ORDER : 1. Heard Sri Ashok Trivedi, learned counsel for the petitioner and learned Standing Counsel. 2. The present writ petition is directed against the award dated 16.4.2018 passed by the Presiding Officer, Industrial Tribunal (III)-cum-Labour Court, U.P. Kanpur in Adjudication Case No. 108 of 2010 published on 4.7.2018. 3. The dispute raised by the respondent no. 2 workman was referred for adjudication to the Labour Court vide order dated 23.5.1997 passed by the Deputy Labour Commissioner, U.P. Kanpur Region, Kanpur. The said reference was later on transferred to the Industrial Tribunal (III), Kanpur vide order dated 18.3.2010 passed by the competent authority/ Labour Commissioner. 4. The dispute as referred for adjudication reads as under:- ^^D;k lsok;kstdksa }kjk Jkfed Jh vkjŒchŒ iky iq= Jh eqU'kh yky iky esfUVusUl fQVj] dks fnukad 05-05-1996 ls dk;Z ls i`Fkd@oafpr fd;k tkuk mfpr ,oa oS/kkfud gS \ ;fn ugha] rks lacaf/kr Jkfed D;k fgrykHk@{kfriwfrZ ikus dk vf/kdkjh gS \ fdl frfFk ,oa vU; fdl fooj.k ds lkFk \** 5. The stand taken by the workman was that he was engaged on 1.10.1991 on the post of "Maintenance Fitter" at the rate of Rs. 1300/- per month. As the benefits of the labour laws had not been provided to the workman, he raised his voice. As a result of it, his services had been terminated orally w.e.f. 5.5.1996. Neither any written order of termination was passed nor notice or retrenchment compensation was provided to him. The employer did not respond to the notice dated 27.9.1996 sent by the representative of the workman. As a result of it, the conciliation application was filed by him raising industrial dispute. 6. The employer, on the other hand, contended that the respondent did not come within the meaning of the workman under Section 2(z) of the U.P. Industrial Disputes Act, inasmuch as, he was working on the post of Maintenance Supervisor, which was a post in supervisory capacity. Many employees were working under him and he used to depute work to them and forward their leave applications. 7. This apart, the respondent himself absented from duty w.e.f. 5.5.1996. He had signed the attendance register lastly on 4.5.1996. A show cause notice dated 22.10.1996 was given to him whereunder he was asked to join duty or submit his explanation. Neither he presented himself to join the work nor gave any explanation. 7. This apart, the respondent himself absented from duty w.e.f. 5.5.1996. He had signed the attendance register lastly on 4.5.1996. A show cause notice dated 22.10.1996 was given to him whereunder he was asked to join duty or submit his explanation. Neither he presented himself to join the work nor gave any explanation. The enquiry was instituted on 30.11.1996 and the respondent workman was intimated. After giving due opportunity to the respondent workman, the enquiry officer submitted his report dated 20.1.1997. After consideration thereof, the disciplinary authority had terminated the services of the respondent workman w.e.f. 7.2.1997, intimation of which had been given through registered post. 8. On the question of validity of the domestic enquiry, an additional issue was framed as to whether the domestic enquiry conducted by the employer was fair and proper? If not, its effect. 9. The said issue was decided as preliminary issue and vide order dated 20.10.2011, the domestic enquiry was found in violation of the principles of natural justice and the said issue was decided against the employer. 10. Thereafter, the matter had proceeded for recording evidence on the merit of the reference. The Industrial Tribunal has recorded a categorical finding of fact that the employers have not been able to establish the respondent workman being in supervisory capacity. First objection taken by the employer regarding validity of the reference, therefore, had been turned down. 11. In so far as the contention of the respondents regarding illegal absence of the workman is concerned, it is recorded after perusal of the original attendance registers for the months of February and May, 1996 filed by the employer that the respondent workman was present on duty on 4.5.1996. The attendance registers from June, 1996 to February, 1997, when the dispute was raised by the workman, were not filed before the Labour Court. The termination order dated 7.2.1997 allegedly passed after alleged enquiry was found faulty with the observations that the reason of termination as given therein was absence from duty w.e.f. 25.4.1996 i.e. that the workman had worked till 24.4.1996. 12. The said fact recorded in the termination order passed by the disciplinary authority is found in contradiction with the original record of attendance which proved that the workman was present for work on 4.5.1996. However, his name has been deleted from the salary sheet of the month of May, 1996. 13. 12. The said fact recorded in the termination order passed by the disciplinary authority is found in contradiction with the original record of attendance which proved that the workman was present for work on 4.5.1996. However, his name has been deleted from the salary sheet of the month of May, 1996. 13. With the said finding, it is recorded by the Labour Court that the termination of services of the workman was an illegal act of the employer and, therefore, he was entitled for benefit of reinstatement with back wages with continuity of service. 14. This award is under challenge in the present petition with the assertion that the findings of fact recorded by the Labour Court on the plea of the workman being working in supervisory capacity is perverse. The Tribunal had ignored the statements/evidence of the employee itself that he was looking after the maintenance of the rides (Jhula) installed in the Amusement Park established by the petitioner company. 15. It is further submitted that there was no occasion for the Industrial Tribunal to award full back wages, inasmuch as, the respondent workman had failed to discharge the initial burden with the aid of evidence that after his dismissal from the service, he was not gainfully employed elsewhere and had no means of earning to maintain himself and his family. 16. It is contended that it cannot be accepted that for a period of more than 22 years, the workman would have been survived without being in an employment or any earning. 17. Reliance is placed upon the judgment of the Apex Court in Rajasthan State Road Transport Corporation, Jaipur vs. Shri Phool Chand (Dead) through LRs. Civil Appeal No. 1756 of 2010, decided on 20th September, 2018. 18. Considered the submissions of learned counsel for the petitioner and perused the record. 