JUDGMENT : Raghvendra S. Chauhan, J. Mr. B. Narappa alias Nagendra, the appellant has challenged the legality of the order dated 3-2-2016, passed by the learned Single Judge in W.P. No. 60640 of 2012, whereas, the learned Single Judge has disposed of the writ petition filed by the Pragati Gramina Bank, and had modified the award passed by the Central Government Industrial Tribunal on 6-2-2008. By the impugned order, the learned Single Judge had directed that the appellant would be entitled to a payment of a lump sum compensation of Rs. 6,00,000/- but would neither be entitled to a reinstatement, nor to continuity of service, as ordered by the learned Industrial Tribunal. 2. Briefly the facts of the case are, that the appellant had joined the Pragati Grameena Bank as a Junior Clerk. During the course of his service on 17-1-1986 he was served with a charge-sheet. Subsequently, an ex park enquiry was held. After the conclusion of the departmental enquiry, by order dated 15-7-1987, the appellant was dismissed from service. Repeatedly appellant tried to convince the respondent-Bank that the order of dismissal should be withdrawn and he should be reinstated. Repeatedly the Bank assured him that his case would be considered for reinstatement, if he were acquitted in the criminal case being faced by him. By order dated 9-8-1999 the Criminal Court acquitted the appellant. Therefore, on 27-9-1999 the appellant submitted a representation to the respondent-Bank again requesting for reinstatement. But the said representation did not elicit any reaction from the respondent-Bank. Consequently, the appellant also issued a legal notice through his Lawyer to the respondent-Bank. Since even the legal notice did not elicit any reaction, eventually on 9-7-2004 he filed a petition before the Assistant Labour Commissioner (Central) and Conciliation Officer, Bellary. Since the conciliation proceedings failed, an industrial dispute was filed and referred to the learned Tribunal on 22-12-2004. 3. The learned Tribunal dealt with the preliminary issue whether the domestic enquiry conducted against the appellant was fair and proper? It concluded that the enquiry was neither fair, nor proper, as there was no evidence to show that the notice issued by the respondent-Bank was served upon the appellant. But keeping in mind the delay in referring the industrial dispute, by award dated 9-8-2011 the learned Tribunal directed that the appellant be reinstated with continuity of service, but shall not be entitled to any back wages. 4. But keeping in mind the delay in referring the industrial dispute, by award dated 9-8-2011 the learned Tribunal directed that the appellant be reinstated with continuity of service, but shall not be entitled to any back wages. 4. Since the respondent-Bank was aggrieved by the said award, it filed a writ petition before this Court. By impugned order dated 3-2-2016, the learned Single Judge modified the award as aforementioned. Hence, this appeal before this Court. 5. Mr. Anant P. Savadi, the learned Counsel for the appellant has raised the following contentions before this Court: firstly, since the departmental enquiry was held to be unfair, therefore the dismissal order dated 5-7-1991 was an illegal one. Relying on the case of Deepali Gundu Surwase v. Kranti junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 the learned Counsel had pleaded that in case of wrongful termination from service, reinstatement with continuity of service and back wages is the normal rule. Therefore, the learned Tribunal was justified in directing the reinstatement and continuity of service. He has further stated that even today the appellant is not interested in seeking the back wages, but is interested only in being reinstated, and being granted the continuity of service. Secondly, the learned Single Judge was not justified in modifying the award, and in granting merely a lump sum compensation to the appellant. Relying on the case of Tapash Kumar Paul v. BSNL and Another, AIR 2015 SC 357 the learned Counsel had pleaded that a Court would be justified in substituting an order of reinstatement by awarding a compensation only under four circumstances, namely where the industry is closed, or where employee had superannuated or is going to retire shortly and no period of service is left to his credit, or where the workman had been rendered incapacitated to discharge the duties and cannot be reinstated, or when he has lost confidence of the Management to discharge the duties. However, in the present case, according to the learned Counsel, none of these four circumstances exist. Therefore, the learned Single Judge erred in modifying the award passed by the learned Industrial Tribunal, and in granting the compensation of Rs. 6,00,000/- to the appellant. Therefore, the impugned order observes to be interfered with. 6. On the other hand, Mr. However, in the present case, according to the learned Counsel, none of these four circumstances exist. Therefore, the learned Single Judge