LPA No.194 of 2003

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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

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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

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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

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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

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be granted or denied. The Labour Court

and/or Industrial Tribunal befor