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SURAJ BHAN v. THE BHIWANI CENTRAL CO-OPERATIVE BANK LT - CWP-18914-2003 [2005] RD-P&H 83 (1 August 2005)

C.W.P. No.18914 of 2003


Suraj Bhan


The Bhiwani Central Co-operative Bank Ltd.

and others

Present: Mr.Tejinder Joshi, Advocate for the petitioner Mr.S.S. Patter, Advocate for respondents No.1 and 2

Mr.Anil Rathee, Addl.A.G., Haryana for

respondent No.3



The petitioner was employed with respondent No.1-Bank. His services came to be terminated after he was held guilty of charges in an inquiry into embezzlement of money in the bank. The petitioner challenged his termination by way of filing appeal before the Registrar, Cooperative Societies, Haryana. The appellate authority came to the conclusion that charges levelled against the petitioner were not established and as such, the order of termination was set aside vide order dated 13.8.1996 and he was ordered to be reinstated. Respondent-Bank challenged the aforesaid order of the appellate authority through Civil Writ Petition No.17098 of 1996, which was dismissed by this Court vide judgment dated 15.5.1997. However, while C.W.P.No.18914 of 2003 - 2

dismissing the writ petition this Court had made the following observations:-

"...... Since the petitioner did not work during all this period, he would not be entitled to any pay and the counsel for the petitioner accompanied by his client very fairly conceded before us that he would not claim any pay during all this period."

Respondent-Bank carried the matter to the Supreme Court by filing Civil Appeal No.2757 of 1998 challenging the aforesaid judgment of this court. The appeal filed by the Bank was dismissed by the Apex Court vide order dated 20.2.2001, operative part whereof is reproduced as under:-

"Having examined the rival contentions and having scrutinized the judgment and the order of the Registrar who is the Appellate Authority under the Act and in view of his conclusion as quoted above, we find sufficient force in the contention of the learned counsel appearing for the respondent. It is too well settled that in exercise of its power under Article 226 of the Constitution against the finding of an inferior Tribunal, the High Court would be justified in C.W.P.No.18914 of 2003 - 3

interfering with only if it come to the

conclusion that either the order of the

tribunal is contrary to some provisions of law; or the order of the tribunal is based upon certain inadmissible evidence; or the tribunal does not allow certain admissible evidence to be led in; or the conclusion of the tribunal is such which no reasonable man would arrive at.

Judged from the aforesaid stand-point and having examined the order of the Appellate Authority, we do not see any infirmity in the same which could be labeled as a patent error of law on the face of the record requiring interference by the High Court. In our

considered opinion, the High Court did not commit any error in not exercising its

certiorari jurisdiction under Article 226 when the Bank moved the High Court against the appellate order.

In the aforesaid premises, we see no

merits in this appeal which accordingly stands dismissed."

After the decision of the Apex Court, the petitioner re-joined his duties on 28.2.2001. He was posted in the bank's office at `Chang' to discharge the duties of Clerk and approval to that effect was accorded C.W.P.No.18914 of 2003 - 4

by the Board of Directors in its meeting held on 25.4.2001. The Board of Directors further took a decision that the bank may make him the payment of arrears of pay from 25.3.1995 to 28.2.2001 after getting the arrears bill pre-audited from Senior Auditor, Co- operative Societies, Bhiwani and that the bank may effect recovery of the amount of embezzlement outstanding against him. The petitioner thereafter served a notice dated 17.8.2001(Annexure P-4) through his counsel on respondent-Bank requesting therein to pay all arrears of pay/salary and other benefits to the petitioner with effect from 25.3.1995. However, respondent-Bank vide its letter dated 21.6.2002 has informed the petitioner that he is not entitled for salary for the period from 25.3.1995 to 27.2.2001.

In the written statement filed by respondents No.1 and 2 the claim of the petitioner is controverted, inter alia, taking up the plea that the claim of the petitioner is time barred and that writ petition is not maintainable as the alternative remedy of filing civil suit as well as of filing appeal before the Registrar, Cooperative Societies, Haryana is available to the petitioner. It is further stated on the basis of principle of "no work no pay", the petitioner is not entitled to be granted the relief as prayed for, in the C.W.P.No.18914 of 2003 - 5

writ petition. Almost similar pleas have been taken by respondent No.3 in its written statement while opposing the claim of the petitioner.

