D. K. SETH, J. Writ petition No. 11516 of 1992 was filed challenging the award dated llth November, 1991 passed by the learned Industrial Tribunal (I), U. P. , Allahabad in adjudication case No. 100 of 1988 by the delinquent workmen. In the said award the punishment or removal was reduced to that of stoppage of two incre ments. Mr. A. P. N. Giri, learned Counsel for the petitioner has challenged that part of the award by which the charges No. 3 and 4 were found to have been proved against the delinquent petitioner and by. which the lesser punishment of stoppage of increments was awarded. He has con fined his attack only to that part of the award. 2. According to him the finding that the charges No. 3 and 4 were proved, is wholly perverse and based on no material and is contrary to clause (xiii), paragraph 21 of the Instructions Laying Down the Duties, Functions and Responsibilities of the Management, Operating and other Personnel at the Level of Depots and Sub-Depots etc. in the U. P. Government Road ways. According to him, on the basis of the materials, the said charges could not have been proved particularly in view of the provisions contained in clause (xiii) of paragraph 21 aforesaid. Therefore, the award should be modified to that extent and the petitioner should be allowed reinstatement with all backwages with all. service benefits. 3. Writ Petition No. 17612 of 1992 has been filed by the U. P. State Road Transport Corporation challenging the same award on the ground that after having found that charges Nos. 3 and 4 proved, there was no justification for reducing the punishment since by reason of the said finding of fact, the petitioners was found to have been carrying pas sengers without ticket, which amounts to a loss of confidence in the delinquent by the employer. When loss of confidence is there, the court cannot compel the employer to retain such employee on whom the employer had lost its con fidence. The said award has also been at tacked on the ground that the charges No. 1 and 2 were discharged on the ground that those were not proved beyond all reasonable doubts. When loss of confidence is there, the court cannot compel the employer to retain such employee on whom the employer had lost its con fidence. The said award has also been at tacked on the ground that the charges No. 1 and 2 were discharged on the ground that those were not proved beyond all reasonable doubts. Since the provisions of Evidence Act are not applicable in respect of a domestic enquiry and that in respect of proceedings before the Tribunal and the proceedings not being criminal proceed ings as such the ground that the charges were not proved beyond reasonable doubt, cannot be a ground to disbelieve the proof of the charges. According to Mr. Samir Sharma, counsel for the U. P. State Road Transport Corporation, there was suffi cient material to prove the guilt of the delinquent. He also relied on some decisions, to which reference shall be made at appropriate stage. He also con tended that under Section 11-A of the In dustrial Disputes Act, read with Section 6 (2-A) of the U. P. Industrial Disputes Act, 1947, the Tribunal may have jurisdiction to alter the punishment but that does not empower the Tribunal to alter the punish ment arbitrarily without having regard to the facts and circumstances of the case. According to him, the punishment was awarded some times on 9th January, 1976, whereas the dispute was sought to be raised by the delinquent on 29th Septem ber, 1986 and, ultimately, the reference was made on 18th July, 1988. Therefore, the petitioner himself had delayed the process for l0 years. This should have been taken into consideration as one of the ground on which the Tribunal should have refused to exercise its jurisdiction under Section 11-A. Alternatively, he argues that even if it had exercised the said jurisdic tion, it should not have granted back wages for the entire period during which the petitioner himself was liable for delay. He also contends that as and when the con fidence is lost, it is not open to the Tribunal to alter the punishment and compel the employer to retain him. He further con tends that the proceedings can be con cluded through demestic enquiry on the basis of the statements of the checking staff. He also contends that as and when the con fidence is lost, it is not open to the Tribunal to alter the punishment and compel the employer to retain him. He further con tends that the proceedings can be con cluded through demestic enquiry on the basis of the statements of the checking staff. Even if the passengers are not ex amined since the passengers are not avail able it would not be a lacune, since it is not criminal proceedings following the provisions of the Evidence Act. He also relies on clause (xiii), paragraph 21 of the said Instructions and contends that the enquiry was conducted following said In structions. Therefore, the writ petition should be dismissed. 4. Writ Petition No. 24563 of 1993 has been moved by the delinquent petitioner on the ground that despite an order passed by the Court, the petitioner was not reinstated and was not paid his wages. 