JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Desai, learned advocate for the petitioner - Agricultural Produce Market Committee [hereinafter referred to as "Market Committee"], and Mr. Rathod, learned advocate for the respondent - workman. 2. In this petition, the petitioner has challenged award dated 25.4.2000 passed by the learned Labour Court, Rajkot in Reference (LCR) No. 802 of 1990 whereby the learned Labour Court has set aside the termination of the respondent from service of the Market Committee and directed the petitioner to reinstate the respondent with continuity of service and 65% backwages. 3. So far as factual backdrop is concerned, it has emerged from the record that on the allegation that the Market Committee terminated her service illegally and arbitrarily on 31.7.1990, the respondent herein raised industrial dispute which was referred by appropriate government for adjudication to the learned Labour Court, Rajkot. The dispute was registered as Reference (LCR) No. 802 of 1990. 3.1 Before the learned Labour Court, the respondent herein filed statement of claim and alleged that she was working with the opponent - employer as permanent employee (cook-cum-labourer) and that she worked in the canteen. She also alleged that her salary was Rs. 510/- per month when her service was terminated. She alleged that her service was terminated without following procedure prescribed by law and without payment of compensation. On such allegations, the respondent prayed for reinstatement in service with consequential benefits. 3.2 The petitioner Market Committee i.e. opponent - employer filed written statement and opposed the reference. The petitioner accepted in its written statement before the learned Labour Court that the respondent was engaged by it. However, the petitioner clarified that the claimant - respondent was engaged only for temporary period for preparing food in the canteen and that she was paid wages at the rate of Rs. 17/- per day. The petitioner also clarified that she worked with the Market Committee only for two years before her service was discontinued w.e.f. 31.7.1990 since the canteen was closed down. The Market Committee also claimed that all persons who were engaged in the canteen were discontinued and after the service of the persons engaged in the canteen were terminated in July 1990, any other persons were not engaged by the petitioner for same and similar work. The Market Committee also claimed that all persons who were engaged in the canteen were discontinued and after the service of the persons engaged in the canteen were terminated in July 1990, any other persons were not engaged by the petitioner for same and similar work. 3.3 During the proceedings before the learned Labour Court, the respondent herein had filed an application asking the petitioner to place on record original documents for the period from 1984 to 1990 namely, attendance register, leave register, wage register, payment voucher, etc. The deposition of the workman was recorded at Exh. 12 whereas the deposition of one Mr. Harilal Virjibhai was recorded at Exh. 20 on behalf of the opponent Market Committee. After considering the documentary and oral evidence available on record and after considering the submissions by learned counsel for the contesting parties and after taking into account the deposition on which reliance was placed by both sides, the learned Labour Court passed the award dated 25.4.2000 which is impugned in present petition. 4. Mr. Desai, learned advocate for the petitioner Market Committee, submitted that the learned Labour Court failed to appreciate that the Market Committee would not fall within purview of the definition of the term "industry" and that therefore, the reference was not maintainable. He further submitted that the respondent was engaged on contract basis for limited period and on daily wage basis and that therefore, her claim for reinstatement with consequential benefits is not justified and the learned Labour Court has committed error in not appreciating the fact that the relief by way of reinstatement in respect of a person who is engaged on contract basis is not justified or sustainable. Mr. Desai, learned advocate for the petitioner, submitted that the learned Labour Court has committed error in directing the Market Committee to reinstate the respondent with continuity of service and also committed error in directing the Market Committee to pay 65% backwages. 5. Mr. Rathod, learned advocate for the respondent, supported the award and submitted that the respondent had worked with the petitioner for more than 12 months and there was no contract executed between the parties and that therefore, the contention that the respondent was engaged on contract basis is incorrect and unjustified. Mr. 5. Mr. Rathod, learned advocate for the respondent, supported the award and submitted that the respondent had worked with the petitioner for more than 12 months and there was no contract executed between the parties and that therefore, the contention that the respondent was engaged on contract basis is incorrect and unjustified. Mr. Rathod, learned advocate for the respondent, submitted that undisputedly notice was not issued before terminating the respondent's service nor salary in lieu of notice was paid. According to Mr. Rathod, learned advocate for the respondent, the petitioner had not paid retrenchment compensation before terminating her service and that therefore, the termination was in violation of Section 25F. 6. I have heard submissions by learned counsel for the petitioner and the respondent. I have also considered the material available on record of this petition and also examined the award impugned in present petition. 7. Before proceeding further, it is relevant and necessary to mention at the outset that the respondent has, undisputedly (as admitted by Mr. Rathod, learned advocate for the respondent) attained age of superannuation and that therefore, now the question of implementation of the direction to reinstate the respondent does not survive. 8. It is also clarified by the learned counsel for the petitioner and the respondent that during the interregnum, i.e. while the petition was pending, the respondent was paid last drawn wages in accordance with Section 17-B of the ID Act in pursuance of the order and direction passed by the Court. 