JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with award dated 2.1.2013 (Annexure P-1), passed by the learned Industrial Tribunal cum Labour Court, Shimla, Himachal Pradesh, in reference No. 12 of 2011, titled Amit Kumar v. Executive Engineer and Anr, in as much as, petitioner herein came to be denied back wages, petitioner has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs: “(a) to issue a writ of certiorari or direction in the nature thereof, quashing the impugned award passed by the Ld. Industrial Tribunal below on 02/01/2013 being Annexure P-1 of the writ petition to the extent it denies back wages to the petitioner, as unconstitutional and illegal and contrary to the law; (b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondent department to pay full backwages to the petitioner for the period the petitioner remained illegally retrenched alongwith interest thereon @18% pa from due date till payment of the same; (c) to issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon’ble Court may deem fit, proper, just and expedient in the circumstances of the case.” 2. Precisely the facts of the case as emerge from the record are that petitioner was engaged as daily wage beldar by the respondents in the month of February 1998 in IPH (Mechanical) Sub Division Gumma, District Shimla, Himachal Pradesh. However, on 30.11.1998, his services were disengaged by the department without assigning any reasons or serving any notice. On 27.11.1999, petitioner filed OA No. 3369 of 1999, titled Amit Kumar v. State of Himachal Pradesh before the erstwhile HP Administrative Tribunal, which came to be dismissed on 16.11.2004 for want of jurisdiction. However, on 30.11.1998, his services were disengaged by the department without assigning any reasons or serving any notice. On 27.11.1999, petitioner filed OA No. 3369 of 1999, titled Amit Kumar v. State of Himachal Pradesh before the erstwhile HP Administrative Tribunal, which came to be dismissed on 16.11.2004 for want of jurisdiction. On 3.12.2004, petitioner raised demand notice and thereafter conciliation proceedings failed before the Labour Officer cum Conciliation Officer, as a result thereof, appropriate government while exercising power under Section 10 (2) of the Industrial Disputes Act, 1947, made following reference: “Whether verbal termination of the services of Shri Amit Kumar S/o Shri Mathu Ram daily wage workman by the Executive Engineer I&PH Division No.II, Shimla-3, w.e.f. 1.12.1998 without serving notice and without complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, to what back wages, service benefits and relief the above named workman is entitled to?” 3. Petitioner challenged the termination on the ground that his services were illegally terminated in violation of provisions contained under the Act and after his termination, his juniors were retained and new workmen were engaged and as such, his termination be set-aside with the direction to respondents to reengage him with all consequential benefits. 4. Respondents while refuting the aforesaid claim put forth by the petitioner though admitted factum with regard to petitioner’s engagement in the department in the year 1998, but claimed that he was engaged for a specific work of cleaning of water tanks. Respondents claimed that on the conclusion of aforesaid work, services of the petitioner were not required. Respondents also set up a case that in the year 1998, the petitioner only worked for 136 days and as such, otherwise, he was not required to be served with notice prior to his termination. Respondents while admitting that one workman namely Ritu Raj, who was engaged for maintenance work in December, 1997 was retained, categorically stated that that afore person was senior to the petitioner. 5. On the basis of afore pleadings as well as evidence adduced on record, Tribunal below vide impugned award though held the petitioner entitled for reinstatement in service with seniority and continuity, but denied him back wages. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein to set-aside award in as much as he has been denied back wages. 6. In the afore background, petitioner has approached this Court in the instant proceedings, praying therein to set-aside award in as much as he has been denied back wages. 6. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. P.P. Chauhan, learned counsel for the petitioner is that once Tribunal below held the petitioner entitled to reinstatement with seniority and continuity, there was no occasion, if any, to deny him back wages. Mr. Chauhan, while making this court peruse the pleadings and evidence adduced on record, further argued that at no point of time, respondents were able to prove that during period of disengagement, petitioner was gainfully employed and as such, Tribunal below ought not have denied back wages. 7. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned award vehemently argued that since during period of disengagement, petitioner never worked with the department, there was no occasion, if any, to pay him back wages. He further submitted that no evidence worth credence ever came to be led on record at the behest of the petitioner that during the period of his disengagement, he was not gainfully employed. 8. I have heard the learned counsel for the parties and gone through the record. 9. Since it is not in dispute that impugned award laid challenge in the instant proceedings by the petitioner has been accepted by the respondents and pursuant to same, petitioner herein stands reinstated, there is no requirement for this Court to go into the correctness of the impugned award as far as petitioner has been held entitled to reinstatement with seniority and continuity in service. 10. Specific question which needs to be determined in the instant petition is that “whether petitioner could be denied back wages after his being held entitled to reinstatement with seniority and continuity in service?”. 11. Having carefully perused impugned award laid challenge in the instant proceedings, this Court is persuaded to agree with learned counsel for the petitioner that no specific reason has been assigned by the court below for denying back wages to the petitioner. 