5. Writ Petition No. 31151 of 1993 has been filed by the U. P. State Road Transport Corporation challenging the order passed by the Tribunal seeking to recover the wages subsequent to the order of the Tribunal reinstating the petitioner. 6. Writ Petition No. 1997 of 1994 was filed by the delinquent workmen for the purpose of issuing a direction for provid ing the Attendance Register on which the petitioner could sign to mark his atten dance. 7. All the above five petitions thus arise. Since the matters are inter-con nected, therefore, all these writ petitions are taken up together by consent of the parties. 8. I have heard both Mr. A. P. N. Giri, learned Counsel for the delinquent workman and Mr. Samir Sharma, counsel for U. P. State Road Transport Corpora tion at length. 9. For the sake of convenience, writ petition No. 11516 of 1992 filed. by the delinquent workmen and writ petition No. 17612 of 1991 filed by the U. P. State Road Transport Corporation challenging the self- same award, dated llth November, 1991 is being taken up first. Mr. A. P. N. Giri has contended that the writ petition. No. 17612 of 1992 was filed some times in July, 1992, while the award was passed in November, 1991, namely, long after 90 days and, therefore, the petition should have been accompanied by an application for condonation of delay. On this ground, according to him, the writ petition should be dismissed. No. 17612 of 1992 was filed some times in July, 1992, while the award was passed in November, 1991, namely, long after 90 days and, therefore, the petition should have been accompanied by an application for condonation of delay. On this ground, according to him, the writ petition should be dismissed. This point has been ad vanced as a preliminary objection by Mr. A. P. N. Giri. 10. So far as writ jurisdiction is con cerned, no period of limitation has been prescribed in the Limitation Act. There is nothing to indicate that a writ petition has to be moved within 90 days and that if it is not so moved, it should accompany an application for condonation of delay. Since the provisions of the Limitation Act do not apply to the proceedings under Article 226 of the Constitution of India, therefore, there cannot be any question of imposing of period of limitation of 90 days in respect of any such proceedings. But that does not mean that a writ petition can be filed at any point of time. One of the ground on which the High Court may refuse to invoke jurisdiction, is delay and laches or absence of deligence on the part of the petitioner. In case the delay is ex plained and the court is of the opinion that there was no lack of deligence or that there was no laches, in that event it is open to the court to exercise the writ jurisdiction in a particular case. Mr. Samir Sharma draws the attention of the court to paragraph 12 of the writ petition, where the delay has since been explained. Having regard to the statements made therein, it seems that there was sufficient reason for not moving the writ petition earlier. Still then the delay of 8 months is not so unreasonable, which may require even explanation. Therefore, the contention of Mr. A. P. N. Giri does not appear to be so sound so as to persuade me to agree with the conten tion on this ground. Therefore, the preliminary objection raised by him, stands overruled. 11. Now let us examined the point raised by Mr. Giri in support of his conten tion with regard to the award. Mr. Giri has contended that the findings with regard to charges No. 3 and 4 are perverse. Therefore, the preliminary objection raised by him, stands overruled. 11. Now let us examined the point raised by Mr. Giri in support of his conten tion with regard to the award. Mr. Giri has contended that the findings with regard to charges No. 3 and 4 are perverse. He has drawn my attention to the award itself and the reply given by the petitioner, par ticularly to page 3 of Annexure II relating to the incident dated 18th May, 1974. Rely ing on the said statement, he contends that the findings recorded in paragraphs 12 and 13 of the award are wholly perverse. 12. It appears from the said reply at page 3 Annexure II that the petitioner has raised certain questions with regard to the admissibility of the evidence and the facts disclosed in the charges and had ques tioned the probability of the allegations. Thus, it seems that there are certain materials on the basis whereof the question may be decided in one or the other manner. It also seems that the delinquent did not deny the incident at all and the. facts that certain tickets were found un-punched and that certain tickets were not handed over to the passengers were ad mitted. These materials were considered in the enquiry and the enquiry officer had found those charges to have been proved. In paragraph 9 of the award, the Tribunal had come to the conclusion that the en quiry was found to be proper and fair and there was nothing to indicate that the find ing of the enquiry