JUDGMENT : 1. The present petition is filed by the petitioner employer challenging the judgment and award passed by the Labour Court, Jamnagar with following prayers; “(a) Your Lordships be pleased to issue a writ of certiorari and/ or any other appropriate writ, order or direction in the like nature quashing and setting aside the impugned award dated 31.03.2008 passed by the Labour Court, Jamnagar in Reference (LCJ) No.127/ 1995 at Annexure – A; (b) During pendency of hearing and final disposal of the petition, stay the operation, implementation and effect of the award dated 31.03.2008 passed by the Labour Court, Jamnagar in Reference (LCJ) No.127/1995 at Annexure – A; (c) …..” 2. By impugned judgment and award dated 31.03.2008, the Labour Court directed the petitioner to reinstate the respondent with 75% back wages with continuity of service. 2.1 Petitioner is a company incorporated under the Companies Act, 1956 manufacturing Salt, Soda ash and other chemicals. It is the case of the petitioner that the respondent – workman was appointed in Traction Department. He was served with the charge-sheet dated 20.07.1993 for alleged misconduct and unauthorisedly remaining away from the work after recess hours and claiming wages without doing any work. On 21.01.1994, an inquiry proceedings were taken place, where the respondent – workman remained present and admitted the charges and pleaded leniency. On the basis of the same, the inquiry officer submitted his report dated 26.04.1994. As per such report, charges were held to be proved on the basis of admission. On the basis of such inquiry and charges being proved, the respondent workman came to be dismissed vide order dated 12.05.1994. It is the case of the petitioner that an order of dismissal along with the notice pay was sent to the respondent by registered post ad, as such, he has not accepted the same. However, on 16.05.1994, the respondent went to the petitioner’s factory and collected copy of dismissal order with notice pay. At that time, he tendered his resignation by representing that he had got another job and his resignation may be accepted so that he can get the service certificate. It is further the case of the petitioner that his resignation was accordingly accepted. Respondent workman has also withdrawn his P.F. accumulation. At that time, he tendered his resignation by representing that he had got another job and his resignation may be accepted so that he can get the service certificate. It is further the case of the petitioner that his resignation was accordingly accepted. Respondent workman has also withdrawn his P.F. accumulation. 3.1 After being dismissed vide order dated 12.05.1994 and thereafter tendering resignation on 16.05.1994, respondent – workman raised industrial dispute being Reference (LCJ) No.127 of 1995 before the Labour Court, Jamnagar. 3.2 In his statement of claim, respondent has alleged that he was dismissed from service without issuing any show cause notice and that being an uneducated workman, his signature was taken on a blank paper while making payment of notice pay. Employer being petitioner herein filed its written statement along with all the relevant documents against the statement of claim filed by the respondent – workman. In the statement of claim the respondent workman challenged the legality and validity of inquiry on ground of breach of principle of natural justice. However, in purshish filed by him at Exh.65 before the Labour Court, he admitted the inquiry to be legal and proper but not accepted the findings recorded by the Inquiry Officer. He also alleged that his signature was taken on blank paper and that he was unemployed. He also denied his signature on the application Exh.45 and the order of dismissal at Exh.51. He also denied signature below Statement of Claim at Exh.2. He admitted that he has received an amount of provident fund and that he studied upto 3rd standard and he can read. 3.3 In support of their case, Law officer of the petitioner company was examined. In his evidence, he has supported the case of the petitioner. 3.4 It is also on record that petitioner has filed Criminal Case No.1584 of 1995 against the respondent workman for the offences under Sections 408, 500, 193 and 209 of the Indian Penal Code. As such, in this case, respondent was acquitted by judgment dated 31.05.2004 on the ground that complaint was premature. 3.5 The Labour Court, Jamnagar passed an award dated 31.03.2008 in Reference (LCJ) No.127 of 1995 filed by the respondent workman granting him reinstatement in service with 75% back wages and cost of Rs.5000/-. Being aggrieved by the same, petitioner has filed the present petition. 4. Learned Senior Counsel Mr. 3.5 The Labour Court, Jamnagar passed an award dated 31.03.2008 in Reference (LCJ) No.127 of 1995 filed by the respondent workman granting him reinstatement in service with 75% back wages and cost of Rs.5000/-. Being aggrieved by the same, petitioner has filed the present petition. 4. Learned Senior Counsel Mr. K. M. Patel with learned advocate Mr. Varun K. Patel for the petitioner – employer has submitted that the Labour Court has failed to frame proper and required issues for adjudicating the dispute. It is also stated that the workman had admitted legality and propriety of the inquiry and once the inquiry was admitted tobe legal and proper, the Labour Court may not re-appreciate the record of the inquiry and arrive at its own findings contrary to the findings of the Inquiry officer. 