Judgment ( 1 ) HEARD Smt. Wandile, learned counsel for the petitioner and Shri. Wankhede, learned counsel for the respondent. ( 2 ) BY this writ petition under articles 226 and 227 ot Constitution of India, the petitioner - employee has challenged the order dated 9-9-2003 passed by the Industrial court, Amravati, in Revision (ULP) No. 145 of 1998 dismissing his revision and affirming the judgment of the Labour Court dated 1-11-1988 in Complaint (ULP) No. 408 of 1987. It is here pointed out that said judgment of the labour Court is a common judgment in complaint (ULP) Case No. 407 of 1987 and 408 of 1987. However, this Court is concerned with only Complaint (ULP) No. 408 of 1987. ( 3 ) THE case of the petitioner in brief is that he joined the services of respondent as driver in 1980 and was all of a sudden terminated on 27-10-1987. He was a regular driver and by an order dated 26-10-1987 issued by the Regional Manager, Nagpur, he was terminated by invoking provisions of regulation No. 61 of Bombay State Transport employees Service Regulation. Accordingly, he was paid two months salary in lieu of notice and also offered retrenchment compensation under Section 25-F of Industrial Disputes Act, 1947, with other benefits like leave Wages etc. This termination was challenged by him by filing Complaint (ULP) under Section 28 read with Section 7 and item No. 1 of Schedule IV of the Maharashtra Recognition of Trade unions and Prevention of Unfair Labour practices Act, 1971 (hereinafter referred to as the Act), before Labour Court, Amravati The complaint was opposed by Respondent -employer to justify the action taken under regulation No 61 and ultimately the Labour court by its common judgment dated 1-11-1988 dismissed said complaint. The Labour court found that provisions of Regulation 61 were not ultra vires and therefore proceeded to examine whether the employer had correctly resorted to provisions of Regulation No. 61 in the facts and circumstances of the case. On the basis of evidence adduced before it, the labour Court held that the order of termination was legal and valid. This order was then challenged in Revision under Section 44 of the act before the Industnal Court, Amravati and the Industrial Court, Amravati, has by impugned order dated 9-9-1993 upheld the order of Labour Court. On the basis of evidence adduced before it, the labour Court held that the order of termination was legal and valid. This order was then challenged in Revision under Section 44 of the act before the Industnal Court, Amravati and the Industrial Court, Amravati, has by impugned order dated 9-9-1993 upheld the order of Labour Court. ( 4 ) THE learned counsel for the petitioner has invited attention of this Court to the judgment of this Court in the case of divisional Controller, MSRTC Vs. Shrihari, reported at 1990 Mh. LJ. 668, to point out that this Court has held said Regulation No. 61 to be ultra vires According to her, in view of this finding, the impugned action is liable to be set aside and the petitioner is entitled to be reinstated back in service. She has further contended that the respondent - employer never took a plea before the Labour Court that termination of the petitioner was in any way punitive or for any misconduct. She contends that the effort of employer was to point out to the Labour Court that it was a plain, simple termination in view of powers available to the employer under the provisions of Regulation no. 61 of the Regulations. She, therefore, points out that in such circumstances, when the Labour Court has undertaken exercise to find out whether the employer has correctly applied the regulation in support of recording a finding about it. Labour Court has erroneously gone into the merits of the misconduct and has recorded a finding that the employer has proved misconduct by adducing evidence before the Labour Court. The contention of the petitioner is that such course of action was not available to the Labour Court particularly in absence of a plea for that purpose on the part of the employer The learned counsel states that there was no written statement filed on record by the employer and hence there was no prayer made to prove misconduct by the employer before the Labour court. The petitioner contends that though evidence was led by the parties, the evidence was not with a view to prove misconduct before the Labour court It is argued that the exercise of jurisdiction by Labour Court is thus unsustainable and also it has caused serious prejudice to the petitioner because the petitioner was not aware of the purpose of said exercise. The learned counsel has relied upon the judgments reported at Baban Shriram Vs. Z. P. Ahmednagar, reported at 2002 (3) mh. LJ. 390 and 2005 (2) SCC 382 in support ( 5 ) IT is further contended that the petitioner is due for retirement on 31-10-2005. It is stated that the petitioner in view of the error committed by the Labour Court and industrial Court, entitled to relief of reinstatement