( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 621 OF 1991 Mohammed Abdul Majid, R/o Nanded. PETITIONER VERSUS 1. The Maharashtra State Road Transport Corporation, S.T. Regional Office, Aurangabad. 2. Divisional Controller, MSRTC, Nanded. RESPONDENTS WITH WRIT PETITION NO. 3056 OF 1991 Nisar Ahmed Khan s/o Absul Khaliq, R/o Nanded. PETITIONER VERSUS 1. The Maharashtra State Road Transport Corporation,S.T. Regional Office, Aurangabad. 2. Divisional Controller, M.S.R.T.C., Nanded. RESPONDENTS WITH WRIT PETITION NO. 3057 OF 1991 Nizamoddin Fakiroddin Shaikh, R/o Nanded. PETITIONER VERSUS ( 2 ) 1. The Maharashtra State Road Transport Corporation, S.T. Regional Office, Aurangabad. 2. Divisional Controller, M.S.R.T.C., Nanded. RESPONDENTS ..... Mr. S.V. Warad, advocate for the petitioner in all three writ petitions. Smt. R.D. Reddy, advocate for the respondents in all three writ petitions. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th January, 2010] ORAL JUDGEMENT : 1. These three petitions are being decided together in as much as single question involved therein is of identical nature. 2. It is not necessary to elaborately set out the facts and circumstances under which the three petitioners were terminated from service. Suffice it to say that allegedly, they had assaulted Divisional Controller and Divisional Mechanical Engineer as a sequel to chargesheet served on one Arif Khan, a S.T. ( 3 ) driver, on 19-10-1985. The incident was considered as serious misconduct. The petitioners were removed from service in the exercise of powers under Regulation 61 of the Bombay State Transport Employees’ Service Regulations. They were shunted out from the service without any inquiry, on the specious ground that they had “lost confidence” of the Maharashtra State Road Transport Corporation (for short, “MSRTC”). They preferred complaint applications which were dismissed by the Labour Court. They filed revision applications which have been allowed by the Industrial Court. 3. The only grievance ventilated by the petitioners is that they were not granted backwages and benefit of continuity of the service while allowing their revision petitions by the Industrial Court vide the order dated 21-03-1990. 4. Only question involved in these three petitions is whether the petitioners are entitled to seek backwages and continuity of services with all the incidental benefits, consequent upon quashing of the ( 4 ) termination orders. 5. Heard learned counsel. 6. So far as the question of backwages is concerned, it is important to note that the petitioners did not categorically allege and prove that they were out of employment during the relevant period. The petitioners have not filed on record copy of the revision petitions preferred by them. I am at loss, therefore, to know whether the grievance regarding non- payment of backwages was put forth before the revisional Court. The revisional Court seems to have examined the legal aspects vis-a-vis clause (61) of the State Transport Regulations. No challenge was made by the M.S.R.T.C. to the judgement of the Industrial Court whereby the revision petitions came to be allowed. Needless to say, the petitioners were entitled to reinstatement as directed by the revisional Court and have been so reinstated. The learned counsel would submit that there is no discussion made by the Industrial Court regarding ground for refusal of the ( 5 ) benefit of backwages and continuity in service. He would submit that once it is found that the petitioners could not be terminated by utilizing special provision envisaged in Regulation (61), there was no warrant to refuse the ancillary benefits like backwages and continuity in services. 7. There are two important aspects of the matter. First, the petitioners failed to prove that they were unemployed during the relevant period. Secondly, they did not offer their services during the relevant period. Thirdly, it appears that they were involved in a criminal case No. 2868/1996 for the alleged offence of assault and causing hurt to the Divisional Controller and the Divisional Mechanical Engineer. It is the acquittal of the petitioners which seems to have weighed with the revisional Court. Secondly, a Division Bench of this Court in “Divisional Controller, Maharashtra State Road Transport Corporation, Nagpur vs. Shrihari Padmakar Dharmadhikari, Ex-Conductor, Nagpur” 1990 Mh.L.J. 668, held that clause 61 (b) of the Regulations ( 6 ) is unconstitutional. 8. The petitioners cannot claim backwages as a matter of right. They must allege and prove that they had lost income during the relevant period when they were put out of the service. The grant of backwages to the employees cannot be result of mere eligibility for reinstatement. In my opinion, there is no good case in favour of the petitioners so as to allow the claim for backwages for the petitioners. It is true that the Industrial Court has not ascribed reasons for refusal of the backwages. However, the fact situation is quite clear and one cannot be oblivious of the fact that the revisional Court was required to consider legality of the dismissal of the complaint applications and there was no substantial argument advanced for backwages. Hence, part of the claim regarding grant of backwages is improper and cannot be sustained. So far as continuity is concerned, there is no tangible reason to deny such a relief which ordinarily flows from the relief of reinstatement. The continuity of service is a matter of incidental nature and no special reasons are required to ( 7 ) be ascribed while granting continuity. Nor, the continuity of service can be denied unless there is special provision in the Regulations to withhold such claim. 9. Considering the foregoing reasons, the petitions are partly allowed. The respondents are directed to grant of continuity of service to the petitioners, treating the period between termination of service and the period of reinstatement, as qualifying service for the other benefits like pension, etc. Their claim for backwages is, however, unsustainable and rejected. Rule made absolute in terms of above directions. [ V.R. KINGAONKAR ] JUDGE NPJ/wp621-3056-3057-91