Judgment : R. R. K. Trivedi, J. 1. THIS special appeal is from Judgment and order dated 27th July, 1995 passed by learned single Judge in Civil Misc. Writ Petition No. 5518 of 1985 by which appellants have been directed to reinstate petitioner respondent herein on the post of senior clerk with all consequential benefits. Appellants have also been directed to pay arrears of salary to petitioner. 2. THE facts giving rise to this special appeal are that the petitioner respondent J. N. Tripathi was employed in Banaras Hindu University (hereinafter referred to as 'University') as junior clerk on 14th June, 1964. On 1st March, 1973, he was promoted as senior clerk. On 1st March, 1975, he was confirmed as senior clerk. On 20th July, 1976, petitioner was placed under suspension having been involved in a criminal case under Section 408/477A, I.P.C. He was tried for the aforesaid offence in Criminal Case No. 1258 of 1979 and was convicted and sentenced to one year's R.I. by trial court. However, respondent challenged the conviction and sentence in Criminal Appeal No. 483 of 1982 which was allowed on 11th July, 1983 and the respondent was acquitted of the charges with the finding that the prosecution has failed to establish any case against him. On appeal being allowed, petitioner filed an application on 13th July, 1983 before the University authorities and prayed for revocation of the order of suspension and for reinstatement but when no action was taken, petitioner filed Civil Misc. Writ Petition No. 9667 of 1984 for directing the University to decide the representation of petitioner respondent. However, by order dated 17th December, 1984 petitioner respondent was terminated from service and the order was maintained by the Executive Council by order dated 20/22nd June, 1985, Petitioner respondent then filed Civil Misc. Writ Petition No. 5518 of 1985 challenging order dated 17th December, 1984 and resolution dated 20/22nd June, 1985. THE writ petition has been allowed by learned single Judge by order dated 27th July, 1995. THE operative part of the order reads as under : THE writ petition succeeds and is allowed with costs. THE impugned orders dated 20/22.6.84 and 17.12.1984 are quashed. Respondents are directed to reinstate the petitioner on the post of senior clerk with all consequential benefits. THE operative part of the order reads as under : THE writ petition succeeds and is allowed with costs. THE impugned orders dated 20/22.6.84 and 17.12.1984 are quashed. Respondents are directed to reinstate the petitioner on the post of senior clerk with all consequential benefits. They are further directed to pay the arrears of salary to the petitioner." Aggrieved by the aforesaid order, the appellants have filed the present special appeal. In this appeal, the challenge has been confined to the direction of the learned single Judge, by which he directed to pay arrears of salary to the petitioner. It has been submitted by the learned counsel for the appellants that the petitioner respondent has already retired in the month of November, 1995. Learned counsel for the appellants has submitted that in proceedings under Article 226 of the Constitution of India, the order of termination or dismissal could only be quashed and the learned single Judge could not give a direction to pay back wages. It is submitted that while exercising supervisory jurisdiction under Article 226 of the Constitution, such order cannot be passed if the dismissal or termination is found illegal. The Court can simply quash the same and should not give a direction for payment of full back wages as done in the present case. It has also been submitted that the University is a public body and if the aforesaid direction of the learned single Judge for payment of the back wages is not set aside, the University shall be saddled with the liability to pay a huge amount of about 8 lacs towards the payment of the back wages and the petitioner respondent shall be paid the aforesaid amount though he has not worked for a single day on the post. Learned counsel has submitted that the public money should not be allowed to be paid in this manner and it is expedient to protect the public interest. Learned counsel has placed reliance in cases of The Managing Director, U. P. Warehousing Corporation and others v. Vijay Narayan Vajpayee, AIR 1980 SC 840 ; Piara Lal v. State of Punjab, 1990 (Supp) SCC 754 -Tarlochan Singh v. Punjab State Warehousing Corpn. Learned counsel has placed reliance in cases of The Managing Director, U. P. Warehousing Corporation and others v. Vijay Narayan Vajpayee, AIR 1980 SC 840 ; Piara Lal v. State of Punjab, 1990 (Supp) SCC 754 -Tarlochan Singh v. Punjab State Warehousing Corpn. and others, 1991 (Supp) SCC 290 ; State of U. P. and another v. Atal Behari Shastri and another, 1993 Supp (2) SCC 207 ; Surjit Ghosh v. Chairman and Managing Director United Commercial Bank and others, (1995) 2 SCC 474 ; Paluru Ramkrishnaiah and others v. Union of India and another, (1989) 2 SCC 541 ; Chairman, Governing Council Anjuman Arts, Commerce and Science and others v. Sayyed Mohammad Shaft, JT1996 (1) SC 326 and U. P. Co-operative Spinning Mills Federation Ltd. v. Pukh RaJ Mantri, (1995) 1 UPLBEC 442 . 