JUDGMENT - KHARCHE S.T., J.:-By invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the order dated 21-9-1990 passed by the Member, Industrial Court, Nagpur in Revision (ULPA) No. 18/1986 whereby the revision is allowed and directed the reinstatement of the petitioner but without payment of back wages is challenged in this petition. 2. Relevant facts are as under: The petitioner was appointed as conductor in M.S.R.T.C., the respondent-Corporation some time in the year 1971. On 19-1-1984 he was assigned the duty on the S.T. Bus No. 9631 which was scheduled from Jumda to Washim. The said S.T. Bus was checked by the Inspecting Staff near Jamrul Cement Factory. It was found that in all 45 passengers were travelling in the bus out of which 7 passengers were not having tickets. It was also found that 4 passengers boarded at Jumda and 3 passengers at Khandala and they were going to Washim. The petitioner-conductor was served with charge-sheet on 28-2-1984 on the allegations that he had recovered the amount from the passengers and misappropriated the same. A regular departmental enquiry was conducted and consequently he was dismissed from service w.e.f. 5-9-1984. The petitioner filed complaint under section 20 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (short the M.R.T.U. P.U.L.P. Act) in the Labour Court vide Complaint (ULP) No. 251/1984 mainly on the ground that he was not given opportunity to defend his case and therefore, the orders were not sustainable. The Labour Court by the order dated 8-1-1986, on considering the evidence adduced by the parties dismissed the complaint. The petitioner carried revision before the Industrial Court which came to be allowed by the order dated 21-9-1990 directing reinstatement of the petitioner but without back wages. This order is under challenge in this petition. 3. Mr. Khan, the learned Counsel for the petitioner contended that the Industrial Court though directed the reinstatement of the petitioner, has committed an error in not granting back wages. He contended that the approach of the Industrial Court to the matter was wrong by holding that since the revision is allowed on the technical ground and keeping in view the fact that instead of remanding the matter, it is to be disposed of and it would be appropriate not to award back wages. Mr. He contended that the approach of the Industrial Court to the matter was wrong by holding that since the revision is allowed on the technical ground and keeping in view the fact that instead of remanding the matter, it is to be disposed of and it would be appropriate not to award back wages. Mr. Khan contended that ordinarily a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. In support of these submissions he relied on the decision of the Supreme Court in the case of (M/s. Hindustan Tin Works Pvt. Ltd. v. Its Employers)1, 1978 Lab.I.C. 1667. 4. Mr. Khan further contended that the respondent-Corporation did not adduce any evidence to show that the petitioner-employee was gainfully employed during the period of termination and the Corporation also did not challenge the order passed by the Industrial Court directing reinstatement by filling any review application. He contended that in such circumstances though the petitioner has been reinstated in the service, he was without job for number of years and since he was not gainfully employed during the period of termination till reinstatement, he was entitled to the back wages. In support of these submissions he relied on the decision of the Supreme Court in the case of (Dipti Prakash Banerjee v. Satyendra Nath Bose, National Centre for Basis Sciences, Calcutta and others)2, 1999 S.C.C. (L S)596. 5. Mr. Khan further contended that once it is held by the Industrial Court that termination was not legal and proper and though the revision is allowed on a technical point, the Industrial Court should have taken into consideration that there was no evidence to show that the petitioner-employee was gainfully employed elsewhere. He contended that there were no compelling and good grounds to reject the claim of the petitioner-employee for back wages and therefore, the impugned order passe by the Industrial Court to that extent is not sustainable in law. 6. Mr. He contended that there were no compelling and good grounds to reject the claim of the petitioner-employee for back wages and therefore, the impugned order passe by the Industrial Court to that extent is not sustainable in law. 6. Mr. Wankhede, the learned Counsel for the respondent-Corporation contended that 7 passengers were found travelling without tickets on 19-1-1984 by the checking staff and the petitioner-employee though collected the fare from those 7 passengers, did not issue tickets to them and consequently the charge-sheet was served on him on 28-1-1984 on the allegations that he has committed a grave misconduct as well as the misappropriation of the amount of the tickets of the passengers. He contended that the Labour Court has considered the evidence adduced before it and held that the departmental enquiry conducted against the petitioner employee was just, legal and fair and therefore, dismissed the said complaint on 8-1-1986. He contended that the Industrial Court allowed the revision on technical ground that no opportunity of hearing was afforded to the petitioner-employee and therefore, it was good case for