with full back wages. The reliance has been placed upon the various rulings to substantiate this contention The rulings are in the case of Allahabad Jal sansthan Vs. Daya Shankar Rai, reported at 2005 (4) Scale 580 : [2005 (5) ALL MR (S. C.) 705]. It is pointed out that the nature of employment of employees considered by the honble Apex Court in these reported rulings was not as strong as that of petitioner because the petitioner was a regular and permanent driver. It is further stated that the petitioner has made various applications from time to time to have expeditious disposal of writ petition but he could not succeed and hence delay in disposal of writ petition should not be used to prejudice or defeat the claim of the petitioner towards back wages. It is contended that since beginning the petitioner has been making various efforts to obtain justice. It is further stated that after acquittal by Criminal court, the petitioner has moved applications before this Court and this Court directed the msrtc to consider those applications and to find out whether the petitioner can be reinstated. It is contended that such applications have not been still decided and msrtc has not yet taken any decision upon them. It is, therefore, stated that when the petitioner was all the while ready and willing to perform his duties and has tried for his reinstatement, the relief of reinstatement with continuity and full back wages should be granted. In this respect, attention of this Court is invited to the pleadings as made in Revision before the Industrial Court to show that the petitioner has pointed out his financial instability and hardships to the Industrial court. ( 6 ) AS against this, the learned counsel for the respondent - MSRTC has contended that if the provisions of Regulation no. 61 may be declared unconstitutional, still that will not save the situation. ( 6 ) AS against this, the learned counsel for the respondent - MSRTC has contended that if the provisions of Regulation no. 61 may be declared unconstitutional, still that will not save the situation. He invites attention to the order of Labour Court to point out that the Labour Court has permitted the parties to prove misconduct and the respondent - MSRTC has in fact led evidence before the labour Court to prove the same. According to him, once the misconduct is held to have been proved, there is no question of considering the provisions of Regulation no. 61. He further states that the Labour Court has answered the Complaint of the present petitioner in the negative, his revision application was also dismissed and the petition is pending before this Court since 1994 He, therefore, contends that there was no direction at any point of time by any of the Court to reinstate the petitioner and therefore, the petitioner could not be reinstated and there was no occasion for the present respondent to reinstate him He contends that in such circumstances, when the matter is pending before the Court since last 18 years, back wages should not be given to the petitioner at all and the public exchequer should not be burdened on that count. He further argues that the argument about not granting opportunity by the Labour Court is incorrect and for that purpose he invites attention of this Court to the relevant observations made by the Labour court in its order Insofar as grant of back wages is concerned, he has also pointed out various cases. He has relied upon the above mentioned two judgments on which the learned counsel for the petitioner has placed reliance and in addition, he has also pointed out the judgment in the case of Devraj C. Rai Vs. National Textile Corporation Ltd. and another, reported at 2005 (I) CLR 61 : [2004 (4) ALL MR 908], in State of U. P. Vs. P. O. Labour Court and Anr. , reported at 2005 (I) CLR 1103 and in Vinod Kumar malik Vs. State Bank of India and Ors. , reported at 2005 (II) CLR 202 and an unreported judgment of this Court dated 19-1-2005 in Writ Petition No 356 of 1992. P. O. Labour Court and Anr. , reported at 2005 (I) CLR 1103 and in Vinod Kumar malik Vs. State Bank of India and Ors. , reported at 2005 (II) CLR 202 and an unreported judgment of this Court dated 19-1-2005 in Writ Petition No 356 of 1992. ( 7 ) A perusal of the order of termination passed by the Regional Manager on 27-10-1987 reveals that it is passed under regulation No 61 and along with it employer paid to petitioner two months pay in lieu of notice period and he is also offered retrenchment compensation and leave wages. It nowhere states that it is on account of any misconduct or the order does not in any way cast any stigma on the petitioner. The provisions of Regulation No. 61 read as under the services of an employee, who does not hold a permanent appointment in State transport or a hen on a permanent appointment in any Government department from which he is transferred are liable to be terminated by the competent authority by giving a calender months notice or a calender months