JUDGMENT : K.M. Thaker, J. 1. In this petition, the petitioner - Range Forest Officer has challenged award dated 30.3.2013 passed by the learned Labour Court, Junagadh in Reference (LCJ) No. 197 of 2000 whereby the learned Labour Court directed present petitioner to reinstate present respondent in service on his original post with continuity of service, however, without backwages. 2. So far as the factual background is concerned, it has emerged from the record and from the submissions by the learned advocates for the petitioner and the respondent that the respondent claimant raised industrial dispute on the allegation that the office of the Range Forest Officer illegally terminated his service on 15.12.1999. The appropriate government referred the dispute for adjudication to the learned Labour Court at Junagadh. The dispute was registered as Reference (LCJ) No. 197 of 2000. Before the learned Labour Court, the claimant filed his statement of claim alleging, inter alia, that since 1994, he was working with the opponent employer as daily wager and labourer and he was paid Rs. 60/- per day. He also alleged that without any fault on his part and without following any procedure prescribed by law, the opponent employer orally terminated his service on 15.12.1999 and at the time when his service was terminated, he was not paid retrenchment compensation and any notice or intimation was also not served and he was not granted opportunity of hearing. The claimant also alleged that after he was terminated, he had served notice dated 1.2.2000 demanding that he should be reinstated, however, the petitioner did not accept his request. On such allegations, the claimant demanded reinstatement with consequential benefits. 2.1 The opponent - Range Forest Officer opposed the reference by filing written statement. The opponent claimed that the claimant was engaged intermittently on temporary and daily wage basis for some casual and ad-hoc work and at different points of time, the claimant had worked under different and separate schemes and at different places. It was also claimed by the opponent employer that the claimant had never worked continuously and during any period of 12 months and during the proceeding 12 months the claimant had not worked for 240 days. It was also claimed by the opponent employer that the claimant had never worked continuously and during any period of 12 months and during the proceeding 12 months the claimant had not worked for 240 days. The opponent employer also opposed the reference on the ground that it does not come within purview of the term "industry" under Section 2(j) and that the claimant was engaged for particular seasonal work and that therefore, he had no right to continue in service or to claim to be continued in service. The petitioner i.e. original opponent also claimed that since he was engaged only for temporary and casual work, as soon as the work was over his engagement automatically came to an end and there was no question of terminating the service as alleged by the claimant. The opponent employer also claimed that actually, it was the claimant who had stopped coming for work and so far as the office of the Range Forest Officer is concerned, it had not passed any separate or specific order terminating the claimant. 2.2 After the stage of pleadings was concluded, the parties placed evidence on record before the learned Labour Court. The deposition of the claimant was recorded and thereafter, the employer had examined one Mr. Kodedra as its witness whose deposition was recorded at Exh. 33. Upon conclusion of the stage of evidence, the learned Labour Court heard the submissions by the learned advocates for the petitioner and the respondent and after considering the material on record and rival submissions, the learned Labour Court passed the award with above mentioned directions. 3. I have heard Ms. Chitaliya, learned AGP for the petitioner, and Ms. Bhatt, learned advocate for the respondent claimant, and I have also considered the material on record and also examined the impugned award. 4. Ms. Chitaliya, learned AGP, submitted that the learned Labour Court failed to appreciate that the claimant's appointment was not legal and that the claimant was not appointed after following prescribed procedure for selection and recruitment. She also submitted that the learned Labour Court failed to appreciate that the claimant himself had admitted during his deposition that any appointment order was not issued and that he was engaged by oral order and he does not know name of the officer who discontinued him or of the officer who had engaged him. She also submitted that the learned Labour Court failed to appreciate that the claimant himself had admitted during his deposition that any appointment order was not issued and that he was engaged by oral order and he does not know name of the officer who discontinued him or of the officer who had engaged him. She also submitted that in view of the said evidence by the claimant, the learned Labour Court ought to have held that the claimant's appointment was illegal and he had no right to continue in service or to be reinstated and continued in service. According to learned AGP, the learned Labour Court passed the impugned award without considering such and other relevant aspects borne out from the evidence available on record. She submitted that in the facts of the case, more particularly in light of the fact that the claimant was engaged without following prescribed procedure and he was engaged intermittently whenever need arose on account of absence of regular and permanent workmen or on account of some additional work, the provisions under Section 25G and/or Section 25H were not attracted or applicable and that the alleged termination of the service could not have been termed as breach of Section 25G and Section 25H. She also submitted that the impugned award amounts to granting/ confirming backdoor entry. She also submitted that the claimant failed to establish that he had worked for 240 days in proceeding 12 months. The learned Labour Court has committed error in drawing adverse inference as to the vital requirement i.e. that the claimant had worked for 240 days in proceeding 12 months. According to the learned Labour Court, this is not a case where such adverse inference could not have been drawn, more particularly in view of the fact that the claimant failed to establish that he was appointed in regular selection procedure. 