JUDGMENT The petitioner-workman challenges the award dated 26 April 2007 made by the 6th Labour Court, Mumbai to the extent it denies the entire backwages and other consequential benefits for the period between 1 October 1992 to 1 August 2003, despite having come to the conclusion that the termination of his services was neither legal, nor justified. 2] It is the case of the petitioner-workman that he was employed as H.T. Assembler with the respondent-employer with effect from 18 January 1971. In the year 1992, a chargesheet was issued against the petitioner, which charges were denied by him. There was however, no enquiry held into charges and on 3 October 1992, the petitioner was abruptly prevented from discharging duties, on the ground that he had purportedly submitted a letter of resignation, which had since been duly accepted by the respondent-employer. 3] The petitioner and two other workmen who were similarly treated raised an industrial dispute which was admitted to conciliation. The conciliation failed and the appropriate Government referred the industrial dispute for adjudication to the 6th Labour Court, being Reference (IDA) No.340 of 1994. 4] Mr. M.R. Pandey, Manager (Personnel) was examined as a witness for the respondent-employer. The petitioner examined himself in support of his claim. 5] The 6th Labour Court, by its award dated 3 August 2005 has held that the termination of services of the petitioner was both illegal and unjustified. However, as during pendency of the reference, the respondent-employer had already reinstated the petitioner with effect from 1 Auust2003, there was no question of grant of any relief of reinstatement. Instead, the 6th Labour Court has directed the respondent-employer to pay 50% backwages (Rs.1350/per month) for the period between 1 October 1992 and 1 August 2003, by way of relief to the petitioner. As noted above, the petitioner, by way of this petition questions the denial of balance backwages for the entire period between 1 October 1992 and 1 August 2003. 6] Ms P.C. Contractor, learned counsel for the petitioner, upon reference to the material on record has submitted that the petitioner had successfully discharged the onus of establishing that he was not gainfully employed between the period 1 October 1992 and 1 August 2003, despite having made efforts to secure employment. 6] Ms P.C. Contractor, learned counsel for the petitioner, upon reference to the material on record has submitted that the petitioner had successfully discharged the onus of establishing that he was not gainfully employed between the period 1 October 1992 and 1 August 2003, despite having made efforts to secure employment. In contrast, Ms Contractor submitted, that the respondent-employer had adduced no evidence whatsoever to discharge the onus, which had shifted upon them to establish that the petitioner was indeed gainfully employed during the said period. In such circumstances, Ms Contractor submitted that there was no reason whatsoever to deny the petitioner backwages and consequential benefits for the entire period, particularly since the 6th Labour Court had come to the conclusion that the termination of the petitioner's services were both illegal and unjustified. 7] Ms Contractor, placed reliance upon the following decisions in support of the petition: (a) Mohd. Yunus Khan v/s. State of Uttar Pradesh & ors – (2010) 10 SCC 539 ; (b) Smt. Laxmi Bharat Bavise v/s, M/s. Permanent Magnets Ltd. & ors. 2012 LLR 728; (c) Zarin Nozer Desai v/s. M.S. Rawat & anr. 2008 (116) FLR 316; (d) Tejpal Singh v/s. Union of India & ors. 2007 (112) FLR 1032; (e) Progressive Education Society Hinghanghat & ors v/s. Nitin Krishna Rao Nimbalkar & Ors. 2006 (111) FLR 653; (f) Workmen employed under it represented by Shramik Sena v/s. Raptakos Breet & Co. Ltd. 2007 III CLR 354; (g) Management of Comerin Crepe Mill Kollanvillai, Thucklay v/s. G. Ayyapan & Anr. 2004 III LLJ; (h) Regional Authority, Dena Bank & anr. V/s. Ghansyam – 2001 II CLR 901; and (i) Deepali Gundu Surwase v/s. Kranti Junior Adyapak – (2013) 10 SCC 324 . 8] Mr. R.S. Pai, learned counsel for respondent-employer submitted that the petitioner had in fact tendered his resignation and therefore there was no warrant to hold that the respondent-employer had terminated his services. In any case, Mr. Pai submitted that the respondent-employer, even before conclusion of the reference proceedings had reinstated the petitioner with effect from 1 August 2003. Mr. Pai further submitted that the petitioner's evidence on the aspect of gainful employment was too sketchy to deserve any credence and moreover there was no evidence as to the efforts, if any, made by the petitioner to obtain gainful employment between the period 1 October 1992 and 1 August 2003. Mr. Pai further submitted that the petitioner's evidence on the aspect of gainful employment was too sketchy to deserve any credence and moreover there was no evidence as to the efforts, if any, made by the petitioner to obtain gainful employment between the period 1 October 1992 and 1 August 2003. In such circumstances, Mr. Pai submitted that even the award of backwages to the extent of 50%, has exceeded the bounds of legitimate generosity. 9] Mr. Pai placed reliance upon the decision of the Supreme Court in the case of U.P. State Brassware Corporation Ltd vs. Uday Narain Pandey – (2006) 1 SCC 479 , to submit that full backwages cannot be allowed automatically or mechanically merely because an order of termination is found to be unsustainable. Mr. Pai submitted that rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law. 10] For all these reasons, Mr.Pai submitted that the impugned order passed by the 6th Labour Court warrants no interference whatsoever. 