JUDGMENT : 1. Heard Mr. Bharat Vyas, learned AGP for the petitioners and Mr. Buch, learned advocate for the respondent. 2. Feeling aggrieved by award dated 26.9.2014 passed by learned Labour Court at Rajkot in Reference LCR No. 31/05 the Asst. Charity Commissioner has taken out present petition. 3. By impugned award learned Labour Court has directed the petitioner to reinstate the respondent claimant on his original post with continuity of service. 3.1 Learned Labour Court has not granted relief in terms of back wages. 3.2 The only ground on which petitioner has challenged the award is that though there was no evidence the Court proceeded on the inference that the claimant had worked for 240 days or more during preceding 12 months by ignoring the fact that the respondent had served with the petitioner only for two years and not for 4 years as alleged by him, the Court proceeded on assumption that he rendered service for four years. 4. Except said two contentions any other contention against award is not raised. 5. So as to examine the petitioner's challenge it would be appropriate to take into account relevant facts. 5.1 From the material on record it has emerged that the respondent herein raised industrial dispute with the allegation that his employer i.e. present petitioner terminated his service with oral instruction and the employee did not follow prescribed procedure and/or did not comply principles of natural justice inasmuch as opportunity of hearing was not granted. 5.2 Appropriate government referred the dispute for adjudication. 5.3 Before learned labour Court the claimant filed his statement of claim with the allegation that he was engaged as Sweeper and was employed w.e.f. 1.10.2001 in the office of Asst. Charity Commissioner and his salary was at Rs.900/- p.m. and on 30.6.2004 without following any procedure prescribed by law and in violation of principles of natural justice the employer terminated his service by oral order. With the said allegation the claimant prayed for reinstatement and all benefits. 5.4 The office of charity commissioner opposed the reference. 5.5 Present petitioner claimed before learned Labour Court that the appointment of the claimant was not approved by the competent authority and that the claimant was engaged on ad-hoc and temporary basis and as part time employee. With the said allegation the claimant prayed for reinstatement and all benefits. 5.4 The office of charity commissioner opposed the reference. 5.5 Present petitioner claimed before learned Labour Court that the appointment of the claimant was not approved by the competent authority and that the claimant was engaged on ad-hoc and temporary basis and as part time employee. The employer also claimed that the claimant engaged only for two years and that he was required to work only on part time basis and that since the claimant was engaged as part time employee there was no need to follow any procedure while discontinuing his part time and ad-hoc engagement and that therefore it cannot be said that the petitioner committed any illegality when it discontinued service of the claimant. 6. From the reply filed by the petitioner it emerges that (a) the fact that the respondent was employed with the petitioner is not in dispute; (b) the service of the claimant came to be discontinued on and from 30.6.2004 is also not in dispute; (c) any procedure as prescribed by law was not followed before terminating the service of the claimant, is also not in dispute (d) the fact that before terminating his service any notice was not issued to the claimant and any opportunity of hearing was also not granted and reason for terminating his service was also not informed are also not in dispute; (e) according to the respondent he worked from October 2001 till June 2004 whereas present petitioner claimed before learned Labour Court that the claimant worked for 2 years. 7. Thus in any case the claimant's employment with the petitioner was at least for more than 12 months is not in dispute. 8. Further, the fact that before terminating service of the claimant the procedure prescribed under Rule 81 of Industrial Disputes (Central) Rules 1957 and Section 25-F and Section 25-H and Section 25-G of Industrial Disputes Act, 1947 was not followed is also not dispute. 9. In view of the said undisputed facts learned Labour Court reached to the conclusion that the claimant's service was terminated illegally and in breach of Section 25-F of the I.D. Act. 10. When above mentioned undisputed facts are taken into account then said conclusion by learned Labour Court cannot be faulted. 11. 9. In view of the said undisputed facts learned Labour Court reached to the conclusion that the claimant's service was terminated illegally and in breach of Section 25-F of the I.D. Act. 10. When above mentioned undisputed facts are taken into account then said conclusion by learned Labour Court cannot be faulted. 11. Even if it is assumed that the claimant was engaged as only part time employee, then also merely on that ground the petitioner cannot short circuit the procedure prescribed by law which should be followed before terminating service of an employee. 12. Under the circumstances when service of any workman who worked for 12 months or more is sought to be terminated then procedure prescribed under Chapter 5 of Industrial Disputes Act, 1947 more particularly Section 25-F must be followed. 13. In present case it has emerged that learned Labour Court has recorded specific finding of fact that the employer committed breach of Section 25-F and Rule 81. 14. As mentioned above the fact that the respondent worked for more than 12 months with the petitioner is not in dispute. 14.1 Of course the petitioner has, at this stage sought to challenge award on the ground that the learned Labour Court has proceeded under the assumption that the claimant had worked for more than 240 days in preceding 12 months. 14.2 However, from the award it has emerged that the petitioner failed to place any material on record to demonstrate that the claimant had not worked for 240 days. 15. In this context it is necessary to note that the claimant had entered into the witness box and got his evidence recorded. 