officer was perverse and that the findings and conclusions were drawn from the evidence on record. After having so found, the Tribunal had also discussed the materials in paragraph 12 with regard to the incident of 27th April, 1974 and 18th May, 1974 relating to the basis of charges No. 3 and 4 respectively and had considered the same in detail separately in two parts in paragraph 12. Thus, it appears that the said finding can not be said to be based on no materials. There appears to be some material. Thus, it appears that the said finding can not be said to be based on no materials. There appears to be some material. It is also noted in the said order that the con ductor has admitted in his statement that 7 tickets were found unpunched with 7 pas sengers and those were collected by the checking authorities and that some of the torn tickets had reached the passengers by the time the checking was made. But due to haste. These tickets remained un punched. Thus, there being some material, it was open to the Tribunal as well as to the disciplinary authority to come to a con clusion on one or the other way. Even if on the basis of such material, this court is of opinion different from that of the Tribunal or the enquiry officer, still then this court cannot substitute its opinion unless it is of the view that such opinion is based on no material or is perverse on the basis of the materials on record. In the present case, no perversity as such could be found out as discussed above and that the decision having been based on some material, this Court cannot interfere with such a finding, which is a concluded finding of fact. Sitting in writ jurisdiction, this Court is not em powered to go into concluded question of fact unless it is shown to be perverse or based on no material. As discussed above, there being no perversity, this Court is of the view that it cannot interfere with such finding. Then again the materials disclosed also do not persuade this Court to come to a finding different than that of the Tribunal. Therefore, so far as the finding with regard to the charges No. 3 and 4 are concerned, I do not find any reason to differ. 13. Now let us examine the conten tion of Mr. Samir Sharma with regard to the charges No. 1 and 2, which according to him, were duly proved and could not have been discarded by the Tribunal only on the ground that it has not been proved beyond all reasonable doubts. He has relied on a decision in the case of S. K. Awasthy v. M. R. Bhope, Presiding Officer, 1st Labour Court and others, 1994 (68) I FLR 841. He has relied on a decision in the case of S. K. Awasthy v. M. R. Bhope, Presiding Officer, 1st Labour Court and others, 1994 (68) I FLR 841. In the said case, the learned Single Judge of the Bombay High Court had held as follows: "it is well settled that the Indian Evidence Act is not applicable to the evidence recorded before the Labour Court or Industrial Tribunal and even hearsay evidence is admissible. It is also well settled that the standards of a criminal trial cannot be applied in a departmental en quiry or in an enquiry before the Labour Court or Industrial Court even if the charge is of criminal nature. The standard of proof required to be applied is of preponderance of prob abilities. The contents of complaint Exhibits C-12, C-13 and C- 14 were clearly proved even if the said documents were required to be formally proved. No formal proof is required to be ad duced in respect of documents produced before the Labour Court or Industrial Court as in a civil or criminal Court. Probative value of the docu ment may differ depending upon totality of evidence led. Thus, documentary evidence let at the enquiry cannot be ignored. Even hearsay evidence led before the Labour Court or In dustrial Court cannot be ignored. In this case, the Labour Court mis-directed himself in law by ignoring documents Exhibits C-12 to C-14 and by applying standard of evidence required in a criminal case. " 14. This proposition is sought to be supported by Mr. Samir Sharma by citing a decision in the case of State of Haryana v. Rattan Singh, AIR 1977 SC1512, wherein the Apex Court had held as follows : "it is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such. material and should be glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, al though we have been taken through case law and other authorities by counsel on both sides. material and should be glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, al though we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity exclusion of extraneous materials or considera tions and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of inde pendence of judgment vitiate the conclusion reached, such finding, even through of a demes-tic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding, could be. recorded. " 15. There is no doubt and dispute with regard to the above proposition. . Therefore strict proof as is required in a criminal proceeding with regard to the proof of guilt beyond all reasonable doubts cannot be attracted in respect of a domestic enquiry as well as in respect of proceedings before the Industrial Tribunal. The question that has to be gone into is as to whether the evidence produced on the basis of preponderance can be reasonably inferred towards con necting the proof of guilt and on the basis of its nexus and credibility. By carefully evaluating such material with a judicial approach that it should be subject to ex clusion of extraneous materials or con sideration while observing rules of natural justice and fair play excluding perversity or arbitrariness, bias or surrender of inde pendent judgment. 