4.1 It is further submitted that the Labour Court has not appreciated the fact that in inquiry proceedings dated 24.01.1994, the respondent workman admitted the misconduct leveled against him and pleaded for lenient view and on the basis of his own admission, in his report the inquiry officer held the charges proved. The respondent workman also signed the inquiry proceedings. 4.2 It is also submitted that the respondent workman has continued the misconduct for 63 days by punching his presence marking his attendance on duty after recess hours and remained away from duty and received wages for the work not performed by him and after all these, it cannot be expected from the establishment that any action will not be taken against him. Therefore, the view taken by the Labour Court that the punishment of dismissal is harsh and disproportionate, is erroneous and untenable. 4.3 It is also submitted that in his statement of claim the respondent workman has not pleaded that he was unemployed and that the award of back wages is liable to be set aside since the charges leveled against the respondent workman are proved in inquiry and also admitted by the workman before the inquiry officer. It is also submitted that in his evidence, the respondent workman has stated that his monthly household expenses are Rs.3000/- to 4000/- and therefore, he must have been engaged in some gainful activities. 4.4 Lastly, it is prayed to allow the petition by quashing and setting aside the impugned award. It is also submitted that in his evidence, the respondent workman has stated that his monthly household expenses are Rs.3000/- to 4000/- and therefore, he must have been engaged in some gainful activities. 4.4 Lastly, it is prayed to allow the petition by quashing and setting aside the impugned award. 4.5 In support of his submission, learned Senior Counsel Mr.Patel relies upon the following decisions; (1) AIR 1968 SC 266 between The Central Bank of India Ltd. vs. Karunamoy Banerjee (2) (2007) 2 SCC 433 between J. K. Synthetics Ltd and K. P. Agrawal & Anr. (3) (2008) 3 SCC 729 between West Bokaro Colliery (Tisco Ltd.) and Ram Pravesh Singh (4) (2005) 3 SCC 254 between Divisional Contorller KSRTC and A. T. Mane (5) (2008) 1 SCC 115 between U. P. Road Transport Corporation and Vinod Kumar (6) 2008 (2) GLH 748 between Muljibhai Patel Urological Hospital and Arunaben I. Desai (7) 2023 I CLR 20 between Jomy Xavier, Managing Partner Walliawarum Plantations, Keral and B. Rajagopal & Anr. 5. Per contra, learned advocate Mr. G. K. Rathod for the respondent workman has opposed this petition by submitting that by appreciating evidence the Labour Court has passed the order and award. 5.1 It is also submitted that, it is rightly held by the Labour Court that an action of dismissal from service is very harsh. It is further submitted that the Labour Court has specifically observed that the findings of the Inquiry Officer is perverse in nature. 5.2 It is also submitted that the Labour Court has passed impugned order by appreciating the oral as well as documentary evidence on record and therefore, this Court may not interfere with the same and prayed to dismiss the petition. 5.3 Learned advocate Mr. Rathod relies upon following decisions in support of his case. (1) Oral judgment dated 27.04.2017 in Special Civil Application No.1723 of 1999 between Tata Chemicals Ltd. vs. Kirit B. Barot. (2) Oral judgment dated 11.02.2022 in Letters Patent Appeal No.1815 of 2017 filed against the above order in Special Civil Application No.1723 of 1999 between the same parties. (3) Judgment dated 21.08.2019 in Civil Appeal No.6188 of 2019 between Jayantibhai Raojibhai Patel and Municipal Council, Narkhed. 6. Heard learned advocates appearing for the respective parties and perused the record. 6.1 It is an admitted fact that respondent was appointed as a workman in petitioner factory on 30.10.1974. (3) Judgment dated 21.08.2019 in Civil Appeal No.6188 of 2019 between Jayantibhai Raojibhai Patel and Municipal Council, Narkhed. 6. Heard learned advocates appearing for the respective parties and perused the record. 6.1 It is an admitted fact that respondent was appointed as a workman in petitioner factory on 30.10.1974. On 04.07.1993, it is alleged that since last 63 days, respondent workman has not followed the rules and regulations and that though he has claimed the wages, not worked after recess hours. For such irregularities, respondent workman was charge-sheeted on 20.07.1993. Respondent workman has given reply to such charge sheet and not accepted any allegations made in the charge-sheet. Thereafter, departmental inquiry was initiated against the respondent workman. In such inquiry, respondent has accepted all the charges. On such basis of admission by the respondent workman, Inquiry Officer has submitted his report and an order of dismissal was issued on 12.05.1994. As such, respondent workman has tendered resignation on 16.05.1994, which was accepted by the petitioner cancelling the dismissal order. The respondent workman challenged the order of dismissal by raising industrial dispute before the Labour Court, Jamnagar as above. 