrieved against the decision of retrenchment, workman-respondent No.3 filed a revision petition under Section 69 of the Punjab Cooperative Societies Act against the order of retrenchment before the Additional Registrar (G), Cooperative Societies Punjab, i.e. respondent No.2, who vide his order dated 13.06.2005 dismissed the revision petition holding that same is not maintainable. Workman-respondent No.3, against this decision, filed CWP No. 18581 of 20056, whereupon this Court passed the order (Annexure P-5). The relevant portion of the order (Annexure P-5) is reproduced below: 2 Civil Writ Petition No. 2610 of 2008 “The post of Handloom Expert on which the petitioner was working in respondent No.4 Corporation was declared surplus in a meeting of the Board of the Directors held on 30.07.2003 (Annexure P-5). On this account the petitioner was retrenched from service and relieved vide order dated 29.4.2005 (Annexure P-7). After hearing learned counsel for the parties giving our thoughtful consideration to the matter, we are of the view that the order passed by the Additional Registrar (respondent No.3) is unsustainable. The services of the petitioner had not been dispensed with as a measure of punishment but he has been retrenched from service on account of the decision taken by the Board of Directors on 30.7.2003. A reading of provisions of Section 68 of the Act, which relates to ‘appeals’ does not show that against an order of retrenchment from service an appeal would lie. Therefore, the reason assigned by the Additional Registrar Cooperative Societies (respondent No.3) while passing the impugned order dated 13.6.2005 (Annexure P-8) that an appeal would lie is not sustainable. Consequently, the order dated 13.6.2005 (Annexure P- 8) is set aside and quashed and the Additional Registrar Cooperative Societies (respondent No.3) shall decide the matter afresh. The parties shall be entitled to raise all the objections available to them in accordance with law. The parties through their counsel to appear before the Additional Registrar Cooperative Societies (respondent No.3) on 6.11.2006. The writ petition stand disposed of in the above terms. Sd/- (S.S.Saron) Judge Sd/- (P.S.Patwalia) Judge” 3 Civil Writ Petition No. 2610 of 2008 In compliance with the order (Annexure P-5), Additional Registrar (G), Cooperative Societies Punjab decided the revision vide order (Annexure P-6) and held as under: “After hearing arguments of both the parties & going through the record, it is established that on 8.4.02 respondent identified one post of handloom expert as surplus, while Sh.Jasminder Singh Bhui, handloom expert was terminated on 29.5.03. Thus their remain no post of handloom expert surplus on 31.10.03, when BOD took the decision on the basis of note of 8.4.02. Respondents has failed to explained this is a proper & rightful manner. Hence order of retrenchment of respondent dated 29.4.05 is set aside and petition is accepted. However, he will not be entitled to any wages for the intervening period, though he will be entitled to other service benefits.” The above said order of Additional Registrar (G), Cooperative Societies Punjab was challenged by the management by preferring a revision and the same was dismissed by the Registrar Cooperative Societies, holding that the same is not maintainable. The grievance of the management is that there is a factual mistake on the part of the Additional Registrar (G), Cooperative Societies Punjab, while deciding revision. He had wrongly held that after termination of services Jaswinder Singh Bhui, handloom expert on 29.05.2003, there remained no post of handloom expert as surplus on 31.10.2003. It has been stated that three employees were working as handloom expert in the petitioner federation and there are three posts under the service rules. After the services of Jaswinder Singh Bhui were terminated on 29.05.2003, two handloom experts namely, H.S.Malhi and respondent No.3 were there as handloom expert on 29.05.2003. Second submission is that Additional 4 Civil Writ Petition No. 2610 of 2008 Registrar (G), Cooperative Societies Punjab had no jurisdiction to hear and decide the revision petition. We are afraid that both the contentions of the management cannot be accepted. In writ jurisdiction, we cannot determine disputed facts. The Additional Registrar (G), Cooperative Societies Punjab, while exercising the revisional jurisdiction, had gone into the entire gamut and has come to the conclusion that workman-respondent No.3 is entitled to reinstatement. So far as the question regarding Additional Registrar (G), Cooperative Societies Punjab having acted beyond jurisdiction is concerned, it stood already determined in the earlier civil writ petition filed by the workman (Annexure P-5), relevant portion of which has been reproduced above. The decision in the earlier writ petition was accepted and the same has attained finality. Therefore we find no merit in the submissions made by the counsel for the management. We have also heard counsel for the respondent-workman, Raman Kumar Sharma, who has preferred separate civil writ petition bearing No. 4697 of 2008 titled Raman Kumar Sharma v. State of Punjab and others regarding denial of back wages. We find that in a recent judgment in J.K.Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, the Hon'ble Supreme Court has noticed the change in law, which has taken place on this issue. It has been held that back wages is no longer automatic or natural consequence of reinstatement. A pragmatic view has to be taken keeping in mind that management may not be compelled to pay for the period for which the workman did not contribute anything. Each case depends on its own facts. Length of service, nature of appointment, manner of termination, gainful employment and other circumstances have to be considered. Short term or temporary employment cannot be treated at par with termination of 5 Civil Writ Petition No. 2610 of 2008 services of a permanent employee. The burden of proving that the workman was not gainfully employed, was on the workman. Applying the above principle to the facts of the present case, we are of the view that the workman is not entitled to the back wages. There was no clear evidence that the workman was not gainfully employed. In view of the above, we find no merit in both the civil writ petitions and the same are dismissed and order dated 25.05.2007 passed by the Court of Additional Registrar (G), Cooperative Societies Punjab is upheld, which is Annexure P-6 in the writ petition preferred by the management and Annexure P-10 in the writ petition preferred by the workman. We also uphold the order of the Registrar Cooperative Societies Punjab. Only one revision was maintainable which has been decided by the Additional Registrar (G) Cooperative Societies Punjab. Hence, both the writ petitions are dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE May 22, 2008 rps 6