erred in modifying the award passed by the learned Industrial Tribunal, and in granting the compensation of Rs. 6,00,000/- to the appellant. Therefore, the impugned order observes to be interfered with. 6. On the other hand, Mr. Harsh Desai, the learned Counsel for the Bank has pleaded that since there were charges of embezzlement which were framed against the appellant, since he had been found guilty in the departmental enquiry, the Management had lost faith in the appellant as an employee. Therefore, one of the conditions mentioned in the case of Tapash Kumar Paul (supra) is, indeed, made out. Hence, the learned Single Judge was justified in modifying the award passed by the learned Industrial Tribunal, and in granting a lump sum compensation. Secondly, that even in the case of Deepali Gundu Surioase (supra), the Hon'ble Supreme Court has used the words normal rule would be reinstatement. But, considering the fact that the appellant has not worked for 30 long years, and considering the fact that the circumstances have changed to the extent that the appellant may no longer be suitable to carry out the responsibilities of the post, the learned Single Judge was justified in modifying the award passed by the learned Tribunal. Therefore, the learned Counsel has supported the impugned order passed by the learned Single Judge. 7. In rejoinder, Mr. Anant P. Savadi, the learned Counsel for the appellant, submits that since the departmental enquiry was found to be unfair and unjust one, the Bank is not justified in claiming that the appellant was found "guilty" of the alleged misconduct. Moreover, since the appellant had been acquitted by the Criminal Court the presumption of innocence has been strengthened by the acquittal order. Hence, the very question of losing the confidence of Management would not even arise. Therefore, the learned Counsel has pleaded that the impugned order should be interfered with, and the appellant deserves to be reinstated with continuity of service. 8. Heard the learned Counsel for the parties, examined the impugned order, and considered the record. 9. Admittedly, by order dated 6-9-2007 the learned Industrial Tribunal had concluded that the departmental enquiry conducted by the Bank was an unfair and improper one. 8. Heard the learned Counsel for the parties, examined the impugned order, and considered the record. 9. Admittedly, by order dated 6-9-2007 the learned Industrial Tribunal had concluded that the departmental enquiry conducted by the Bank was an unfair and improper one. That learned Tribunal had reached its conclusion after going through the evidence that was placed before it. The respondent-Bank did not challenge the said order immediately. Although it filed an application for leading evidence before the learned Tribunal, but even after the said application was dismissed, the Bank did not choose to challenge the said order dismissing its application. Therefore, the order concluding that the enquiry was an unfair one has reached a finality. Hence, the finding of the departmental enquiry cannot continue to exist in the eyes of law. Therefore, the learned Counsel for the respondent-Bank is unjustified in claiming that the appellant was found to be "guilty" of the alleged misconduct of embezzlement. Since the finding of the enquiry is non est, he cannot be said to be "guilty" of the alleged misconduct. Moreover, once he has been acquitted by the Criminal Court by order dated 9-8-1999, the presumption of innocence is only strengthened in his favour. 10. The position being taken by the learned Counsel for the Bank is rather curious: for on the one hand, in the eyes of law the appellant continues to be innocent of the charges levelled against him by the Bank, and yet on the other hand, the Bank has argued that it has lost faith in the appellant as an employee. Until and unless the appellant is found "guilty" in a departmental enquiry, the Bank is unjustified in claiming that it has lost its faith in its employee. If the contention raised by the learned Counsel were accepted, it would turn the very first principle of common law on its head. According to toe first principle of common law, every person is presumed to be innocent till proven guilty. But the contention raised by the learned Counsel would have this Court believed that "every person is presumed to be guilty until proven innocent". Therefore, the said contention is clearly untenable and unacceptable. 11. The issue whether an employee who has been terminated from service illegally deserves to be reinstated or is merely entitled to a compensation, the said issue has taxed the judicial mind. Therefore, the said contention is clearly untenable and unacceptable. 