JUDGMENT -R.M. LODHA, J. :---By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is seeking to challenge the legality and correctness of the judgment passed by the Assistant Commissioner of Labour, Bhandara, an appellate authority under section 31 of the Bidi Cigar Workers (Conditions of Employment) Act, 1966. 2. Mr. P.N. Chandurkar, the learned Counsel for petitioner has raised three-fold submissions viz., (i) that, the respondent No. 1 was removed from service after holding domestic enquiry into the misconduct of theft committed by him and, therefore, the Assistant Commissioner of Labour was not justified in holding that the conduct of the enquiry was not fair; (ii) that, the factory of the petitioner in Bhandara district has been closed and that closure was pursuant to the settlement between the petitioner and its respective union and, therefore, even if removal of the employee was bad in law, the Assistant Commissioner of Labour was not justified in directing reinstatement of the employee and (iii) that the employee did not lead any evidence that during the intervening period, he was unemployed and, therefore, was entitled to back-wages. 3. Despite service on respondent No. 1, nobody appeared on his behalf and, therefore, Mr. B.M. Khan, Advocate has been requested to assist the Court on behalf of the respondent No. 1. 4. Mr. B.M. Khan on the other hand submitted that after the case was remanded by this Court to the Assistant Commissioner of Labour for deciding the matter afresh, the employee examined himself and in his deposition, he testified that the domestic enquiry was unfair and witnesses were not examined in his presence and no notice was given by the Enquiry Officer to him and the said deposition of the employee has remained uncontroverted and unchallenged, because the employer did not lead any evidence in rebuttal. In this view of the matter, the Assistant Commissioner of Labour was justified in holding that the enquiry was not fair and just, and rightly held that the misconduct having not been proved, the removal of the employee from service was bad in law. Mr. In this view of the matter, the Assistant Commissioner of Labour was justified in holding that the enquiry was not fair and just, and rightly held that the misconduct having not been proved, the removal of the employee from service was bad in law. Mr. Khan also submitted that the employee was Class-III employee and since the removal was bad in law, the Assistant Commissioner of Labour did not commit any error in reinstating him and awarding back-wages which should have followed as a matter of course and has been rightly ordered by the Assistant Commissioner of Labour. The contention of Mr. Khan is that even if the factory of the employer was closed, merely because of closure, the employees could not be terminated and for such termination, the procedure prescribed under law was required to be followed and, therefore, because of closure of the factory of the petitioner, the reinstatement could not have been refused by the Assistant Commissioner of Labour after it was held that his removal was bad in law. Mr. Khan submitted that no evidence has been led by the employer to show that the respondent No. 1 was gainfully employed during this period and in this view of the matter, the Assistant Commissioner of Labour did not commit any error in awarding back wages. 5. Before I advert to the rival contentions of the learned Counsel for the parties, few facts may be adverted to. The respondent No. 1 Karimkhan (for short, the employee) was engaged as Clerk initially and thereafter was working as Relai-in-charge by the petitioner M/s Chhotabhai Jethabhai Patel Company (for short, the employer) in the year 1954. After having completed about 22 years of service, when the employee had gone for lunch, the incident took place on the basis of which the employee was charge-sheeted on 31-8-1976 alleging that he has committed theft of 200 bidis and on completion of domestic enquiry, by the order dated 29-9-1976, the employee was dismissed from service. The employee challenged the dismissal order dated 29-9-1976 by filing appeal before the Competent Authority under section 31 of the Bidi Cigar Workers (Conditions of Employment) Act, 1966 (for short, the Act of 1966) and the said appeal was ultimately decided in favour of the employee and reinstatement with back wages was ordered. The employee challenged the dismissal order dated 29-9-1976 by filing appeal before the Competent Authority under section 31 of the Bidi Cigar Workers (Conditions of Employment) Act, 1966 (for short, the Act of 1966) and the said appeal was ultimately decided in favour of the employee and reinstatement with back wages was ordered. The order passed by the Appellate Authority was challenged before this Court in Special C.A. (WP) No. 1499 of 78 and by the order dated 26-11-1985, this Court set aside the order passed by the Appellate Authority and remanded the matter back to the appellate authority under section 31(2)(a) of the Act of 1966 to hear the appeal of the employee and decide the same in accordance with law. After remand of the case, the employee examined himself. However, the employer did not lead any evidence and the appellate authority after hearing the parties, by the order dated 11-1-1990 has passed the order impugned in the present writ petition. By this order, the Appellate Authority held that the dismissal of the employee vide order dated 29-9-1976 was bad in law and was passed without holding just and fair enquiry and the Appellate Authority directed reinstatement of the employee with full back wages @ Rs. 390/- per month as per the revised pay-scale as fixed by the State Government from the date of dismissal till the date of reinstatement subject to other staff of the Bhandara Branch who were working with him and who were transferred to the other branches by the same Company. 