JUDGMENT : REPORTABLE 1. Learned counsel for the petitioner submits that the Rajasthan Non-Government Educational Institutions Tribunal, Jaipur has passed the judgment impugned without recording any evidence and without considering the affidavits available on record. No issue has been framed. On the basis of reply filed by the respondent, the Tribunal has proceeded to pass impugned judgment, more so, when the judgment of Tribunal is treated as a decree of the Civil Court for the purpose of execution in terms of Section 27A of the Rajasthan Non-Government Education Institutions Act of 1989. 2. Learned counsel points out that the Tribunal, while passing the judgment impugned, has not adopted the procedure prescribed under the Act & Rules and it has passed the judgment contrary to the settled law. He has also pointed that in similar disputes being decided by the Industrial Tribunal or Labour Court, the procedure as followed in Civil Court of recording evidence and also the documentary evidence is being produced and proper opportunity to cross-examine the same is given. Even if the present case was one where enquiry was not conducted, opportunity should have been granted to the petitioner to prove the charges before the Tribunal but due to the procedure which is being followed presently, the petitioners have not been granted the chance to conduct enquiry and record the evidence before the Tribunal for charges on which the management took a decision to remove the respondent. Merely for non-compliance of Section 18 of the Act of 1989, the respondent could not have been granted consequential benefits and complete salary whereas there is every likelihood of the respondent working elsewhere. 3. Learned counsel has pointed out that the respondent had been appointed on contract basis and was directed to work in the Bal Ghar (creche) of the school where toddlers come, however, there was a report from the manager that the respondent was not performing her duties and was avoiding the work being asked to perform. She was cautioned but the complaints kept on pouring. Resultantly decision was taken by the managing committee not to continue her contract and after paying salary in lieu of one month’s notice, her services were dispensed with. Learned counsel submits that as she was on contract basis and her service could not be governed on the basis of Act of 1989 and the provision of sub-Section 18 would not apply. 4. Learned counsel submits that as she was on contract basis and her service could not be governed on the basis of Act of 1989 and the provision of sub-Section 18 would not apply. 4. Per contra learned counsel for the respondent submits that a settled procedure is being followed by the Tribunal. On receiving the compliant in terms of Section 19 such appeal/application supported by affidavit upon issuing notice to the other party, reply is received and the matter is decided. There is no provision for recording evidence or taking affidavit or cross-examination before the Tribunal and such course is not being adopted. It is submitted that there was no such request by the petitioners for cross-examination and on the other issues. There was no request for conducting enquiry before the Tribunal and therefore the judgment dated 30.09.1999 does not require any interference. It is further submitted that in terms of Section 20 of the Act of 1989, any appointment in any recognised institution could have been made only in accordance with the Act of 1989 and not on contract basis, independent of the provisions of the Act of 1989. 5. It is further appointed out that the purpose of the Act of 1989 was to control the management of the private institutions who were exploiting their employees and the teachers. In view of the purpose of enactment which came into force after Public Interest Litigation was filed before this Court, the action of the management in entering into a contract with the respondent for appointment and laying down conditions as Clause (4) was nothing but recuse to over come the provisions of the Act of 1989. In fact the respondent was in regular employment with the management since 02.11.1987 and therefore the provisions of Section 18 of 1989 were squarely applicable on the management before dispensing with the services of the respondent. Prior approval from the Director (Education) was required to be taken before removing the petitioner by respondent from service in terms of Section 18 of the Act of 1089 as has been held by the Larger Bench in the case of Central Academy Society Vs. Rajasthan Non-Government Education Institutions, 2010(3) WLC 39. 6. Learned counsel Mr. Prior approval from the Director (Education) was required to be taken before removing the petitioner by respondent from service in terms of Section 18 of the Act of 1089 as has been held by the Larger Bench in the case of Central Academy Society Vs. Rajasthan Non-Government Education Institutions, 2010(3) WLC 39. 6. Learned counsel Mr. D.P. Sharma further submits that the respondent was entitled for full back wages for entire intervening period, her termination was found to be wrongful and relies on law laid down by the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) And Ors., 2013(10) SCC 324 as well as learned counsel also relies on judgment passed in the case of Raj Kumar Vs. Director of Education, decided in Civil Appeal No. 1020/2011 on 13.04.2016 for the purpose of back wages. 7. I have considered the submissions and have looked into the record. 8. Rajasthan Non-Government Institutions Act of 1989 was framed with the purpose to lay down provisions to govern the service conditions of the employees working in the aided and recognized institutions which were Non-Governmental in nature. However, once the order was found to have been passed without conducting enquiry or the enquiry was found to be unfair, the tribunal was duty bound to have given liberty to the management to conduct an enquiry after giving an option to the management to prove the charges before it and reach to conclusion thereafter. However, the said procedure was also not followed by the Tribunal. 