16. Now so far as the question as to the examination of the passengers is con -. cerned, as contended by Mr. Giri, may be examined. Clause (xiii) of paragraph 21 of the Instructions lays down as follows: "while reporting cases of irregularities and corruption, Traffic Inspector/assistant Traf fic Inspector should invariably mention full name of Driver and Conductor with their depot headquarters. In case of without Ticket Pas sengers, the statement of such passengers should be obtained anu omitted with full ad dresses alongwith checking report. If that may not be possible on account of a passengers refusal to do so, then at least verbal version should be mentioned with their addresses. In case of without Ticket Pas sengers, the statement of such passengers should be obtained anu omitted with full ad dresses alongwith checking report. If that may not be possible on account of a passengers refusal to do so, then at least verbal version should be mentioned with their addresses. They should obtain all evidence, oral or documentary, available and mention the same in checking reports, together with the version of the bus crew, given at spot on enquiry. " 17. A perusal of the said clause shows that statement of passengers should be obtained and submitted with full addres ses alongwith the checking report. If it is not possible, in that event, verbal version should be mentioned with the addresses of the passengers. This, question has been refuted by Mr. Sharma to the extent that in this case though the passengers state ments were not available but there were verbal versions of the checking staff. 18. But then clause (xiii) of the In structions is only an instruction and a guideline as to how the evidence is to be obtained. Any infringement thereof, can not vitiate the finding unless it is shown that the finding arrived at is perverse or based at no material. On the other hand, the decision in the case of Sate of Haryana v. Rattan Singh (supra) has dealt with similar proposition. The Apex Court while considering such proposition, has observed that the court below had mis directed itself in insisting that the pas sengers, who had come in and gone out should be chased and brought before the Tribunal before a valid finding could be recorded and that it was not a rigid re quirement. The simple point is as to whether there was some evidence or was there no evidence and in the sense of tech nical rules governing regular court proceedings to a fair commonsense of word of understanding with wordly wis dom. It was further held in the said decision with regard to the departmental instruction with the following observa tions : "reliance was placed, as earlier stated, on the non-compliance with the departmental in struction that statements of passengers should be recorded by Inspectors. These are instruc tions of prudence, not rules that bind or vitiate in the violation. It was further held in the said decision with regard to the departmental instruction with the following observa tions : "reliance was placed, as earlier stated, on the non-compliance with the departmental in struction that statements of passengers should be recorded by Inspectors. These are instruc tions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstan ces being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of co-conductors testimony is a matter not for the court but for the administrative tribunal. In con clusion, we do not think the courts below were right in over-turning the finding of the demestic tribunal. " 19. Mr. Sharma had relied on the decision in the case of Janki Singh v. Col lector of Central Excise and others, AIR 1976 Patna 12, to support the same con tention. He relied on paragraph 6 of the said judgment, which had held almost in similar tune. The question having been covered by the ratio decidendi in the case of State of Haryana (supra) by the Apex Court, it is not necessary to discuss the same any further. 20. Similar ratio was laid down in the case of Leonard Biermans Workers Union v. Second Industrial Tribunal, West Bengal and others, AIR 1962 Cal 375 , in para graph 5 of the said decision. On the same analogy on which the Patna decision has. not been discussed, the Calcutta decision does not require to be discussed since there was ad idem with the ratio laid down by the Apex Court. 