R.M.Chhaya, J. - Heard Mr. Premal Joshi, learned advocate for the appellant. By the present appeal under Clause 15 of the Letters Patent, the appellant has challenged the order dated 11.12.2019 passed in Special Civil Application No.21188 of 2017.
2. Mr. Premal Joshi has extensively drawn the attention of this Court to the impugned judgment and order. It deserves to be noted that Reference filed by the respondent workman came to be allowed by the Tribunal vide its award dated 20.07.2017 whereby the respondent was ordered to be reinstated with continuity of service. The appellant challenged the said award by way of filing writ petition being Special Civil Application No.19168 of 2018, which came to be dismissed by the learned Single Judge vide order dated 18.12.2018. The appellant thereafter filed Letters Patent Appeal being LPA No.1567 of 2019, which also was dismissed. It would be appropriate to refer to para 12 and 13 of the judgment of the Letters Patent Appeal No.1567 of 2019.
3. Being aggrieved and dissatisfied with the award qua non grant of any back-wages, the respondent workman also filed writ petition being SCA No.21188 of 2017. The respondent relied upon the judgment of the Honble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and others, (2002) SCC(L&S) 279 and Dipali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and others, (2013) 10 SCC 324 [LQ/SC/2013/879] .
4. The learned Single Judge after threadbare examination of the matter also considers the orders passed by the learned Single Judge of this Court in Special Civil Application No.19168 of 2018 as well Division Bench in Letters Patent Appeal No.1567 of 2019 as observed herein above. After considering the award passed by the labour Court and in facts of this case, the learned Single Judge observed thus:
"10.1. In the instant case, the Court has held that the order of non-getting the approval during the pendency of the reference was illegal, therefore, as per the decision of the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) effect and fall out of such order is as if the order of discharge or dismissal was never passed.
10.2. This Court finds no error, much less patent illegality in the judgment and award passed by the Trial Court.
11. This brings this Court to the next issue of backwages, the Apex Court in the case of Dipali Gundu Surwase (supra) has been categorical that in case of wrongful termination of service, reinstatement with continuity of service and back wages is ordinarily to be granted, of course, while deciding the issue of backwages, the adjudicating authority or the Court shall need to take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found against the employee/workman, the financial condition of the employer and such other factors. Ordinarily, an employee or workman whose service is terminated and who is desirous of getting backwages is required to either plead or at least make a statement before the adjudicating authority or the Court on first instance that he/she was not gainfully employed or was employed on lesser wages. Considering the pleading and proof as may be adduced and such proof if resisted by the other side, shall need to be considered.
12. The petitioner has already stated that he was not gainfully employed, at the time of recording of oral evidence by way of an affidavit. He has also been cross examined on this aspect where he was categorical that though he made all endeavors, he could not find any job. His employment card also was issued by the employment exchange, but, he had not been successful in getting the job. Other side has not brought anything which would belie this aspect. Having thus already proved and succeeded in showing that the order of dismissal was without any basis and has been held to be illegal, with clear averment and proof of not having any employment, the consequential order of backwages ought to have been passed. Even if, the person has been able to perform sundry work, his entitlement for majority share should not go away.
13. This Court notices that his request for permanency has been already withdrawn by him which has no relevance. This will not deprive him of backwages when the act of the respondent authority was apparently contrary to the law. The Court, therefore, holds that Dhoraji Municipality shall need to pay 75% backwages on the basis of last pay drawn by him, within a period of eight weeks from the date of receipt of copy of the order."
5. Having examined the contentions raised in this appeal, we find that there is no error much less any error apparent on the face of record which warrant interference of this Court in this intra- court appeal under Clause 15 of the Letters Patent. On the contrary, we find that the learned Single Judge has considered the record and has also appreciated the oral evidence which was adduced by the respondent workman before the Tribunal. We, therefore, find that no interference is called for. The appeal is meritless and therefore same deserves to be dismissed and is hereby dismissed. However, at the request of Mr. Joshi, learned advocate for the appellant time to comply with the directions issued by the learned Single Judge in para 13 of the impugned judgment and order is extended till 31.10.2020. Present Letters Patent Appeal is dismissed.
In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.
