Judgment :- S.J. Mukhopadhaya, J. This Writ Appeal has been preferred by Thanthai Periyar Transport Corporation, Villupuram, {hereinafter referred to as the appellant-Management} against the order dated 13. 1997 passed by the learned single judge in Writ Petition No.8914 of 1997, upholding the Award passed by the first respondent–First Additional Labour court, Madras, in Industrial Dispute No.394 of 1982, dated 312. 1987. 2. The main plea taken by the appellant–Management is that the gravity of the charges, was such that the punishment of termination of the second respondent-workman (hereinafter referred to as the workman) from the services of the Management, is proportionate to the charges levelled against him and that the observation of the first respondent-Labour Court that the workman has suffered mental agony all along on account of his non-employment, would be a sufficient punishment, is unsustainable in law. 3. It appears that the second respondent-workman, while functioning as Conductor, was suspended by the order of the Management, dated 111. 1981 and departmental proceedings were initiated against him. The enquiry officer, having found the workman guilty, the appellant–Management of the Transport Corporation, terminated the services of the second respondent-workman from the services of the Management, by order dated 2. 1982 with retrospective effect from the date of suspension, i.e. from 111. 1981, giving rise to filing of a reference in Industrial Dispute No.394 of 1982 by the workman before the first respondent– First Additional Labour Court, Madras. .4. The first respondent–First Additional Labour Court, Madras, by the Award dated 312. 1987, in I.D.No.394 of 1982, while holding that it is not a case in which misconduct was said to have been committed by the workman was found out during surprise inspection while the workman was in the bus or by any ticket checking staff and that as stated in the audit objection, it is only with regard to the correction of the entries and it is not as if the audit report has stated that the workman has actually committed misappropriation of the funds of the Management. The first respondent-Labour Court further held that the punishment of termination from the services of the Management, was disproportionate to the charges levelled against him and set aside the order of termination passed by the Management and directed reinstatement of the workman to the services of the Management, with full back-wages and other attendant benefits. The first respondent-Labour Court further held that the punishment of termination from the services of the Management, was disproportionate to the charges levelled against him and set aside the order of termination passed by the Management and directed reinstatement of the workman to the services of the Management, with full back-wages and other attendant benefits. The Award of the first respondent-Labour Court, was confirmed by the learned single Judge for the very same reason. .5. Learned counsel appearing on behalf of the appellant-Management, while referring to the charges, the enquiry report and the Award of the first respondent-Labour Court, submitted that the first respondent-First Additional Labour Court, Madras, having found that the enquiry conducted against the workman, was in accordance with law and the charge of misappropriation of the Management’s exchequer having been proved, the question of showing "un-called for sympathy" by reinstating the second respondent-workman, does not arise and that the order of termination passed by the Management against the workman, was commensurate with the gravity of charges levelled against him. .Learned counsel appearing on behalf of the appellant-Management of the Transport Corporation placed reliance on the decision of the Supreme Court in the case of “Janatha Bazar {S.K.C. Co-op. Wholesale Stores Ltd}. vs. Scy. Sahakari Noukarara Sangha”, reported in 2000 {6} Supreme 339 and in the said case, the Supreme Court held that, “once act of misappropriation is proved, may be for a small or large amount, there is no question of showing un-called for sympathy and reinstating employee in service". .6. Learned counsel appearing for the second respondent-workman referred to the enquiry report and submitted that the report is not based on any evidence; in fact, no finding has been given by the enquiry officer based on evidence. .Learned counsel appearing for the second respondent-workman also referred to the charges, explanation submitted by the second respondent-workman and the Award passed by the first respondent-First Additional Labour Court, to show that there was no allegation of misappropriation of funds and that no amount was held to be misappropriated by the workman. 7. We have heard the learned counsel appearing for the parties and noticed their rival contentions. We have also perused the records. 8. 7. We have heard the learned counsel appearing for the parties and noticed their rival contentions. We have also perused the records. 