ORDER : 1. The petitioner herein is the employer of Indian Rayon Industries Limited and the respondent – Mr. Rizvan Abdul Samadmalik is the employee of the petitioner who also has preferred a cross petition being Special Civil Application No. 1964 of 2018. Both are aggrieved by the judgment and award dated 06.09.2017 passed by the Labour Court, Junagadh in Reference (LCJ) No. 01 of 2005 in the following factual background. 2. The employer shall be addressed as the petitioner and the employee shall be addressed as the respondent hereinafter. 3. The petitioner company is engaged in the business of manufacturing of viscose filament yarn since 1962. The company changed his name as Aditya Birla Nuvo Limited by following the procedure on 27.10.2005. The respondent was appointed during 1995 to 2001 as a temporary employee as per the requirement in the expansion project. His employment came to an end in November-2001. 3.1. After two years, he raised the dispute which was referred to the Labour Court, where he submitted the statement of claim. The written statement had been filed by the company stating therein that his appointment was purely on temporary basis and the dispute is not covered under the definition of Section 2(oo) of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'ID Act'). 3.2. The Labour Court permitted to adduce evidence to both the sides which included a detailed cross-examination of respondent. 3.3. After hearing both the sides, the Court partly allowed the reference and directed the petitioner company to reinstate the respondent without back wages. It is the say of the petitioner that much delay has been caused which ought not to have been permitted by the Court. In case of another set of employees similarly situated, the very Labour court has held in favour of the employer and when challenged before the LPA Bench in Letters Patent Appeal No. 466 of 2016, the Court also noted unexplained and inordinate delay of 7 years in raising the dispute and the employee having accepted the PF amount in the year 2005, it held that the appellants (employees) cannot term their discontinuation in service from 08.05.2001 as illegal termination. The Court also did not find any merit in the appeal and had dismissed the LPA. 4.1. The Court also did not find any merit in the appeal and had dismissed the LPA. 4.1. The prayers sought for by the petitioner are as follows: “(A) Your Lordship may be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ order or direction to quash and set aside the impugned award passed by the Labour Court, Junagadh in Reference (LCJ) No. 1 of 2005. (B) Pending the hearing and final disposal of petition, your Lordships may be pleased to stay the operation and implementation of the impugned award dated 06.09.2017 passed by the Labour Court, Junagadh in Reference (LCJ) No. 01 of 2005. (C) An ex-parte ad-interim relief in terms of prayer (B) above may kindly be granted. (D) Your Lordship may pass such other and further order or as may be deemed just and proper in the facts and circumstances of the present case.” 4. The respondent – employee in a petition preferred before this Court has ventilated the grievance that the petitioner had terminated the service which was held to be illegal by the Court and yet has not awarded the back wages. Such award dated 06.09.2017, therefore deserves to be quashed. It is a trite law that once the Court holds the action of the authority illegal, the consequential benefits cannot be denied and the back wages are one of those benefits. 5.1. According to the respondent, every time the Labour Court comes to the conclusion that the decision of the employer to terminate the service is illegal, Reinstatement with continuity and full back wages need to follow. 5. This Court has extensively heard learned advocate Ms. Khushbu Chhaya appearing for the petitioner, who has, on mainly two counts, contested this petition. Firstly, on the ground that the respondent has worked merely for a period of 7 years and secondly, he has already caused delay of two years in bringing the industrial dispute. According to her, the delay shall need to be looked from the angle that the respondent was not interested in continuing the service. He also had been earning sufficiently and therefore, at the best, instead of granting reinstatement to such employee, the Court ought to have granted lumpsum compensation to the respondent. 6.1. She has relied on the decision of this Court (Coram: Mr. He also had been earning sufficiently and therefore, at the best, instead of granting reinstatement to such employee, the Court ought to have granted lumpsum compensation to the respondent. 6.1. She has relied on the decision of this Court (Coram: Mr. Akil Kureshi, J.) rendered in case of Indian Rayon Industries Limited vs. Bamaniya Lakhabhai Bhagvanjibhai rendered in Special Civil Application No. 6351 of 2006 decided on 10.03.2015 and the decision of the Apex Court in case of Sr. Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal and Others rendered in Civil Appeal No. 3815 of 2010 arising out of SLP(C) No. 13994 of 2006. 