6. The unequivocal case set up by the employee before the Appellate Authority was that the dismissal order passed on 29-9-1976 by the employer suffered from serious error of law since there was no fair and proper enquiry for enquiring into the alleged misconduct of the employee. After the matter was remanded by this Court, the employee examined himself and in his deposition, he has testified that when he had gone home for lunch one day, he was asked to sign on one paper, but he refused to do so. Thereafter he was charge-sheeted. The witnesses were not summoned in his presence and he did not know as to who were the witnesses in enquiry instituted by the employer. He has also deposed that he has been discharged by the Criminal Court. Thereafter he was charge-sheeted. The witnesses were not summoned in his presence and he did not know as to who were the witnesses in enquiry instituted by the employer. He has also deposed that he has been discharged by the Criminal Court. The employee also deposed that he had not signed the enquiry papers and his deposition has not been recorded as per his statement. The employer cross-examined the employee and from the said cross-examination, the deposition of employee has not at all been shaken. The employer did not lead any evidence before the Appellate Authority to show that the enquiry instituted by the employer was conducted in just and fair manner. In the absence of any evidence led by the employer, the Appellate Authority was justified in holding that the deposition of the employee has gone unchallenged. The Appellate Authority has discussed the issue in the following manner :--- "Now with this evidence the question before this Honble Court to decide whether the enquiry held was proper or not. It will be pertinent to note that Appellants evidence in respect of his enquiry is the solitary evidence on oath. There is no contradiction brought about in cross-examination to discredit the witness. The enquiry officer has not been examined to show as to how he conducted the enquiry. No other witness is examined to prove the enquiry papers. Thus the evidence of the appellant goes unchallenged. In this respect it is also material to find that the criminal case has also framed that the charge of theft is not provided. Though that proceeding is decided later on it pertains to the same incident. Prosecution has failed to prove it. It, therefore, seems that the conduct of the enquiry was not fair and was to be discarded." The aforesaid discussion made by the Appellate Authority is based on proper appreciation of the evidence and in the light of the facts and circumstances of the case and it cannot be said that the Appellate Authority committed any error in holding that the conduct of enquiry instituted to enquire into the charges against employee was not fair. Thus, there is no merit in the contention of the learned Counsel for employer that the dismissal order was passed after holding just and fair enquiry against the employee. I, therefore, find no merit in the first contention of the learned Counsel for employer. 7. Thus, there is no merit in the contention of the learned Counsel for employer that the dismissal order was passed after holding just and fair enquiry against the employee. I, therefore, find no merit in the first contention of the learned Counsel for employer. 7. As regards the second contention raised by the learned Counsel for employer about the closure of the industry of the employer at Bhandara, it may be observed that factually, there is no dispute that the industry at Bhandara has been closed. Closure of the industry at Bhandara is evidenced by the award passed by the Industrial Tribunal, Nagpur in Reference (IT) No. 5/91 and the said Award reads as under :--- "..... Before the case came up for final hearing, the parties arrived at an amicable settlement of the dispute. They have made an application for passing an Award in terms of the Settlement which is filed on record. I am satisfied that the terms of the settlement are quite fair and reasonable. I, therefore, make an award in terms of settlement marked Annexure-A which shall form part of the award". 8. The aforesaid Award came to be passed on the basis of the settlement between the employer and the various Unions. The terms incorporated in the Settlement (Annexure-A) read as under :--- "1. Parties agree that in view of this settlement no dispute survives between the parties regarding closure of the business of party No. 1 at Tumsar, Kardha, Lakhani and Paraswada with effect from 14-10-1979 and at Nagpur and Kamptee with effect from 15-9-1980. 2. That, the management shall pay each of the Bidi Roller a sum of Rs. 350/- only towards his/her claim of notice, closure compensation, gratuity and other benefits like guarantee wages, monitory or non-monitory that may have accrued to him/her under the contract of employment. This amount will be paid at the earlier in reasonable instalments but not later than Diwali 1986. 3. 350/- only towards his/her claim of notice, closure compensation, gratuity and other benefits like guarantee wages, monitory or non-monitory that may have accrued to him/her under the contract of employment. This amount will be paid at the earlier in reasonable instalments but not later than Diwali 1986. 3. That, the employee employed at the aforementioned places shall cause to be employees on and from the respective date of closure of the business at the said places and they do not claim any employment nor have any right to the employment from the management or have any right to the employment from management, but if and when the management will commence working in closure in and around these places, the past bidi rollers and other employees will be given first preference in employment. 