9. From the written statement filed by the petitioner Market Committee before the learned Labour Court, certain relevant aspects have emerged and the said factual aspects are such which put the controversy with regard to factual aspects at, rest. 9.1 According to the petitioner's written statement before the learned Labour Court, it was admitted that, (a) the respondent was engaged/appointed by the petitioner Market Committee; (b) the respondent was employed in and was working in the canteen of the petitioner Market Committee; (c) the respondent was paid salary at the rate of Rs. 17 per day and that even the respondent has claimed that she was paid salary at Rs. 17 per day and that even the respondent has claimed that she was paid salary at Rs. 510 per month; (d) the service of the respondent was discontinued w.e.f. 31.7.1990 (even according to the respondent, her service was terminated on and from 31.7.1990); (e) the respondent worked with the petitioner Market Committee for 2 years (whereas the respondent claimed that she had worked with the petitioner for 6 years); (f) it has emerged that undisputedly retrenchment compensation was not paid to the respondent when her service discontinued; and (g) the respondent's service was terminated because the canteen (where the respondent was working) was closed down and all employees working in the canteen were discontinued. 9.2 The above mentioned facts which have emerged from the written statement of the petitioner Market Committee are admissions of factual aspects by the petitioner Market Committee and therefore, binding to the petitioner. The said admitted factual aspects are, except in respect of total length of service, virtually similar to and matches with the claims and assertions by the petitioner and respondent. 9.3 Consequently, the undisputed fats are that the respondent had served with the petitioner Market Committee for more than 12 months and that there is no dispute about the fact that the respondent had worked for 240 days in preceding 12 months and that though she had worked for more than 12 months and for more than 240 days in preceding 12 months, her service was terminated without payment of retrenchment compensation and thereby, the petitioner Market Committee had committed breach of Section 25-F of the Act. 9.4 When above mentioned factual aspects are established as undisputed facts and the said facts have emerged from the petitioner's written statement. 10. The learned Labour Court has taken into account the said aspects and in light of the said facts, the learned Court reached to the conclusion that the respondent's service was terminated in violation of Section 25-F. When it is established that the respondent's service was terminated in violation of statutory provisions, it would, in ordinary course, i.e. unless exceptional circumstances are proved, entail direction in form of reinstatement with appropriate backwages. In present case, the learned Labour Court, after taking into account relevant facts, quantified backwages at 65%. 10.1 In light of above discussed facts, the order directing the petitioner Market Committee to reinstate the respondent cannot be faulted. In present case, the learned Labour Court, after taking into account relevant facts, quantified backwages at 65%. 10.1 In light of above discussed facts, the order directing the petitioner Market Committee to reinstate the respondent cannot be faulted. The said direction is required to be confirmed and is hereby confirmed. However, in view of the fact that the respondent has already crossed age for superannuation, the question of actual reinstatement now does not survive. 11. The only question which survives is about direction to pay backwages. Mr. Desai, learned advocate for the petitioner, would contend that the direction to pay backwages is unjustified. On the other hand, Mr. Rathod, learned advocate for the respondent, relied on the decision in case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. (2013) 10 SCC 324 ] wherein, Hon'ble Apex Court, in paragraph Nos. 38.1 to 38.6 observed, inter alia, that:-- "38. The propositions which can be culled out from the aforementioned judgments are: 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 averments 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 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. 38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 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. 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 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 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-à-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 (P) Ltd. v. Employees. 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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." 11.1 Relying on the said decision, Mr. Rathod, learned advocate for the respondent, submitted that there is no error so far as order directing payment of 65% backwages is concerned. 12. However, it is relevant to take into account the fact that the respondent was working as a cook in the canteen. Ordinarily, a person with such skill would not have remained unemployed or without source of income. With help of such skill, she would have earned income during interregnum. Further, the respondent's tenure with petitioner was only 2 years. In light of such facts, the direction for payment of backwages is required to be modified and direction to pay 65% backwages cannot be sustained. 13. With help of such skill, she would have earned income during interregnum. Further, the respondent's tenure with petitioner was only 2 years. In light of such facts, the direction for payment of backwages is required to be modified and direction to pay 65% backwages cannot be sustained. 13. Under the circumstances, having regard to above mentioned fact and overall facts and circumstances of the case, it appears that if the order granting backwages is modified, then, interest of justice would be served. Therefore, following order is passed:-- "[a] The order directing reinstatement of the respondent is not disturbed. However, now, question of actual reinstatement does not survive since the respondent has crossed age prescribed for superannuation. [b] So far as order directing payment of backwages at the rate of 65% is concerned, the said direction is set aside and modified by directing the petitioner Market Committee to pay backwages at the rate of 45%." With aforesaid observations and directions, the impugned award is partly modified. The petition is partly allowed. Rule is made absolute to the aforesaid extent.