6. Per contra, the learned advocate Mr. Mishra appearing for the respondent had extensively contended that there has been no delay virtually except of two years which has been explained sufficiently. According to him, there has been a consistent stand that the employee was denying the duty. He fairly admits that there is no notice issued to the petitioner nor was any written communication addressed to the petitioner in this period. 7.1. He has relied on the decision of this Court rendered in case of Amarabhai Najabhai Chhatrodia vs. Indian Rayon Industries Ltd; MCA 01/2018 in LPA 120/2016 in SCA 6763 of 2015, in support of his submissions. 7. Having thus heard both the sides, the adjudication which has been made by the Labour Court under Section 10(1)(C) of the ID Act, if is considered, it emerges that on 17.12.2004, the reference was made as the Assistant Labour Commissioner could not resolve the disputes between the parties. It emerges that after the termination of service on 21.01.2002, when the respondent was not permitted to resume the work, he had approached the machinery of the Labour Court on 17.12.2004. Demand notice had already been given on 12.03.2004. No reply to the same has been given by the present petitioner and hence, he had approached the labour machinery and the dispute when was referred to the Labour Court, it has been numbered the Reference (T) Case No. 01 of 2005. It is thus clear that within two years of termination, the respondent has moved the authorities making the request for his reinstatement. The essential reason which has been put forth by the Petitioner resisting the reference is of the delay. From 01.03.1995, the respondent has worked as reeler corner in the textile department. It is thus clear that within two years of termination, the respondent has moved the authorities making the request for his reinstatement. The essential reason which has been put forth by the Petitioner resisting the reference is of the delay. From 01.03.1995, the respondent has worked as reeler corner in the textile department. He continued to work for 8 years. In the year 2002, when the dispute with regard to bonus and the strike observed by the Union arose, the compromise was effected with a promise to give bonus on 21.01.2002, however, the present respondent was not taken back into the service. There was neither any notice of retrenchment stating reasons nor any notice pay nor any retrenchment compensation as contemplated under the provision of ID Act. Noticing the fact that he continued to work for 240 days in a preceding year and also from 01.03.1995 to 21.01.2002, and his service came to be ended without duly complying with the provision of Labour laws, the trial Court has held his termination illegal. 8.1. So far as the petitioner is concerned, it is also emphasized on this being a temporary employment, the Respondent would not be covered under the definition of the retrenchment and relief on Section 2(oo)and 2(bb) of the ID Act. Apt would be to refer to the said definition. “Section 2(oo)(bb) defines retrenchment however, it does not include the termination of service as a result of non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein.” 8.2. Noticing the continuous service from 01.03.1995 to 21.01.2002 and also his having been already included in the list of employees for whom the PF also was deducted, the Court held that continuous service will not entitle the petitioner to contend that the employee who was being paid on a monthly basis Rs. 2,943/- as a wage and was also being paid the provident fund and other befits, could be permitted to be terminated without complying with Section 25(F) of the ID Act. Noticing the fact that the petitioner also has destroyed the register which it was required to bring on record and then to say that he has not completed 240 days of service, according to the Labour Court was not an acceptable proposition. Noticing the fact that the petitioner also has destroyed the register which it was required to bring on record and then to say that he has not completed 240 days of service, according to the Labour Court was not an acceptable proposition. By an extensive discussion of evidence which has been adduced before it, it held that there has been no maintenance of the muster roll, pay slip and register from 01.03.1995 to 21.01.2002. 8.3. The Court also had relied on the decision of the Supreme Court rendered in case of R.M.Yellati vs. Assistant Executive Engineer [ AIR 2006 SC 355 ] and other decisions to hold that in case of daily wager, for establishing that he was in a continuous service, but for want of service documents available with him, which are in control and custody of the employer, it would require of him to call upon the employer to produce the same and if he does not produce the same, burden of proof stands discharged by the workman and shifts onto the employer to prove otherwise. 