6.2 It is required to be noted that before the Labour Court, the respondent workman did not challenge the legality and validity of inquiry, however challenged only findings of the inquiry. As such he filed purshis at Exh.65 to that effect also. 6.3 If we peruse the judgments relied upon by the learned advocate for the petitioner, in case of Central Bank of India (supra) the Honourable Supreme Court has observed as under; “(18) In the case before us, we have already referred to the various proceedings that have taken place, from which it will be seen clearly that the workman was' at all stages, admitting the truth of the allegations made against him, by the management. In his communication, dated March 17, 1961, as well as, in his reply, to the charges, made by him on June 20, 1961, he has `categorically admitted that he has committed a mistake in permitting the constituents concerned to overdraw, without obtaining the sanction of, the appropriate authorities. Even when the enquiry proceedings began, he had stated that he had nothing more to add, in respect of the charges framed against him. Even when the enquiry proceedings began, he had stated that he had nothing more to add, in respect of the charges framed against him. When once the workman himself has, in answer to the charge levelled against him, admitted his guilt, in our opinion, there will be nothing more for the management to enquire into. That was the position in the case before us. Therefore, we are not inclined to agree with the reasoning of the Labour Court that when there has been an admission' of guilt, by the respondent himself, it can still be stated, that there is a violation of the principles of natural justice merely because of the fact that the workman was examined, in the first instance. Nor, are we impressed with the further view, expressed by the Labour Court, that the way in which answers were elicited from the workman, showed that there has been a cross-examination, by the management, to obtain points in substantiation of the charges. We have gone through the entire examination of the respondent at the domestic enquiry, and we are satisfied that there is no such infirmity. In fact, the question of the management trying to obtain answers to support the charges, does not arise at all, in this case because the respondent has consistently admitted his guilt, at all stages. On the other hand, the nature of the questions put to the respondent clearly indicate that the management, when once the workman had, admitted his guilt, was only giving him an opportunity to explain his conduct or to refer to circumstances, if any, which could be taken into account in extenuation of his conduct. The management had also permitted the respondent to put questions to the other two witnesses, examined during the enquiry, viz., Mr. Bhatena and Mr. Savkar. (19) We must, however, emphasize that the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. The management had also permitted the respondent to put questions to the other two witnesses, examined during the enquiry, viz., Mr. Bhatena and Mr. Savkar. (19) We must, however, emphasize that the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied, by the workman, it is needless to state that the burden of proving the truth of those allegations will be on the management; and, the witnesses called, by the management, must be allowed to be cross- examined, by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits. his guilt, to insist upon the manage- ment to let in evidence above the allegations, will, in our opinion, only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportunity to cross- examine those witnesses and also to adduce any other evidence' that he may choose.” 6.4 The another judgment relied upon by the learned advocate for the petitioner is in case of J.K. Synthetics Ltd. (supra), wherein Honourable Supreme Court has discussed about granting backwages at the time of reinstatement and observed as under; “19. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. But the cases referred to above, where back-wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or section 11A of the Industrial Disputes Act (or any other similar provision) is exercised by any Court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc. 20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimize him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back-wages etc. will be the same as those applied in the cases of an illegal termination. 21. In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all.” 6.5 In case of West Bokaro Colliery (supra), the Honourable Supreme Court observed as under; “20. The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyound reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would beot operate as a bar for drawing up of a disciplinary proceedings against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. It has repeatedly been held by this Court that the acquittal in a criminal case would beot operate as a bar for drawing up of a disciplinary proceedings against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond reasonable doubt, the standard of proof in a departmental proceedings is preponderance of probabilities. 21. Learned counsel for the respondent cited two cases – Workmen v. Firestone Tyre & Rubber co. of India (P) Ltd and Sounth Indian Cashew Factories Workers’ Union v. keral State Cashe Development Corpn. Ltd. To contend that the Labour Court in exercise of its jurisdiction under Section 11-A could have come to a difference conclusion. There is no quarrel with this proposition of law. The Labour court could have awarded lesser punishment in the given facts and circumstances of the case. In a case where two views are possible on the evidence on record, then the Industrial Tribunal should be very slow in coming to a conclusion other than the one arrived at by the domestic tribunal by substituting its opinion in place of the opinion of the domestic tribunal.” 