JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 11.08.2020 passed by the learned Single Judge in W.P. (L) No. 4005 of 2014, whereby and whereunder, the writ petition has been allowed with a direction to the respondent-Management to award 50% of the total back wages for the period from the date of termination till his date of reinstatement, within a period of eight weeks from the date of receipt/production of a copy of the order. 2. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, read as under: An industrial dispute was referred to the Central Government Industrial Tribunal No. 1 at Dhanbad relating to illegal termination of the writ-petitioner with the following terms: “(i) Whether the action of the management of Jamadoba Colliery of M/s. Tata Steel Limited in dismissing Shri Atique Khan Onsetter from the services of the company with effect from 05.01.2009 is justified and legal? (ii) To what relief is the workman concerned entitled?” Upon issuance of notice, both the parties appeared and filed their respective written statements. The writ-petitioner completely denied the charges levelled against him as also denied that he had given electricity connection to any quarter or any private house in the neighbourhood as alleged in the charge-sheet issued to him. The writ-petitioner also clarified that the other allegations of the management that he had taken illegal electricity connection from his company’s quarter to his own adjacent private house, was also absolutely unfounded inasmuch as he had no private house near his quarter as alleged and as subsequently found in the enquiry also. After submission of written statements, the Tribunal decided to treat the validity or otherwise of the enquiry held into the charges against the petitioner as a preliminary issue. Both the parties filed their documents and deposed before the Tribunal on the preliminary issue. Thereafter, the Tribunal held the enquiry to be fair and proper but at the same time held that the workman was never given any opportunity to adduce any witness. Both the parties filed their documents and deposed before the Tribunal on the preliminary issue. Thereafter, the Tribunal held the enquiry to be fair and proper but at the same time held that the workman was never given any opportunity to adduce any witness. Finally, the Tribunal passed the award dated 09.12.2013, holding therein that the Enquiry Officer had not given any opportunity to the workman to adduce evidence in his defence and the management had failed to produce material to establish the charges and, therefore, though the departmental enquiry had been held to be fair and proper, the dismissal of writ-petitioner was not proper. It was also held that the writ-petitioner is entitled to reinstatement without giving him any back wages whatsoever. 3. It appears from the factual aspect as referred hereinabove that the workman while working under the Management has been subjected to departmental enquiry on the charge of providing electricity connection to others. The charge has been found to be proved. The workman has not questioned the fairness and propriety of the domestic enquiry. The Management has accepted the domestic enquiry report and has dismissed the writ-petitioner from service. The workman raised dispute and accordingly the matter culminated into reference being Reference Case No. 33 of 2010 for adjudication as to (i) whether the action of the management of Jamadoba Colliery of M/s. Tata Steel Limited in dismissing Shri Atique Khan Onsetter from the services of the company with effect from 05.01.2009 is justified and legal? (ii) To what relief is the workman concerned entitled? The Tribunal has passed an award on 09.12.2013 holding the action of the Management of M/s Tata Steel Limited in dismissing Shri Atique Khan, the workman, on-setter from the service of the Company w.e.f. 05.01.2009 to be unjustified and hence, he be directed to reinstated in service but without giving him any back wages whatsoever. The workman being aggrieved with the part of the order, whereby and whereunder, the back wages has been denied, has filed a writ petition being W.P. (L) No. 4005 of 2014. The learned Single Judge of this Court after considering the judgment rendered by the Hon'ble Apex Court General Manager, Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 ; U.P. State Brassware Corporation Ltd. and Another vs. Uday Narain Pandey, (2006) 1 SCC 479 ; Jagbir Singh vs. Haryana State Agriculture Mktg. The learned Single Judge of this Court after considering the judgment rendered by the Hon'ble Apex Court General Manager, Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591 ; U.P. State Brassware Corporation Ltd. and Another vs. Uday Narain Pandey, (2006) 1 SCC 479 ; Jagbir Singh vs. Haryana State Agriculture Mktg. Board and Another, (2009) 15 SCC 327 and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Others, (2013) 10 SCC 324 has held the workman entitled for back wages to the extent of 50% of the total back wages. The Management being aggrieved with the aforesaid direction of 50% of the back wages to be paid within the stipulated period, has filed the instant intra-court appeal. 