11. Having carefully perused impugned award laid challenge in the instant proceedings, this Court is persuaded to agree with learned counsel for the petitioner that no specific reason has been assigned by the court below for denying back wages to the petitioner. Tribunal below, while rejecting the prayer of back wages made by petitioner, observed that once order of termination of an employee is set-aside, it does not make him automatically entitled for payment of wages, rather petitioner is under obligation to prove by leading cogent and convincing evidence that he was gainfully employed after dismissal from the service. 12. From the careful perusal of the award impugned in the instant proceedings, this Court finds that no specific reason has been assigned by the authority while denying back wages to the claimant, save and except that claimant has not been able to discharge onus placed upon him to prove that during the period of termination he was not gainfully employed. Learned Tribunal below while denying the prayer for back wages made on behalf of the petitioner has simply stated that once order of termination of service of employees is set- aside, it does not make him automatically entitled for payment of back wages, rather for that purpose, he ought to have led evidence to prove that he was not gainfully employed after the dismissal of his service. The Hon’ble Apex Court in Kendriya Vidyalaya Sangathan and another vs. S.C.Sharma, (2005)2 Supreme Court Cases 363 , has held that the initial burden is on the workman/employee to show that he was not gainfully employed and in case, he places material in that regard, the employer can bring on record material to rebut the claim. It is not in dispute that the petitioner while making claim before the tribunal below has categorically averred in the claim petition that during termination period, he was not gainfully employed. There is no material worth the name available on record suggestive of the fact that the respondent was able to demonstrate on record any adversity or hindrance in the grant of aforesaid relief. Otherwise also, once Tribunal below while answering the reference had come to a conclusion that action of the employer in terminating the service of the petitioner is bad and dehors the rules, natural consequence was to order for re-engagement/reinstatement from the date of termination alongwith back wages. Otherwise also, once Tribunal below while answering the reference had come to a conclusion that action of the employer in terminating the service of the petitioner is bad and dehors the rules, natural consequence was to order for re-engagement/reinstatement from the date of termination alongwith back wages. Otherwise also, Section 11-A of the Industrial Disputes Act empowers the Industrial Tribunal to award consequential benefits. Section 11-A of the Act is reproduced as under:- “Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its awards, set aside the order of discharge of dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge of dismissal as the circumstances of the case may require.” “Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter”. 13. The Hon’ble Apex Court in case titled Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 , has categorically held that reinstatement entitles an employee to claim full back wages and denial of back wages would amount to indirectly punishing the employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that the employee was gainfully employed during the intervening period. 14. Hon’ble Apex Court in case bearing Civil Appeal No. 6188 of 2019, titled Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors , decided on 21.8.2019, has also held as under:- “9. Several judgments of this Court have laid down the principles pertaining to the grant of back wages. 14. Hon’ble Apex Court in case bearing Civil Appeal No. 6188 of 2019, titled Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors , decided on 21.8.2019, has also held as under:- “9. Several judgments of this Court have laid down the principles pertaining to the grant of back wages. In Hindustan Tin Works, a three-judge Bench of this Court adjudicated on the criterion for grant of back-wages where a termination has been held to be illegal. The appellant in that case was a private limited company with an industrial unit. The Labour Court held that the retrenchment of employees by the appellant was not bona fide and awarded full back wages to the employees, which was challenged before the Supreme Court. This Court made the following observations: "9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..." (Emphasis supplied) The Court further clarified that while the payment of full back wages would be the normal rule, there can be a departure from it where necessary circumstances have been established: "11. In the very nature of things there cannot be a straightjacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield [(1891) AC 173, 179] )." Taking note of the financial problems of the appellant company, the Court granted compensation to the extent of 75% of back wages. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield [(1891) AC 173, 179] )." Taking note of the financial problems of the appellant company, the Court granted compensation to the extent of 75% of back wages. The principle laid down in Hindustan Tin Works has been followed by other decisions of this Court. 10. In Surendra Kumar Verma v. Central Government Industrial Tribunal-cum- Labour Court, the termination of the services of the appellants was held to be in contravention of Section 25-F of the Industrial Disputes Act by the Labour Court, but the appellants were denied the payment of back wages. In appeal, a three-judge bench of this Court observed: "6... Plain common-sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted." 11. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. In Deepali Surwase, the appellant had been employed as a teacher in a primary school run by a trust. The services of the appellant had been terminated by the management of the school pursuant to an ex- parte inquiry proceeding. The School Tribunal quashed the termination of the appellant’s services and issued a direction for the grant of full back wages. In appeal, the High Court affirmed the view of the Tribunal that the termination was illegal, but set aside the direction for grant of back wages. In appeal, a two-judge Bench of this Court laid down the following principles: "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money...The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emolument." (Emphasis supplied) 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. 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. 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. 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-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 illafford 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] ." 12. 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] ." 12. In the present case the first inquiry resulted in a report which came to the conclusion that the charge of misconduct was not substantiated. Upon finding that the convening of a fresh inquiry without recording reasons was contrary to law, the High Court would have ordinarily granted liberty to the Municipal Council to take a fresh decision after due notice to the appellant. Such a course of action was, however, rendered impracticable by supervening events. The writ petition instituted by the appellant before the High Court in 1996 remained pending for nearly eighteen years. The appellant had been removed from service on 29 June 1996. Considering the lapse of time, reopening the proceedings would not be expedient in the interest of justice particularly when the appellant had, in the meantime, attained the age of superannuation in 2005. Relegating the appellant to a protracted course of action by restoring the proceedings before the disciplinary authority would also not be fair and proper after a lapse of nearly fourteen years since his retirement. 13. Having due regard to the principles which have been enunciated in Deepali Surwase by this Court, the High Court was not, in our view, justified in denying the backwages to the appellant altogether. Bearing in mind the circumstances which have been noted above, lump sum compensation should be directed to be paid.” 15. It is quite apparent from the aforesaid exposition of law laid down by the Hon’ble Apex Court that in the cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule, but such rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court must 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. To the contrary, an employee or workman whose services are terminated and who is desirous of getting back wages is only required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he 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. In the case at hand, though it is not in dispute that petitioner has categorically stated that during the period of termination, he was not gainfully employed, but there is no material available on record suggestive of the fact that respondent-employer was able to prove that the employee was gainfully employed and was getting same and similar emoluments during the period of termination and as such, Tribunal below has erred in not awarding back wages while holding the petitioner entitled for reinstatement alongwith continuity and seniority in service. 16. At this stage, learned counsel for the respondent invited attention of this Court to the judgment passed by Hon’ble Apex Court in Rajasthan State Road Transport Corporation, Jaipur vs. Phool Chand (dead) through legal representatives, (2018)18 Supreme Court Cases 299 and in State of Madhya Pradesh and others Vs. Anees Khan (2014)8 Supreme Court Cases 900 , to state that it is necessary for the petitioner-workman to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earnings to maintain himself or his family. Anees Khan (2014)8 Supreme Court Cases 900 , to state that it is necessary for the petitioner-workman to plead and prove with the aid of evidence that after his dismissal from the service, he was not gainfully employed anywhere and had no earnings to maintain himself or his family. There cannot be any quarrel with the aforesaid proposition of law laid down by the Hon’ble Apex Court in the aforesaid case, however, as has been taken note hereinabove, Hon’ble Apex Court in Deepali Gundu case (supra), has categorically held that an employee or workman, whose services are terminated, is desirous of getting back wages is only required to plead or at least make a statement before the adjudicating authority or the court of first instance that he was not gainfully employed or was employed on lesser wages, but once workman makes such a plea, onus shifts upon the employer to specifically plead and prove that the employee was gainfully employed and was getting same and substantially similar emoluments. In the aforesaid judgment, Hon’ble Apex Court has categorically held that 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 and hence once the employee shows that he was not employed, the onus is upon the employer to specifically plead and prove that the employee was gainfully employed. Though, in the case at hand, employees by pleading in the claim petition that he was not gainfully employed during the period of termination discharged his onus but definitely no concrete evidence ever came to be led on record on behalf of the respondent to discharge the onus which had actually shifted upon it with making of the averment by the claimant in the claim petition with regard to his being not gainfully employed during the period of termination. 17. Consequently, in view of the detailed discussion made herein above, present petition is allowed and impugned award dated 2.1.2013 (Annexure P-1), is quashed and set-aside to the extent it refuses to grant back wages to the petitioner and respondent is directed to pay full back wages to the petitioner alongwith up-to-date interest from the date of his termination with seniority and continuity in services, within a period of six weeks from today. Pending applications, if any, also stands disposed of.