ORDER : 1. The Writ petitioner Thiru.P.Perumal was employed as a watchman in the second respondent mill. He joined service in the year 1981. While so, he was issued with a charge memo that on 19.12.1996, he had allowed a vehicle bearing Registration No.TN 59-D-1246 to take out two more cone bags instead of the permitted 76 cone bags. Alleging that it would actually constitute a misconduct in terms of the standing orders, action was taken against him. After conducting the domestic enquiry, he was dismissed from service by order dated 27.05.1997. The Writ petitioner raised an industrial dispute. It was taken on file by the Labour Court, Madurai, in I.D.No.65 of 1998. The Labour Court by award dated 22.12.2008 came to the conclusion that the punishment imposed on the Writ petitioner was liable to be set aside. It also came to the conclusion that the finding of the enquiry officer with regard to the claim of the Writ petitioner was not sustainable in law. However, the Labour Court made an observation that there was some negligence on the part of the Writ petitioner. Therefore, the Labour Court also surmised that the Writ petitioner/workman would have been gainfully employed elsewhere. In that view of the matter, the Labour Court while directing reinstatement to the workman, denied him backwages. This award is challenged at the instance of the workman. It is to be noted that the mill management did not choose to question the award. 2. Heard the learned counsel on either side. 3. The learned counsel appearing for the Writ petitioner pointed out that the case on hand is rather peculiar. The Writ petitioner reached the age of superannuation on 12.10.2008. The award itself came to be passed only on 22.12.2008. Neither the learned counsel appearing for the workman nor the learned counsel appearing for the management informed the Labour Court about the fact that the workman had already reached the age of superannuation by then. Under the impression that the workman can be still employed by the mill management, the order for reinstatement was made. Obviously the said order for reinstatement was not feasible of compliance. The only issue that is to be considered is whether the Writ petitioner ought to have been awarded backwages or not. 4. Under the impression that the workman can be still employed by the mill management, the order for reinstatement was made. Obviously the said order for reinstatement was not feasible of compliance. The only issue that is to be considered is whether the Writ petitioner ought to have been awarded backwages or not. 4. The learned counsel appearing for the Management placed reliance on the decision of the Hon'ble Supreme Court reported in C.D.J. 2005 S.C. 157(Kendriya Vidyalaya Sangathan and another V. S.C. Sharma). In the aforesaid decision, the Hon'ble Supreme Court held as follows:- “14. In P.G.I. of Medical Education and Research, Chandigarh Vs. Raj Kumar(JT 2001 (1) SC 336), this Court found fault with the High Court in setting aside the award of the Labour Court which restricted the back wages to 60% and directing payment of full back wages. It was observed thus: 'The Labour Court being the final Court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recovered with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect.' Again at paragraph 12, this Court observed: 'Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straitjacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety.' 15. The position was reiterated in Hindustan Motors Ltd., Vs. Tapan Kumar Bhattacharya and another ( 2002 (6) S.C.C. 41 ), Indian Railway Construction Co. Ltd., Vs. Ajay Kumar ( 2003 (4) S.C.C. 579 ) and M.P. State Electricity Board Vs. Jarina Bee(Smt.) ( 2003 (6) S.C.C. 141 ) 16. Applying the above principle, the inevitable conclusion is that the respondent was not entitled to full back wages which according to the High Court was natural consequence. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. That part of the High Court order is set aside. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in this regard.” 5. According to the learned counsel appearing for the management, the aforesaid decision of the Hon'ble Supreme Court is squarely applicable to the case on hand. It is true that the Writ petitioner/workman did not examine himself as a witness before the Labour Court. He contented himself by marking certain documents, namely, Ex.W.1 to Ex.W.4. Even in the I.D. petition, the Writ petitioner had not claimed that he was not gainfully employed elsewhere, after he was dismissed from service by the mill management. Of course the Writ petitioner had claimed in the I.D. petition that he should be paid backwages. Unfortunately, even in the affidavit filed in support of the Writ petition, there is no claim that he was not gainfully employed elsewhere. 6. No doubt, the stand of the learned counsel appearing for the management is that the backwages cannot be ordered as a matter of course and that the claimant will have to make out a case, is correct and sound. It is further fortified by the aforesaid decision of the Hon'ble Supreme Court. But then, this Court will have to take into account the totality of circumstances. The Labour Court came to the conclusion that the charges framed against the workman do not stand. The findings of the enquiry officer were set aside. The punishment imposed on the workman was also nullified. The Labour Court ought to have stopped with the said finding. On the other hand, the Labour Court observed that the Writ petitioner was negligent. There is also absolutely no basis for the finding of the Labour Court that the Writ petitioner could have been gainfully employed elsewhere. The Labour Court was labouring under the erroneous impression that the Writ petitioner was still having a few years of service ahead. The Labour Court was not informed that the claimant had already reached the age of the superannuation on the date when the award was passed. The Labour Court was labouring under the erroneous impression that the Writ petitioner was still having a few years of service ahead. The Labour Court was not informed that the claimant had already reached the age of the superannuation on the date when the award was passed. Therefore, the relief granted by the Labour Court was of no consequence. 7. The Writ petitioner joined service in the year 1981. He reached the age of superannuation on 12.10.2008. Since the Labour Court had ordered reinstatement by setting aside the order of dismissal, the Writ petitioner must be deemed to have been in service for a period of 27 years. He is therefore entitled to retirement benefits and consequential benefits such as Gratuity, etc. It would be most unfair to relegate the Writ petitioner to go before the controlling authority under the Payment of Gratuity Act, for claiming his Gratuity benefits. Since these facts are beyond dispute, this Court directs the second respondent/mill management to quantify the benefits such as Gratuity, etc. payable to the Writ petitioner and pay the same within a period of four weeks from the date of receipt of a copy of this order. 8. Even though this Court holds that the Writ petitioner is not entitled any backwages, the petitioner cannot be allowed to return empty handed. The petitioner even according to the Labour Court, was unjustifiably dismissed from service. He may not be entitled to backwages. He must be entitled to some benefit as ex gratia. This Court therefore directs the management to pay 25% of the backwages as ex gratia to the Writ petitioner. 9. With these directions, the Writ petition is partly allowed. No costs.