3. LEARNED counsel for the respondent, on the other hand, has submitted that the petitioner respondent was always willing to work on the post. On being acquitted by the superior criminal court on 11th July, 1983, petitioner immediately offered himself for joining the post and for resuming the work by making an application dated 13th July, 1983 but the respondents did not take any action on his representation. Consequently he was compelled to file Civil Misc. Writ Petition No. 9667 of 1984 seeking direction from this Court to decide the representation but in spite of the aforesaid direction issued by this Court, petitioner was dismissed in arbitrary manner in clear violation of the provisions of law on 17th December, 1984 and this order was upheld by the Executive Council by resolution dated 20/22nd June, 1985. There is no allegation or material on record showing that the petitioner was ever employed gainfully during the period he was not allowed to work on the post of senior clerk and in these circumstances, the learned single Judge has rightly awarded the back wages. Normal rule is that if the order of termination, removal or dismissal is set aside the employee becomes entitled for his wages which he was deprived in consequence of the order which has been set aside or quashed. LEARNED counsel has submitted that the petitioner respondent cannot be said at fault at any stage and he cannot be penalised for illegal action on the part of the employer. LEARNED counsel has submitted that the petitioner respondent cannot be said at fault at any stage and he cannot be penalised for illegal action on the part of the employer. LEARNED counsel has also submitted that the petitioner has been kept out of service since 20th July, 1976 and he has not been paid his salary. He has also been deprived of his benefit of promotion, etc. which he would have been entitled to receive during these periods. LEARNED counsel has submitted that the order of the learned single Judge directing payment of arrears of salary does not suffer from any Illegality or arbitrariness and this Court in appeal should not interfere with the order which subserves the ends of justice in the facts and circumstances of the case. LEARNED counsel has placed reliance in cases of Hindustan Tin Works v. Its Employees, AIR 1979 SC 75 ; Smt. Manorma Verma v. State of Bihar and others,1994 Supp (3) SCC 671 and one uncertified copy of the judgment dated 11th April, 1994 given in Special Appeal No. 142 of 1993, Prabhu Narain Rai and another v. Secretary-cum-General Manager, District Co-operative Bank Limited, Jhansi and others and Special Appeal No. 112 of 1993, Secretary-cum-General Manager, District Co-operative Bank Ltd., Jhansi v. Prabhu Narain Rai and others. 4. WE have carefully considered the rival contentions advanced by the learned counsel for the parties and have also gone through the cases cited before us. The learned single Judge while deciding the writ petition has recorded a finding for awarding the back wages to the following effect: "Petitioner never refused to discharge his duties. On the other hand, respondents themselves did not permit him to work. In Hindustan Tin Works v. Its Employees, AIR 1979 SC 75 , the Apex Court of the country was pleased to hold that "if the workmen were always ready to work, but they were kept away therefore 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.". Therefore, the impugned orders, in view of the discussions made above, were invalid and inoperative in law. Therefore, the impugned orders, in view of the discussions made above, were invalid and inoperative in law. Petitioner will be entitled to receive arrears of salary." However, the learned single Judge failed to note that the Hon'ble Supreme Court in the aforesaid judgment was examining the legality of the award given by the labour court which accepted the claim of the workmen and had awarded 75% of the back wages. The aforesaid Judgment of the Apex Court thus cannot be a safe guide for the cases in hand. In case of the Managing Director, U. P. Warehousing Corporation and others v. Vijay Narain Vajpayee, AIR 1980 SC 840 , Hon'ble Supreme Court has observed as under : "It must be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate tribunal. It does not review the evidence upon which the inferior tribunal proposed to base its conclusion, it simply demolishes the order which it considers to be without Jurisdiction to manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior tribunal. In other words, the offending order or the impugned illegal proceeding is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus, in matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceeding of an administrative authority-not being a proceeding under the industrial/labour law before an industrial/labour tribunal-culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored), such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. The instant case is not one under Industrial/Labour Law. The respondent-employee never raised any industrial dispute, nor invoked the Jurisdiction of the Labour Court or the Industrial Tribunal. The instant case is not one under Industrial/Labour Law. The respondent-employee never raised any industrial dispute, nor invoked the Jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without back wages, is a question of fact depending on evidence to be produced before the tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment. For these two-fold reasons, we are of opinion that the High Court was in error in directing payment to the employee full back wages". 5. THE aforesaid view has been followed by the Hon'ble Supreme Court in other cases cited by the learned counsel for the appellants, but the Apex Court at the same time also considered the conduct of the employee and the employer for coming to its conclusions. In case of Piare Lal v. State of Punjab, 1990 (Supp) SCC 754, Hon'ble Supreme Court found that the enquiry was not proper but there was nothing to show that the employee was exonerated and the enquiry failed for some technical reason. Similarly in 1991 (Supp) SC 299, the termination was found illegal as notice was defective. THE termination thus failed for technical reason. In 1993 Supp (2) SCC 207, the respondent employee failed to join the post in spite of the notice given to him and he did not come back after the holiday, to work on his post, though the termination was found illegal but he was not awarded full back wages and was given only lumpsum amount. In (1995) 2 SCC 474 , the disciplinary proceedings failed as the delinquent employee was deprived of right of appeal. THE appellate authority acted as disciplinary authority. In (1995) 2 SCC 474 , the disciplinary proceedings failed as the delinquent employee was deprived of right of appeal. THE appellate authority acted as disciplinary authority. THE Hon'ble Supreme Court awarded the compensation in lieu of the salary for 13 years and not full back wages. In 1989 (2) SCC 541 , Hon'ble Supreme Court approved the view taken by the Division Bench of Madhya Pradesh High Court awarding all benefits of promotion with restrospective effect but refused to pay salary for the period. In JT 1996 (1) SC 326, Hon'ble Supreme Court refused to pay the back wages as it was found in enquiry that the employee was gainfully employed. In (1995) 1 UPLBEC 442 , the Division Bench found that back wages cannot be paid in view of the position of law expressed by the Hon'ble Supreme Court in AIR 1980 SC 840 . In 1994 Supp (3) SCC 671, the Hon'ble Supreme Court has taken the following view :- "We do not see any justification for the High Court not allowing the appellant back wages after it came to the conclusion that the termination was illegal. Ordinarily, the consequential order of grant of back wages must follow, unless there are reasons on record which would justify a departure from the normal order. We do not see any reasons on record to come to the conclusion that the appellant was not entitled to back wages. THEre is also nothing on record to show that during the period she was out of service, she was gainfully employed elsewhere. In the circumstances we allow this appeal and set aside that part of the High Court's order by which the appellant was denied back wages and award her back wages from the date of termination of service till she was reinstated in service under the impugned order of the High Court." 6. AN unreported judgment of the Division Bench of this Court relied on by the learned counsel for the respondent was about the retrenchment of workmen which was found illegal in view of the provisions contained in Section 6N of the U. P. Industrial Disputes Act, 1947. Under the judgment, though the payment of back wages has been awarded but without entering into the controversy in detail. Under the judgment, though the payment of back wages has been awarded but without entering into the controversy in detail. From the consideration of the aforesaid judgments of the Hon'ble Supreme Court, in our opinion, the following factors are to be kept in mind at the time of awarding the back wages, on setting aside or quashing the order of termination, removal or dismissal: (a) Ordinarily the High Court, in exercise of jurisdiction under Article 226 of the Constitution, should not direct payment of full back wages while setting aside the order of dismissal against the employee. The question should be left to be decided by the competent departmental authority on consideration