4. Mr. Indrajit Sinha, learned counsel for the appellant has submitted that the order passed by the learned Single Judge suffers from material irregularity since there is no award to the extent of back wages to be paid in favour of the workman since there is no pleading to the effect that the workman was not gainfully been employed. But, the learned Single Judge without appreciating the fact and without taking into consideration the legal position of raising the issue of not gainfully employed in another employment so as to suffer any financial stringency has held the workman entitled for the 50% back wages of the total back wages which cannot be said to be proper and justified. The contention has been raised relying upon the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (supra) wherein at para-38, proposition has been laid down for making specific pleading of gainful employment by not having been gainfully been employed and the employer is to disprove the same and only then the award of back wages can be passed by the adjudicator but no such pleading is available herein and in that view of the matter, the order passed by the learned Single Judge in absence of any pleading of not having gainfully been employed, awarding 50% back wages suffers from infirmity and hence, the impugned order requires interference. 5. Per contra, Mr. 5. Per contra, Mr. Shubham Sinha, learned counsel for the respondent workman has submitted by defending the order passed by the learned Single Judge wherein the order has been passed holding the workman entitled for 50% back wages in order to do substantial justice since the writ petitioner has been forced to remain out of service for a substantial period and the adjudicator, the learned Industrial Tribunal, has come with the specific finding of charges by assigning reason in the award that the relevant document, i.e. quarter allotment register has not been produced and one Sri Y.K. Panda has not been produced before the adjudicator for his cross-examination. The learned Tribunal, in view of the aforesaid fact, has come to the conclusive finding by making reference of the observation made by the enquiry officer who has stated that he has not been given any opportunity to the workman to adduce his witness of defence. It has further been submitted that however the departmental enquiry has been declared to be fair and proper but the learned Tribunal has given its finding on the basis of the fact that the material produced before the Tribunal is not sufficient to upheld the decision of the management proper specially when neither Y.K. Panda nor quarter allotment registered produced before the Tribunal, hence, the dismissal of the workman has been held to be not proper and accordingly, the award of reinstatement, however, without any back wages, has been passed. 6. Learned counsel, in the aforesaid premise has submitted that the learned Tribunal has given its finding of holding the order of termination to be unjustified since the relevant documents of quarter allotment register for the purpose of adjudication of the lis has not been produced as also Mr. Y.K. Panda was not produced before the Tribunal and in that view of the matter, the learned Tribunal has considered it material irregularity in defending the order of dismissal of the workman. However, the domestic enquiry has been said to be fair and proper but even in spite of the aforesaid fact, since the material document, i.e. quarter allotment register has not been produced and Mr. However, the domestic enquiry has been said to be fair and proper but even in spite of the aforesaid fact, since the material document, i.e. quarter allotment register has not been produced and Mr. Y.K. Panda has not been produced before the Tribunal, the order of dismissal has been interfered with, therefore, the order of dismissal since has been said to be unjustified and if in that pretext, the reinstatement order has been passed, then it will be construed to be that the workman has been forcibly been denied to discharge his duties and as such, in that circumstances, the workman will be entitled for the back wages, however, the learned Tribunal has not awarded the back wages but taking into consideration the aforesaid fact as referred above, the learned Single Judge has awarded 50% back wages, therefore, the same cannot be said to suffer from error. 7. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge. 8. The fact which is not in dispute in this case is that on the ground of utilizing the electricity illegally, the workman/writ-petitioner was subjected to domestic enquiry. The writ-petitioner participated in the domestic enquiry. Two issues were formulated for its consideration: (i) Whether Sri. Atique Khan had allowed unauthorized power connection to a private house from the company provided quarter no. UL-3 at 1 no. colony under his possession? (ii) Whether Sri. Atique Khan has any private house close to his company provided quarter UL-3 at 1 no. colony? 9. So far as the point no. 1, i.e. Whether Sri. Atique Khan had allowed unauthorized power connection to a private house from the company provided quarter no. UL-3 at 1 no. colony under his possession, is concerned, two management witnesses have been examined, one Sri Amarjeet Sinha, Electrical Supervisor, Jamadoba Colliery and another Sri S.P. Shukla, Sub-Inspector, Security Department, and according to them, unauthorized power connection was taken from the company provided quarter no. UL-3 alloted to Sri Atique Khan to a private house. Both the witnesses have stated that after cutting the wire used for unauthorized power connection by Sri Atique Khan, they brought about 10 feet and deposited at TMD while the rest was kept back by Sri. Atique Khan. UL-3 alloted to Sri Atique Khan to a private house. Both the witnesses have stated that after cutting the wire used for unauthorized power connection by Sri Atique Khan, they brought about 10 feet and deposited at TMD while the rest was kept back by Sri. Atique Khan. However, Sri Atique Khan did not cross-examine any one of the witnesses on the cutting of the wire. The enquiry officer, in that view of the matter, came to the opinion that Sri. Atique Khan did allow unauthorized power connection to a private house