6.6 In case of Divisional Controller (supra), the Honourable Supreme Court has observed as under; "Coming to the question of quantum of punishment, One should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal." 6.7 In case of Vinod Kumar (supra) the Honourable Supreme Court has observed as under; “8. Labour Court, without appreciating the fact that in the absence of challenge to the legality or fairness of the inquiry report the Court should be reluctant to either interfere with the finding recorded by the Punishing Authority or the quantum, held that the charge of misappropriation has not been proved against the respondent and, thus, punishment of removal from service is harsh. It substituted the punishment of removal by stoppage of one increment without any cumulative effect and directed reinstatement of respondent with full back-wages. The said award was published. The appellant challenged the said award by filing Writ Petition No. 603 (M/S) of 2002 before the High Court of Uttaranchal at Nainital. The High Court, without appreciating the fact that once it was held that respondent was carrying passengers without ticket and had also recovered fare from 8 passengers which was a serious misconduct, upheld the order passed by the Labour Court. It agreed with the findings recorded by the Labour Court that punishment inflicted upon the respondent was excessive and disproportionate to the charges levelled/proved, but reduced the back-wages to 50%. The award of the Labour Court was modified to that extent.” 6.8 In case of Arunaben (supra), the learned Single Judge of this Court has observed as under; “8. It is not in dispute that the respondent –nurse was appointed as staff nurse in the petitioner – hospital on 06.02.1984. It is also not in dispute that the petitioner is charitable hospital and is one of the best Urological hospital in the State of Gujarat. It is not in dispute that the most of the patients treated in the said hospital are the patients sufferings from kidney diseases. Within a period of one year and one month, the respondent – nurse was issued four notices for negligence in her duties; two warning notices for misbehaviour with her superior officers; twice the respondent was suspended for other misconducts and for other misconduct once the respondent tendered apology. One Shri Abbas Ali who was suffering from kidney diseases and was operated for the same. Suddenly, the patient had started stomach pain and there was leakage of urine through the hole made in abdomen which was closed. Therefore, the patient had sent relatives to call the nurse so as to call the concerned Doctor immediately. But she did not turn up. It was further alleged against the respondent nurse that after some time again, she was being called by the relatives of the patient but the respondent did not responded for an hour. Thereafter, after sometime, the respondent responded and said that she cannot call the Doctor at this time and she will call in the morning. It was further alleged against the respondent nurse that after some time again, she was being called by the relatives of the patient but the respondent did not responded for an hour. Thereafter, after sometime, the respondent responded and said that she cannot call the Doctor at this time and she will call in the morning. The patient made complaint to the Director of the petitioner- hospital against the respondent – nurse. Departmental inquiry came to be initiated against the respondent – nurse. After giving fullest opportunity and recording evidence of the patient, Doctor, nurse etc., charge of negligence and carelessness came to be proved against the respondent – nurse. Looking the seriousness of the charges and misconduct and negligence proved against the respondent; considering her past record and misconduct, her services came to be terminated. It is also required to be noted that before the Labour Court, the respondent – nurse did not challenge the legality and validity of inquiry, however, challenged only findings and quantum of punishment. The respondent did not lead any evidence against the findings of Inquiry Officer before the Labour Court. In the recent decision in the case of Vinod Kumar (supra), the Hon'ble Supreme Court has held that in absence of challenge to the legality or fairness of the inquiry report, the Courts should be reluctant to either interfere with the finding recorded by the punishing authority or the quantum. In para – 10 of the said decision, the Hon'ble Supreme Court has held that since the respondent had not challenged the correctness, legality and validity of the inquiry conduced, it was not open to the Labour Court to go into the findings recorded by the enquiry officer regarding the misconduct committed by the respondent. Considering above, the Labour Court has committed an error in interfering with the findings recorded by the Inquiry Officer when legality and validity of inquiry was not challenged by the respondent – nurse and more particularly, when no evidence was laid by the respondent – nurse before the Labour Court against the findings of the Inquiry officer. 9. Even otherwise, the findings of the Labour Court in holding order of termination illegal and unreasonable are perverse and based on no evidence. 9. Even otherwise, the findings of the Labour Court in holding order of termination illegal and unreasonable are perverse and based on no evidence. It appears that the Labour Court has misread the charge and not properly considered and dealt with the evidence of the Doctor who was examined before the Inquiry Officer and who has performed operation. The Labour Court has observed that the respondent – nurse cannot be held responsible for operation as the operation was performed by the Doctor. Charge against the respondent – nurse which has been proved is that though the patient had sent one relative to call the nurse so as to call the concerned Doctor immediately; first of all she did not turn up. After sometime, when the respondent responded after an hour, she told patient that she will call the Doctor in the morning. Thus the findings of the Labour Court is absolutely perverse and had misread the evidence recorded before the Inquiry Officer. As stated hereinabove, the respondent – nurse had not laid any evidence before the Labour Court challenging the findings of the Inquiry Officer. Under the circumstances, findings of the Labour Court holding termination order illegal deserves to be quashed and set aside.” 