19. The fact that the disciplinary enquiry was found faulty, on determination of the preliminary issue framed by the Industrial Tribunal, is not disputed. 20. After the said determination, only objection before the employer was to establish the charges of unauthorised absence of the workman by producing cogent material/records before the Labour Court. However, as to the question of unauthorised absence of the workman w.e.f. 5.5.1996, the burden laid upon the employer was not discharged. 20. After the said determination, only objection before the employer was to establish the charges of unauthorised absence of the workman by producing cogent material/records before the Labour Court. However, as to the question of unauthorised absence of the workman w.e.f. 5.5.1996, the burden laid upon the employer was not discharged. The original attendance registers for the months from February, 1996 to May, 1996 were examined by the Industrial Tribunal and it was recorded that the workman was present for duty. Any plea of absence from June, 1996 till his services were terminated vide order dated 7.2.1997, could have been established by producing the attendance registers for the aforesaid period, which had not been done. 21. The termination of services of workman w.e.f. 7.2.1997 on the charges of unauthorised absence was, therefore, correctly found illegal. The name of the workman had been deleted from the salary sheet for the month of May, 1996 which proved that his services were orally terminated w.e.f. 5.5.1996, without complying on the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 i.e. notice or retrenchment compensation. 22. As the act of the employers in terminating the services of the workman was found illegal he has rightly been held entitled to reinstatement. It is not a case where the workman has raised industrial dispute with delay rather he had approached the Conciliation Officer in the year 1997 itself, whereupon, the dispute was referred in the month of May, 1997 for adjudication. For all these years, the matter remained pending before the Industrial Tribunal for adjudication. There is nothing on record that the respondent workman is responsible for causing delay in disposal of the industrial dispute. 23. It is settled law that for any delay on the part of the Court, a person who is vigilant about his rights cannot be made to suffer. Thus, during the pendency of the industrial dispute, if, the petitioner has attained the age of superannuation, it cannot be said that he would not be entitled for the benefits of reinstatement with continuity in employment. 24. It was clarified by the Industrial Tribunal that the workman would be entitled to the benefits under the award till he had attained the age of superannuation. 25. 24. It was clarified by the Industrial Tribunal that the workman would be entitled to the benefits under the award till he had attained the age of superannuation. 25. In so far as the back wages is concerned, the Apex Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others, (2013) 10 SCC 324 : LNIND 2013 SC 800 has set at rest the law relating to reinstatement with continuity of services and back wages in a cases of wrongful termination of service, after exhaustive consideration of the previous pronouncement relating to award of back wages. 26. Taking note of the principles laid down in P.G.I. of Medical Education and Research, Chandigarh vs. Raj Kumar, AIR 2002 SC 23 : (2001) 2 SCC 54 : LNIND 2001 SC 2509 and Hindustan Tin Works Private Limited vs. Employees of Hindustan Tin Works Private Limited, AIR 1979 SC 75 : (1979) 2 SCC 80 : LNIND 1978 SC 227 and other such cases, the legal propositions as has been culled out therein are as under:- "38. 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. 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. 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. 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-à-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 vs. Employees of Hindustan Tin Works Private Limited (supra). (vii) The observation made in J.K. Synthetics Ltd. vs. 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." 27. In Fisheries Department, State of Uttar Pradesh vs. Charan Singh, (2015) 8 SCC 150 : LNIND 2015 SC 210, it has been held that the principle of "No Work No Pay" does not have any significance to the fact situation where the termination of the services of the workman is found erroneous in law. There was absolutely no justification on the part of the industrial tribunal to deny back wages to the workman even when it is found that the order of termination is void-ab-initio. 28. There was absolutely no justification on the part of the industrial tribunal to deny back wages to the workman even when it is found that the order of termination is void-ab-initio. 28. For non compliance of the mandatory provisions under Section 6-N of the Act, having considered the legal position laid down in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (supra) and Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Limited, AIR 2014 SC 2258 : (2014) 11 SCC 85 : LNIND 2014 SC 147 : 2014 (3) LLJ 478 , it was held that the workman and his family cannot be made to suffer when he was illegally kept out of service. In such matters, the workman would be entitled to be paid full back wages. 29. The Apex Court has further gone on to say that the deprivation of source of livelihood for the arbitrary act of the employer is denial of right to life and livelihood guaranteed under Article 19 and 21 of the Constitution of India. The observations in paragraph no. 25 of the Fisheries Department State of Uttar Pradesh vs. Charan Singh (supra) read as under:- "25. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the Right to Liberty and Livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in the case of Olga Tellis and Others vs. Bombay Municipal Corporation and Others, wherein this Court has held thus: "32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which [pic] we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. Upon that assumption, the question which [pic] we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life" as observed by FIELD, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh vs. State of U.P." 30. In Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Limited (supra) the Apex Court has held that the burden to prove that the workman is gainfully employed post termination of his service is on the employer. The vague submissions of the employer that the workman was gainfully employed elsewhere cannot be accepted to deny back wages to the workman. 31. In view of the above discussion, no merit is found in the present writ petition. 32. The writ petition is, accordingly, dismissed.