11. The issue whether an employee who has been terminated from service illegally deserves to be reinstated or is merely entitled to a compensation, the said issue has taxed the judicial mind. In the case of Jagbir Singh v. Haryana State Agriculture Marketing Board and Another, (2009) 15 SCC 327 the Apex Court was of the opinion that the judicial thinking on the issue has changed from the traditional thought that an illegal termination ipso facto meant reinstatement, to a modem thought that an illegal termination need not necessarily mean automatic reinstatement and payment of back wages. Therefore, in the case of lagbir Singh (supra), the Hon'ble Supreme Court had directed that the compensation of Rs. 50,000/- to the appellant by the respondent therein would meet the ends of justice. 12. However, when the issue was again reagitated before the Apex Court in the case of Deepali Gundu Surwase (supra), the Apex Court has laid down the propositions which emerged from the judgments of the Hon'ble Supreme Court as under: "The propositions which can be culled out from the judgments of the Supreme Court while deciding the issue of back wages 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 lead 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. 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. 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 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. (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 victimising the employee or workman, then the Court or Tribunal concerned 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 Article 136 of the Constitution of India 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. 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 keep 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. (vi) In a number of cases, the Superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsibility 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 bet 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, (1979) 2 SCC 80 . (vii) The observation made in J.K. Synthetics Limited 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 Judges Benches and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." (para 37) 13. Therefore, according to the Hon'ble Supreme Court in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 14. This part of the judgment is also against the very concept of reinstatement of an employee/workman." (para 37) 13. Therefore, according to the Hon'ble Supreme Court in case of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 14. Although the learned Counsel for the respondent-Bank has argued that even if reinstatement is the normal rule, the present case is an exceptional one. Therefore, it would not fall within the normal rule. However, the learned Counsel has failed to produce any evidence to show that the appellant has become so incapacitated, as to be unable to carry out the responsibilities of his post. Merely because the appellant has not worked for the Bank, would not lead to a logical inference that the appellant is incapable of discharging his duties of his post. Since no exceptional circumstances have been revealed before this Court, this Court is of the opinion that the normal rule is applicable to the present case. Hence, the appellant is entitled to be reinstated to his post with continuity of service. 15. In the case of Tapash Kumar Patul (supra), the Hon'ble Supreme Court had delineated the circumstances in which a Court would be legally justified in substituting an order of reinstatement buy awarding a compensation. However, the Apex Court had warned that a justifiable ground has to be given by the Court for substituting a reinstatement with compensation. It had outlined four circumstances under which a compensation can be ordered. These four circumstances have already been mentioned herein above. Although the learned Counsel for the respondent-Bank has argued that since the Bank had lost confidence in the appellant, one of the four circumstances was dearly made out. However, as discussed above, the very question of losing confidence would not arise, until and unless, the appellant had been found "guilty" in a departmental enquiry. Therefore, even the said circumstance does not exist in the present case. 16. Moreover, the learned Single Judge has not revealed any cogent reason for modifying the award passed by the learned Tribunal, and for substituting the reinstatement by payment of a lump sum. The only reason given by the learned Single Judge is that after a lapse of 30 years from the date of dismissal from service, it would not be in the interest of Bank. The only reason given by the learned Single Judge is that after a lapse of 30 years from the date of dismissal from service, it would not be in the interest of Bank. However, the learned Single Judge has not given cogent reasons for coming to such a conclusion, or for concluding that reinstatement may adversely affect the efficient performance of duties by the employee in the Bank. Since neither of the conclusions are backed by any cogent reasons, the reasons are clearly untenable. 17. For the reasons stated above, this appeal is hereby allowed. The order dated 3-2-2016 is set aside. The award dated 9-8-2011 passed by the learned Industrial Tribunal is confirmed.