8.4. On having found that despite the request, these documents were not produced, the Court held that the order of termination without any notice, notice pay or the retrenchment compensation was contrary to Section 25(F) of the ID Act. Admittedly, there was no complaint against this man and the work in a textile department of a reeler corner is still continuing. It also further noticed that after 21.01.2002 others have been appointed without availing the opportunity to the said respondent and that also is breach of Sections 25(G) and (H) of the ID Act. By holding on the strength of the decision of the Apex Court in case of General Manager, Harnaya Roadways vs. Rudhan Singh [2005 (6) SC Judgment Today 137] that there should not be the payment of backwages in a mechanical manner, but host of factors are required to be considered, it chose not to grant any backwages. 8.5. It can be further noticed that in the examination in chief and in the cross examination of this very respondent, it emerges that he was earning Rs. 1000/- to 1500/- after his termination whereas, it has been established that his pay at the time of this order of termination, which has been held to be illegal, was Rs. 2,943/-. 8.5. It can be further noticed that in the examination in chief and in the cross examination of this very respondent, it emerges that he was earning Rs. 1000/- to 1500/- after his termination whereas, it has been established that his pay at the time of this order of termination, which has been held to be illegal, was Rs. 2,943/-. According to the respondent, there could have been some amount of back wages to fill-in the gap of the amount which he has lost on account of the conduct and action of the petitioner, should be granted. 8. Insistence on the part of the petitioner is to grant lumpsum compensation for the Respondent having had a limited service of 7 years whereas in case of respondent, the insistence is for the grant of 100% back wages as the reinstatement is already been granted, and he is not taken back in the service. Yet another grievance on the part of the Respondent is that neither any benefit under Section 17(B) of the ID Act has been granted nor he has been reinstated in the service till date, though there is no stay obtained. Reliance is placed, for the said purpose, on the decision of this Court rendered in case of Amarabhai Najabhai (supra) the Court held thus :- “4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that the Labour Court has recorded finding of fact to the effect that in the year 1999 the workman had worked for 267 days and in the year 2000 the workman had worked for 285 days. If the documents placed on record, as reflected in the impugned award (in para8) are seen, it is evident that no orders were shown to the Labour Court for the year 2009 and 2000. The Labour Court had passed an order, to place the entire material before it, which was not done by the petitioner. The finding by the Labour Court is that, in the year 2009 and 2000, the workman had worked for not less than 240 days. Except for those two years, other appointment orders issued from time to time were placed on record. With this, the picture emerging is that, the workman was in continuous employment from the year 1997 till his termination. Except for those two years, other appointment orders issued from time to time were placed on record. With this, the picture emerging is that, the workman was in continuous employment from the year 1997 till his termination. If this aspect is kept in view, the say of the petitioner that the case is covered by Section 2(oo)(bb), is found to be inconsistent with the record. The Labour Court has recorded detailed reasons in this regard. This Court does not find any infirmity therein. The Labour Court has not committed any error by ordering reinstatement. No interference is therefore required in the impugned award. This petition therefore is required to be dismissed.” 9.1. This had been challenged before the Division Bench which also upheld the same by holding thus :- “[2.0] At the outset, it is required to be noted that earlier the present Letters Patent Appeal was heard at length and thereafter it was adjourned to today. Today, when the present Appeal is taken up for further hearing, Shri Chhaya, learned advocate appearing on behalf of the appellant has stated at the Bar that pursuant to the judgment and award passed by the learned Labour Court, the concerned workman has been reinstated in service on 21/09/2017. He has stated at the Bar that now the challenge to the order of reinstatement shall not survive and the question would be with respect to the wages from the date of the judgment and award till the concerned workmen is reinstated. He has stated at the Bar that the wages from February, 2015 till the concerned workmen – respondent no.1 herein was reinstated shall be paid to the concerned workman within a period of 10 days from today, and therefore, he has requested to dispose of the present Appeal accordingly. [3.0] Shri T.R. Mishra, learned advocate appearing on behalf of the concerned workman has stated at the Bar that he has no objection if the present Letters Patent Appeal is disposed of in terms of the above. [4.0] In view of the above, when the concerned workman has already been reported to be