By the present petition, the petitioner-MSRTC has challenged the judgment and order dated 19.12.2006 passed by the Industrial Court in Revision Application No.103 of 2003 confirming the judgment and order dated 20.11.2003 made by the Labour Court, Akola, in Complaint (ULP) No. 155 of 1992.

FACTS :

2. The respondent was working as a clerk on the establishment of the petitioner. Due to his riotous attitude during working time and during the course of departmental enquiry being conducted against one employee, he was served with a charge-sheet and a regular departmental enquiry was held in which he was found guilty and consequently on 28.2.1990 he was dismissed from service.

3. The respondent filed a complaint before the Labour Court, Akola, questioning his dismissal from service. On the preliminary issue, Labour Court held that the enquiry held against the complainant was not fair and proper and evidence was laid before the Labour Court by the petitioner-employer for proving the misconduct. Finally on 20.11.2003 the Labour Court allowed the complaint and held that the respondent being protected workman and the charges levelled against him being not proved, in view of his attaining the age of superannuation, he would be entitled to full back wages from the date of his dismissal till the date of his superannuation. Against that decision of Labour Court, the petitioner filed revision before the Industrial Court. The revision was also dismissed and hence this writ petition which is restricted to the award of back wages of the respondent.

ARGUMENTS :

4. Mr.S.C.Mehadia, learned counsel, for the petitioner-MSRTC made the following submissions :

(i) Since the respondent has attained the age of superannuation, the petition is not being pressed in respect of findings about validity of dismissal from service and now it is restrictively pressed as regards the order awarding full back wages to the respondent which he received under interlocutory orders made by this Court, and of course subject to the result of the present litigation. He, therefore, argued that if the petition succeeds the respondent will have to repay the entire amount received by him to the petitioner.

(ii) That, in the complaint that was filed by the respondent not a single word is mentioned about gainful employment, i.e. the respondent was not gainfully employed anywhere and, therefore, was entitled to back wages. In other words, there was no pleading to that effect and, therefore, in absence of any pleading, evidence of any kind will have to be ignored.

(iii) That, in the evidence the respondent admitted in cross-examination that he has been doing work of Union to represent the cases.

(iv) That, it is a matter of record that in various courts – Labour, Industrial as well as this Court, the respondent has been regularly appearing in various courts for the employees of the petitioner-MSRTC for number of years, at least after his dismissal from service. Mr.Mehadia also invited my attention to the reply and written statement to the writ petition, in particular internal page 20 thereof, and pointed out that the respondent has candidly admitted his appearances in this Court as well. He continued his arguments by submitting that in that case it was for the respondent to adduce oral as well as documentary evidence of the office bearers of the Union and the employees whom he represented in various courts, but he did not do so. 5. In support of above submissions, Mr.Mehadia relied on the decision of apex court in J.K. Synthetics Ltd. v. K.P. Agrawal reported in (2007) 2 SCC 433 and prayed for reversal of the impugned orders only insofar as award of back wages is concerned.

5. Respondent appeared in person and made the following submissions :

(i) Though there was no averment in the complaint regarding the aspect of gainful employment, the