We have heard learned counsel for the parties and perused the material on record.

Learned counsel for the petitioner vehemently argued that although the High Court in its order dated 15.5.1997 had held the petitioner to be not entitled to arrears of pay for the intervening period but the respondents did not accept the aforesaid order of the High Court and filed Civil Appeal in the Supreme Court.

The Hon'ble Apex Court while dismissing the Civil Appeal of the respondent-Bank has passed a detailed order and has not specifically denied the benefits of pay, etc. of the period in question to the petitioner.

Therefore, the petitioner would be entitled to all service benefits during the period he remained out of service due to the fault of the respondents as the charges leveled against the petitioner have been held to be not proved against him. In support of his submissions, the learned counsel has placed reliance on a Full Bench judgment of this Court in the case of Hari Place, Ambala City vs. The Presiding Officer, Labour Court and another, 1979 PLR 720.

C.W.P.No.18914 of 2003 - 6

On the other hand, learned counsel representing respondents contended that the arrears of pay and other service benefits, for the period the petitioner did not work, can not be granted to him as a matter of right as he might have been gainfully employed during that period.

Having considered the aforesaid submissions made by learned counsel for the parties in the light of facts of this case, we are of the considered opinion that the writ petition deserves to be allowed as the law in regard to the present controversy has already been settled by a Full Bench judgment of this Court in Hari Palace's case supra, in the following words:- "5. There is no gain saying the fact that there has been some divergence of opinion in the various High Court on the point earlier, varying views had been expressed as to whether precisely the onus lay with regard to the claim to back wages and also with regard to the striking of the issues or the necessary point for determination thereof by the Labour Court itself. Within this Court a Division Bench in Daljeet and Co. Private Ltd. Ropar vs. The State of Punjab and others has held that the dismissed employee is reinstated with

continuity of service, the normal relief would C.W.P.No.18914 of 2003 - 7

be the payment of full wages from the date of dismissal, and it is for the employer to raise this matter and prove that the employee had been earning wages for the whole or any part of the period in question. The aforesaid view has been consistently followed in this Court and reaffirmed in Harbans Singh and others vs. The Assistant Labour Commissioner and others. The Allahabad High Court was inclined to take a similar view in Postal Seals Industrial

Cooperative Society Ltd. vs. Labour Court, Lucknow, and the same tenor is the judgment of the Gujarat High Court in Dhari Gram Panchayat vs. Safai Kumdar Mandal.

6. However, all controversy now seems to have been set at rest by their Lordships of the Supreme Court in M/s Hindustan Tin Works Pvt.

Ltd. v. The Employees of M/s Hindustan tin Works Pvt. Ltd. and others, wherein the appeal by Special Leave was expressly limited to the question of grant of back wages. It has been held therein in no uncertain terms:

"Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled C.W.P.No.18914 of 2003 - 8

to full back wages except to the extent he was gainfully employed during the enforced

idleness. That is not normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer's.

And again:

"Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure.

The aforesaid view has then been reiterated by their Lordships in G.T. Lad and others vs.

Chemicals and Fibres India Ltd."

A perusal of the aforesaid observations clearly shows that full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. The respondents have not produced any evidence much less any cogent evidence justifying denial of service benefits to the petitioner for the period in question. Moreover, the charges on the basis of which the petitioner's services were terminated, were held to be not proved against the petitioner and it is the respondent-bank which carried the matter upto the Supreme Court. Therefore, no fault C.W.P.No.18914 of 2003 - 9

could be found with the petitioner and making exception to the ratio of judgment in Hari Palace's case (supra) in the facts and circumstances of the present case, would be wholly unjust to the petitioner.

Consequently, we allow the writ petition and direct the respondents to make payment of arrears of pay to the petitioner for the period during which he remained out of service on account of his aforesaid termination which was later on quashed, and also give him all other service benefits which he might have received had he been in continuous employment of respondent-Bank, within a period of two months from the date of receipt of a certified copy of this order.

No costs.



September 23, 2005 ( S.S. NIJJAR )


Note: Whether to be referred to Reporter? Yes/No.


Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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