reinstated on 21/09/2017 and even according to the appellant – Management challenge to the award passed by the learned Labour Court confirmed by the learned Single Judge so far as the reinstatement with continuity of service is concerned, the same does not survive. [4.0] In view of the above, when the concerned workman has already been reported to be reinstated on 21/09/2017 and even according to the appellant – Management challenge to the award passed by the learned Labour Court confirmed by the learned Single Judge so far as the reinstatement with continuity of service is concerned, the same does not survive. Meaning thereby, the Management has now accepted the judgment and award passed by the learned Labour Court confirmed by the learned Single Judge. As stated by Shri Chhaya, learned advocate appearing on behalf of the appellant, appellant to pay full wages from February, 2015 till the concerned workman – respondent no.1 is reinstated i.e. 21/09/2017 within a period of 10 days from today, without fail. Concerned workman is directed to act accordingly. With this, present Appeal stands disposed of.” 9. Learned advocate Mr. Mishra relied on the decision of this Court rendered in case of Chandrakant G. Khagram vs. Manager [SCA 1177/2003 with 6774/2002] where, as the employee has worked for nearly two years in the company, various factors when are taken into consideration, the Court did not find it appropriate to grant 100% back wages but the nature of appointment, mode of recruitment, length of service and subsequent facts and circumstances when taken into consideration, since the employee was earning Rs. 500/- per month, the Court granted him 50% backwages. This had been challenged before the Apex Court and the Apex Court has rejected the Special Leave Petition Nos. 35460-35461/2013. 10. Learned advocate Mr. Mishra has also relied on the decision of the Division Bench of this Court rendered in case of Zonal Manager State Bank of India vs. Modi Rajeshkumar Shantilal [LPA No. 306/2008 in SCA No. 12285/2002], where the question was with regard to the continuous service, where the Court held that continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If, for a certain period, the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service. If, for a certain period, the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service. “7.1 Section 25-F of the Industrial Disputes Act,1947 requires the employer to follow the procedure thereunder when a workman is employed in an industry and who has been in continuous service for not less than one year. “Continuous service” is defined under Section 25-B of the Act. Section 25-B(1) suggests that the workman shall be said to be in continuous service for a period if he is for that period in uninterrupted service including service which may be interrupted on account of sickness, authorized leave etc. Section 25-B(2) suggests that, when he is not in continuous service for a year then a deeming fiction of 240 days is considered. Mr. Desai, contends that the learned Judge could not have considered the Certificate showing the number of working days as 319, as “that period was not a period preceding 12 months prior to retrenchment”. In our opinion, this submission of Shri Desai, is without merit. Continuous service as defined under Section 25-B suggests the entire tenure of service continuously for a period for which the workman has worked prior to the relationship between the workman and the employer coming to an end. If for a certain period the employer is in no position to provide work, cessation of such work without the fault of the employee would not be an interruption in service and the employee would be deemed to be in service for such period. It was the case of the respondent workman here, by a positive assertion in the Statement of Claim that not only did he work for more than 240 days preceding his retrenchment from 01.04.1994 to 31.12.1995, but that from April 1992 to June 1993 he was in service except for the cessation without his fault, and therefore the case squarely fell within the domain of Section 25-B(1) of the Act. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. The employer having failed to discharge its burden by producing vouchers though so ordered under Exh.18, cannot now be heard to say that the fiction of the employee having worked for a period of 240 days as envisaged under Section 25-B(2) of the Act would apply. Having failed to do so, interruptions need to be ignored and the respondent workman, as observed by the learned Single Judge needs to be treated to be in continuous service without interruption as defined under Section 25-B(1) of the Act. It is relevant to note one important aspect that Section 25-B(1) had been discussed by Apex Court in case of Surendranagar District Panchayat Vs. Dahyabhai Amarsinh reported in 2005 (8) SCC page 750. Relevant para 8 of this decision is quoted as under: “S8. To attract the provisions of Section 25-F, one of the conditions required is that the workman is employed in any industry for a continuous period which would not be less