The court upheld the reinstatement with continuity of service and benefits but denied backwages due to evidence of the workman's income.

JUDGMENT :

N.V. ANJARIA, J.

1. Heard learned advocate Mr.Keyur Gandhi for Gandhi Law Associates for the appellant and learned advocate Mr.Mukesh Rathod for the respondent-original petitioner.

2. The challenge in this Letters Patent Appeal is addressed to the judgment and order of learned single Judge dated 24.6.2021 In Miscellaneous Civil Application (for recall) No. 1 of 1990 in Special Civil Application No. 3760 of 2021 read with order dated 3.9.2021 passed upon the Note for Speaking-to-Minutes.

2.1 Learned single Judge entertained the review application against the judgment and order of learned single Judge dated 11.6.2019 which was an ex-parte judgment. As per the judgment and order dated 24.6.2021, the said Miscellaneous Civil Application for review came to be allowed. Learned single Judge dealt with the controversy on merits by recalling the ex-parte order earlier passed by learned single Judge. At the same time, impugned Special Civil Application No. 3760 of 2012 was allowed, holding in favor of the original petitioner.

3. The facts in the backdrop may be set out. By filing Special Civil Application No. 3760 of 2012, the petitioner workman challenged the judgment and award dated 18.2.2011 of the Labour Court, Ahmedabad in Reference (LCA) No. 1789 of 2000. The said reference was for reinstatement of respondent workman on his original post with backwages. The labour court did not grant the reinstatement but awarded the lump-sum compensation of Rs.50,000/- in lieu of reinstatement. As the reinstatement was not granted, the workman felt aggrieved.

3.1 It was the case of the respondent workman that he has been working since six years under the first party employer and that his services came to be terminated by oral order with effect from 18.5.2000. It was the case that suspension order dated 16.6.1999 was illegal and the allegations made in the notice about misconduct were false and fabricated. The respondent workman faced the charges of misconduct of insubordination. The allegations was that the workman got angry on his superior and thus tarnished the image of the company. At the end of the inquiry, findings were arrived at and his services came to be terminated.

3.2 The Labour Court held that the evidence produced in course of the inquiry was in respect of the allegations which were not part of the notice therefore such findings were baseless and perverse. The Labour Court thereafter dealt with the aspect of grant of backwages and concluded that the workman has been earning Rs.24,000/- per month by engaging in partnership business. It was concluded that having regard to the nature of misconduct, reinstatement could not be granted. The Labour Court however partially allowed the reference directing the first party employer to pay the benefits to the workman from the date of entry till termination. The reinstatement was denied, but in lieu of reinstatement, the Labour Court awarded lump-sum compensation of Rs.50,000/- to the workman and further directed the employer to pay the cost of Rs.1,000/-.

3.3 The said judgment and award came to be challenged by workman before learned single Judge. Before learned single Judge, the respondent employer despite service of notice of Rule, did not appear. Learned single Judge noted that the petitioner was charged with the allegations of disobedience and misbehaviour with his superior while on duty on 15.6.1999, as he got angry and did not carry out the instructions of his superior.

3.3.1 It was further noticed that in the oral evidence of the complainant, however other incidents dated 9.6.1999 and 10.6.1999 were referred to and relied on. In respect of those incidents also the misconduct of use of abusive language was attributed to the petitioner. It was stated that the accusations other than the accusations in relation to the incident on 15.6.1999, were added to be made part of the charge memorandum. Therefore, it was observed that the labour court was right in recording the finding that the oral e