of the relevant factors. In any view of the matter, an order for payment of full back wages is not to be passed as a matter of course in every case in which the order of dismissal is set aside or quashed by the High Court. (b) It should be considered by the Court whether employee was gainfully employed during the period he has not been allowed to work on the post on account of the order of termination. (c) The conduct of the parties shall be very relevant in awarding back wages. (d) Likely hardship of the parties should also be taken into consideration while awarding or not awarding the back wages. (e) The public interest should also be kept in mind while awarding back wages. The conclusion in the various judgments cited before us and referred to above, have been influenced mostly by the aforesaid facts. If the aforesaid facts are applied in the present case, there is no doubt that the petitioner respondent on being acquitted by the appellate court in criminal appeal immediately offered himself for work and expressed his willingness to work on the post. There is also no dispute that under the Rules applicable, the University could not initiate departmental proceedings after the judgment of the criminal court. The orders impugned in the writ petition of the dismissal passed against petitioner have been quashed by the learned single Judge precisely on the ground that after the criminal court recorded acquittal of petitioner respondent from the charges levelled against him in criminal court, the University could not proceed with the departmental proceedings on basis of the same charges. The orders impugned in the writ petition of the dismissal passed against petitioner have been quashed by the learned single Judge precisely on the ground that after the criminal court recorded acquittal of petitioner respondent from the charges levelled against him in criminal court, the University could not proceed with the departmental proceedings on basis of the same charges. Thus, the conduct of the petitioner respondent throughout the period has not been such on which basis it may be said that he disentitled himself for the back wages. There is also nothing on record this way or that way that he was employed gainfully anywhere during this period. In his writ petition, the petitioner respondent specifically claimed the payment of the entire salary w.e.f. 20th July, 1976. However, the University did not resist this claim by placing any such fact on which basis it can be said that the petitioner respondent was not entitled for the back wages. However, two important factors are still there that the petitioner has not worked on the post and the payment of the salary shall be for no work. It is also true that it shall be loss of public money if the petitioner respondent is awarded the entire back wages though he has not rendered any service. Petitioner has retired from the service and after retirement, if he is relegated to face another long litigation to realise his back wages, it shall cause great hardship to him. He shall be entitled for all the retiral benefits including pension, etc. 7. FOR the facts and circumstances narrated above, in our opinion, the ends of justice will be served if the petitioner respondent is awarded 50% of the back wages from the date of his acquittal recorded by criminal court upto the date of the judgment of the learned single Judge. FOR the period before that, he shall be entitled for suspension allowance as provided in rules applicable, and after the judgment of learned single Judge upto the date of superannuation, full salary. 8. FOR the reasons stated above, this appeal is allowed in part. FOR the period before that, he shall be entitled for suspension allowance as provided in rules applicable, and after the judgment of learned single Judge upto the date of superannuation, full salary. 8. FOR the reasons stated above, this appeal is allowed in part. The order of the learned single Judge dated 27th July, 1995, is set aside so far as it directs respondents to pay arrears of salary to petitioner and the aforesaid direction is substituted with the following directions : "That the respondents appellants herein are directed to pay 50% of arrears of salary to petitioner respondent from the date of the order of his acquittal by criminal court, Le., 11.7.1983 upto the date of the order of learned single Judge i.e., 27.7.95. FOR the period before 11.7.83, he shall be entitled for subsistence allowance as provided in rules, if already not paid and after judgment of learned single Judge, for full wages upto the date he attained the age of superannuation. The entire amount for which he is entitled shall be paid to him within a period of six months from the date a certified copy of this order is filed before the authority competent in this behalf." Rest of the orders passed by the learned single Judge shall remain unaltered. No order as to costs.