JUDGMENT : Sanjay Yadav, J. As the Government Advocate is authorized to appear even for respondent No. 3 by virtue of “Vernacullar matter (Omitted)”dated 20.7.2015; with consent of learned counsel for the parties, the matter is heard finally. This petition under Article 227 of the Constitution of India, takes exception to the Award dated 12.2.2016 passed by Labour Court in a reference case No. 186/I.D.R./2005 whereby, on a reference of industrial dispute for adjudication as to whether removal of the petitioner from services is valid ? and if not, what relief he is entitled for? The Labour Court while holding the retrenchment illegal for non-compliance of Section 25F of the Industrial Disputes Act, 1947, has directed for payment of compensation of Rs. 1 Lakh. 2. Petitioner-workman is aggrieved of the Award to the extent that instead of reinstatement, the Labour Court had erred in granting compensation. 3. The sole question which crops up for consideration is whether the Labour Court is justified in granting compensation or ought to have directed for reinstatement. 4. Relevant facts necessary for appreciation of issue in brief are that, the petitioner-workman was engaged as peon with the respondent-Janpad Panchayat on 28.10.1993. His services were terminated in 1994. Petitioner filed Writ Petition No. 1626/1994 against said order. However, since he was reinstated, the petition was withdrawn. His services were again terminated in December, 1999. The termination was without any enquiry nor the retrenchment compensation was paid. Petitioner raised dispute which was referred to the Labour Court for adjudication. 5. The Labour Court, taking into consideration that the petitioner had worked for more than 240 days in a calendar year preceding his termination and that no retrenchment compensation was paid and that the termination was without holding any enquiry, found that the provisions of Section 25F of 1947 Act violated; however, instead of reinstating the petitioner, the Labour Court on a finding that the petitioner had belatedly raised the dispute, granted him compensation of Rs. 1 Lakh in lieu thereof by impugned Award. 6. These findings i.e. holding the retrenchment as illegal, has not been questioned by respondent-employer. Instead, the petitioner has questioned it on the ground that once the retrenchment is held illegal, reinstatement is the normal rule. On the contrary, respondents have supported impugned Award. 7. 1 Lakh in lieu thereof by impugned Award. 6. These findings i.e. holding the retrenchment as illegal, has not been questioned by respondent-employer. Instead, the petitioner has questioned it on the ground that once the retrenchment is held illegal, reinstatement is the normal rule. On the contrary, respondents have supported impugned Award. 7. The issue whether, when the termination is held illegal, what relief the workman would be entitled for, came up for consideration before the Apex Court in Hindustan Tin Works v. Employees (1979) 2 SCC 80 , wherein it has been held - “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.” 8. Following the above decision, 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. 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. 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-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. 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.” 9. 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.” 10. In view of the principle of law laid down in Deepali Gundu Surwase (supra) and Tapash Kumar Paul (supra), the Award granting compensation deserves to be modified to that of reinstatement, but without back-wages, because there is no iota of evidence on record to establish that during the period of retrenchment, the petitioner-workman was not gainfully employed. 11. In the result, the petition is allowed to the extent above. No costs.