1. Heard Mr. Krishna Murari and Rajvardhan, Advs. appearing on behalf of the petitioner. 2. Nobody appears on behalf of the respondent-workman in spite of filing Vakalatnama. 3. The present writ petition has been filed for quashing the Award of the Labour Court B.S. City pronounced on 09.05.2006 in Reference Case No. 20 of 1998, whereby the reference has been answered in favour of the workman ordering reinstatement in service with full back wages from the date of dismissal. 4. Respondent-workman has been employed by the petitioner-Co-operative Society as a Meter Reader on 02.07.1978. On 15.11.1981, he has been assigned the post of Store-cum-Meter Reader and subsequently on the post of Assistant on 05.01.1985. He has been charged for unauthorised absence and holding departmental proceeding he has been dismissed from the service vide order dated 06.01.1990. Against this order of dismissal, Industrial Dispute has been raised which has been referred being Reference Case No. 20 of 1998. The terms of reference is as follows: “Whether the termination from service of workman Sri Gopal Prasad, Office Assistant, Bokaro Steel Employees Co-operative Construction Society Ltd., by the management at Bokaro Steel Employees Co-operative Construction Society Ltd., Bokaro Steel City is justified? If not what relief workman is entitled to?” 5. The domestic enquiry has been declared not fair and proper as the same was in violation of principle of natural justice. On recording of such finding, opportunity has been given to the management to justify the order of dismissal. For reason best known to the petitioner-management, the case has not been contested on merit as no evidence has been led justifying the order of dismissal. Three witnesses have been produced and some documents has also been produced. Analysing the evidence brought on record, the Labour Court has recorded the finding that the petitioner-Management has failed to prove the charge of wilful absenteeism, and accordingly, it has been held that the order of dismissal is wholly unjustified. 6. On such declaration, the reinstatement with full back wages has been ordered vide Award dated 27.10.2005. This Award has been impugned in the present writ petition. 7. Counsel for the petitioner has submitted that the Labour Court has failed to appreciate the evidence in proper prospective and the finding of no guilt recorded by the Labour Court is not proper. On such declaration, the reinstatement with full back wages has been ordered vide Award dated 27.10.2005. This Award has been impugned in the present writ petition. 7. Counsel for the petitioner has submitted that the Labour Court has failed to appreciate the evidence in proper prospective and the finding of no guilt recorded by the Labour Court is not proper. Further assailing the grant of full back wages, statement has been made that the order of dismissal is dated 06.01.1990 while the reference is dated 02.09.1998, and for such delay the petitioner-Management could not be penalised and grant of wages for that period, is not justified. 8. Perused the record, it is admitted position that the petitioner was in the employment of society since year 1978 and he was terminated on 06.01.1990 on the ground of absenteeism. Dismissal on the ground of absenteeism is otherwise disproportionate punishment. 9. In the present case, the domestic enquiry has been declared not fair and proper due to non-observance of principle of natural justice. 10. In view of these facts, this Court finds no infirmity in the Award passed by the Labour Court whereby, it has been declared that the order of dismissal was wholly unjustified. 11. So far back wages is concerned the concerned workman has been dismissed w.e.f. 06.01.1990 while the reference has been made on 02.09.1998. No explanation has been given for such delay. Due to laches on the part of the concerned workman he is not entitled for salary for the period from the date of dismissal till the date of reference. 12. Law relating to back wages has been well explained by the Apex court in the case of Deepali Gundu Surwase versus Kranti Junior Adhyapak Mahavidyalaya (D.ED.) and others reported in (2013) 10 SCC 324 especially para-38, which is quoted herein below: 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 averment 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. (Emphasis supplied) 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. 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 victimising 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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 finalisation 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. 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. 38.7. The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal 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. 13. The ratio of above judgment is clear that if the dismissal is against the principle of natural justice then the employee is entitled for full back wages. 14. In view of above discussion and judicial pronouncement, present writ petition is partially allowed by modifying the Award dated 27.10.2005 pronounced on 09.05.2006 passed in Reference Case No. 20 of 1998 to that extent that the concerned employee will be entitled for back wages from the date of reference i.e. 02.09.1998 till the date of retirement. 15. To avoid further litigation the calculation has been called from the employer and from perusal of calculation, it appears that the concerned workman is entitled for back wages to the tune of Rs. 7,05,935/- if calculated from 30.07.1990. 16. In view of declaration that the respondent workman is not entitled for salary from the date of dismissal till the date of reference this amount will be around 50 per cent. To avoid further litigation between the parties, the amount is quantified to the extent of Rs. 3,50,000/- to be paid by the petitioner to the concerned employee within two months from today. 17. With above observation and direction, the present writ petition stands partially allowed.