pay in lieu, provided that (a) The services ot casual workers and part time workers may be terminated without any notice. (b)a permanent employee of State transport shall be entitled to 60 days notice or 60 days pay in lieu; (c) a permanent employee or a temporary employee who has put in not less than 3 years continuous service in State Transport and who is aggrieved by the decision of termination of service on grounds other than of physical unfitness under this regulation; may prefer an appeal within one month from the date of communication of the. decision, to the Head of the department/branch concerned through his head of office. Where the decision of termination of service is taken by the general Manager, as an appointing authority, an appeal shall lie to the Vice chairman. The decision of the Appellate authority shall be final and binding. As per said regulation, the employer MSRTC has been authorised to terminate services of any employee by giving him a previous notice and in case of permanent employee, the notice prescribed is of 60 days or pay in lieu thereof is also allowed. ( 8 ) AS already stated earlier in the judgment, this Regulation 61 (b) has been held to be unconstitutional by the Division Bench of this Court. ( 8 ) AS already stated earlier in the judgment, this Regulation 61 (b) has been held to be unconstitutional by the Division Bench of this Court. Reference to paras 4 and 5 of said judgment reported at 1990 Mh. L. J. 668 reveals that the Honble Division Bench has found that the clause 61 (b) was arbitrary and therefore it has been held to be unconstitutional. Therefore, the order of termination served upon the petitioner is unsustainable and deserves to be quashed and set aside. ( 9 ) THE Labour Court has, in its judgment, held that the misconduct is proved by the MSRTC by leading evidence before it. The learned counsel for the respondent has also taken the same defence. The argument is that as the misconduct as such has been proved there is no scope tor granting any relief to the petitioner. This position and situation is also considered by the Division Bench mentioned above and para 6 of this judgment is important. Said para reads as under:"the learned counsel for the petitioner contended that on a finding that the respondent had permitted passengers without ticket which is an act ot misconduct, section 25-F ot the I. D. Act was not attracted. In the whole context, we find it difficult to accept this submission. The consistent case of the petitioner has been that the termination was not penal. Evidence has been allowed to be adduced before the Labour Court only to justify termination under clause 61 (b) of the regulations. The respondent thus had notice ot only such claim proposed to be established before the Labour Court by the petitioner. The petitioner cannot be allowed to contend in this background that charge of misconduct should be held to be established and on that basis to uphold the validity ot the impugned order. To hold otherwise would be prejudicial to the respondent and permit the petitioner to have best of both the worlds. Many questions would even otherwise arise e. g. since which date the termination should be held to be valid - the date ot actual termination or the date of order of the Labour Court holding tor the first time misconduct is established before it. In the instant case, no order of reinstatement is granted. Many questions would even otherwise arise e. g. since which date the termination should be held to be valid - the date ot actual termination or the date of order of the Labour Court holding tor the first time misconduct is established before it. In the instant case, no order of reinstatement is granted. Therefore, for all these reasons rightly has the Labour Court held that there was a breach of section 25-F of the I. D. Act. "thus, the Honble Division Bench has found that in similar circumstances, the employee had no notice that misconduct would be established against him in proceedings before the Labour court and it has been further held that the case of employer all throughout was that termination was not penal. There also, the labour Court allowed the parties to lead evidence only to justify the termination under clause 61 (b) of the Regulations A perusal of judgment of the Labour Court in this case reveals that here also the Labour Court has proceeded further to examine the issue whether said Regulation has been properly resorted to while terminating the services of the petitioner. It is to be seen that Regulation No. 61 (b) nowhere requires MSRTC to frame any charge-sheet or to pass any punitive order against the petitioner The order contemplated by that provision was a plain, simple order of termination This power has been utilised by msrtc to dispense with the services of the petitioner In this background to allow msrtc to contend that the order was punitive in nature and therefore it should be permitted to prove misconduct would be contradiction and