remand. He contended that though remand of the matter was found necessary by the Industrial Court, instead of remanding the matter disposed of the same not on merits, but on technical ground and directed reinstatement. Mr. Wankhede further contended that though the Corporation did not challenge the order passed in revision by the Industrial Court, it did not follow that the petitioner-employee is entitled to claim back wages. He contended that the Industrial Court was not justified in not remanding the matter and therefore, the matter deserves to be remanded to the Labour Court for just decision of the case. 7. I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. It is not disputed that the petitioner was assigned duty on the S.T. Bus which was schedules from Jumda to Washim. It is also not in dispute that on that day i.e. on 19-1-1984 the S.T. Bus was checked by the Vigilance Squad of the Corporation and the checking staff found that in all 45 passengers were travelling in the but out of which 7 passengers were travelling without tickets out of whom 4 had boarded at Jumda and 3 had boarded at Khandala for going to Washim. It is also not is dispute that the charge-sheet was served and regular departmental enquiry was held. Consequently the petitioner-employee was dismissed from service on the ground of misconduct vide order dated 5-9-1984. This order of dismissal was challenged before the Labour Court. 8. The Labour Court had considered the evidence adduced before it and held that conduction of the departmental enquiry was just, fair and legal and therefore, the Labour Court dismissed the complaint and held that the misconduct and misappropriation on the part of the petitioner-employee was proved. The Industrial Court allowed the revisions on the technical ground and observed in para No. 6 of the order as under: ".......... Since proper opportunity was not given it is a good case for remand. However , the matter is with respect to the misconduct alleged to have been taken place on 19-1-84 about more than six years have passed and under these circumstances to send the papers for retrial would unnecessarily saddle the complainant with further tension. Keeping in view the nature of the proceedings and the default I find that it would not serve any purpose to remand the case for retrial. I, therefore, find that the order of dismissal passed by the competent authority is liable to be set aside and the complainant is entitled to be reinstated. It is contended that the complainant is out of employment since long. However, since the matter is being disposed of on technical ground and keeping in view the fact that instead of remanding the matter is disposed of at this end I find that the complainant should be denied back wages." 9. In M/s. Hindustan Tin Works v. Its Employees, 1978 Lab.I.C. 1667 the Honble Supreme Court held in para 9 that; "ordinarily, a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. When the termination of services was found to be neither proper not justified, it would not only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. That is the normal rule. When the termination of services was found to be neither proper not justified, it would not only show that the workmen were always willing to serve but if they rendered services they would legitimately be entitled to the wage for the same. If the workmen were always ready to work but they were kept away therefrom on account of invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them". 10. In another decision in the case of Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta others, 1999 S.C.C. (L S) 596 in para No. 46 held as under: "Learned Senior Counsel for the respondent submitted on the basis of State of Haryana v. Jagdish Chander, that merely because an order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and back wages. Reliance in Jagdish Chander case was placed upon Managing Director, ECIL v. B. Karunakar. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander case following Karunakar case. But it has to be noticed that in Karunakar case there was a regular departmental enquiry but the enquiry report was not given to the officer. This Court directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or back wages need be passed at that stage. But in cases like the present where no departmental enquiry whatsoever was held, Kuranakar case in our view, cannot be an authority. As to back wages, on facts, the position in the present case it that there is no material to say that the appellant has been gainfully employed. The appellant is, therefore, entitled to reinstatement and back wages till the date of reinstatement from the date of termination and to continuity of service. Point 4 is decided accordingly." 11. The last but not least authority on which the reliance is placed is the decision of Division Bench of this Court in the case of (Sharad Hari Deshpande v. Indian Security Press and others)3, 1998(I) L.L.J. 297. Point 4 is decided accordingly." 