than one year. Sec. 25-B of the Act defines continuous service for the purpose of Chapter VA. Slay-off and Retrenchment. The purport of this section is that if a workman has put in uninterrupted service of the establishment, including the service which may be interrupted on account of sickness, authorized leave, an accident, a strike which is not illegal, a lockout or cessation of work, that is not due to any fault on the part of the workman, shall be said to be continuous service for that period. Thus the workman shall be said to be in continuous service for one year i.e. 12 months irrespective of the number of days he has actually worked with interrupted service, permissible under Section 25-B. However, the workman must have been in service during the period i.e. not only on the date when he actually worked but also on the days he could not work under the circumstances set out in sub-section (1). The workman must be in the employment of the employer concerned not only on the days he has actually worked but also on the days on which he has not worked. The import of sub-section (1) of Section 25-B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. The import of sub-section (1) of Section 25-B is that the workman should be in the employment of the employer for the continuous, uninterrupted period of one year except the period the absence is permissible as mentioned hereinabove. Sub-section (2) of the Section 25-B introduced the fiction to the effect that even if the workman is not in continuous service within the meaning of clause (i) of Section 25-B for the period of one year or six months he shall be deemed to be in continuous service for that period under an employer if he has actually worked for the days specified in clauses (a) and (b) of Sub-section (2). By the legal fiction of sub-section (2) (a)(i), the workman shall be deemed to be in continuous service for one year if he is employed underground in a mine for 190 days or 240 days in any other case. Provisions of the section postulate that if the workman has put in at least 240 days with his employer, immediately, prior to the date of retrenchment, he shall be deemed to have served with the employer for a period of one year to get the benefit of Section 25-F.” 7.2 What is meant by continuous service for the purpose of Chapter VA has been defined under Section 25-B.The requisites for treating a person to be in continuous service for the requisite period, in case of Section 25-F is that either he should be in uninterrupted service including service which may be interrupted on account of sickness or authorized leave etc which is not due to fault of workman or cessation of work for no fault of the workman. If a workman completes continuous service of employment of more than one year as is so established in the present case, on the failure of the employer to discharge the burden adverse inference needs to be drawn. These facts must be reflected clearly in reference to the date of retrenchment with any block of twelve months with reference to continuous service. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control. In the present case the respondent workman has established continuous service on the test of 25(B) and therefore the deeming fiction of completion of 240 days would not set off the fact of the workman being in continuous service for one year including interruptions beyond his control. 7.3 As far as issue (B) is concerned, Shri Desai’s contention by relying on decision in the case of Surendranagar (supra) would be of no avail. An application Exh.11 was moved by the respondent workman for production of vouchers from the employer. An order at Exh. 16 was passed. The employer failed to produce such vouchers and therefore did not discharge the burden of proving otherwise. The learned Single Judge as well as the Industrial Tribunal, in our opinion therefore, even on the second ground were right in holding that once the employer had failed to negate the assertion of the employee, by failing to discharge the burden, recourse to the deeming fiction of completion of 240 days would not arise. Adverse inference was rightly drawn by the Industrial Tribunal, on the employer's failure to produce relevant record though directed to do so. 8 As far as Shri Desai’s reliance on the judgments of the Supreme Court to suggest compensation instead of reinstatement is concerned, since the respondent was a daily wager, we do not agree with this submission. The respondent workman has been in employment as a Messenger from 03.01.1989 to 31.12.1995. The period is of approximately six years. Nothing has been brought on record to suggest that there was cessation of work for which it was not the employee’s fault. The respondent workman therefore, though branded as a daily wager, was in fact, as rightly held by the learned Single Judge in continuous service. Litigious employer has gone back and forth from this Court before the Single Judge to the Division Bench and then Supreme Court and back on two occasions rendering the workman without the fruits of litigation for more than eleven years. No fault can therefore be found with the respondent workman who notwithstanding the employer's zeal to tire him out steadfastly remained patient. Compensation can be no solace to such a workman.” 