JUDGMENT : 1. Rule returnable forthwith. Mr.Kshitij Vakil, learned advocate waives service of notice of rule on behalf of respondent No.1. 2. Workman has filed this petition challenging the award of the Labour Court, Vadodara 10.08.2016, wherein reference filed by the workman was partly allowed directing to reinstate without backwages. Cost of Rs.2500/- was also awarded. 3. Brief facts referred in the petition are as under: 3.1. The petitioner – workman was working as watchman in the respondent – Company from 18.06.1996. He was served with show cause notice cum charge-sheet dated 24.02.2001, for the misconduct referred in the charge-sheet. Inquiry was conducted and order of dismissal dated 02.08.2001 was passed. During inquiry proceeding, the workman was put under suspension w.e.f. 20.02.2001. The order of dismissal was challenged before the Labour Court registered as Reference (LCB) No.1080 of 2001. Upon adjudication, the Labour Court, Vadodara directed the respondent – Company to reinstate the workman with cost of Rs.2500/-. Since, backwages were not awarded and continuity was not referred, the workman preferred present petition. 4. Heard Mr. Ramnandan Singh, learned advocate for the petitioner – workman and Mr. Kshitij Vakil, learned advocate for the respondent – Company. 5. Mr. Singh, learned advocate for the petitioner submitted that award of the Labour Court dated 10.08.2016, is erroneous since as contended before the Labour Court, the punishment is disproportionate to the misconduct. Considering the disproportionate punishment, the Labour Court considered reinstatement, however, no backwages were granted and, therefore, the award deserves to be interfered with. He submitted that, it is evident from the charge-sheet that certain staked wooden sticks cut from the trees were found in factory compound and it was not a case that something was stolen from the factory premises. It was at the best case of negligence and as stated in the explanation by the workman that wooden sticks were cut from the trees and kept in factory compound as per the instructions of superior officer. Learned advocate fairly submitted that inquiry was conducted after following due procedure and the same was just and legal. The order of the Labour Court, Vadodara dated 02.02.2012 holding the inquiry as just and legal was not challenged by the workman. However, since the backwages by taking into consideration the 27 years of service, has not been granted this is a fit case to award backwages. The order of the Labour Court, Vadodara dated 02.02.2012 holding the inquiry as just and legal was not challenged by the workman. However, since the backwages by taking into consideration the 27 years of service, has not been granted this is a fit case to award backwages. Further, after termination, pursuant to the award of the Labour Court dated 10.08.2016, the workman was reinstated in the year 2017 and thereafter, he worked diligently till the age of superannuation. Considering the past record and the period for which, the workman had worked coupled with the fact that no loss caused to the company, his case may be considered for grant of backwages as also continuity of service. In support of his submissions, that past record is required to be taken into consideration, when the penalty is disproportionate to the misconduct, he relied upon decision of the Hon’ble supreme Court in the case of Nicholas Piramal India Ltd. vs. Harisingh reported in (2015) 8 SCC 272 . 6. On the other hand, Mr. Kshitij Vakil, learned advocate for the respondent – Company submitted that the inquiry proceedings were challenged by the workman and the Labour Court vide order dated 02.02.2012, held the inquiry to be just and legal. Therefore, once the inquiry was held to be just and legal, no interference is required in the quantum of punishment. Further, order of the Labour Court dated 02.02.2012, holding the inquiry just and legal was not challenged by the workman at the relevant time. The same has been challenged in the present petition along with the award and, there being delay of more than 5 years, this petition may not be entertained. During inquiry proceedings, conduct of the workman was not proper and hence despite opportunities, he remained absent and, therefore, also no interference is called for. From the date of termination till the date of award and subsequent reinstatement, it was not case of the workman that he was not gainfully employed and, therefore, also this is not a fit case for grant of backwages. Learned advocate for the respondent submitted that the petition deserves to be rejected. 7. Considered the submissions and decision relied upon. The workman was charge-sheeted by charge memorandum dated 24.02.2001. During inquiry, he was put under suspension and charges being proved, order of dismissal was passed on 02.08.2011. Learned advocate for the respondent submitted that the petition deserves to be rejected. 7. Considered the submissions and decision relied upon. The workman was charge-sheeted by charge memorandum dated 24.02.2001. During inquiry, he was put under suspension and charges being proved, order of dismissal was passed on 02.08.2011. The Labour Court by order dated 02.02.2012 held the inquiry to be just and legal. However, considering misconduct of the workman and the punishment imposed, the Labour Court held the punishment disproportionate to the misconduct. Further, the contention on behalf of the workman that it was not a case of theft or causing any damage to the property of the Company, merit acceptance and therefore, in the opinion of this Court the award deserves interference. 7.1. Moreover, by the award dated 10.08.2016, the respondent Company was directed to reinstate workman within 30 days, without backwages. Thus, from bare reading of the award, it is clear that reinstatement was awarded without any reference of continuity of service. The Hon’ble Supreme Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. reported in (2013) 10 SCC 324 has held as under: “38. 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. 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. 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. 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. 7.2. Thus, when the reinstatement has been awarded, continuity of service is normal rule. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 7.2. Thus, when the reinstatement has been awarded, continuity of service is normal rule. Moreover, in this case there was no denial of continuity of service. Therefore, this is a case of reinstatement with continuity of service. Once the continuity has been awarded, the workman would be entitled for retiral benefits. Since the same has not been granted to the workman as contended by learned advocate for the petitioner, the respondent is directed to grant terminal benefits to the workman in accordance with law. So far as backwages are concerned, the Hon’ble Apex Court in the case of Gurpreet Singh vs. State of Punjab reported in 2002 Lawsuit(SC) 74, it has held as under: “3. Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside that part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above. Appeal allowed partly.” 8. In the present case, it is not in dispute that prior to issuance of charge -sheet, the workman worked with the Company without any stigma. Further, after reinstatement also from December, 2017 till his superannuation on December, 2023, he worked diligently and there was no complaint or misconduct for which, he was put to notice. Further before the Labour Court, it was case of the workman that after dismissal from service, he made several efforts to get the work and he could not get employment. Further, after reinstatement also from December, 2017 till his superannuation on December, 2023, he worked diligently and there was no complaint or misconduct for which, he was put to notice. Further before the Labour Court, it was case of the workman that after dismissal from service, he made several efforts to get the work and he could not get employment. In the disposition dated 23.12.2012, the workman stated that he worked on daily wages where he could hardly get Rs.30/- per day. His wife worked to meet with the expenses. It is also deposed that when he joined the services, his salary was Rs.1200/- and when he was dismissed in the year 2001 from service, he was earning Rs.2520/-. 9. Considering the decision of Hon’ble Supreme Court in the case of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. (supra), this Court deems it appropriate to interfere with the award and to award 20% backwages from the date of termination till the date of award. Therefore, the following directions are issued, (i) The respondent Company shall pay the retiral benefits, if any available to the workman by considering continuity of service from the date of his initial appointment till the date of his retirement and the same shall be paid within a period of eight weeks from the date of receipt of this order. (ii) The Company shall also pay 20% backwages from the date of termination till the date of award within a period of eight weeks from the date of receipt of this order. 10. With the above, the petition is partly allowed. Rule is made absolute to the aforesaid extent.