and on cutting the wire, retained back rest of wire at his possession. It further appears from the domestic enquiry report that the management respondent who has cross-examined the workman, Sri. Atique Khan, wherein he has contended that he was not present at home when the unauthorized power connection was being disconnected, but, he did not contradict the statement of Management Witnesses regarding receipt of disconnected wire from them, which clearly indicates that he was very much present at the time of removal unauthorized power connection taken from his quarter no. UL-3 at 1 no. colony. So far as the Point no. 2, i.e. Whether Sri. Atique Khan has any private house near his company provided quarter UL-3 at 1 no. colony, is concerned, the same could not be established since the workman has produced two documents marked as CSE-1 and CSE-2 and while doing so he tried establishing that the private house does not belong to him and rather the quarter belongs to Md. Mushtaque Ahmad, Jorapokhar. However, in the domestic enquiry, the enquiry officer has come to the conclusion having doubt regarding the authencity of the contention of Sri Atique Khan that he does not have a private house. Thus, it is evident that the enquiry officer has not come with the conclusive proof of establishing the charge of having private house nearby the company allotted quarter. However, the report suggest of proving the charge beyond doubt. 10. The Management has accepted the aforesaid enquiry report, based upon the same, the workman was dismissed from service. The matter went before the learned Tribunal for its adjudication regarding the declaration to be given in the order of dismissal of the workman is justified or not. 11. However, the report suggest of proving the charge beyond doubt. 10. The Management has accepted the aforesaid enquiry report, based upon the same, the workman was dismissed from service. The matter went before the learned Tribunal for its adjudication regarding the declaration to be given in the order of dismissal of the workman is justified or not. 11. It appears from the award as has been appended as Annexure-4 dated 09.12.2013 passed in Reference Case No. 33 of 2010 that the learned Tribunal has accepted the fact about fairness of the domestic enquiry, meaning thereby, no issue was there with respect to the unfairness of the enquiry proceeding on any ground whatsoever. However, the fact of not producing the quarter allotment register and one Mr. Y.K. Panda, who was in the town management department, having not been produced for his examination, which led the Tribunal to come to the conclusion that the dismissal of the workman is not proper. Accordingly, the order of reinstatement was passed but, without any back wages. The award has not been challenged by the management and in consequence thereof, the workman has been reinstated in service in compliance of the aforesaid award. The writ-petitioner, immediately thereafter, challenged the part of the order, whereby and whereunder, back wages had been denied. 12. The learned Single Judge by assigning the reason of substantial justice as would from the observation so made at paragraph-18 thereof, has held the workman entitled for 50% back wages of the total back wages, which is the subject matter of the instant appeal. 13. The fact about the back wages in which circumstances is to paid has been dealt with by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya and Others (supra). The proposition has been laid down at para-38. For ready reference, the said paragraph is being reproduced as under: “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 proposition has been laid down at para-38. For ready reference, the said paragraph is being reproduced as under: “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. 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-a-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. vs. Employees. 38.7. The observation made in J.K. Synthetics Ltd. vs. 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.” It is evident from the aforesaid judgment, more particularly para-38.3 which starts as “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 upon the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.” It is, thus, evident from the aforesaid paragraph that the ordinarily a pleading is to be made before the adjudicating authority of the court of first instance that he/she was not gainfully employed. Further, from paragraph-38.4, it would be evident that the Hon'ble Apex Court has been pleased to lay down that the case 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. Further, from paragraph-38.5, it would be evident that 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. Further, from paragraph-38.6, it would be evident that 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. 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-a-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. vs. Employees. 14. It is, thus, evident that the guidelines as under para-38 of aforesaid judgment, according to the considered view of this Court, is in two parts, first part deals with the part of pleading to be made by the concerned workman of having not gainfully employed, however, if the learned labour court or the industrial tribunal is exercising the power conferred under Section 11-A of the Act, 1947 and if the punishment has been found to be disproportionate to the misconduct found proved, then the discretion is upon the adjudicator not to award full back wages. But, 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. Likewise, para-38.5 also stipulates three eventualities of issuing a direction passing an award on back wages if 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. 