JUDGMENT Sanjay Yadav, J. 1. With the consent of learned counsel for the parties, the matter is finally heard. 2. This petition, under Article 227 of the Constitution of India at the instance of the petitioner, is directed against the Award dated 09.08.2016, notified on 03.10.2016, passed in Case No. COC 20/A/ID Act/2016 (Reference) and order dated 10.12.2016 passed in Case No. MCC 180/F/2016/ID Act by the Labour Court No.1, Gwalior (M.P.). 3. The dispute referred to the Labour Court at the instance of respondent/workman was whether her termination was valid and if not what relief she is entitled for. 4. The facts giving rise to the dispute briefly are that the respondent was initially engaged in the year 1999 with the petitioner establishment and after continuous service she was terminated w.e.f. 09.12.2014 without holding any enquiry. The management despite service of notice did not appear which led the Labour Court to proceed ex parte and after recording the evidence of workman, passed the award on 09.08.2016 holding the termination to be illegal and directing for reinstatement with entire backwages. The award was published on 03.10.2016. 5. It is pertinent to note that the proceedings under Section 10 of the Industrial Disputes Act 1947 were instituted against the Director, Vasundhara Raje Homoeopathic Medical College, Gwalior. After passing of award and its publication, the Director did not challenge the award. However, it was the Vasundhara Raje Homoeopathic Medical College, Gwalior through its counsel who filed an application under Order 9, Rule 13 of the Code of Civil Procedure, 1908, for setting aside the award dated 09.08.2016. The application was filed on 26.08.2016, i.e., before the publication of award under Section 14 of 1947 Act. 6. The Labour Court found that the notice of reference case was duly served on the Director who appeared in the matter and thereafter remained absent. The Labour Court further found that the application for setting aside the award was not maintainable for two reasons, firstly, it was premature being filed before the pronouncement of award which was on 03.10.2016 and secondly, the College through its counsel. These findings led the Labour Court dismiss the application for setting aside ex parte award. 7. The Labour Court further found that the application for setting aside the award was not maintainable for two reasons, firstly, it was premature being filed before the pronouncement of award which was on 03.10.2016 and secondly, the College through its counsel. These findings led the Labour Court dismiss the application for setting aside ex parte award. 7. Placing reliance on the decision in "Haryana Suraj Malting Ltd. v. Phool Chand 2018 (3) MPLJ 17 SC it is urged on behalf of the petitioner that Labour Court ought to have entertained the application and set aside the ex parte award. However, on close reading of the decision in Haryana Suraj Malting Ltd. (supra), in the considered opinion of this Court, is of no assistance to the petitioner, as the issue therein was whether the Labour Court is functus officio after the award has become enforceable preventing the Labour Court from considering an application for setting aside an ex parte award. 8. Present is not the case where the Labour Court has refused to exercise the jurisdiction. On the contrary, the Labour Court on merits rejected the application under Order 9, Rule 13 CPC. 9. Since the management chose to remain absent, the Labour Court was justified in proceeding ex parte and later on in rejecting the application for setting aside the ex parte award. 10. Coming to the challenge to the award dated 09.08.2016. Evident it is from the award that the workman who had continuously without any break worked since June, 1999 was abruptly and for no rhyme or reasons terminated from service w.e.f.09.12.2014 without following the procedure laid down under Section 25F of Act of 1947 which led the Labour Court to direct for reinstatement with backwages. 11. Section 25F of the Act of 1947 stipulates: "25F. 11. Section 25F of the Act of 1947 stipulates: "25F. 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]. " 12. In "M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. (1979) 2 SCC 80 ", it is 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." 13. Furthermore, in "Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others (2013) 10 SCC 324 " it is held: "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. 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 court or tribunal concerned 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 court or tribunal concerned 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--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 (P) Ltd. v. Employees (1979) 2 SCC 80 . 38.7. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees (1979) 2 SCC 80 . 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 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 (1979) 2 SCC 80 , (1980) 4 SCC 443 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." 14. The award of reinstatement when tested on the anvil of the decisions in M/s. Hindustan Tin Works Pvt. Ltd. (supra) and Deepali Gundu Surwase (surpa) cannot be faulted with. As regard to full backwages, the workman led the evidence, which remained uncontroverted, that she was unemployed after her termination. In view whereof, the Labour Court is well within its jurisdiction and justified in directing full backwages. 15. Taking any view of the matter, the Award dated 09.08.2016 (published on 03.10.2016) and order dated 10.12.2016 cannot be faulted with. Consequently, petition fails and is dismissed.