8. It would be evident that the appellant-Management alleged correction of entries by the second respondent-workman {Conductor} in certain stage tickets, and thereby alleged that through such corrections, the workman swindled the funds of the appellant-Management, thereby derelicted from the duty of the appellant-Management of the Transport Corporation. 9. Before the enquiry officer, the second respondent-workman submitted a reply, denying the charges framed against him. The copy of the reply/explanation submitted by the second respondent-workman to the General Manager of the appellant-Transport Corporation, Villupuram, is on record and before the enquiry officer, it was requested to treat the same as reply by the second respondent-workman, in regard to the statement of the witnesses and evidence. In the said reply, the second respondent-workman specifically stated that he had not corrected the travelling charge in Ticket No.013053 from Rs.1.50 to Re.1.00. The travelling charge from Villupuram to Chemmar was Re.1. The tickets 013044 – 013053 were from Villupuram to Chemmar. In the chart also, he had written compoundly. Due to rain, the bus passed through Siruvanur. The travelling charge from Villupuram to Emapur is Rs.50. He had not corrected the travelling charges and stages. Since the carbon sheet was kept aside and the tickets were entered, the tickets which were to be delivered to the passengers were not having the impression and the workman kept the carbon made entries and issued tickets to the passengers and thus, the corrected figure was entered in the tickets. 10. The enquiry officer, in his report, while recording the details of the charges, noticed the statement of only one Management Witness, namely M.W.1 Mr.A.M.Subramaniam, Clerk, Audit Section, who audited the travelling sheets, anad deposed that he audited the travelling sheets while the first respondent-workman was functioning as a Conductor, and found certain mal-practices done by the workman-Conductor (second respondent herein). 11. It appears that Ex.P-1 [complaint containing the mal-practices done by the Conductor], Exs.P-2 and P-3 [detailed sheets used by him] and Ex.P-4 [travelling chart annexed with Exs.P-2 and P-3] were produced on behalf of the workman. 12. The second respondent-workman [charge-employee] did not choose to cross-examine the Management witness, but requested to treat his explanation as his statement. 13. 11. It appears that Ex.P-1 [complaint containing the mal-practices done by the Conductor], Exs.P-2 and P-3 [detailed sheets used by him] and Ex.P-4 [travelling chart annexed with Exs.P-2 and P-3] were produced on behalf of the workman. 12. The second respondent-workman [charge-employee] did not choose to cross-examine the Management witness, but requested to treat his explanation as his statement. 13. The enquiry officer recorded the aforesaid facts and without discussing the material evidence and oral evidence, mainly gave his finding that the charges levelled against the second respondent-workman [Conductor] were proved, as would be evident from the English version of the enquiry report, (filed in the typed set of papers, dated 23. 1998 on the side of the appellant), which is extracted hereunder: “... At this juncture, Thiru.A.Mani, Conductor was given full opportunity to cross examine the management side witness and to mark any documents. He had stated that he is not cross examining management side witness and he is not marking any document. He had further stated that his explanation may be treated as statement. He had further stated that he had not done the said corrections and since in some tickets the impression was not clear he had over writing and at that time related with the charges the bus was not proceeded to Emapur and it came back from Siruvanur and only beyond Siruvanur, Emapur and Periasevalai were to be proceeded and he had completed his statement. Based on the oral and documentary evidence on the side of the Management in this departmental enquiry, I decide that the charges levelled against Thiru.A.Mani, Conductor, were proved”. 14. From the Award of the first respondent-First Additional Labour Court, it would be evident that though the Labour Court noticed that the enquiry was conducted in a fair manner, yet it found that it was not a case of mis-conduct found either during the surprise inspection nor the Audit report suggests that the misappropriation was actually committed by the second respondent-workman (charge-employee). .15. From the statement of Management witness, i.e., M.W.1, as noticed by the enquiry officer, it would be evident that the said witness only stated that only certain travelling tickets were corrected by the first respondent-charge employee or it was over-written/correction made by him without carbon impression on the backside sheet. There is nothing on record to suggest that even 0.50 paise has been misappropriated by the first respondent-workman. There is nothing on record to suggest that even 0.50 paise has been misappropriated by the first respondent-workman. 