would be outside the scope of the proceedings initiated before the Labour Court. In the facts of present case, there is one more facet to it. It is a settled principle that the employer has got right to prove misconduct by leading evidence before the Labour Court but that right is available if the employer has prayed for it by reserving such right while filing written statement. In this case, there is no such plea in the reply and also there is no written statement on record. Hence, the petitioner was not aware that the respondent is going to prove misconduct before the Labour court. In this case, there is no such plea in the reply and also there is no written statement on record. Hence, the petitioner was not aware that the respondent is going to prove misconduct before the Labour court. Thus, the argument that respondent has proved misconduct before the Labour Court and therefore the Labour Court was justified in holding that the termination of the petitioner is proper, cannot be accepted. The limited scope available before the Labour Court was to find out whether reference to Regulation 61 (b) by MSRTC in the facts and circumstances of the case was justified or not? thus, entire discussion in this respect by the labour Court is unsustainable-in-law ( 10 ) SHRI Wankhede, learned counsel for the respondents has invited attention to the points framed for determination by the Labour court in the impugned judgment A bare perusal of the judgment is sufficient to show that those points have been framed by the labour Court while delivering the judgment and those are not the points/issues framed on earlier date so as to enable the employer msrtc to contend that the petitioner had previous notice of the fact that his employer is going to prove misconduct before the Labour court. Therefore, the points for determination are not relevant while considering the arguments advanced in this writ petition. It is clear that while justifying its action under regulation 61 (b) of the Regulations, the msrtc could not have proved misconduct to contend in the alternative that it should be treated as punitive order. ( 11 ) IN these circumstances, it is clear that the judgment of the Labour Court dated 1-11-1988 or the order of the Industrial Court dated 9-9-1993 confirming it in Revision cannot be upheld Both the orders, therefore, are quashed and set aside. The order of termination of petitioner dated 27-10-1987 is also quashed and set aside Consequently, the petitioner is reinstated back in service. ( 12 ) THE next issue which falls for consideration is regarding relief of back wages to be granted to the petitioner. It is admitted that the petitioner is due for retirement on 31-10-2005. The learned counsel for the petitioner has placed reliance on certain rulings to contend that the petitioner is entitled to 60% of back wages with continuity. ( 12 ) THE next issue which falls for consideration is regarding relief of back wages to be granted to the petitioner. It is admitted that the petitioner is due for retirement on 31-10-2005. The learned counsel for the petitioner has placed reliance on certain rulings to contend that the petitioner is entitled to 60% of back wages with continuity. The learned counsel for the respondent, on the other hand, contended that the petitioner is not entitled to any back wages He has also pointed out judgments relevant tor examining this issue ( 13 ) THE first judgment on which the learned counsel for the respondent - MSRTC has placed reliance is an unreported decision dated 19-1-2005 of this Court in Writ Petition no. 356 of 1992. Paras 8 and 9 of this judgment show that while allowing 30% back wages to the employee concerned, this Court has considered that said employee was punished on four occasions tor similar instances, it was further found that said employee did state that he was not employed gainfully for last 20 years and it was further found that the employee could not explain as to why he placed his signature on way bill abstract if he was not at all responsible for said way bill. After considering these facts on record, reference was made to the judgment of the Honble Apex court in the case ot H. P. State Road transport Corporation Vs. Muniruddin, reported at 1990 (4) SCC 464 , and after noticing that the Honble Apex Court granted compensation of Rs. 35,000/-, this Court proceeded to grant 30% back wages. ( 14 ) THE other judgment on which reference is made is in the case of General manager, Haryana Roadways Vs. Rudhan singh, reported at 2005 (III) LLJ 52. In this case, in para 7, the Honble Apex Court has found that though the employee was terminated on 18-2-1989, he served demand notice itself after 2 1/2 years and the reference to the industrial Tribunal-cum-Labour Court was in the year 1997. It is in this background that the apex Court has after considering various factors, declined to grant back wages to the employee. It is in this background that the apex Court has after considering various