6.9 In the recent decision of Honourable Supreme Court in case of B. Rajagopal (supra) it is observed as under; “The learned Division Bench of the High Court while examining the matter in totality arrived to a conclusion that so far as the finding of guilt which has been recorded in the Course of the domestic inquiry stands established but was of the view that the power of Section 11-A which has been exercised by the Industrial Tribunal appears to be justified and accordingly, restored the award under the judgment impugned dated 3rd March 2010 which is under challenge in the present appeals before us. The charges which were levelled against the respondent no.1/workman of which a reference has been made, once stands proved ordinarily, it was not open for the Industrial Tribunal to interfere unless the penalty inflicted upon the delinquent workman was shockingly disproportionate to the nature of misconduct stands proved in exercise of its power under Section 11-A of the Act 1947. The charges which were levelled against the respondent no.1/workman of which a reference has been made, once stands proved ordinarily, it was not open for the Industrial Tribunal to interfere unless the penalty inflicted upon the delinquent workman was shockingly disproportionate to the nature of misconduct stands proved in exercise of its power under Section 11-A of the Act 1947. At this stage, without expressing any opinion on merits, consider it appropriate that let the respondent no.1/workman who had served for seven years as a field staff in the office of the present appellant may be adequately compensated in lieu of reinstatement and a compensation of Rs.2 lacks in lieu of reinstatement in our considered view appears to be reasonable in the facts and circumstance of the present case.” 7. Now, if we peruse the judgments relied upon by learned advocate for the respondent – workman, the first decision is in case of Tata Chemicals (supra) by the learned Single Judge of this Court in Special Civil Application No.1723 of 1999, wherein petition filed by the employer – company was dismissed and the appeal being Letters Patent Appeal No.1815 of 2017 filed against such judgment was also dismissed by the division bench of this Court. 7.1 The relevant para, on which learned advocate is relying upon are as under; “6.17 This Court further notices that while arriving at the conclusion and during the course of determining the application under Section 33 of the ID ACT, learned Presiding Office of the Labour Court also threadbare went into the report of the Inquiry Officer and scrutinized the evidence that had been led before the Inquiry Officer. The Court also dissected the report of the Inquiry Officer who had submitted on 03.06.1992 after conducting a detailed inquiry to mainly conclude that the main charge which was levelled against Respondent No.1 had not been proved at all from the evidence that had been adduced before the Inquiry Officer and the question of tempering of the Punch Clock in presence of the so many security personnels and that too in the short period within which it is said to have been done could be phenomenal, however which is virtually impossible. On noticing that the purpose for conducting the inquiry and also awarding the punishment of the harsh kind was on the account of the fact that the workman was necessarily a protected workman who was active in the activities of the Union, it rightly arrived at conclusion that the Management was not permitted to victimise the leader nor could be allowed to make mountain out of a mole. Therefore the Tribunal deemed it fit not to grant approval.” The division bench also in appeal observed as under; “9. Keeping in view the law applicable, reverting to the facts and the findings of the Tribunal about the misconduct of the workman and the punishment imposed, the charge was that the workman on particular date went out of premises leaving his duties by punching the punch-card, did not return for the day on duty and tampered the punch-card by mentioning the duty hours. For such misconduct, the penalty of dismissal was imposed. The workman was suspended while issuing the show cause notice itself and his salary was also cut for the period of absence. The Tribunal considered the circumstances to come to the conclusion that the entire charge was not believable.” 7.2 In the last decision relied upon by the learned advocate for the respondent in case of Jayantibhai Raojibhai Patel (supra), wherein the Honourable Supreme Court has enlisted the principles to govern the payment of back wages, as enumerated in case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324 ; “The Court laid down the following principles to govern the payment of back wages: “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. 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. 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. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6. In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees [Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80 : 1979 SCC (L&S) 53] .” 