5. Per contra, Ms. Bhatt, learned counsel for the respondent claimant, submitted that the learned Labour Court has recorded finding of fact that the claimant's service was terminated in violation of Section 25F, Section 25G and Section 25H and the said findings of fact is based on material on record, there is no justification to interfere with the said direction. 5. Per contra, Ms. Bhatt, learned counsel for the respondent claimant, submitted that the learned Labour Court has recorded finding of fact that the claimant's service was terminated in violation of Section 25F, Section 25G and Section 25H and the said findings of fact is based on material on record, there is no justification to interfere with the said direction. She submitted that in view of the fact that the claimant's service was terminated in violation of statutory provision, the direction granting reinstatement and/or the direction granting continuity of service, does not warrant interference. She also submitted that the learned Labour Court has not committed any error in drawing adverse inference so far as the total number of days for which the claimant had worked with the petitioner is concerned. She also submitted that the petitioner failed to establish that the respondent was engaged at different places under different schemes. According to the learned advocate for the respondent, there is no error in the award and that therefore, the award does not warrant interference. 6. It is not in dispute that the claimant failed to place on record any appointment order. 6.1 It is also not in dispute that the claimant was not appointed in regular selection process and/or in accordance with the selection and recruitment rules and after following prescribed procedure under such rules. 6.2 Even if the claims and allegations by the claimant are assumed to be correct, then also, total length of the service of the claimant is only for 5 years i.e. from 1994 to December 1999 and that also after illegal or atleast irregular appointment. 6.3 According to the claim of the petitioner, the respondent was engaged intermittently i.e. as and when need arose for some casual and temporary work. According to the petitioner, the claimant was engaged at different places at different times and under separate/different schemes. 6.4 On this count, learned advocate for the respondent would contend that the said factual aspect viz. that the concerned persons were engaged at different periods and at different places and under different schemes, is not established by evidence. 6.5 It is in backdrop of the above mentioned facts and contention that the petitioner's challenge against the award and the respondents' submission supporting both the directions passed by the learned Labour Court viz. that the concerned persons were engaged at different periods and at different places and under different schemes, is not established by evidence. 6.5 It is in backdrop of the above mentioned facts and contention that the petitioner's challenge against the award and the respondents' submission supporting both the directions passed by the learned Labour Court viz. direction to reinstate the concerned persons and the direction granting continuity of service, are required to be considered. 7. So far as the first direction, i.e. the direction to reinstate the concerned workman is concerned, it is necessary to note that from the record it has emerged that the petitioner did not place any evidence on record and did not controvert the respondents' claim that they worked with the petitioner for 5 years, i.e. from 1994 to 15.12.1999. 7.1 Any evidence establishing that the concerned workman had not worked for more than 12 months is not placed on record by the petitioner. 8. Ms. Chitaliya, learned AGP would contend that the obligation to establish that they had worked for more than 12 months and that they had worked for 5 years, was on the respondents, whereas the respondents failed to prove the said relevant fact inasmuch as the respondents did not place on record any appointment letter or any other material to establish that they were employed by the petitioner and that they had worked for more than 12 months with the petitioner. 8.1 In this context, it is relevant to note that the deposition of the concerned workmen was recorded, wherein they asserted that they had worked since 1994 and that they had worked continuously and that they had worked more than 240 days. From the record it has emerged that during the cross-examination of the concerned workmen, any contrary fact could not be extracted or established by the petitioner. During the deposition, the concerned workmen also mentioned names of other workmen who were co-employees during the period in question. 