15. This Court is now proceeding to examine the legality and propriety of the direction passed by the learned Single Judge holding the writ petitioner entitled for 50% back wages. 16. The direction so passed by the learned Single Judge is based upon the reasoning given at Para-18 of the impugned judgment, which reads as under: “18. 15. This Court is now proceeding to examine the legality and propriety of the direction passed by the learned Single Judge holding the writ petitioner entitled for 50% back wages. 16. The direction so passed by the learned Single Judge is based upon the reasoning given at Para-18 of the impugned judgment, which reads as under: “18. In the instant case, neither of the parties either pleaded or adduced any of the evidence to prove the material facts required for award of the backwages enabling the Court to award the backwages. The Labour Court denied the backwages but ordered for reinstatement taking into consideration that the workman was not afforded full opportunity to plead his case or to examine any witness. Since the matter is of the year 2013 and order for reinstatement was passed without backwages, instead of remanding the matter back to the Court below for doing substantial justice to the parties concerned, this Court finds that in the interest of justice petitioner may be awarded 50% of the total backwages.” 17. It is evident from the aforesaid finding that the learned Single Judge has considered the fact that neither of the parties either pleaded or adduced any of the evidence to prove the material facts required for award of the back wages enabling the Court to award the back wages. The learned Single Judge has further observed that the Labour Court denied the back wages but ordered for reinstatement taking into consideration that the workman was not afforded full opportunity to plead his case or to examine any witness. 18. The finding to the effect that the workman has not been accorded full opportunity but at which stage the workman has not been accorded with the full opportunity whether at the stage of domestic enquiry or before the Tribunal, is not clear. Admittedly, at the stage of domestic enquiry the question of having not providing the opportunity to defend himself has never been raised rather it would be evident from the domestic enquiry report that the workman was not provided with opportunity to defend himself since he had been provided opportunity to cross-examine the management witnesses but it is the workman who did not choose to cross-examine any of the witnesses on the cutting of wire. The question of fairness and propriety of the domestic enquiry report has never been questioned by the workman. 19. The question of fairness and propriety of the domestic enquiry report has never been questioned by the workman. 19. The law is well settled that even if in an eventuality of enquiry having held to be fair and proper, the opportunity is required to be given to the workman by the adjudicator as has been held by the Hon'ble Apex Court in The Workman of M/s Firestone Tyre and Rubber Co. of India Pvt. Ltd. vs. The Management and Others (supra) wherein at paragraph-32 the principles are being laid down which reads as under: “32. From those decisions, the following principles broadly emerge: “(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified. (2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality. (3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala-fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra. (5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective. (7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective. (8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation. (10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate vs. Workmens, (1971) 1 SCC 742 within the judicial decision of a Labour Court or Tribunal.” 32-A. The above was the law as laid down by this Court as on December 15, 1971, applicable to all industrial adjudications arising out of orders of dismissal or discharge.” 20. As per the judgment of the Hon’ble Apex Court rendered in The Workman of M/s Firestone Tyre and Rubber Co. of India Pvt. Ltd. vs. The Management and Others (supra) as under paragraph 32(iii) thereof, it has been held that when a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide. In case where if no enquiry has been held by an employer or if the employer held by him is found to be defective, the tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to employer and employee to adduce evidence before it. 21. The said view has again been reiterated by the Hon’ble Apex Court of a Bench comprising of three judges in State of Uttarakhand and Others vs. Sureshwati, 2021 (3) SCC 108 , wherein by taking reference of the judgment rendered by Hon’ble Apex Court in The Workman of M/s Firestone Tyre and Rubber Co. of India Pvt. Ltd. vs. The Management and Others (supra), it has been laid down that what has to be done in case the domestic inquiry is found to be proper. 22. Admittedly herein, one Mr. of India Pvt. Ltd. vs. The Management and Others (supra), it has been laid down that what has to be done in case the domestic inquiry is found to be proper. 22. Admittedly herein, one Mr. Y.K. Panda, the person posted in the Town Management Department was not produced before the enquiry officer. The Tribunal has also made an observation that the enquiry officer has stated that he has not given any opportunity to the workman to adduce his witnesses but this Court fails to understand that from where such observation has been made by the learned Tribhunal since this Court has not found any basis of making such observation from the domestic enquiry report as appended to this paperbook rather the opportunity to cross-examine had been given and the various witnesses have also been produced but it is the workman who has refused to cross-examine the management witnesses. 