JUDGMENT : 1. Heard. 2. This appeal is directed against the order dated 19.08.2019 passed by the learned Single Judge only to the extent the learned Single Judge has not granted back wages from the date of termination till the date of reinstatement. 3. Relying upon the Hon’ble Supreme Court decision in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. : (2013) 10 Supreme Court Cases 324, learned counsel for the appellant would submit that once the order of termination/dismissal is illegal entitling reinstatement, grant of back wages is a normal rule and the Court may be required to consider this aspect upon taking into consideration various relevant factors as stated in para 38 of the decision of the Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. He would submit that the appellant is a low paid employee and belonging to Scheduled Caste. Termination from service was founded on an allegation of misconduct and the learned Single Judge recorded a finding that the date on which appellant solemnized second marriage, specific provision of misconduct was not incorporated in the rule. The rule specifying second marriage as a misconduct was incorporated after the date of solemnization of marriage. Therefore, present is not a case where the reinstatement was ordered considering the order of punishment as disproportionate or on the ground of violation of principles of natural justice but on the ground that no charge-sheet could be issued to the appellant. Learned counsel for the appellant would further submit that the appellant’s conduct in engaging second marriage was based on prevalent form of dissolution of marriage with the first husband and therefore, it cannot be said that the appellant’s conduct was such which amounted to misconduct. Therefore, it is prayed that back wages for the period, during which the appellant remained out of service, be awarded. 4. On the other hand, learned counsel for the respondents would submit that the learned Single Judge after taking into consideration the entire aspects of the matter was of the view that in the circumstances of the case, though consequential benefits of all other forms were entitled to be extended, the payment of actual wages was not granted. He would submit that present is a case where the appellant was alleged to have contracted second marriage. He would submit that present is a case where the appellant was alleged to have contracted second marriage. Even if it may not amount to specific misconduct under the service rules, the appellant being in government service was expected to avoid acting in a manner which was unbecoming of a government servant. 5. Relying upon decision of the Hon’ble Supreme Court in the case of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan, he would submit that in any case, an inquiry would be necessary to find out whether the appellant was gainfully employed during the period she was out of employment. As the appellant has not stated in the writ petition that after termination she was not engaged anywhere, in the absence of a proper inquiry, the appellant could not claim entire back wages as a matter of course. 6. We have heard learned counsel for the parties and perused the record. 7. Disciplinary action was initiated on an allegation of misconduct on the ground that the appellant contracted second marriage during subsistence of first marriage. Appellant’s stand was that a prevalent form of dissolution of marriage with the first husband was followed and only thereafter, second marriage was contracted. Learned Single Judge was of the view that the rule which was alleged to be violated and made basis to allege misconduct, was not in force on the date of contracting second marriage. The order dismissing appellant from service was set aside on the ground that there was no misconduct at all. It is not a case where the allegations were grave in nature but because of some technical flaw, the order of termination dismissal was found unsustainable in law. It is also not a case where the appellant was granted relief only on the ground that proper opportunity of hearing was not afforded. Therefore, the appellant’s conduct itself having not been found to be one amounting to misconduct under the service rules, the learned Single Judge had set aside the order of dismissal. 8. The appellant belongs to Scheduled Caste. She was a low paid employee. Further, the appellant acted promptly. After the order of dismissal was passed on 18.09.2012, she preferred departmental appeal which was dismissed on 19.12.2014. Immediately, thereafter, she filed writ petition which came to be decided in her favour on 19.08.2019. 8. The appellant belongs to Scheduled Caste. She was a low paid employee. Further, the appellant acted promptly. After the order of dismissal was passed on 18.09.2012, she preferred departmental appeal which was dismissed on 19.12.2014. Immediately, thereafter, she filed writ petition which came to be decided in her favour on 19.08.2019. Therefore, the appellant cannot be blamed for delay, if any, in decision of the case. 9. Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors., after taking into consideration several decisions on the issue of back wages, summarized law as 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 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. 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 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 sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of fullback 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. 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 penalized. 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. 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." 10. The principles which have been laid down herein if applied to the present case, we find that subject to the condition that the appellant was not gainfully employed, the appellant would be entitled to full back wages. 11. Reliance placed on the decision of Hon’ble Supreme Court in the case of Chief Regional Manager, United India Insurance Company Limited Vs. Siraj Uddin Khan is misconceived on facts. Their Lordship of the Hon’ble Supreme Court noted the distinguishing feature of that case while considering whether the principles laid down in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. could be applied. It was observed thus: “16. We may notice some of the judgments of this Court where issue of back wages has been considered by this Court. This Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. could be applied. It was observed thus: “16. We may notice some of the judgments of this Court where issue of back wages has been considered by this Court. This Court in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mhavidyalaya (D.Ed.) And Others, (2013) 10 SCC 324 was considering a case where the question was considered as to whether the appellant was entitled to wages for the period she was kept out of service forcibly by the management of school. In paragraph No. 22, following was laid down:- “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 17. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 17. We may hasten to add that present is not a case where respondent was kept away from the work on account of dismissal. Admittedly, the respondent attained the age of retirement on 20.06.2012 and order terminating his services was passed only on 26.06.2012, which was rightly held to be ineffective.” 12. That was a case where the employee had continued in service and the order of penalty came to be passed only after he attained the age of superannuation. Therefore, in the peculiar circumstances of that case, Hon’ble Supreme Court was of the view that the learned Single Judge having itself not recommend the entitlement of the employee to receive salary after 14.05.2009 to 20.06.2012 (the period of unauthorized absence) it ought to have directed the employee to consider entitlement and take a decision. 13. In view of the principles which have been laid down in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors., and taking into consideration various factors relevant for decision on the issue of back wages, we are of the view that in order to do complete justice, the appellant is entitled to full backwages subject only to an inquiry regarding her gainful employment. For this purpose, the appellant shall submit an affidavit before the respondent regarding her gainful employment during the period she remained out of employment. The respondents shall complete inquiry on such affidavit within a maximum period of sixty days from of the date of receipt of the representation. Unless the appellant is found to be gainfully employed on equal wages which she was drawing, she would be entitled to full back wages. In case it is found that she was gainfully employed on wages lesser than what she would have drawn but for dismissal, the difference of wages would be paid. We must also add a word of caution. It will not be open for the employer to draw any inference only on the ground of earning capacity. In case it is found that she was gainfully employed on wages lesser than what she would have drawn but for dismissal, the difference of wages would be paid. We must also add a word of caution. It will not be open for the employer to draw any inference only on the ground of earning capacity. In reaching to a conclusion with regard to gainful employment, a clinching evidence of appellant actually gainfully employed in any employment or vocation would be necessary. 14. The appeal is accordingly allowed in the manner as directed above.