11. No fault can therefore be found with the respondent workman who notwithstanding the employer's zeal to tire him out steadfastly remained patient. Compensation can be no solace to such a workman.” 11. In case of Bhuvnesh Kumar Dwivedi vs. Hindalco Industries Limited [ (2014) 11 SCC 85 ], the workman rendered continuous service for six years where the employer had followed the process of annually terminating him from service and terminated his service. On reappointing him again on the post, the Court examined as to what could be the effect applicability of exception clause in Section 2(oo)(bb)in the State of U.P. The Apex Court referred to the decision of U.P.State Suger Corporation Limited vs. Om Prakash Upadhyay [ (2002) 10 SCC 89 ] and held that the claim of the employer as appointed on a contractual basis has not been made out. 12.1. In a matter before the Apex Court the periods of service was extended close to 6 years and the artificial breaks were made by the respondent with an oblique motive so as to retain the appellant as a temporary worker and deprive the appellant of his statutory right of permanent worker status. This conduct also held to be unfair labour practice as defined under Section 2 (ra) of the ID Act. It is impermissible under Section 25T and 25U of the ID Act read with entry at Serial No. 10 in the Vth Schedule to the ID Act regarding unfair labour practices. The Court therefore answered that the employee is a worker of the Company providing continuous service for 6 years except for the artificial breaks imposed upon him with an oblique motive by the Company. Therefore, the termination of service of the appellant amounts to retrenchment in the light of the principle laid down by three judge bench decision of the Apex Court in case of State Bank of India vs. Shri N. Sundara Money [ (1976) 1 SCC 822 ]. 12.2. So far as the back wages is concerned, the Court referred to the decision rendered in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya [ (2013) 10 SCC 324 ]. The Court had upheld the award of the Labour Court which granted reinstatement with full backwages to set aside the order of termination. “38. 12.2. So far as the back wages is concerned, the Court referred to the decision rendered in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya [ (2013) 10 SCC 324 ]. The Court had upheld the award of the Labour Court which granted reinstatement with full backwages to set aside the order of termination. “38. Subsequently, in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya it was held by this Court as under: “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. (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. 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. …….. (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. 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 v. Employees of Hindustan Tin Works Private Limited (supra).….” (Emphasis laid by this Court) 39. In the present case, the respondent has made a vague submission to the extent that : “the conduct of the workman throughout the proceedings before the High Court during 2002 to 2011 shows that he is continuously gainfully employed somewhere. Admittedly even in the counter affidavit in the said Writ Petition, it has not been stated that the workman was not employed” 40. Therefore, on the basis of the legal principle laid down by this Court in the Deepali Gundu Surwase case (supra), the submission of the respondent that the appellant did not aver in his plaint of not being employed, does not hold since the burden of proof that the appellant is gainfully employed post termination of his service is on the respondent. The claim of the respondent that the appellant is gainfully employed somewhere is vague and cannot be considered and accepted. Therefore, we hold that the appellant is entitled to full back wages from the date of termination of his service till the date of his reinstatement.” 12. In case of Jasmer Singh vs. State of Haryana and Another [ (2015) 4 SCC 458 ], there was a delay of three years in approaching the tribunal against the termination order. In this case the retrenchment was granted with full backwages. The Court held that the termination order since was voidabinitio, the workman was entitled to the full backwages relying on the Deepali Gundu's case. “14. On issue No. 3, after adverting to the case of State of Punjab v. Kalidass and Anr. In this case the retrenchment was granted with full backwages. The Court held that the termination order since was voidabinitio, the workman was entitled to the full backwages relying on the Deepali Gundu's case. “14. On issue No. 3, after adverting to the case of State of Punjab v. Kalidass and Anr. in C.W.P. No. 1742 of 1996, wherein the High Court has observed that the workman cannot be allowed to approach the Labour Court after 3 years of termination of his services, upon