15.1 In his deposition the claimant specifically asserted that during his entire tenure he had worked for more than 240 days in each year. He also asserted that the petitioner did not issue attendance card or any proof about attendance and that therefore he was unable to place on record any evidence. 15.2 The petitioner did not claim that it had issued attendance card. On one hand the petitioner did not issue any document to the workman about his attendance record, whereas, on the other hand the petitioner failed to place on record the material which would be in its exclusive possession (e.g. muster roll/wage register etc.) to establish that the claimant had not worked for 240 days during preceding 12 months. 16. On one hand the petitioner did not issue any document to the workman about his attendance record, whereas, on the other hand the petitioner failed to place on record the material which would be in its exclusive possession (e.g. muster roll/wage register etc.) to establish that the claimant had not worked for 240 days during preceding 12 months. 16. Under such circumstances (i.e. when on one hand the petitioner never issued any evidence to the workman on the strength of which he can establish his case and on the other hand when the documents related to attendance of the workman which were in exclusively possession of the petitioner, the petitioner did not place any material on record) learned Labour Court's decision to draw adverse inference against the petitioner with regard to claimant's case that he worked for 240 days during 12 months preceding the date of his termination, cannot be faulted. 17. In this regard reference may be had to the observation by Apex Court in paragraph Nos. 23 and 24 in case of Sriram Industries Enterprises vs. Mahak Singh (2007) 4 SCC 94 which reads thus:- “23. Regarding Mr. Desai's submissions that this Court had consistently laid down that it is for the workmen to prove that they had worked for 240 days in a calendar year, Mr. Viswanathan submitted that this Court had in the case of R.M. Yellatty vs. Assistant Executive Engineer observed as under (SCC p.116, para 17):- "Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the Court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further laid down that mere non-production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management. Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case." 24. Mr. Viswanathan submitted that in these cases, the workmen had discharged their initial onus by producing whatever documents were in their custody. The onus had thereafter shifted to the petitioner when the workmen asked for production of Attendance Registers and the Muster Rolls from 1991 onwards. On the failure of the petitioner to produce the said documents, the High Court had rightly drawn an adverse presumption.” 17.1 In the said decision the Court further observed in paragraph No. 34 that:- “34..... The views expressed by this Court on the question of burden of proof in Range Forest Officer's case were watered down by the subsequent decision in R.M. Yellatty's case and in our view the workmen had discharged their initial onus by production of the documents in their possession.” 18. The views expressed by this Court on the question of burden of proof in Range Forest Officer's case were watered down by the subsequent decision in R.M. Yellatty's case and in our view the workmen had discharged their initial onus by production of the documents in their possession.” 18. Above quoted observation make it clear that the petitioner's objection against the trial Court's decision to draw inference against the petitioner cannot be sustained in view of the fact that (a) the petitioner did not provide any document about attendance record to the employees and (b) the petitioner had exclusive possession of said record/evidence. 19. Foregoing discussions brings out that the learned Labour Court has not committed any error in holding that the respondent's service came to be terminated illegally and in breach of statutory provision. 20. In recent decision in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) (2013) 10 SCC 324 Hon’ble Apex Court has observed that in cases where the termination of service of workman is found to be illegal, then compelling circumstances are established, the direction to reinstate the workman should follow. In the said decision Hon'ble Apex Court has observed, inter alia, that:- 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. 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 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. 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. 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 visà- 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.” 21. In light of aforesaid observation by Hon'ble Apex Court direction to reinstate the claimant on his original post with continuity of service cannot be faulted. 22. In present case it has emerged that the claimant had promptly and without any delay demanded that he should be reinstated in service. Since his request was not accepted he immediately raised dispute and without any delay he approached the machinery under Industrial Disputes Act and got the dispute referred for adjudication. 23. 22. In present case it has emerged that the claimant had promptly and without any delay demanded that he should be reinstated in service. Since his request was not accepted he immediately raised dispute and without any delay he approached the machinery under Industrial Disputes Act and got the dispute referred for adjudication. 23. Under the circumstances, fault cannot be found with the claimant on ground of delay. Therefore the direction granting continuity of service cannot be faulted. 23.1 By not awarding any amount of back wages learned labour Court has balanced equity. 23.2 The claimant has not challenged award so far as order denying backwages is concerned. 24. In this view of the matter, it has emerged that the award is just and legal. Learned Labour Court has not committed any jurisdictional error or any material irregularity. The finding of facts recorded by learned Labour Court are supported by cogent and satisfactory reasons. The petitioner has failed to establish any infirmity in the award. Therefore, the petition deserves to be rejected and the same is rejected. Rule is discharged. Ad-interim/interim relief if any, stands vacated forthwith.