Punjab-Haryana High Court
Parmeshwar Saroop Singh S/O Manohar ... vs State Of Punjab And Others on 25 July, 2013
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.6353 of 1991 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No.6353 of 1991
Date of Decision.25.07.2013
Parmeshwar Saroop Singh s/o Manohar Singh .....Petitioner
Versus
State of Punjab and others .......Respondents
Present: Mr. Binderjit Singh, Advocate
for the petitioner.
Mr. P.S. Bajwa, Advocate
for respondent No.1.
None for respondent Nos.2 and 3.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? No
2. To be referred to the Reporters or not ? No
3. Whether the judgment should be reported in the Digest? No
-.-
K. KANNAN J. (ORAL)
1. The petitioner's prayer in the writ petition is that in spite of the decision of the Government issued under Section 232 of the Punjab Municipal Act, 1911 finding the appointment made by the 2nd respondent-Municipal committee to one person named Kaur Chand in place of the petitioner who was validly appointed employe of the Municipal Committee, the petitioner had not been allowed to work till an intervention was made by this Court in C.W.P. No.3755 of 1985. The grievance is that he had not been paid the salary payable to him when he was illegally kept out of employment. He had come by means means of a complaint of contempt of the Court order passed in C.W.P. No.3755 of 1985 finding that he was entitled to be treated as continuing in Kamboj Pankaj Kumar 2013.07.29 12:38 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.6353 of 1991 -2- service but the contempt petition was closed on a defence taken by the Municipal Committee that the petitioner had been gainfully employed during the period and therefore, it was not possible for the Court exercising contempt jurisdiction to adjudicate on a disputed question of fact. This direction itself was at the second round of litigation and in the first round of litigation, the Municipal Committee had actually admitted to the liability and offered to make the payment. Learned counsel appearing for the petitioner would, therefore, argue that when the matter went back for a direction for payment, they could not have taken the plea that the petitioner was gainfully employed elsewhere.
2. I may not be able to comment on the relevance of the gainful employment in view of the fact that the case could have been disposed of if the learned counsel's argument were to be accepted now that since there had been an admission of liability at the first round of litigation, a denial of such a right by reference to an alleged gainful employment could not have been taken at the second round. Since the direction was given, it has to be only seen whether the ultimate decision that was taken accords with justice. In this case, the order impugned is the decision taken by the Municipal Committee after a direction from this Court in the second round of litigation in the contempt petition. The impugned order reads that a notice had been given to him to explain the nature of employment and the imputation made against the petitioner that he had been actually working as a Typist at District Court premises and he was earning about ` 3,000/- per month. The impugned order further reads that his own post carried lower scales and therefore, he cannot have any grievance. The gainful employment that a situation Kamboj Pankaj Kumar 2013.07.29 12:38 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.6353 of 1991 -3- like this ought to mean must be an employment which is at par with the employment which is available in the market. The underlying principle is that any person claiming wages or who makes out a case for damages shall mitigate such claim for damages. It is another way of saying that a person, who makes a claim, shall not enjoy a double benefit of not giving any service to the employer and after having been otherwise employed elsewhere to make living also duplicates claim against the employer. If on the other hand, a person, who is terminated from service undertakes some lower type of activity in order to keep his own body and soul together and secure to himself and his family sufficient subsistence, it ought not to be taken as disentitling a person to claim the benefits for which he was otherwise entitled to. It will be wrong to assume that a gainful employment would include even an effort to secure the minimum income for his own living. An effort by a person to gain employment ought not to be treated with disdain and allow for a premium to an employer who was found guilty of wrongful termination. The best that could be done was only to make a balance between a situation where the employer has not really obtained the benefit of the services but still make him liable for his wrongful act in denying to the employee a right of employment and the benefit of the salary. I have not benefit of information of the scales of the petitioner at the employment at that stage but going by the fact that the petitioner was stated to be earning ` 3,000/- which the impugned order reads was more or less equivalent to the salary which was attached to the post, I will provide 50% of the same for the number of years to which he was entitled to salary. Since this claim itself had come through a contempt Kamboj Pankaj Kumar 2013.07.29 12:38 I attest to the accuracy and integrity of this document Chandigarh C.W.P. No.6353 of 1991 -4- petition after a direction given by this court in C.W.P. No.3755 of 1985, I will confine this relief for a period of 3 years prior to the date of the order dated 03.02.1986. Since I have restricted the amount to 50%, I will take the amount which is due and payable as ` 27,000/- with simple interest @9% p.a. from the date of petition till the date of payment.
3. The writ petition is allowed to the above extent.
(K. KANNAN) JUDGE July 25, 2013 Pankaj* Kamboj Pankaj Kumar 2013.07.29 12:38 I attest to the accuracy and integrity of this document Chandigarh