ORDER : 1. The present Special Civil Application impugning the judgment and award dated 27.01.2011 passed by the learned Labour Court, Kutch at Bhuj in Reference (LCB) No.25 of 2007. 2. The factual matrix in the present case is that the respondent-workman was appointed as Clerk on 18.07.1985 by the petitioner Company. Thereafter, he came to be promoted as Manager on 08.08.1989. It is further the case that though he was granted designation of Manager and he was doing same nature of work on which he was appointed. It is further the case of the respondent-workman that because of his long 21 years of service with the petitioner, he was getting salary of Rs.5030/- (basic + other allowances). That, the respondent-workman came to be retrenched w.e.f. 14.02.2007. The respondent-workman raised industrial dispute before the Conciliation Officer and vide Office order No.24 of 2007, dated 02.08.2007 the dispute came to be referred to the learned Labour Court, Kutch at Bhuj which came to be numbered as Reference (LCB) No.25 of 2007. The terms of the Reference was whether the respondent-workman should be reinstated on his original post along with backwages. 3. Both the parties joined Reference proceeding. The respondent-workman filed his claim. The petitioner Company filed its reply opposing the claim of the respondent-workman. The evidence came to be led by both the parties in support of their contentions. By the impugned judgment and award, the learned Labour Court allowed the Reference. The action of the petitioner Company dismissing the respondent no.1 workman from the service was held to be illegal, improper and in violation of the provisions of Industrial Disputes Act, 1947 (for short “I.D.Act”). The petitioner was directed to reinstate the respondent no.1 with continuity in service and 50% back wages. 4. Learned counsel Mr. Mukesh Rathod appearing on behalf of the petitioner Company submits that the learned Labour Court has not properly appreciated the evidence on record. He submits that it is the case of the petitioner that the respondent-workman was never terminated or retrenched but the respondent-workman has voluntarily left his job so as to avoid the departmental inquiry against him. He submits that the respondent-workman has committed misconduct with the Superior Officer for which he was served with the Chargesheet and he was also intimated about the departmental inquiry to be initiated against him. He submits that the respondent-workman has committed misconduct with the Superior Officer for which he was served with the Chargesheet and he was also intimated about the departmental inquiry to be initiated against him. He submits that the respondent never appeared in the departmental inquiry and straightway raised the industrial dispute. It is further submitted by learned counsel Mr.Rathod that the learned Labour Court has not considered the relevant issue between the parties with respect to misconduct of the respondent-workman. He submits that in this background, the petitioner company had clearly made out that the respondent-workman had abandoned his job and that it is not a case of retrenchment. He further submits that there is no dispute or issue framed with respect to Section 25(F)(G)(H) of the I.D.Act through out the entire award. He further submits that in the present case, it is not an issue whether the respondent-workman completed 240 days in a year but it was a question of abandonment of service voluntarily. He submits that since this was not a case of retrenchment, there was no question of notice, notice pay and retrenchment compensation. He further assails that the impugned judgment and award in respect of 50% back-wages awarded to the respondent-workman since the workman abandoned the service. 4.1 He further relies on the judgment pronounced in the case of North East Karnataka Road Transport Corporation vs. M. Nagangouda in Appeal (Civil) No.129 of 2007 dated 09.01.2007, wherein the Hon’ble Supreme Court has held that since the respondent-workman was earning some amount from agriculture activities, the learned Labour Court was not justified in awarding 100% back wages. 5. Per contra, learned counsel appearing for the respondent-workman submits that the petitioner has suppressed the facts before this Court. He submits that the respondent-workman had given replies and representations to the Inquiry Committee which was produced before the learned Labour Court. He submits that the respondent-workman has not abandoned his service and in fact he was orally terminated from service despite contesting the inquiry by filing reply and making representation. He submits that various tactics were deployed by the petitioner Company to ensure that the respondent-workman leaves the job, however, after failure in such pursuits, the company orally retrenched the petitioner. He further submits that the incident of misconduct with the Superior Officer in the company has alleged against the respondent-workman is not proved. He submits that various tactics were deployed by the petitioner Company to ensure that the respondent-workman leaves the job, however, after failure in such pursuits, the company orally retrenched the petitioner. He further submits that the incident of misconduct with the Superior Officer in the company has alleged against the respondent-workman is not proved. He submits that it was almost after a period of two years that the Charge-sheet came to be filed against the respondent-workman for such alleged misbehavior which was duly replied to by the respondent-workman. He submits that the respondent-workman has replied to each and every notice issued in respect to misconduct and misbehavior as alleged. 5.1 He further submits that the learned Labour Court has duly considered all the contentions and evidence on record to hold that the respondent-workman has not voluntarily left his job. He further submits that the respondent-workman is native of Jaipur, Rajasthan. He had come Gandhidham to earn a living by taking a job in the petitioner Company. After being orally retrenched, he has still continued to stay at Gandhidham since his children were studying and taking education there. Therefore, it cannot be said that there was any agricultural income from his native village. He submits that the respondent-workman has been retrenched after 21 years of continuous service. He submits that the impugned judgment and award passed by the learned Labour Court be upheld and the Special Civil Application be dismissed. 6. Heard learned counsels for the respective parties and perused the evidence on record. 