8. Considering the rival submissions and perusing the judgment of the Labour Court, it appears that the show cause notice given to the respondent – workman on 14.07.1993 was replied by the workman on 17.07.1993 and the allegations leveled against him were denied by him, also the charges leveled against him in the charge sheet were denied. Considering the rival submissions and perusing the judgment of the Labour Court, it appears that the show cause notice given to the respondent – workman on 14.07.1993 was replied by the workman on 17.07.1993 and the allegations leveled against him were denied by him, also the charges leveled against him in the charge sheet were denied. As it appears from the inquiry report no witness was produced and only on the basis that respondent has admitted his guilt, respondent was held guilty. No second show cause notice was issued while imposing the sentence which is a pre-condition before imposing the punishment. Charge which was held against the workman regarding malafidely manipulated the electric punching machine. This act was not brought on the notice of the respondent through any kind of notice regarding 63 days of illegal working by the workman as showing himself to be on duty though he was absent and has obtained illegal monitory benefits. No show cause notice was also given to the respondent nor any kind of report was sent to the higher authorities. 8.1 It is apparent that the misconduct of the workman was going on for 63 days then also the company has not taken any action against him during that period. As such, findings of the Inquiry Officer based upon the admission of the workman are erroneous as rightly held by the Labour Court, which do not require any interference, at this juncture. 8.2 As regarding the resignation tendered by the workman is concerned, it is stated that on 16.05.1993 as the order of dismissal was passed, the workman has tendered his resignation. In this aspect whether act of tendering resignation was voluntary on the part of the workman is to be shown and proved by the petitioner. On the contrary, the respondent has stated that some 5 to 6 blank pages were signed by him. 8.3 Per contra, in the evidence of the officer of the company vide Exh.78, it is admitted that the resignation is not in the handwriting of the workman. To prove the resignation there is an endorsement of the different officers. No officer has been examined. The witness who was examined has not signed or endorsed in the resignation. No officer of the company has come forward stating that the resignation was accepted nor the standing orders are produced on record. To prove the resignation there is an endorsement of the different officers. No officer has been examined. The witness who was examined has not signed or endorsed in the resignation. No officer of the company has come forward stating that the resignation was accepted nor the standing orders are produced on record. Merely production of Provident Fund receipt as accepted by the workman vide Exh.55 does not prove the fact whether resignation was tendered voluntary or not. Merely the documents on which the petitioner has relied upon cannot be said to be a cogent and convincing evidence to prove that the resignation was voluntary when notice of dismissal was sent to the workman and while adducing evidence relied upon officer after 16.05.1994 the workman has specifically stated that he was dismissed from the service and not that he has tendered resignation from the company. 8.4 It is also pertinent to note that the criminal complaint was also filed in which the witnesses are examined. They have never supported the case of the petitioner that respondent workman has tendered resignation and the order of Judicial Magistrate dated 31.05.2005 nothing regarding resignation being tendered has been observed and the complain filed against the workman has been dismissed. In the context of all the evidence on record this Court is of the opinion that the Labour Court has not committed any error in coming to the conclusion that respondent has not tendered resignation voluntarily. It is rightly held by the Labour Court that the workman was wrongfully dismissed from the service due to some prejudicial attitude by the company towards the workman and on these basis order of the Labour Court is legal and valid and requires no interference by this Court. 8.5 As stated by the company that the workman was dismissed in that event the say of the company that the workman has tendered resignation in view of the order of dismissal as soon as an order of dismissal is passed on 12.05.1994, the relationship of the employer and employee does not exist in that kind also the petition cannot be sustained. 9. In the result petition devoid of merits the same is dismissed. 10. It is brought to the notice of the Court that petitioner reached the age of superannuation on 20.06.2012, as his date of birth is 20.06.1952. 9. In the result petition devoid of merits the same is dismissed. 10. It is brought to the notice of the Court that petitioner reached the age of superannuation on 20.06.2012, as his date of birth is 20.06.1952. In this circumstances, when the respondent has already attain the age of superannuation, the question of resignation does not arise and also an order of payment of 75% of the backwages is modified to the extent that all the retirement benefits and all the consequential benefits shall be made available to the workman within 8 weeks from the date of receipt of the writ of this order. Rule is discharged. No order as to costs.