11. The last but not least authority on which the reliance is placed is the decision of Division Bench of this Court in the case of (Sharad Hari Deshpande v. Indian Security Press and others)3, 1998(I) L.L.J. 297. In that case the question was whether the Tribunal after holding that the retrenchment was invalid, could nevertheless deny the relief of reinstatement on the ground that the workman had succeeded only on a technical point and that he had been gainfully employed elsewhere. It was held that it is well settled that whenever the retrenchment is held to be illegal, a workman is entitled to the relief or reinstatement with full back wages and continuity of service as in law he continues to be in service which never came to an end, unless there are compelling and good reasons to reject such a relief in which case the alternative relief of payment of compensation can be given. In that case, reasons given by the Tribunal were no reasons at all and they can certainly be not called compelling and good reasons. Once the Tribunal held the services were illegally terminated and the termination amounted to retrenchment which was also illegal as the procedure envisaged under section 25-F was not followed, it should have granted the relief of reinstatement with full back wages and continuity of service. 12. The law position that emerges from the decision of the Supreme Court as well as this Court is that ordinarily, a workman whose service has been illegally terminated either by dismissal, discharge or retrenchment will be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness and that is the normal rule. In order to determine as to whether a employee will be entitled to the back wages depends on the facts and circumstances of each case. In order to determine as to whether a employee will be entitled to the back wages depends on the facts and circumstances of each case. In this context this Court may usefully refer the decision of the Honble Supreme Court in the case of (M.P. State Electricity Board v. Jarina Bee)4, 2003(6) S.C.C. 141 wherein the Supreme Court considered the case of (P.G.I. of Education and Research v. Raj Kumar)5, 2001(2) S.C.C. 54 and observed in para 7 as under: "In P.G.I. of Medical Education and Research v. Raj Kumar this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus; "9. The Labour Court being the final Court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect." Again at para 12, this Court observed: "12. Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no strait jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety." 13. In the present case there is no dispute that the Labour Court has considered the evidence adduced before it and recorded findings that the departmental enquiry held against the petitioner employee was just, fair and legal and consequently dismissed the complaint on considering that the misconduct on the part of the employee in the nature of the misappropriation has been proved. The Industrial Court allowed the revision only on the technical ground and did not advert to the merits of the matter while disposing of the revision. It has been specifically observed that since the proper opportunity was not afforded to the petitioner, it was a good case for remand. The Industrial Court allowed the revision only on the technical ground and did not advert to the merits of the matter while disposing of the revision. It has been specifically observed that since the proper opportunity was not afforded to the petitioner, it was a good case for remand. When this finding has been recorded by the Industrial Court, the matter could have been remanded to the Labour Court for retrial. But, the Industrial Court again observed that keeping in view the nature of the proceedings and the default, he find that it would not serve any purpose by remanding the case for retrial especially after the lapse of period of six years. Be that as it may, the Industrial Court has assigned the reason in the order as to why it was not necessary to award back wages. When the reinstatement was directed keeping in view that the matter though deserves to be remanded, it was allowed on technical ground. 14. Under such circumstances the contentions of the petitioner-employee that no proper opportunity of hearing was given and since the matter was in relation to the misconduct alleged to have been committed and since the period of six years has been lapsed, he is entitle to back wages, cannot be accepted because the Industrial Court used the discretion in judicious manner while disposing of the matter and observed that since the matter is being disposed of on technical ground and keeping in view the fact that instead of remanding the matter is disposed of at his end, he found that the complainant should be denied back wages. There is no reason for this Court to disturb the findings of the Industrial Court in the peculiar facts and circumstances. 15. The discretion used by the Industrial Court, cannot be said to be perverse in the given facts and circumstances and thus the decisions of the Supreme Court on which reliance is placed by Mr. Khan, the learned Counsel for the petitioner-employee are not applicable in the present case and this Court is of the considered opinion that though it does not appear to be in the evidence to show that the appellant-employee was gainfully employed, it did not follow that he is entitled to claim the back wages in the aforesaid circumstances. No case for interference is made out. There is no error or illegality in the impugned order. No case for interference is made out. There is no error or illegality in the impugned order. In the result, the petition is devoid of any merit and is dismissed. Rule discharged. Petition dismissed. -----