23. Since the award is not questioned by the management, as such, we are not making any remark upon such observation. However, the learned Tribunal basis upon the aforesaid reasoning, has held the order of dismissal to be unjustified and accordingly, the order of reinstatement has been passed. 24. The question of back wages is only to be directed to be paid in faovur of the workman if the three eventualities as per the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalayaand Others (supra) is available as referred hereinabove. 25. We are now proceeding to examine as to whether any of such conditions as propounded by the Hon'ble Apex Court in the aforesaid judgment as under Para-38 is available holding the workman entitled for the 50% back wages. The condition stipulated under Para-38.3 regarding specific pleading of gainful employment is admitted one since no such pleading was made on behalf of the workman before the adjudicator and hence, the condition stipulated under 38.3 will not be applicable in the facts and circumstances of the case. The condition stipulated under Para-38.3 regarding specific pleading of gainful employment is admitted one since no such pleading was made on behalf of the workman before the adjudicator and hence, the condition stipulated under 38.3 will not be applicable in the facts and circumstances of the case. The second condition as would appear from Para-38.4 wherein it has been observed that if the adjudicator exercising the power under Section 11-A of the Industrial Disputes Act, 1947 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 but as would appear from the domestic enquiry report which fairness has not been questioned. The charge has been established and therefore, the condition stipulated under condition 38.4, in the facts and circumstances of the case, is also not applicable. The condition as referred under para-38.5 wherein it has been propounded that if 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. It has further been propounded therein that 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. 26. 26. Here, in the facts and circumstances of the given case it is not the case of the violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman rather as would appear from the enquiry report prepared on conclusion of the domestic enquiry. The charge has been found to be established after providing adequate and sufficient opportunity to the workman. Fairness of the same has not been questioned rather the enquiry has been accepted to be fair. The aforesaid fact has also been admitted by the learned Tribunal but merely because Mr. Y.K. Panda, the staff working in the Town Management Department was not brought before the enquiry office, the order of dismissal has been held to be unjustified. The aforesaid observation by not producing Y.K. Panda for his cross-examination can be made if it would have been raised by the workman by questioning the fairness of the domestic enquiry but that is not the case herein since the workman has never questioned the fairness of the enquiry. 27. This Court, therefore, is of the view that the learned Single Judge ought to have considered the applicability of the law of the land regarding the principle of awarding back wages. Herein, 50% of the back wages has been directed to be paid then further question arises why 50% and why not full back wages. If the workman is entitled for back wages basis upon the principle propounded by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (supra) as per the ratio laid down at Para-38 thereof which speaks about full back wages and not the half. But, the learned Single Judge without assigning any reason as to why 50% back wages is to be awarded in favour of the workman, has passed the said direction by merely assigning the reason of substantial justice. 28. But, the learned Single Judge without assigning any reason as to why 50% back wages is to be awarded in favour of the workman, has passed the said direction by merely assigning the reason of substantial justice. 28. There is no dispute that the Industrial Disputes Act is a beneficial piece of legislation that requires substantial justice but the substantial justice is also be based upon the legal proposition wherein, once the charge of theft of electricity has been proved in the domestic enquiry which has not been questioned by the workman, meaning thereby, the charge of misutilizing the official position by way of stealing the electricity is a major misconduct under the certified standing order and in that view of the matter, the finding of the domestic enquiry report cannot be said to be the exoneration of the workman from the entire charges so as to hold workman entitled for the full back wages in view of the proposition laid down at Para-38.4 of the judgment rendered by the Hon'ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (supra). 29. This Court, therefore, is of the view on the basis of the reason assigned hereinabove, that the decision of the learned Single Judge holding the writ petitioner entitled for 50% back wages, cannot be said to proper, as such, the impugned order requires interference. 30. Accordingly, the impugned order dated 11.08.2020 passed in W.P. (L) No. 4005 of 2014 is hereby quashed and set aside. 31. In the result, the instant appeal stands allowed. 32. In consequence thereof, the writ petition being W.P. (L) No. 4005 of 2014 stands dismissed. 33. Pending interlocutory application(s), if any, also stands disposed of.