ORDER : SANJAY YADAV, J. 1. Award dated 04.06.2015 passed by Central Government Industrial Tribunal cum Labour Court, Jabalpur, is being questioned to the extent it denies the petitioner reinstatement. The Tribunal was in seisin with the Industrial Dispute viz., as to "whether the action of management of Divisional Manager Life Insurance Corporation of India in terminating the services of Shri Anand Swaroop s/o Kashiprashad w.e.f. 25.06.1996 is justified ? If not, to what relief the workman is entitled to?” 2. The Tribunal after dwelling on the claim and counter claim and the evidence led by both the parties, concluded that the termination of the petitioner/workman was dehors the provisions under Section 25 F of the Industrial Disputes Act, 1947. However, the Tribunal instead of reinstatement directed the payment of compensation to the tune of Rs. 50,000/- to the workman. 3. Grievance raised by the petitioner is that once the termination is found to be invalid it is the right of the workman to be reinstated and the Tribunal patently erred in not directing for reinstatement rather paying the compensation. 4. On behalf of respondents three fold contentions are raised firstly, it is contended that the petitioner having received a compensation awarded by the Tribunal is estopped from challenging an award in a writ petition. 5. Secondly, it is contended that dispute raised by the petitioner suffers from principle of res judicata as the petitioner had earlier approached High Court of Madhya Pradesh vide W.P. No. 237/1998 for the self same relief. Thirdly, it is contended that the reference against the respondent/Life Insurance Corporation of India was not tenable as it is not an 'industry' under the Industrial Disputes Act, 1947. 6. These three contentions are dwelt upon before getting into the claim put forth by the petitioner. 7. As regard to the first contention that the petitioner is estopped from questioning an Award because he has accepted the compensation is taken note of and rejected at the outset. It being the right of the petitioner to seek remedy in the Court of law merely because the compensation awarded by the Tribunal is tendered to the petitioner and he has accepted the same will not seek redressal of his grievance in the Court of law. 8. It being the right of the petitioner to seek remedy in the Court of law merely because the compensation awarded by the Tribunal is tendered to the petitioner and he has accepted the same will not seek redressal of his grievance in the Court of law. 8. In this context reference can be had of a decision in Manager, The Hira Mills Ltd. v. Mukund and others: 1968 MPLJ 643 , wherein it is held- "4. In our judgment, the doctrine of election has no applicability whatsoever here. It applies only when, as pointed out in Lissenden v. C.A.V. Bosch 1940 A.C. 412 "an interest is conferred as an act of bounty by some instrument." In Lissenden case 1940 A.C. 412 the House of Lords held that the withdrawal by a workman of the compensation money deposited by the employer could not take away his statutory right of appeal conferred upon him by the Workmen's Compensation Act. The payment to respondent 1 of the amount of salary for the notice period, gratuity amount and the provident fund amount; was not any payment made to him gratuitously or merely as a matter of bounty or boon. It was not any benefit which the respondent Mukund took under the order terminating his services de hors the claim on merits. He would have got those amounts as of right even after not accepting the order of discharge as a valid one, and having it set aside. If the order of discharge is set aside as invalid, then the respondent would clearly be entitled to get as of right his salary. The amount of gratuity and provident fund is always payable to an employee on the cessation of his service, no matter whether it is by retirement or by resignation or by termination of service. It cannot, therefore, be maintained that when the respondent Mukund received the salary, gratuity and provident fund amounts he obtained thereby some advantage under the order of discharge to which he would not have been entitled if he had not accepted the order as a valid one. Further, this is not a case where it can be urged that on the setting aside of the order of termination, restitution by repayment to the petitioner of the gratuity and provident fund amount is impossible. Mukund had no choice between any two reliefs. Further, this is not a case where it can be urged that on the setting aside of the order of termination, restitution by repayment to the petitioner of the gratuity and provident fund amount is impossible. Mukund had no choice between any two reliefs. There being no choice before Mukund, his act in accepting the salary, gratuity and provident fund amounts could not prevent him from approaching the labour court for having the order terminating his services set aside. 5. This position is fully supported by the decision of the Supreme Court in Bhau Ran, v. Baiz Nath Smgh A.I.R. 1961 S.C. 1327. In that case, the Supreme Court made the following observations (at p. 1329) on the applicability of the equitable doctrine of election: It seems to us, however, that in the absence of some statutory provision or of a well-recognized principle of equity, no one can be deprived of his legal rights including a statutory right of appeal. The phrase ' approbate and reprobate' is borrowed from Scotch Law where it is used to express the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L.J.) in Verschures Creameries, Ltd. v. Hull and Netherlands Steamship Company, Ltd. (1921) 2 K.B. 608 (vide supra). The House of Lords further pointed out in Lissenden v. C.A.V. Bosch, Ltd. 1940 A.C. 412 (vide supra) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument. In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory right of appeal conferred upon him by the Workmen's Compensation Act. Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate, observed towards the conclusion of his speech: It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than the principles either of equity or of justice.' Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the ' formula' to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. Nothing was less served than the principles either of equity or of justice.' Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the ' formula' to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. No doubt, as pointed out by Lord Atkin, that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal. But he did not think it necessary to discuss in what circumstances the statutory right of appeal may be lost and added: 'I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend the judgment; and that the true solution may be found in the words of Lord Blanesburgh in Moore v. Cunard Steamship Company (1935) 28 B.W.C.G. 162. Referring to the case of Moore v. Cunard Steamship Company (1935) 28 B.W.C.C. 162, the Supreme Court then said: According to Lord Blanesburgh when an order appealed against and later set "aside, has been acted upon in the meantime ' any mischief so done is undone ' by an appropriate order. Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. In view of these observations of the Supreme Court, the contention of the petitioner that by receiving the amount that he did after the order of discharge, Mukund had forfeited his right of approaching the labour court for challenging the validity of the order of discharge, cannot but be rejected." 9. As regard to second contention that the claim put forth by the petitioner was barred by res-judicata, the said aspect has been dwelt on in detail by the Tribunal in its order dated 02.07.2001 which is in the following terms- "There is nothing on the record to indicate that the petitioner has right to hold the post. Moreover As Indicated By The Petitioner In Para 5 (iv) of the petition he is pursuing the remedy under the provisions of the Industrial Dispute Act. Moreover As Indicated By The Petitioner In Para 5 (iv) of the petition he is pursuing the remedy under the provisions of the Industrial Dispute Act. Considering the facts and circumstances as brought on record, no justifiable ground is made out for any interference by the court on the subject while exercising the extra ordinary jurisdiction envisaged under Acts. 226 & 227 of the Constitution of India." From the perusal of the aforesaid order, it becomes clear that the writ petition pending before the High Court was not disposed off on merit. This order clearly mentions that the dispute in question is pending under the Industrial Dispute Act for final adjudication. Taking this fact into consideration, the High Court did not think it proper to dispose off the petition on merit as the matter was pending before this tribunal for final adjudication. In such a circumstance, it cannot be held that the present case is barred by the principle of res-judicate. The objection of the management is accordingly rejected and the preliminary issue is answered accordingly." 10. In view whereof, the second contention must fail. 11. As regard to the third contention that the reference was not tenable against Life Insurance Corporation it is noticed that the petitioner had earlier approached this Court vide W.P. No. 9293/2008. That the said contentions wherein the contention has raised therein was negatived by order dated 15.11.2010 are in the following terms- "The workman has pleaded before the CGIT that his service has been dispensed with without following the procedure as laid down under Section 25 F of the Industrial Dispute Act, 1947. The provisions of Act of 1947 having not been excluded by the Act of 1956, it would be beyond any pale of doubt that the CGIT will still be wanting the jurisdiction to dwell upon the dispute referred to it for adjudication." 12. In view whereof, the three grounds raised on behalf of the respondents also fails. 13. As regard to the claim by the petitioner that his termination having been found to be in violation of Section 25 F of the Industrial Dispute Act, 1947 was entitled for reinstatement rather than a compensation, reference can be had of decision in Hindustan Tin Works v. Employees (1979) 2 SCC 80 , their Lordships were pleased to hold- "9. ... ... The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to the work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer." 14. Following the above decision in Hindustan Tin (supra), it has been held in Deepali Gundu Surwase v. Kranti Junior Adhyapad Mahavidyalaya (2013) 10 SCC 324 : - "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 fullback 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. 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 of Hindustan Tin Works Private Limited (supra). 38.7. 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 here-in-above and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/ workman." 15. Furthermore, in Tapash Kumar Paul v. BSNL (2014) 4 SCR 875, it is held :- "Therefore, in the light of the decision of this Court in Deepali Gundu's case (supra) which has correctly relied upon higher bench decisions of this Court in Surendra Kumar Verma's case (supra) and Hindustan Tin Works Pvt. Ltd. (supra), I am of the opinion that the appellant herein is entitled to reinstatement with full back wages since in the absence of full back wages, the employee will be distressed and will suffer punishment for no fault of his own." 16. In view whereof, the impugned award is modified to the extent that as the termination of the petitioner was found to be illegal because of non compliance of Section 25 F of the Industrial Dispute Act, 1947, is directed to be reinstated in service. 17. As regard to the back-wages, no evidence has been led by the petitioner that he was not gainfully employed for the period in which he was kept out of service. In view whereof, no back-wages can be granted. 18. In view whereof, petition is allowed to the extent above.