11] The rival contentions now fall for my determination. 12] At the outset, there is no challenge to the impugned award dated 26 April 2007 by the respondent-employer. As such, insofar as the respondent-employer is concerned, the impugned award has attained the finality. The submission of Mr. Pai that in this case it is the petitioner, who had resigned from service and therefore, there was no termination as such by the employer, cannot at all be entertained. The submission is, therefore, clearly misconceived and consequently rejected. 13] The entire discussion, on the issue of award of backwages is contained in the concluding portion of paragraphs 9, 10 and 11 of the impugned award. The same reads as under: “9. …..... Therefore it shows that there is no question of grant of relief of reinstatement to the worker Narkar by the 1st party, question now remain only with respect to the prayer of back wags. There is no supporting evidence on record which indicating that worker Narkar had made attempt to get service of employment or any anywhere after his termination till 1/8/03. 10. 1st party has also not given any evidence which indicates that 2nd party had obtained gainful employment in the period commencing from 1/10/02 (1/10/92) to 1/8/03. 11. There is no supporting evidence on record which indicating that worker Narkar had made attempt to get service of employment or any anywhere after his termination till 1/8/03. 10. 1st party has also not given any evidence which indicates that 2nd party had obtained gainful employment in the period commencing from 1/10/02 (1/10/92) to 1/8/03. 11. According to the 2nd party worker Narkar was getting as wages of Rs.1300/per month. His last drawn wages were Rs.............. only. Therefore if 1st party is directed to pay 50% back wages of Rs.1300/p. m. for the period from 01.10.92 to 01.08.2003 to worker Narkar, then according to me it will serve the purpose. In short reference is deserved to be allowed accordingly. Hence I answer issues 1 to 4 in the affirmative and 5 accordingly. Therefore I proceed to pass the following Order.” 14] As noted earlier, respondent-employer examined Mr.Maniklal R. Pandey, Manager (Personnel) as its witness. In either chief or the cross, this witness has not said a word about the petitioner being gainfully employed between the period 1 October 1992 and 1 August 2003. 15] The petitioner, in his chief has deposed as follows;“ 3. I am not employed anywhere after termination from 1992. I had tried to get employment but I could not succeed. There was problem of my age and I had no therefore could not get job anywhere after termination.” 16] In the cross-examination of the petitioner, there is not even any challenge to the aforesaid deposition of the petitioner. Not even, any suggestion was put to the petitioner-workman that his deposition in chief was incorrect or untrue. There was neither any permission applied for by and on behalf of the respondent-employer to lead any evidence or produce any material, which would establish that the petitioner was gainfully employed during the period 1 October 1992 and 1 August 2003. 17] The 6th Labour Court, in the impugned award has denied the petitioner backwages to the extent of 50% by observing that there is no supporting evidence on record which indicates that the petitioner made attempts to obtain gainful employment between the period 1 October 1992 to 1 August 2003. In my opinion, such an approach is not proper. The initial onus may be upon the workman to establish that he was not gainfully employed, despite his having made efforts to obtain employment. In my opinion, such an approach is not proper. The initial onus may be upon the workman to establish that he was not gainfully employed, despite his having made efforts to obtain employment. In the present case, such onus has been discharged by the petitioner, which is evident from his unchallenged deposition in the chief. Thereafter, the onus shifted upon the respondent-employer to place material on record to establish that the petitioner was indeed gainfully employed in the interregnum between termination and reinstatement. Such onus has not even been attempted to be discharged by the respondent-employer. 18] In the case of U.P. State Brassware Corporation Ltd. (supra), the workman had not raised any plea that he was not gainfully employed in the interregnum between retrenchment and reinstatement. In these circumstances, the Supreme Court at paragraph 22 observed thus: “22. No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6N of the U.P. Industrial Disputes Act.” 19] The claim of the petitioner in the present case is not on the basis that award of entire backwages is almost a corollary, once the termination is found to be illegal and unjustified. The claim of the petitioner is on the basis, that, in the present case, the termination of his services has not been upset upon grounds which are merely technical. Rather, this is a case where the Labour Court has come to the conclusion that the petitioner had at no stage tendered his resignation, but was ousted from services for a long period of almost 11 years, on the basis that he had so resigned. Further, in this case, the petitioner has discharged his onus of establishing that he was not gainfully employed in the interregnum. In absence of any evidence to the contrary having led by the respondent-employer, there was no justification both on the facts as well as in law, to deny backwages for the entire period. Further, in this case, the petitioner has discharged his onus of establishing that he was not gainfully employed in the interregnum. In absence of any evidence to the contrary having led by the respondent-employer, there was no justification both on the facts as well as in law, to deny backwages for the entire period. The principle in the case of U.P. State Brassware Corporation Ltd. (supra), therefore, is inapplicable to the facts and circumstances of the present case. In the case of Progressive Education Society Hinghanghat & ors (supra), Division Bench of this Court has, in similar circumstances considered and distinguished the ruling of the Supreme Court in the case of U.P. State Brassware Corporation Ltd. (surpa). 