which reliance placed by the respondent-employer with reference to the said plea the Labour Court has rightly placed reliance upon the judgment of this Court in Ajaib Singh v. Sirhind Cooperative Marketing-cum-Processing Service Society Ltd. and Anr. in which it is observed by this Court that there is no period of limitation to the proceedings in the Act. 15. Accordingly, Issue No. 3 is answered against the respondent-management. The relevant paragraph from Ajaib Singh's case (supra) are extracted herein below: "10. It follows, therefore, that the provisions of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. No reference to the labour court can be generally questioned on the ground of delay alone. Even in a case where the delay in shown to be existing, the tribunal, labour court or board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. The Court may also in appropriate cases direct the payment of part of the back wages instead of full back wages." 13. So far as the termination of the services of respondent and non-following of the provisions of law are concerned, as held in case of Bhuvnesh Kumar Dwivedi (supra), in the instant case, Section 2(oo) (bb) of the ID Act would not be attracted. So far as the termination of the services of respondent and non-following of the provisions of law are concerned, as held in case of Bhuvnesh Kumar Dwivedi (supra), in the instant case, Section 2(oo) (bb) of the ID Act would not be attracted. As rightly held by the trial Court, as per the claim of the petitioner that the respondent was appointed on a contractual basis, has not been made out, and in fact,his continuous service of seven years is in fact established. Without any iota of evidence either proving or negating the positive evidence that he was not on a contractual basis, as rightly held by the Labour Court that in these set of circumstances, his termination would fall under the definition of retrenchment requiring the following of the prescribed procedure. 14. The trial Court having clearly and rightfully held that it was in breach of the provisions of Section 25-F of the ID Act, it has directed the reinstatement of service. So far as the present respondent is concerned, the request on the part of the employer that his service was only for the period of seven years as a daily wager and therefore, instead of reinstatement, lump-sum compensation should be awarded, as per the decision of the Apex Court is not finding favour with this Court. The respondent has been in employment from the year 1995 till 2001, nearly six years of service. There has been no recession of the work in the industry. It is not the employee's fault that he continued to be labeled as daily wager and his services came to be terminated without following the due procedure. However, there has been a requirement of reduction of total strength under the pretexts of grant of bonus, when he was never taken back in the service, and if the litigation has continued all these years, where also during the pendency of this petition, he has not been given any benefit of Section 17(B) of the ID Act, this act on the part of the petitioner is nothing but to exhaust all means of the employee who without his socioeconomic strength continued incessantly to fight the battle. This court May not be guided by what happened in case of other set of employees where the LPA Bench also upheld the award of Labour court, since each matter would contain its own specific merits which being a very crucial aspect, cannot simply be overlooked. Total period of delay here is much less as compared to the matter sought to be relied upon by the Petitioner. 15. That takes this court to the request of back wages and even if the host of the factors as required under the law are considered for the purpose of grant of back wages and continuity of service, the delay of two years will need to be regarded. The period of delay for which he had not approached this Court is well explained and therefore, while condoning the same, balance could be struck and such period can be treated as dias non. With his specific evidence of the sundry work that he had done while unemployed and the amount he recovered has not matched the amount which was being given to him at the time of his termination, differential amount shall need to be awarded to him as this shortfall resulted on account of action of the Petitioner which is held to be contrary to the law. 16. In the instant case, as can be noticed, the employee during his termination of service has earned Rs.1000/- to Rs.1500/- according to him and as no evidence has been adduced by the employer that this was an incorrect version on the part of the employee, he once having discharged his burden, the Court deems it appropriate to grant 40% of the backwages to the employee. 17. Let his reinstatement be made within two weeks from the date of receipt of this order with all 40% back wages. The period of two years for which there has been a delay in preferring the Reference, the said period should be treated as dias non. 18. The present petitions stand disposed of accordingly.