16. Though a specific stand has been taken by the first respondent-workman in his reply that he has not corrected the ticket charges from Rs.1.50 to Re.1, and in fact, the ticket fare from one stage to another was Re.1, such a stand taken by the first respondent-workman has neither been taken into consideration by the enquiry officer nor discussion in that regard has been made, while dealing with the matter. 17. As already observed, in fact no ground-discussion has been made by the enquiry officer to come to a definite conclusion of misappropriation of funds or misconduct on the part of the workman or that he committed any dereliction of duty. Without discussion of any material/oral/documentary evidence, if it is merely stated that the charges are proved, it was open for the second respondent-Labour court to come to a definite conclusion that no misconduct as found either in the surprise inspection, nor reported in the audit report, was committed by the charge-employee (second respondent-workman). 18. There being a specific finding of the first respondent-Labour Court with regard to the misconduct not having been committed by the second respondent-workman, and if the learned single Judge refused to sit in appeal over such finding of the Labour Court, we find no ground to interfere with the impugned order dated 13. 1997 passed by the learned single Judge, in Writ Petition No.8914 of 1988. 19. Further, as services of a person cannot be terminated by an organisation with retrospective date, the order of termination passed against the second respondent-workman (charge-employee) by the appellant-Management of the Transport Corporation, in the proceedings, dated 2. 1982, suffer from infirmity, as it has been passed with retrospective effect from the date of suspension of the charge-employee. .20. In the aforesaid background, if the said order of termination passed against the employee, [first respondent herein] was set aside by the first respondent-Labour Court in I.D.No.394 of 1982, Award dated 312. 1987, which was affirmed by the learned single Judge in Writ Petition No.8914 of 1988, dated 13. 1997, it calls for no interference. 21. So far as the arrears of back-wages are concerned, it is true that the second respondent-workman suffered because of the order of termination passed by the appellant-Management of Transport Corporation. 1987, which was affirmed by the learned single Judge in Writ Petition No.8914 of 1988, dated 13. 1997, it calls for no interference. 21. So far as the arrears of back-wages are concerned, it is true that the second respondent-workman suffered because of the order of termination passed by the appellant-Management of Transport Corporation. It has also been noticed by the first respondent-Labour Court that the second respondent-charge employee was not in employment. It is equally correct to state that the appellant-Management of the Transport Corporation shall not be faulted if the matter remained for years together either before the first respondent-Labour Court or before the Writ Court. 22. In the facts and circumstances, we are of the view that instead of full back-wages as awarded by the first respondent-Labour Court, the learned single Judge should have allowed only 50% of the back-wages in favour of the second respondent-workman, who during the pendency of the Writ Proceedings, attained the age of superannuation. 23. We accordingly modify the Award of the second respondent-Labour Court dated 312. 1987 in Industrial Dispute No.394 of 1982 and the impugned order dated 13. 1997 passed by the learned single Judge in Writ Petition No…8914 of 1988 insofar as they relate to the awarding of full back-wages to the workman. 24. The Award dated 312. 1987, passed by the first respondent-Labour Court, in setting aside the order of termination dated 2. 1982, passed against the first respondent-charge employee, is confirmed. The second respondent-workman shall stand reinstated to the services of the appellant-Management and he stands superannuated on attaining the age of 58 years. The second respondent–A.Mani, will be entitled to get 50% of the back-wages from the date of his termination, i.e. 2. 1982, till the date of his superannuation. However, the entire period of his services shall be counted for all other purposes including the post-retirement benefits. .25. The appellant-Management of the Transport Corporation will pay the arrears of salary / 50% of back-wages/post-retirement benefits to the second respondent-A.Mani, within a period of two months from the date of receipt/production of a copy of this judgment, failing which, the appellant-Transport Corporation will pay the arrears of salary / 50% of back-wages/post-retirement benefits, with 8% interest to be calculated from the date of superannuation of the second respondent-workman, till it is paid. 26. The Writ Appeal stands disposed of with the aforesaid observations/directions. No costs. 26. The Writ Appeal stands disposed of with the aforesaid observations/directions. No costs. C.M.P. and W.A.M.P. are closed.