9. On the other hand, the witness of the petitioner accepted during his deposition that the concerned persons were employed, though intermittently, by the petitioner. During the deposition, the concerned workmen also mentioned names of other workmen who were co-employees during the period in question. 9. On the other hand, the witness of the petitioner accepted during his deposition that the concerned persons were employed, though intermittently, by the petitioner. 9.1 In this background and having regard to the fact that the petitioner did not place on record the attendance register or pay register or any other relevant document, the learned Labour Court considered it appropriate to draw adverse inference against the petitioner with regard to the claim of the respondents that they had worked for more than 240 days. 9.2 In the facts of the case, this Court does not find any strong and valid reason to disturb the conclusion by the learned Labour Court. 10. Once the said conclusion is reached, it becomes necessary to ascertain as to whether the petitioner had complied the condition and requirement prescribed under section 25-F or not. 10.1 So far as the said aspect is concerned, it is an undisputed position that the petitioner had not paid retrenchment compensation to the workmen. 10.2 The petitioner has claimed that actually, the respondent stopped reporting for duty. However, any material, e.g. any notice or intimation to the workmen calling for their explanation as to why they were not reporting for duty and/or any intimation asking them to report for duty is not placed on record to establish that the petitioner had taken steps to ask the respondents to report for duty. 10.3 In this background, the learned Labour Court has held that the petitioner failed to establish that the respondents had stopped reporting for duty and also failed to establish that the concerned workmen had voluntarily left the service. 10.4 In absence of any material on record it is not possible to hold that the decision and conclusion by the learned Labour Court is erroneous or unsustainable. 10.5 Under the circumstances, the learned Labour Court's conclusion with regard to breach of section 25F cannot be faulted. 11. 10.4 In absence of any material on record it is not possible to hold that the decision and conclusion by the learned Labour Court is erroneous or unsustainable. 10.5 Under the circumstances, the learned Labour Court's conclusion with regard to breach of section 25F cannot be faulted. 11. Even if it is assumed that in present case, there was no obligation on the petitioner - employer to comply the condition and requirement under section 25F and if it is assumed that the respondents - workmen had not established that they had worked for 240 days and that their services were terminated by the petitioner by oral order and therefore, the provision under section 25F was not attracted, then also the finding by the learned Labour Court with regard to breach of section 25G and section 25H would stare in the face of the petitioner. 11.1 After examining the evidence on record, the learned Labour Court reached to the finding of fact and concluded that subsequently, the petitioner had employed other persons to carry on the activities/work which the concerned workmen were performing and that at the relevant time the persons junior to the concerned respondents continued in service. 12. When above mentioned aspects and overall facts and circumstances of the case were taken into account, the order by the learned Labour Court directing the petitioner to reinstate the concerned respondents does not warrant any interference. 12.1 However, so far as the order directing the petitioner to treat the concerned respondents as in continuous service, i.e. direction granting continuity of service, is concerned, the said direction cannot be and does not deserve to be sustained. 13. It is necessary to keep in focus that initial appointment of the respondents was illegal or at least irregular and the respondents were not appointed after following regular selection procedure. Further, even according to the respondents, the total length of their services before the date of termination was only 5 years. 14. Having regard to the said facts i.e. illegal appointment and very short tenure of service and the fact that the proceedings before the learned Labour Court concluded after 13 years and thereafter further 3 years have passed, i.e. almost 16 years have passed since the date of respondents' termination, the direction granting continuity of service is not justified and cannot be sustained. 15. 15. Therefore, the order directing the petitioner to consider the respondents in continuous service and the direction granting benefit of continuity of service deserve to be set aside and therefore, it is hereby set aside. 15.1 With reference to objection against the order directing the petitioner employer to treat the respondents service as continuous i.e. to reinstate the respondent with continuity of service, the learned Counsel for the respondents submitted that the said direction may not be disturbed. So as to support the said submission, he relied on the observations made in paragraph No. 38.1, in the decision in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.). & others, [ (2013) 10 SCC 324 ], which read as under: "38.1. In the cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule." 15.2 It is true that in the said decision Hon'ble Apex Court has observed and held that where the termination is found wrongful then reinstatement with continuity of service and back wages is normal rule. However, it is also relevant to note that in the very same decision Hon'ble Apex Court has also observed, in Paragraph No. 38.2 to 38.06, that:- "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. 