21. Thus, the question with regard to the examination of the passengers is covered by the ratio decidendi in the cases cited above. In the present case, there is nothing to indicate that the case can be hit by the principles laid down in the said ratio on the ground that there was no material or no evidence at all. Now, on the basis of the materials available, the enquiry officer having come to a particular finding, it could not have been altered. In the present case, there is nothing to indicate that the case can be hit by the principles laid down in the said ratio on the ground that there was no material or no evidence at all. Now, on the basis of the materials available, the enquiry officer having come to a particular finding, it could not have been altered. The disagree ment of the Tribunal with regard to char ges No. 1 and 2, therefore, also cannot be sustained. 22. Now let us examine the question of reduction of the punishment on the facts and circumstances of the case. Mr. Samir Sharma has relied on the decision in the case of Christian Medical College Hospital Employees Union and another v. Christian Medical College, Vellore Associa tion and others, 1987 (4) SCC 691 . He relied on paragraph 14 of the said judg ment. In the said paragraph, it was held as follows: "in Indian & Steel Co. Ltd. v. Workmen, this Court has observed that the powers of an Indus tribunal Tribunal to interfere in cases of dismissal of a workman by the management are not unlimited and the Tribunal does not act as a court of appeal and substitute its own judgment for that of the management. It will interfere (a) where there is want of good faith ; (b) when there is victimisation or unfair labour practice ; (c) when the management has been guilty of the basic error or violation of the principles of natural justice ; and (d) when on the materials before the court, the finding is completely base less or perverse. It cannot, therefore, be said that the Industrial Tribunal or the Labour Court will function arbitrarily and interfere with every decision of the management as regards dismissal or discharge of a workmen arrived at in a dis ciplinary enquiry. The power exercisable by the Industrial Tribunal or the labour court cannot, therefore, be equated with the power of veto conferred on the Vice-Chancellor under clause (b) of either of the two sub-sections of Section 51-A of the Gujarat University Act, 1949. As we have already said earlier the decision of the Industrial Tribunal or the Labour Court is open to judicial review by the High Court and by this Court on appeal. As we have already said earlier the decision of the Industrial Tribunal or the Labour Court is open to judicial review by the High Court and by this Court on appeal. Section 11-A which has been introduced since then into the Act which confers the power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of the order of discharge or dismissal passed by the management again cannot be con sidered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11-A of the Act has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a management under Sec tion 11-A of the Act only when it is satisfied that the punishment imposed by the management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or of the Labour Court is again, as already said, subject to judicial review by the High Court and this Court. " In the said decision, the Apex Court had held that Section 11-A which was in troduced in the Act conferring power on the Industrial Tribunal or the Labour Court to substitute a lesser punishment in lieu of an order of discharge or dismissal passed by the management, did not confer any arbitrary power on the Tribunal or the Court. The said power is to be exercised judicially and the Labour Court is ex pected to interfere with the decision of the management under the said section only when it is satisfied that the punishment imposed by the management is highly dis proportionate of the degree of guilt of the workman concerned. The Tribunal or the Labour Court has to give reasons for its decisions and such decisions are also sub ject to judicial review by the High Court and the Apex Court. 23. Thus, it appears that under Sec tion 11-A, the Tribunal has jurisdiction or discretion to consider the question of quantum of punishment on the ground that it is disproportionate. 24. Mr. Sharma has also relied on a decision in the case ofganga Ram v. Pepsu Road Transport Corporation and another, 19961flr Vol. 23. Thus, it appears that under Sec tion 11-A, the Tribunal has jurisdiction or discretion to consider the question of quantum of punishment on the ground that it is disproportionate. 24. Mr. Sharma has also relied on a decision in the case ofganga Ram v. Pepsu Road Transport Corporation and another, 19961flr Vol. 172:409, in support of his contention that it is immaterial as to what was the amount involved in the incident but the gravity depends upon the question of evidence as has been held in the said decision by the learned Single Judge of the Punjab & Haryana High Court. If it amounts to embezzlement, in that event the punishment of dismissal is justified. He also relied on the decision in the case of Bank of India v. D. Padmanabhudu and another, 1994 (69) I FLR 326, on the same proposition that repayment of the amount or the insignificance of the amount cannot be a question for the purpose of deciding the gravity of the charges proved in order to warrant punishment. 