JUDGMENT : Mr. Sanjay Yadav, J. 1. With consent of learned counsel for the parties the matter is finally heard. 2. Petitioner Workman being aggrieved by non-grant of back wages has filed present writ petition seeking modification of Award dated 30.7.2010 to the extent that with reinstatement the petitioner be also granted back wages. 3. Undisputed facts in nutshell are that being engaged on daily wages in the year 1985, the services of the petitioner was dispensed with in the year 1995 by the respondent. Petitioner, questioned the same by raising industrial dispute on the ground that the same has been without adhering the statutory stipulations contained under Section 25F of the Industrial Disputes Act 1947, the plea found favour with Labour Court in seisin with the reference as to whether the termination of the petitioner workman in the year 1995, if not, what relief he is entitled for. The petitioner was directed to be reinstated , however, the Labour Court declined the claim for back wages. 4. Trite it is that where the termination is found to be illegal, reinstatement is the consequences but grant of back wages depends on various factors, as has been observed by their Lordships in M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80 : "11. In the very nature of things there cannot to a straight jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on of the face of. the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v. Workfield)". 5. the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice? according to law and not humor. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharm v. Workfield)". 5. In later decision,i.e, Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and others: (2013) 10 SCC 324 that : (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 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. ........" 6. In PGI of Medical Education and Research Chandigarhy v. Raj Kumar: (2001) 2 SCC 54 "12.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 straight jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. As regards the decision of this Court in Hindustan Tin Works Pvt. Ltd. (supra) be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only. " 7. Thus unless proved by cogent material evidence that the workman was not gainfully employed, he is not entitled for back wages. 8. " 7. Thus unless proved by cogent material evidence that the workman was not gainfully employed, he is not entitled for back wages. 8. In the case at hand, there is no cogent material evidence on record of the petitioner being not gainfully employed. Even otherwise the record reveals that the petitioner services were dispensed with in the year 1995, and the industrial dispute was raised in the year 2008, after a period of thirteen years with no cogent explanation for delay. Thus it was doubtful whether an industrial dispute survived after thirteen years. Be that as it may. These facts justify the order of non grant of back wages. 9. Consequently, petition fails and is dismissed. No costs.