The court considered the circumstances and the impossibility of reinstatement due to superannuation in determining the entitlement to back wages.

( 1 ) IN this appeal the management of u. P. State Road Transport Corporation has brought in challenge the order passed by the learned Single Judge of the High court granting 50 per cent of back wages to the respondent,- workman from the date of his removal from service i. e. 25/9/1975 till the date of his superannuation at the age of 58 years. In addition thereto, it is also directed that the respondent will be entitled to the pensionary benefits in accordance with rules.

( 2 ) A few facts leading to the filing of the appeal are required to be noted at the outset. Respondent at the relevant time in the year 1971 was working as an Assistant cashier in one of the depots of the appellant- Corporation. It is stated that on 3/12/1971 on verification of cash it was detected that a sum of Rs. 5,983, 62. 00 was less. He was therefore, placed under suspension on 7/12/1971. Subsequently, he was charge-sheeted on 23/10/1973 and after domestic enquiry it was found that he was guilty of embezzlement of funds. A show cause notice proposing the punishment of removal from service was issued to the respondent-workman on 9/6/1975 and ultimately he was ordered to be removed from service. Thereafter, respondent challenged the order of removal by way of a civil suit in the court of Munsif, Lucknow in 1975. During the pendency of the said suit, U. P. Public Service tribunal came to be established and the suit was transferred to the Public Service tribunal. The tribunal rejected the claim of respondent and confirmed the order of removal. Respondent challenged the said order in a writ petition before the High court. The High court found that the Service tribunal had no jurisdiction to entertain the grievance of respondent as he was not a government servant and consequently, all the earlier proceedings before the tribunal became abortive and without jurisdiction. Thus the respondent remained at square number one where he was at the time of removal from service. He then raised an industrial dispute in 1980. The State government referred the dispute for resolution by the Labour court. The dispute which was referred was to the following effect. "whether the action of employers to remove the employee Bhagwati Prasad pathak w. e. f. 25. 9. 75 without proving the charge of embezzlement is legal and/or valid ? If not, then for what relief the concerned workman is entitled and with what further details ?"

( 3 ) THE Labour court after hearing the parties came to the conclusion that the domestic enquiry held against the respondent was not fair and therefore, the appellant-corporation was entitled to justify its action by leading evidence before the Labour court. After the evidence was led the Labour court on appreciation of the evidence came to the conclusion that the charge was not brought home to the respondent and he could not be said to be guilty of misconduct. However, the Labour court was not inclined to order reinstatement of respondent on the facts and circumstances of the case but directed that respondent be paid Rs. 5,000. 00 by way of lump sum compensation. That resulted into the filing of the present writ petition before the High court and as noted above, the High court disagreeing with the decision of the Labour court held that the respondent could have been reinstated in service but for the fact that he had retired having reached the age of superannuation and accordingly, the order as noted earlier was passed by the High court.

( 4 ) LEARNED counsel for the appellant vehemently contended that when the Labour court had passed a discretionary order the High court ought not to have interfered and passed the impugned order against the appellants. Learned counsel appearing for respondent on the other hand, submitted that the High court had granted 50 per cent of back wages taking over all view of the facts and circumstances of the case when cent percent back wages ought to have been granted once respondent was not held guilty of the charge of misconduc