factors, declined to grant back wages to the employee. Thus, the facts of this case reveal that the delay was on the part of the employee in initiating proceedings and ultimately this delay has been taken into consideration by the honble Apex Court to set aside the award awarding 50% back wages to him. ( 15 ) THE learned counsel for the respondent has also relied on the judgment of this Court in the case of Devraj C. Rai Vs. National Textile Corporation Ltd. and Anr. , reported at 2005 (I) CLR 61, to contend that as the matter has remained pending for last so many years, the employer alone should not be asked to shoulder the responsibility of back wages and full back wages should therefore not to be granted. A perusal of para 18 of said judgment reveals that the Honble High Court found that writ petition was heard finally after eight years ot its filing and in that back ground, it has been observed that employer alone cannot be made to bear the brunt of gross delay in legal proceedings and equities will have to be balanced. This Court, therefore, granted only 50% back wages to the employee. ( 16 ) THE Allahabad High Court in 2005 (I) CLR 1103 modified the award of labour Court granting full back wages as it found that there was no averment made by the employee about his gainful employment and there was no finding recorded in that respect. ( 17 ) THE Delhi High Court in 2005 (II) clr 202 found it improper to fasten the employer with liability of back wages on the ground that Bank played no role in the absence of work by the employee. A perusal of para 8 of that judgment reveals that after learning about the acquittal of the petitioner therein, bank had quickly reinstated him and therefore it did not play role in petitioners abstention from work or cessation from duty. ( 18 ) BOTH the counsel have relied upon the judgment of the Honble Apex Court in the case of Allahabad Jal Sansthan Vs. Daya Shankar Rai and Anr. , reported at 2005 (II) CLR 453 : [2005 (5) ALL MR (S. C.) 705]. ( 18 ) BOTH the counsel have relied upon the judgment of the Honble Apex Court in the case of Allahabad Jal Sansthan Vs. Daya Shankar Rai and Anr. , reported at 2005 (II) CLR 453 : [2005 (5) ALL MR (S. C.) 705]. In that judgment, the Honble Apex court has considered the facts in para 2 and has found that the respondent - employee was appointed purely on temporary basis. In para 6, it found that the employee never raised plea that he was sitting idle or he had no gainful employment In this background, after considering the various cases on the point, it found that said employee remained unemployed between 24-1-1987 to 27-2-2001 and in the interest of justice, he was granted 50% back wages. ( 19 ) IT is thus apparent that the entitlement of employee to back wages has been considered in the facts and circumstances of each case. Here, when the facts of present case are looked into, it is apparent that in complaint filed by the petitioner before the labour Court, he has not taken the plea that he is without any source of employment. He has not pointed out that he has made any efforts to search for it but did not succeed in it. In revision filed before the Industrial Court, it has been only stated that the petitioner has big family with too many liabilities and due to termination, he and his family members are put to great hardships and he was finding it difficult to feed them and to fulfill their needs, being out of employment. ( 20 ) IN Writ Petition filed before this court, the petitioner has not made any such grievance. During the pendency of Writ petition, he has moved Civil Application no. 2981 of 1998 before this Court and in it he has mentioned that he is unemployed since last 10 years and therefore the petition should be heard immediately. Same plea is taken by him in Civil Application No. 1203 of 1999. In Civil application No. 7255 of 2002 as also in Civil application No. 5796 of 2003, he has stated that he is out of employment for last 15 years and he has prayed for early hearing. In that application, he has also referred to the judgment of the Court reported at 1990 Mh. In Civil application No. 7255 of 2002 as also in Civil application No. 5796 of 2003, he has stated that he is out of employment for last 15 years and he has prayed for early hearing. In that application, he has also referred to the judgment of the Court reported at 1990 Mh. L. J. 668, to invite attention to the fact that regulation No. 61 (b) of the Regulations, under which the petitioner is terminated is already declared ultra vires. Thereafter, he has moved civil Application No. 1489 of 2004, in which he has placed the fact of his acquittal on record by making amendment. Lastly, he has moved civil Application No. 2566 of 2004 and in it by pointing out the acquittal, the relief was sought to direct the employer to consider the case of the petitioner for reinstatement. On that application, this Court has passed order on 19-10-2004 and has directed the employer to take