Judgment 1. This writ petition is filed by the workman challenging the award of the Labour Court dated November 3, 1999 vide which, the prayer of the petitioner for reinstatement with consequential benefits was rejected. 2. The case of the petitioner is that he served with respondents No.2 and 3 as Gauge reader for 232 days when his services were terminated on September 1, 1993 without notice and without following the procedure of industrial Disputes Act (hereinafter referred to as "the Act" ). The respondents in their written statement filed before the Labour Court repudiated the claim on facts and inter alia pleaded that he was never engaged as Gauge reader but was engaged as Helper to Beldar, on daily wages and he only worked for 134 days only and he was engaged from time to time as per the requirement and had not served the management continuously for 240 days. The labour Court came to the conclusion that the petitioner had not served with the respondents for more than 240 days in a calendar year. It held that the management had not disputed the fact that the workman worked from October 20, 1992 upto December 31, 1992, March 1, 1993 to March 31, 1993, June 1, 1993 to June 30, 1993. It further held that the oral evidence led by the petitioner that he worked for 10 1/2 months cannot be taken into consideration in view of the documentary evidence available on record. 3. Learned counsel for the petitioner has relied on the observations of the Labour Court that at the most the documents produced at Ex. W-2 to W-5 go to show that the petitioner had worked for the months of July, 1993 vide copy of the Gauge register Ex. W/2 and W/5 and also worked in the month of August, 1993 as per copy of Gauge register, Ex. W/3 and W/4. It is observed by the Labour Court that if the total number of working days of 134 are added with 62 days for the months of July and August, 1993, the total number of days comes to 196. 4. W/3 and W/4. It is observed by the Labour Court that if the total number of working days of 134 are added with 62 days for the months of July and August, 1993, the total number of days comes to 196. 4. In the claim statement, copy of which has been produced at Annexure P/2, the petitioner has contended that he was drawing monthly salary of Rs.1282/- p. m. This fact has been admitted in the written statement before the Labour Court, copy of which has been produced at Annexure P13. 5. Learned counsel for the petitioner has relied on the deposition of Ram Manohar. The labour Court has held that the witness has deposed that the entries were not signed by the workman, however, learned counsel for the petitioner has stated that the word "not" is wrongly mentioned in the awafd. Even as per the translated version of the deposition, the petitioner has even worked from February 25, 1993 to March 28, 1993, April 6, 1993, from may 1, 1993 to May 17, 1993, in addition to the period of 134 days mentioned in the written statement. Therefore, considering the period admitted by the respondents i. e.134 days, additional period of 22 days, as can be calculated from the deposition of Shri Ram manohar and 62 days for the months of July and August, 1993, the total number of working days would be 218 days. 6. Therefore, this is a case where the respondent employer is not coming forth with clean hands and complete records. When this is the position, the question is what should be the finding. 7. The respondent is in the possession of best evidence and is to produce the same even if not called for as held by the Supreme Court in the case of Gopal Krishnaji Ketkar V/s. Mohamed Haji Latif AIR 1968 SC 1413. In this case, adverse inference is required to be drawn, because the respondent is coming forth with a plea which cannot be seen to be not correct in view of the above reason. The span of time in which the petitioner is working is certainly more than 240 days in a year and therefore, the petitioner can be said to have worked for more than 240 days, prior to the date of his termination. 8. The span of time in which the petitioner is working is certainly more than 240 days in a year and therefore, the petitioner can be said to have worked for more than 240 days, prior to the date of his termination. 8. Learned State counsel has argued that if this Court does not agree with the award of the Tribunal, it can remand the matter but cannot grant relief of reinstatement and that the matter, at the most will have to be remanded to the Court below. However, in the case of surendra Kumar Verma V/s. Central Government industrial Tribunal-I cum-Labour Court AIR 1981 SC 422 : 1980 (4) SCC 443 : 1981-I-LLJ-386, the Supreme Court has observed that plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been and so it must ordinarily lead to back wages too. The Supreme court has considered the exceptional circumstances such as closing down of the industry, severe financial doldrums etc. 9. In the case of Mohan Lal V/s. Management of Bharat Electronics Ltd. AIR 1981 SC 1253 : 1981 (3) SCC 225 : 1981-II-LLJ-70, it has been observed that when the termination of the service is found to be illegal, declaration must follow that workman continues in service with consequential benefits. It has been held that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits, namely, back wages in full and other benefits. 10. Learned counsel for the petitioner has also argued that the reference is barred by the principle of res judicata. However, in the written statement filed before the Tribunal, the said point is not taken. Copy of the written statement is at Annexure P/3. A defence of res judicata can be waived by a party and hence it cannot be allowed to be taken at this stage. 11. Therefore, this plea cannot be raised at this stage. 12. As a result, the award of the Labour court cannot be upheld. The petitioner is entitled to relief of reinstatement. A defence of res judicata can be waived by a party and hence it cannot be allowed to be taken at this stage. 11. Therefore, this plea cannot be raised at this stage. 12. As a result, the award of the Labour court cannot be upheld. The petitioner is entitled to relief of reinstatement. It is not shown that the petitioner was gainfully employed during the period of forced employment. 13. This writ petition is therefore, allowed. The award of the Labour Court is set aside and the petitioner is ordered to be re- instated with full back wages from the date of termination till the date of reinstatement of service.