7. It is not in dispute that the respondent-workman has worked for more than 20 years with the petitioner Company. It is say of the petitioner that the respondent-workman was working as a Manager but the respondent contends that he was doing work of clerical nature and has just given that designation. From the records, it is seen that the petitioner Company has not produced any service record with respect to the respondent-workman before the learned Labour Court. The witness for the company has deposed that the employee has left the service voluntarily so there was no question of giving notice, notice pay or retrenchment compensation at the time of termination. It is further stated by the said witness that the company is ready and willing to reinstate the respondent-workman. The witness for the company has deposed that the employee has left the service voluntarily so there was no question of giving notice, notice pay or retrenchment compensation at the time of termination. It is further stated by the said witness that the company is ready and willing to reinstate the respondent-workman. The learned Labour Court after perusing the oral evidence on record has given a finding that after 21 years of service an employee cannot abandon his service in absence of serious dispute with the company and nothing as such has been brought on record to show that there was abandonment of service by the respondent-workman. Further, in absence of any service record brought on record, the adverse inference has been drawn against the petitioner Company in respect of retrenchment of respondent-workman. 8. This Court is of the opinion that the said findings are based on proper appreciation of evidence on record and cannot be faulted with. Therefore, the termination of the respondent-workman in the present case is in violation of Section 25(F) of the I.D.Act. 9. Learned counsel for the petitioner has argued that the learned Labour Court was not right in granting 50% backwages to the respondent-workman and the same is unsustainable in law. He submits that no cogent reasons have been given by the learned Labour Court. In respect of the said contention, the learned Labour Court has recorded that the respondent-workman has worked for 21 years continuously and was retrenched by oral order of Manager in violation of Section 25(F) of the I.D.Act. It was also held that in view of such violation and oral termination, the respondent-workman has had to suffer a lot for no fault of his own for which the learned Labour Court has awarded 50% back wages. Further, learned counsel for the respondent has submitted that the respondent-workman was being victimised by the petitioner Company by levelling a false charge of misconduct/misbehavior with the Superior Officer of the company and he submits that he was issued a show-cause notice to which he had given proper reply. He submits that thereafter he had also made representation to the company in respect of alleged misbehavior against him. He has submitted that he has been victimised before oral termination. He submits that thereafter he had also made representation to the company in respect of alleged misbehavior against him. He has submitted that he has been victimised before oral termination. Further, before the learned Labour Court, it was the contention of the petitioner Company that the respondent-workman was gainfully employed during pendency of the Reference proceeding before termination and that he was getting salary also. But, however, for the reasons best known, the petitioner Company brought nothing on record before the learned Labour Court during pendency of the Reference proceedings that the respondent-workman was gainfully employed elsewhere. 10. Learned counsel for the respondent-workman relies upon the judgment passed in Civil Appeal No.6767 of 2013 in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidhyalaya (D.Ed.) and Others, wherein the Hon’ble Supreme Court has held as follows:- “33. 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. ii) 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. 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. 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. iv) 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. v) 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. 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. 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. 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). vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) 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.” 11. In the present case, it is seen from the record that the respondent-workman has been terminated after about 21 years of service and no plausible reason has been given for the termination. The stand taken by the petitioner Company with respect to abandonment of service deserves to be rejected for the reason that nothing has been proved by the petitioner Company in the Reference proceedings. Further, nothing has been brought on record by the petitioner Company in respect of the conduct of the petitioner during the period of service. In view of the settled legal position, once the respondent-workman is entitled for reinstatement in service then continuity of service and back wages is normal rule. This Court has granted stay of back wages and continuity of service on the condition that the respondent-workman shall be reinstated. In view of the settled legal position, once the respondent-workman is entitled for reinstatement in service then continuity of service and back wages is normal rule. This Court has granted stay of back wages and continuity of service on the condition that the respondent-workman shall be reinstated. It is submitted by the learned counsels for the parties that pursuant to the order dated 12.03.2012 passed by this Court, the respondent-workman came to be reinstated in service and has since retired on June, 2021. 12. In the opinion of this Court, the findings of the learned Labour Court are based on cogent evidence brought on record by the parties and proper appreciation thereof. No case is made out for interference with the impugned judgment and award. It is directed that the back-wages shall be paid to the respondent-workman within a period of eight weeks from the date of receipt of this order failing which it shall carry interest of 6% per annum till the date of actual payment. 13. In view of the aforesaid observations, the present Special Civil Application is devoid of merits and dismissed accordingly. No order as to costs. Interim relief granted vide order dated 12.03.2020 stands vacated. Direct service is permitted. Order in Special Civil Application No.14962 of 2014:- In view of the dismissal of Special Civil Application No.2296 of 2012, the respondent Company herein is directed to pay all the benefits arising out of continuity of service till the reinstatement as payable to the petitioner workman within a period of 12 weeks from the date of receipt of this order, failing which it shall carry 6% interest per annum till the date of actual payment. The petition stands disposed of accordingly. No order as to costs. Direct service is permitted.