appropriate decision on petitioners application. It is a matter of record that till this date, the employer has not taken any decision on it. ( 21 ) IN such circumstances, it is apparent that though the proceedings were pending before the lower Court from november, 1987 till 1994 and before this Court after 1994, the employer MSRTC has not taken any corrective measures in view of quashing of said Regulation No. 61 (b) of the Regulations. The employee had in tact moved application for that purpose in 2004 and that application also has not been considered. The learned counsel for the respondent - MSRTC has invited attention to the fact that the Industrial court has found that present petitioner was found to be carrying passengers without ticket on one occasion and he was also found to have misused free passes granted to him. However. these misconducts are not relevant for the present purpose. The respondent - MSRTC could have taken appropriate decision in the case of petitioner which was then pending before the Court in view of the judgment reported at 1990 Mh. L. J. 668. Under the circumstances, I am inclined to grant 50% back wages to the petitioner. ( 22 ) BEFORE parting with this judgment, it is necessary to refer to arguments advanced by the learned counsel for the petitioner that reinstatement of petitioner ought to have been effected automatically on account of acquittal in criminal case. L. J. 668. Under the circumstances, I am inclined to grant 50% back wages to the petitioner. ( 22 ) BEFORE parting with this judgment, it is necessary to refer to arguments advanced by the learned counsel for the petitioner that reinstatement of petitioner ought to have been effected automatically on account of acquittal in criminal case. ( 23 ) THE learned counsel for the respondent has opposed this contention and has also relied upon one judgment of the Honble apex Court to contend that when material is available on record, such order of termination should not be interfered with. ( 24 ) IN view of the findings reached earlier, it was not necessary for this Court to consider this issue. However, in view of the later part of the arguments of the learned counsel for the respondent - MSRTC, it has become necessary to make reference to the ruling on which the learned counsel for the respondent has placed reliance. The said ruling is in the case of Union of India Vs. Balbir singh and Anr. reported at 1988 (II) CLR 1. The perusal of said ruling reveals that the honble Court there was considering the provisions of Article 311 (2) proviso (c) of constitution of India. The respondent before the Honble Apex Court was Police Sub-Inspector who was prosecuted in assassination of the Prime Minister Mrs. Indira Gandhi and was acquitted later on. Before that, after recording a satisfaction as contemplated under article 311 (2) (c), the said Sub-Inspector was dismissed from service of Union of India. He was later on acquitted in criminal prosecution. Thereafter, he filed an application before the principal Bench of Central Administrative tribunal, New Delhi, and challenged said order of dismissal dated 16-3-1985. On 14-12-1995, the Tribunal allowed that application and union of India challenged that order before the honble Apex Court. The Honble Apex Court has found that there was material available before the very High Level Committee of advisors under the procedure prescribed by the Government Memorandum and in view of that material, the Honble President issued an order under Article 311 (2) (c ). Thus, the facts of the case itself demonstrate that the holding of Departmental Enquiry against said Sub-Inspector was found against National Security and therefore, the enquiry was dispensed with. Thus, the facts of the case itself demonstrate that the holding of Departmental Enquiry against said Sub-Inspector was found against National Security and therefore, the enquiry was dispensed with. Thus, the order of dismissal was of punitive nature but passed without Departmental enquiry in view of the sovereign powers of the Union of India. The said facts cannot be compared with present case in which the employer has not recorded a finding that it was not possible to hold Departmental Enquiry against the petitioner and in fact has ordered his simple termination without casting any stigma on him. The arguments of learned counsel for the respondent - MSRTC on this count are, therefore, liable to be rejected. ( 25 ) THE petitioner is accordingly reinstated back in service with continuity and 50% back wages with corresponding consequential benefits. The amount already paid by the respondent - employer to the petitioner while issuing impugned termination order or thereafter, shall be adjusted towards the amount of back wages sanctioned to the petitioner. The order of this Court should be complied with within a period of three months from today. ( 26 ) WRIT Petition is disposed of accordingly. Rule is made absolute in above terms. No costs. Order accordingly.