ORDER : SANJAY YADAV, J. 1. With consent of learned counsel for the parties, the matter is finally heard. Only issue which arises for consideration is as to whether the Central Government Industrial Tribunal cum Labour Court having held that the domestic enquiry leading to termination of the petitioner being vitiated was justified in only giving compensation instead of directing for reinstatement with back wages. 2. Appointed in 1973 in Eklehra Colliery the petitioner was promoted as Trammer and as Clipman-IV. That while posted at Gajandoh Colliery, petitioner was proceeded against with the issuance of charge sheet. The charges levelled against him were that of theft, fraud, dishonesty with employers business and property, culminating in order of dismissal which led the petitioner raise an industrial dispute which being not resolved in conciliation resulted in reference to CGIT for adjudication as to 'whether the action of the management of Gajandoh Mine of Western Coal Fields Limited in dismissing the services of Shri Faiyazuddin clipman w.e.f. 11.11.92 is legal and justified? If not, what relief the workman is entitled to?" 3. CGIT by order dated 11.08.2014 set aside the domestic enquiry on the finding that no reasonable opportunity of hearing was afforded to the petitioner workman. The respondent management was called upon to prove the misconduct. The management chose to rely upon the evidence led at the time of consideration of the preliminary issue regarding the domestic enquiry. The CGIT found that since the domestic enquiry got vitiated and that misconduct having not been proved held the termination of workman bad. Though it is contended on behalf of the respondent that the CGIT did not consider the evidence on record in right perspective and accepted the evidence of the workman who did not present himself for cross-examination, the fact however remains that the respondent management did not challenge the Award and allowed the same and the findings therein to attain finality. As would give any wings to the contentions in present petition as to correctness of the findings regarding vitiating of the domestic enquiry and the finding regarding misconduct. 4. What remains now is the issue whether the workman is entitled for reinstatement with continuity in service. Be it noted that during pendency of proceedings before CGIT the workman expired and his legal representatives are brought on record by order dated 05.10.2010. 4. What remains now is the issue whether the workman is entitled for reinstatement with continuity in service. Be it noted that during pendency of proceedings before CGIT the workman expired and his legal representatives are brought on record by order dated 05.10.2010. Section 25 F of the Industrial Dispute Act, 1947, provides for- "25 F- Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- (a)- the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice: (b)- the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service] or any part thereof in excess of six months; and (c)- notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette." 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." 5. 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. 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. 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. 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-àvis 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. 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 herein 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." 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." 6. In the case at hand, as the termination of the workman has been found to be illegal the petitioner who is his Legal Representative is entitled to seek reinstatement with continuity in service. As to back wages, since there is no evidence on record to establish that after his termination the workman was not in a gainful employment, the petitioner will not be entitled for back wages. 7. In view whereof, the Award of granting compensation is modified to that of notional reinstatement with continuity in service till the workman was alive. The petitioner would be entitled for the consequential benefit. 8. Consequently, petition is allowed to the extent above. There shall be no costs.