20] In the case of Deepali Gundu Surwase (supra), the Supreme Court, after reference to its earlier decisions, including the decision in the case of U.P. Brassware Corporation Ltd. (supra) has culled out the following propositions: “38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. 38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. 38.4. The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned court or tribunal will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position visàvis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works(P) Ltd. v. Employees ( 1979) 2 SCC 80. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. [emphasis supplied] 21] Applying the aforesaid principles to the case at hand, there appears to be no justification for denial of the entire backwages to the petitioner for the interregnum between his illegal termination and eventual reinstatement. At the date of termination, the petitioner had put in over two decades of service. There was no misconduct as such alleged against the petitioner. In any case, no inquiry was held into the so called misconduct. The case of the respondent-employer is that the petitioner had resigned services. This case has been disbelieved by the Labour Court. Even the respondent-employer has not questioned the award on this score. The petitioner in this case has discharged the onus establishing that he was not gainfully employed. The respondent-employer, however, has not even attempted to discharge the onus which shifted upon them. This case has been disbelieved by the Labour Court. Even the respondent-employer has not questioned the award on this score. The petitioner in this case has discharged the onus establishing that he was not gainfully employed. The respondent-employer, however, has not even attempted to discharge the onus which shifted upon them. This is not a case where termination has been set aside on some technical grounds. In these circumstances, the impugned award to the extent it denies the entire backwages to the petitioner, is liable to be interfered with. 22] In such circumstances, the impugned award is interfered with to the extent it denies to the petitioner, balance backwages to the extent of 50% for the period between 1 October 1992 and 1 August 2003 at the rate of Rs.1350/per month. Upon such backwages, in the facts and circumstances of the present case, it is only appropriate that the respondent-employer pays interest at the rate of 8% per annum from the date of the impugned award, i.e. 26 April 2007 till the date of actual payment to the petitioner-workman. 23] It is necessary to note that on 4 July 2014, Mr. R.S. Pai learned counsel for the respondent-employer produced on record a receipt dated 7 April 2011, which records that the petitioner has received an amount of Rs.2,10,000/in full and final settlement of his claim. Ms P.C. Contractor, learned counsel for the petitioner-workman, upon instructions, however submitted that the said receipt pertains to the dues payable to the petitioner consequent upon his superannuation from service and the amount reflected in the receipt, has no nexus whatsoever with the backwages for the period between 1 October 1992 and 1 August 2003. Ms Contractor also submitted that the petitioner disputes ever having signed the receipt dated 7 April 2011, though the petitioner accepts the receipt of an amount of Rs.2,10,000/paid to him by the cheque referred to in the receipt. Ms Contractor submitted that in the past, the allegations of the forgery made by the petitioner against the respondent-employer were found to be true and correct. For this purpose, Ms Contractor invited my attention to the opinion dated 29 March 2007 furnished by the Additional State Examiner of Documents, C.I.D., Maharashtra. 24] This Court is really not required to decide on the issue of authenticity or otherwise of the receipt dated 7 April 2011. For this purpose, Ms Contractor invited my attention to the opinion dated 29 March 2007 furnished by the Additional State Examiner of Documents, C.I.D., Maharashtra. 24] This Court is really not required to decide on the issue of authenticity or otherwise of the receipt dated 7 April 2011. As such, no opinion is expressed upon the rival contentions in this regard. 25] In the result, I pass the following order: (a) The impugned award dated 26 April 2007, to the extent it denies the petitioner, balance backwages to the extent of 50% for the period between 1 October 1992 and 1 August 2003 at the rate of Rs.1350/per month is interfered with; (b) The respondent-employer is, accordingly, directed to pay the petitioner-workman the entire backwages at the rate of Rs.1350/per month for the period between 1 October 1992 and 1 August 2003, alongwith interest thereon at the rate of 8% per annum from 26 April 2007 till the date of actual payment; (c) The respondent-employer to pay costs of Rs.5000/( Rs. Five Thousand only) to the petitioner-workman. 26] Rule is made absolute to the aforesaid extent.