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 Articles 226 or136 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. 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-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." 15.3 Further, in the said decision the concerned employee was regular and permanent employee in primary school and her service was terminated as a measure of disciplinary action, which is not the case in present matter. Further, the said decision Hon'ble Apex Court was not considering the case of illegal appointment (i.e. appointment which is illegal from initial stage and the said case was not in respect of employee who was illegally appointed and came to be terminated by way of retrenchment, without complying prescribed conditions for effecting retrenchment. 15.4 In this factual background it is appropriate to take into account observation by Hon'ble Apex Court in paragraph Nos. 29 to 37 in the decision in the case of Bharat Sanchar Nigam Limited Vs. Bhurumal, [(2014) (7) SCC 177], which read as under: "29. The learned counsel for the appellant referred to two judgments wherein this Court granted compensation instead of reinstatement. In the case of BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer and Anr. In the case of BSNL v. Man Singh, this Court has held that when the termination is set aside because of violation of Section 25-F of the Industrial Disputes Act, it is not necessary that relief of reinstatement be also given as a matter of right. In the case of Incharge Officer and Anr. v. Shankar Shetty, it was held that those cases where the workman had worked on daily wage basis, and worked merely for a period of 240 days or 2-3 years and where the termination had taken place many years ago, the recent trend was to grant compensation in lieu of reinstatement. "30. In this judgment of Shankar Shetty (supra), this trend was reiterated by referring to various judgments, as is clear from the following discussion. (SCC pp. 127-28, Paras 2-4) 2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section25F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question. 3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board 3, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, ..... and stated as follows : (Jagbir Singh case, SCC pp. 330 and 335 paras 7 and 14). 7. It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. 14. Compensation instead of reinstatement has been held to meet the ends of justice. 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. 4. Jagbir Singh has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal 12, wherein this Court stated: (SCC p. 777, para 11) 11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would sub-serve the ends of justice." 33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimization, unfair labour practice etc. However, when it comes to the case of termination of a daily wage worker and where the termination is found illegal because of procedural defect, namely in violation of Section 25F of the Industrial Disputes Act, this Court is consistent in taking the view in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. Rationale for shifting in this direction is obvious. 34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily wage basis and even after he is reinstated, he has no right to seek regularization (See : State of Karnataka v. Uma Devi (2006) 4 SCC 1 : ( AIR 2006 SC 1806 )). Thus when he cannot claim regularization and he has no right to continue even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily wage worker is found to be illegal on the ground it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularized under some policy but the concerned workman terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 37. In Man Singh which was also a case of BSNL, this Court had granted compensation of Rs. 2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 37. In Man Singh which was also a case of BSNL, this Court had granted compensation of Rs. 2 Lakh to each of the workmen when they had worked for merely 240 days. Since the respondent herein worked for longer period, we are of the view that he should be paid a compensation of Rs. 3 lakhs. This compensation should be paid within 2 months failing which the respondent shall also be entitled to interest at the rate of 12% per annum from the date of this judgment. Award of the CGIT is modified to this extent. The appeal is disposed of in the above terms. The respondent shall also be entitled to the cost of Rs. 15,000/- (Rupees Fifteen Thousand only) in this appeal. 15.5 It is also appropriate to take into account the decision in case of Hari Nandan Prasan and Another Vs. Employer I/R to Management of Food Corporation of India and Another reported in [ 2014 (7) SCC 190 ]. 15.6 When above mentioned facts related to the respondent's appointment and total tenure of respondent's service etc., are taken into account in light of above fact observed by Hon'ble Apex Court, while it emerges that the order directing the petitioner to reinstate the respondent with continuity of service is not sustainable and the said direction deserves to be set aside. 16. In the result, following order is passed. 16.1 So far as the order directing the petitioner to reinstate the concerned workmen is concerned, the said direction is not interfered with and the said direction is hereby confirmed. 16.2 However, so far as the direction granting continuity of service is concerned, the said direction is set aside. Consequently, the petition is partly allowed. Rule is made absolute to the aforesaid extent.