25. The propositions as cited above are well established propositions and there cannot be any second opinion with regard to the propositions laid down therein. 26. Having regard to the ratio decidendi in the said decisions, it appears that the Tribunal has power to consider the quantum of punishment if it is one of discharge or dismissal and reduce the same in exercise of its jurisdiction under S. 11-A read with S. 6 (2-A) of the Industrial Disputes Act and U. P. Industrial Disputes Act respectively. This power having con ferred a judicial discretion, it has to be exercised judicially, giving reasons while exercising such jurisdiction. It cannot be exercised arbitrarily. Admittedly, the quantum of amount embezzled or the repayment thereof cannot be a ground for such consideration. The consideration that has to be gone into is the basis of the gravity of the charges proved. The ques tion of loss of confidence is also one of the reason on which the gravity maybe tested. 27. Thus, it appears from a perusal of the award that the learned Tribunal had recorded its reasons as to why the charges were found to be of such gravity, which did not warrant an order of discharge, removal or dismissal and, therefore, it had on such reasons had directed reinstatement. I have also perused ie materials on record. 27. Thus, it appears from a perusal of the award that the learned Tribunal had recorded its reasons as to why the charges were found to be of such gravity, which did not warrant an order of discharge, removal or dismissal and, therefore, it had on such reasons had directed reinstatement. I have also perused ie materials on record. I have no reason to differ with the view taken by the Tribunal that the punishment was a little on the higher side and as such disproportionate. Therefore, I do not think that there is any reason to interfere with the award of the lesser punishment of stoppage of two increments by the Tribunal. There is no compelling cir cumstance to interfere with the same. But at the same time, it appears that the char ges against the petitioner were proved at least with regard to charges No. 3 and 4 coupled with the fact that the petitioner did not challenge the order of dismissal or removal till 29th September, 1986. This indicates absence of deligence on the part of the petitioner. The petitioner cannot be allowed to reap the benefit of the lack of his own deligence. Therefore, in my view, the petitioner cannot be entitled to back wages during which he was out of employ ment. Therefore, in my view, it would be justified if the award of the Tribunal is modified to the extent that the petitioner would be reinstated, without the back wages from the date of reinstatement, which should be the date on which the interim order was passed in this writ peti tion, namely, 9th April, 1992. The petitioner will not be entitled to any other benefit except his salary from the date on which the interim order was passed, name ly, 9th April, 1992, subject to the stop-page of two increments as directed in the award itself. The period in between shall be treated as leave without pay. 28. W. P. No. 11516 of 1992 and writ petition No. 17612 of 1992 are partly al lowed to the extent referred to above. 29. So far as the other writ petitions being No. 31151 of 1993 and 24563 of 1993 and 1197 of 1994 are concerned, they shall also stand disposed of in terms of the order passed above. 28. W. P. No. 11516 of 1992 and writ petition No. 17612 of 1992 are partly al lowed to the extent referred to above. 29. So far as the other writ petitions being No. 31151 of 1993 and 24563 of 1993 and 1197 of 1994 are concerned, they shall also stand disposed of in terms of the order passed above. The interim order granted in the respective writ petition shall stand merged in the order passed above. There will, however, be no order as to costs. 30. This order will not prevent the respondents to take into consideration while deciding the question of payment of wages since 9th April, 1992, the conduct of the petitioner in the matter of attending his duties on the basis of the allegations that after having joined the duties, he dis appeared and did not join his duties fur ther may be gone into after giving an op portunity to the delinquent to prove that he had been attending his duties, by the U. P. State Road Transport Corporation. However, the U. P. Stale Road Transport Corporation shall allow the delinquent to resume his duties immediately within 15 days from the order of this order and con tinue to pay his current salary as he would have been entitled provided, he had con tinued in service since 9th April, 1992 in terms of this order. However, the period during which the petitioner remained without pay shall be counted for the pur pose of retrial benefits. Order accordingly. .