Dhirubhai Naranbhai Patel, J. - (1.) THIS letters patent appeal has been preferred against the judgment and order passed by the learned Single Judge in W.P. (S) No. 1786 of 2005 dated 14th February, 2013, whereby, the writ petition preferred by respondent No. 1 (original petitioner) has been allowed and the order of dismissal from service of respondent No. 1 dated 29th July, 1998 has been quashed and set aside and respondent No. 1 was ordered to be reinstated without back wages. Moreover, liberty has also been reserved with the present appellant. (management -original respondent) to conduct a fresh inquiry in accordance with law after giving proper opportunity to the original petitioner. Against this judgment and order allowing the writ petition, the present letters patent appeal has been preferred by the original respondent. Learned counsel for the appellant (original respondent) submitted that the present respondent No. 1 (original petitioner) was dismissed from the service on 29th July, 1998 because of long absenteeism from 14th August, 1995 till his dismissal. Thereafter, the original petitioner preferred a departmental appeal and the same was also dismissed vide order dated 21st May, 2002 and, thereafter, the writ petition being W.P. (S) No. 1786 of 2005 Reported in : 2013 (2) JLJR 157 was instituted after approximately period of three years. This aspect of the matter has not been properly appreciated by the learned Single Judge. Learned counsel for the appellant is relying upon the decision rendered by the Hon'ble Supreme Court reported in : AIR 1964 SC 1006 especially paragraph 21 thereof and submitted that there is long delay in preferring the writ petition and, therefore, it should not have been allowed by the learned Single Judge. Learned counsel for the appellant is also relying upon the decision rendered by the Hon'ble Supreme Court reported in : (2012) 5 SCC 412 especially paragraphs 10, 11 and 14 thereof and submitted that the delay due to laches defeats the petition and, therefore also, the petition preferred by respondent No. 1 ought not to have been allowed by the learned Single Judge.
(2.) WE have heard learned counsel for respondent No. 1, who has mainly submitted that there is no voluntary absenteeism from 14th August, 1995, but, in fact, it was under compulsion. The original petitioner was arrested wrongly for the offence alleged against him and ultimately he was acquitted from the charges by the trial court vide order dated 7th June, 2001. Thus, the original petitioner was arrested on 14th August, 1995 and he was acquitted on 7th June, 2001 and due to this wrong arrest, there is absenteeism and, therefore, no error has been committed by the learned Single Judge in reinstatement without back wages. Learned counsel for respondent No. 1 further submitted that in fact notice was never served upon the workman by the management of the departmental proceedings and, hence also, no error has been committed by the learned Single Judge in quashing and setting aside the order of dismissal of respondent No. 1 -workman. Moreover, liberty has also been reserved to hold fresh inquiry if the management so chooses and reinstatement is also without back wages and, hence, this letters patent appeal may not be entertained by this Court. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case and the judgment and order of the learned Single Judge in W.P. (S) No. 1786 of 2005 Reported in : 2013 (2) JLJR 157 dated 14th February, 2013, we see no reason to entertain this letters patent appeal mainly for the following facts and reasons: - - (i) Respondent No. 1 is the original petitioner, who was dismissed from the service by the present appellant on 29th July, 1998 on the ground that there was long absenteeism of respondent No. 1 -workman from 14th August, 1995 till he was dismissed by holding ex -parte departmental proceedings. Thereafter, departmental appeal was preferred by respondent No. 1 and the departmental appeal was also dismissed on 21st May, 2002. It appears that respondent No. 1 was arrested on 14th August, 1995 for so -called offences alleged by the prosecution. Sessions Trial No. 512 of 1996 was conducted and there was acquittal by the trial court Judge vide order dated 7th June, 2001. it is submitted by learned counsel for respondent No. 1 that there was no eye witness of the incident and the charge was framed under Section 302 to be read with Section 201 of the Indian Penal Code. No notice was served upon respondent No. 1 by the appellant in the departmental proceedings. The absenteeism was not at the desire of respondent No. 1, but, the same was under compulsion and because of arrest by the police, there was absenteeism and ultimately respondent No. 1 was acquitted. This aspect of the matter has been properly appreciated by the learned Single Judge in his judgment dated 14th February, 2013 while allowing the W.P. (S) No. 1786 of 2005. (ii) Moreover, it further appears from the order passed by the learned Single Judge that the dismissal order dated 29th July, 1998 has been quashed and set aside and reinstatement order has been passed without back wages for the period for which respondent No. 1 (original petitioner) has remained out of service. Thus, there is no burden of back wages upon the appellant. (iii) Moreover, the learned Single Judge has also permitted the management to conduct fresh inquiry in accordance with law after giving adequate opportunity of being heard to the employee, but, it is submitted by learned counsel for the appellant that despite the period of approximately one year is over from the date of the judgment of the learned Single Judge, they have not initiated any further fresh inquiry against respondent No. 1 -employee. (iv) Learned counsel for the appellant has relied upon two decisions, as stated hereinabove. It appears that none of them is useful to the fact of the present case mainly for the reason that the judgment reported in : AIR 1964 SC 1006 is pertaining to recovery of tax paid by the appellant before the Hon'ble Supreme Court because levy of tax was unconstitutional. So far as fact of second case reported in : (2012)5 SCC 412 is concerned, there are absolutely different facts from the facts of the present case. Here, the case is between employer and employee, unequal is the bargaining power, whereas, in the facts of the reported case, there was a question of allotment of the land in lieu of acquisition of the land as per the Governmental policy. Moreover, after dismissal of the departmental appeal, the writ petition has been preferred within period of three years. Every delay never defeats the law. It all depends upon the facts and circumstances of the case. Whenever, there is unequal bargaining power between the employer and employee and when the employee is a poorer person of a developing/under developed State, the Court has to balance the delay and violation of the rights of the employee. In the facts and circumstances of the present case, we see no reason to alter the decision of the learned Single Judge mainly for the reason that the order of dismissal has been rightly quashed and set aside because of non -service of notice upon the workman of the departmental proceedings and reinstatement order has been passed, without back wages. Thus, there is no benefit accrued to the employee for the delay. The employee cannot take benefit of his own wrong and rightly, therefore, no back wages has been ordered to be paid by the management to the employee. This makes the order quite a balancing one. Moreover, fresh inquiry can also be conducted by the management, as per the order passed by the learned Single Judge. Thus, keeping in mind the absenteeism of respondent No. 1 against his own free will and also keeping in mind that there was no service of notice of the departmental proceedings upon the employee, rightly the order of dismissal has been quashed and set aside by the learned Single Judge by not passing the order of back wages for the period - of absenteeism and an order has been passed permitting the management to hold fresh inquiry. Thus, there is no substance in this letters patent appeal and, hence, the same is, hereby, dismissed.;