4. The decision Award (IT) No. 1/1980 dated 8-12-1983 shall not be challenged by any Union in any proceeding whatsoever. The payment under this Settlement shall be made after all the proceedings pending before various authorities and/or courts, arising out of closure of the aforesaid establishments are withdrawn". On perusal of the indenture of settlement (Annexure-A) it is apparent that the employer has closed its business at Paraswada, Kardha, Lakhani and Tumsar with effect from 14-10-1979 and business at Kamptee and Nagpur from 15-9-1980 and the Appellate Authority has also recorded finding that the industry at Bhandara has been closed. However, according to the Appellate Authority, since some of the staff was transferred to its other branches, such closure would not affect the right of employee and also because he was not party to those proceedings nor was paid according to the said settlement. 9. Once it is held that the dismissal of the employee was bad in law and untenable, the employee becomes entitled to reinstatement as a matter of course unless the exceptional grounds are made out for non-grant of such relief. Similarly, once the dismissal is held bad in law, till the employee is reinstated, he ordinarily becomes entitled to back wages unless he has been gainfully employed or by his conduct, has disentitled himself to the award of the whole of back wages or part of it. The Appellate Authority rightly concluded that the dismissal of the employee was bad in law and non-est and in my opinion, there is no infirmity in that finding. The Appellate Authority rightly concluded that the dismissal of the employee was bad in law and non-est and in my opinion, there is no infirmity in that finding. The question is, in view of the fact that the employers factory at Bhandara has been closed and that there was no evidence led by the parties to show that the employee was gainfully employed during the intervening period, what relief should be granted to the employee. The question is, whether the matter needs to be remanded back to the Appellate Authority for holding enquiry whether employee was gainfully employed during that period or on the basis of material placed on record, the question of consequential relief of reinstatement and back wages may be gone into. 10. It would be seen that before the Appellate Authority, the employee expressed his desire to have the matter settled amicably and his condition of settlement was that if the employer pays him all legal dues i.e. notice pay, retrenchment compensation, gratuity, back-wages and revised pay-scale declared by the State Government from time to time subject to 22 years of length of service, he was agreeable for mutual settlement i.e. on such payment he would not press for reinstatement. On the other hand, the employer was ready to pay the legal dues comprising of notice pay, retrenchment @ Rs. 390/- per month (revised wages) in lieu of mutual settlement. The employees demand for back wages from the date of termination till December, 1988 i.e. for about 12 years, was not agreeable to the employer. Since the dismissal of the employee is hanging fire for the last 20 years inasmuch as by the order passed in the year 1976, the employee has been dismissed from service and the matter has been already remanded by this Court once, it would be adding agony for the employee in case the matter is sent back to the Appellate Authority for deciding the question of back wages and reinstatement when the dismissal order has been held to be illegal and unsustainable. The offer made by the employee before the Appellate Authority appears to be reasonable inasmuch as he insisted for payment of backwages from the date of termination till December, 1988. The offer made by the employee before the Appellate Authority appears to be reasonable inasmuch as he insisted for payment of backwages from the date of termination till December, 1988. That meant that he was not pressing for reinstatement and he was satisfied with the award of back wages upto December, 1988 along with other allowances permissible to him, looking to the length of service which he had completed with the employer. 11. As regards yet another contention raised at this stage by the learned Counsel for the employer that employer had lost confidence in the employee, suffice it to say that no such argument was advanced by the employer before the Appellate Authority and that was the reason that the Appellate Authority had not adverted to this aspect of the matter. Merely because certain pleas have been set in the written statement, it does not mean that the employer had pressed all the pleas set out in the written statement. If the point which has been set out in the written statement has not been pressed, specifically in arguments in appeal, it naturally means that the employer has waived all those pleas which were, though taken in the written statement, but not pressed during the course of arguments in appeal. Therefore, there is no merit in the contention of the learned Counsel for the employer that the employer had lost its confidence in the employee. 12. As a consequence of the aforesaid discussion, writ petition deserves to be partly allowed and the order passed by the Appellate Authority on 11-1-1990 deserves to be modified and is accordingly modified. The order passed by the Appellate Authority holding that the dismissal of the employee by the order dated 29-9-1976 was bad in law and the enquiry conducted by the employer was not fair, is maintained and the dismissal order dated 29-9-1976 is held to have been rightly set aside by the Appellate Authority. Consequent to the setting aside of the dismissal order, instead of reinstatement and payment of back-wages till date, it is directed that the employee shall be entitled to back-wages from 29-9-1976 till December, 1988 along with all legal dues, viz., retrenchment compensation and gratuity to be computed upto December, 1988. Rule is made absolute in the aforesaid terms. Costs easy. Petition partly allowed. *****