9. The manner in which the Tribunal is functioning, needs to be commented. The Rajasthan Non-Government Educational Institutions Act, 1989 lays down under Section 23 the functions of the Tribunal. Section 24 lays down the procedure in the Tribunal and it provides that the Tribunal shall follow such procedure as the State Government may prescribe. Section 25 provides the powers of the Tribunal as under:- “25. Powers of the Tribunal – (1) The Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a civil suit with respect to the following matters, namely :- (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents and material objects; (c) issuing commission for the examination of witnesses; and (d) such other matters as may be prescribed. (2) Every proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code, 1860.” 10. Section 26 of the Act of 1989 provides the decision of the Tribunal to be final. Section 27 bars jurisdiction of Civil Courts to settle, decide or deal with any question under the Act of 1989 and Section 27-A provides that order of the Tribunal shall be deemed to be decree of the lowest Civil Court having territorial jurisdiction over the local area. As per Section 22 of the Act of 1989, a Judicial Officer of the rank of a District Judge constitutes the Tribunal. 11. Keeping in mind the aforesaid, it is apparent that the Tribunal is akin to Civil Court for the purpose of adjudication of disputes relating to the Act of 1989 and its orders are deemed to be a decree of Civil Court of original jurisdiction. 12. In this background, the manner in which the Tribunal is functioning is not in accordance with the provisions of the Act of 1989. 13. While an application or appeal is preferred before the Tribunal, the minimum procedure, which is required to be followed under the Civil Procedure Code needs to be followed in absence of any specific provision framed by the State Government for the Tribunal in terms of Section 25(supra). Affidavits in support of the averments made in the appeal/application, cross-examination and affidavits of the respondents alongwith opportunity to cross-examination is the minimum procedure which the Tribunal requires to follow before it addresses any judgment. Such judgments, which result in causing civil consequences and become decree of the civil court, need to have a procedure somewhat to have being followed in the courts while trying a civil suit. 14. Taking into consideration the manner in which the Tribunal has passed the impugned judgment, it is clear that the Tribunal has not even bothered to record evidence of any of the parties. It is now directed that in future, the Tribunal shall not deliver any judgment before following the minimum procedure of recording evidence as noted above. 15. A copy of this order be sent to the Tribunal for compliance. 16. This order would act prospectively and will not affect the judgments which have already been delivered by the Tribunal. 17. It is now directed that in future, the Tribunal shall not deliver any judgment before following the minimum procedure of recording evidence as noted above. 15. A copy of this order be sent to the Tribunal for compliance. 16. This order would act prospectively and will not affect the judgments which have already been delivered by the Tribunal. 17. On merits, this Court finds that the management has not followed the provisions contained under Section 18 of the Act of 1989 which require prior approval from the Director before passing the order of terminating services of an employee. Thus, the order of terminating services of the respondent No.4 is vitiated in law and has to be quashed & set aside as no enquiry was conducted before passing the order and no approval was taken before terminating services. However, the Tribunal was duty bound to have asked the management to conduct enquiry by giving them an option to prove the charges before the Tribunal and examine the conduct of the respondent No.4 in the light of the charges as alleged by the management and given its conclusion accordingly. However, the Tribunal has not done so. The order of the Tribunal impugned herein, therefore, cannot be sustained. 18. The judgment which the learned counsel has cited relating to back wages, needs to be addressed to. This Court is guided by the law as laid down by the Apex Court in the judgment reported in 2013(10) SCC 324 . The Apex Court has laid down followed guidelines relating to back wages. 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. (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. (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 victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment 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. 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). 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.” 19. In view of above, this Court would have remanded the matter back to the Tribunal for conducting an enquiry but since the issue relates to the year 1999 and long time lapsed and also keeping in view that the respondent No.4 was a low paid employee working on the post of Class IV, interest of justice would be served if the order of termination is nullified and the respondent No.4 is held entitled to be reinstated in service in the school on the same basis as he was working prior to passing of the order dated 11/11/1995 with continuity of service, however, he would, of-course, not be entitled to pay and allowances on regular basis for the intervening period. 20. Consequently, the writ petition is partly allowed. The order of termination dated 11/11/1995 is quashed & set aside and the respondent No.4 is held entitled to be reinstated in service in the school on the same basis as he was working prior to passing of the order dated 11/11/1995 with continuity of service, however, he would, of-course, not be entitled to pay and allowances on regular basis for the intervening period. The compliance of this order is made by the petitioners within a period of three months of submission of certified copy of this order in their office.