JUDGMENT : Bharat Bhushan Parsoon, J. Petitioner Ved Parkash (hereinafter referred to as, the workman) working as an electrician with the Rohtak Central Co-operative Bank Limited, Rohtak i.e. respondent No. 2 (hereinafter referred to as, the management) pursuant to appointment letter (Annexure P-1) dated 12.10.1982 had faced termination of his services vide order (Annexure P-3) dated 13.7.1993 with immediate effect. His monthly emoluments were enhanced from Rs. 100/- to Rs. 300/- per month w.e.f. 1.8.1986 vide order (Annexure P-2) dated 28.8.1985. On industrial dispute having been raised, the Government referred the same for adjudication by the Industrial Tribunal-cum-Labour Court, Rohtak (hereinafter referred to as, the Labour Court). Answering the reference against the workman, termination of his services was held to be justified by the Labour Court vide Award (Annexure P-4) dated 31.7.1996. By way of this petition, the workman has sought quashing of Award (Annexure P-4) and has prayed for reinstatement in service with full back wages. 2. Plea of the workman is that he was working as an electrician and it was requirement of continuous nature. It is claimed that work of electrician with the management has rather increased than before. 3. Claim of the management is that the workman leaving the job of an electrician had taken contract of the canteen in the premises of the bank and thus his interest in the job was lost and he used to remain absent from duty. It is also contended by the management that the workman was only part time worker but even that job, he could not attend regularly as he was never available. 4. Hearing to the counsel for the parties has been provided while going through the paper book. 5. It is an admitted fact that the workman was appointed as an electrician on part time basis by the management vide appointment letter (Annexure P-1) of 12.10.1982. His monthly emoluments were increased w.e.f. 1.8.1986 vide Annexure P-2. Removal of the workman vide Annexure P-3 on 13.7.1993 was with immediate effect. 6. The moot point to be determined is as to whether removal of the workman was legal and if not, what were the consequences? Concedingly, the workman was in part time employment of the management w.e.f. 12.10.1982 to 13.7.1993. He was neither given notice nor retrenchment compensation nor had been indicted in any departmental enquiry. 6. The moot point to be determined is as to whether removal of the workman was legal and if not, what were the consequences? Concedingly, the workman was in part time employment of the management w.e.f. 12.10.1982 to 13.7.1993. He was neither given notice nor retrenchment compensation nor had been indicted in any departmental enquiry. Even though he was in part time employment, non-compliance of provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as, the Act) is sufficient to label the termination of services of the workman to be against law. What remains to be seen is as to whether termination of services of the workman amounts to retrenchment as per the Act or not? Assertion of the management referring to provisions of Section 2(oo)(bb) of the Act is that innocuous termination of the workman would not amount to retrenchment. At this stage, the term "retrenchment" as it is defined in Section 2(oo)(bb) of the Act is reproduced as under: Retrenchment or means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include- (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health. 7. When it is a clear case that the workman had remained in continuous employment for 240 days in a period of 12 months preceding the date of termination of his services and had neither been issued and notice nor had been paid retrenchment compensation, such termination would amount to retrenchment. Plea of the management that the workman used to remain absent due to his other engagements resulting in termination of his services makes the order of termination to be laced with a tone of punishment. By no means, termination of services of the workman was in accordance with terms and conditions of his appointment (Annexure P-1). Plea of the management that the workman used to remain absent due to his other engagements resulting in termination of his services makes the order of termination to be laced with a tone of punishment. By no means, termination of services of the workman was in accordance with terms and conditions of his appointment (Annexure P-1). Even plea of the management that the services of the petitioner were no more required vide order (Annexure P-3) is misfounded because there is nothing to show that work of electrician was no more required by the management. Merely because the workman was a part time employee is ipso-facto no ground to give unbridled authority to the management to adopt a policy of hire and fire. Plea of the management that he had been absent due to his engagement in running of canteen of Punjab National Bank located in the premises of the management, has also not been substantiated. No notice of his alleged absence had ever been given to him by the management nor there is any evidence that he was engaged in running of the canteen during his employment with the management. 8. Moreover, the management has not provided sufficient data as to on which dates, he remained absent from duty and had no explanation to offer when called upon to furnish the same. Claim of the management that work of electrician was over after computerisation was brought about in the Bank is totally inconvincing. Rather, introduction of computers concomitantly ushered in manifold increase of work of an electrician because entire computers and connected gazettes need constant electric supply and thus pre-suppose increase in work of an electrician. Clearly enough, termination of services of the workman vide Annexure P-3 was not an order of innocuous nature but rather is influenced by unsupported and unsubstantiated notion of the management that the workman used to remain absent due to his alleged engagement in running of the canteen which has not been proved on record by the Bank but such plea has been taken by the workman. 9. The workman had been in employment of the management for 10 years and 9 months. In a recent judgment in Deepali Gundu Surwase Vs. 9. The workman had been in employment of the management for 10 years and 9 months. In a recent judgment in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 10 SCC 324 , Hon'ble Supreme Court of India has held that delay in finalization of litigation would not be a ground to deny reinstatement and full back wages. 10. After referring to many decisions, the Hon'ble Supreme Court came to conclusion in para. 33 of the judgment as under: 33. The propositions which can be culled out from the aforementioned judgments are: (i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. (ii) 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. (iii) 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 averments 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. 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. (iv) The cases in which the Labour Court/Industrial Tribunal exercises power u/s 11-A 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. (v) 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 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. (vi) 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. (vi) 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 vis-a-vis 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 Private Limited v. Employees of Hindustan Tin Works Private Limited (supra). (vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) 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. 11. Keeping in view the totality of facts and circumstances, the Award (Annexure P-4) rendered by the Labour Court against the workman cannot be supported and sustained either on facts or in law. Sequelly, the Award (Annexure P-4) is quashed and respondent No. 2 is directed to reinstate the petitioner with continuity of his service and full back wages from the date of his termination. The petition is, consequently, allowed in the above terms.