SYMAN & DAVID PROPRIETOR M/S RELIABLE EQUIPMENTS Vs. JOINT COMMISSIONER OF LABOUR CUM APPELLATE AUTHORITY

JUDGEMENT

(1.) The third respondent herein, by claiming that he was an employee of the petitioner Company from 1/8/1999 onwards as a Welder, had filed an application under Sec. 7(4)(B) of Payment of Gratuity Act, 1972 for determination of the gratuity amount payable to him. He had resigned his job on 18/2/2012 and had completed 12 1/2 years 18 days of service. According to the second respondent herein, his last drawn salary was Rs.10,400.00. The authority under the Payment of Gratuity Act, 1972 had determined the gratuity amount as Rs.78,000.00 together with interest at the rate of 10% p.a., by calculating the same for a period of thirteen years. However, in the order passed by the appellate authority, the amount was reduced to Rs.56,250.00. Challenging both these orders, the Management has filed the present writ petition.

(2.) Learned counsel for the petitioner submits that the onus lies on the third respondent herein to prove before the authority that he was the employee of the petitioner Management and that the Management cannot prove the negative. In support of said submission, learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Surendranagar District Panchayta vs Dahyabhai Amarsinh reported in (2005) 8 SCC 750.

(3.) No representation for the third respondent herein. The only ground raised by the Management is that the onus of proving that the third respondent was the employee of the petitioner Management is on the workman. In the decision of Surendranagar District Panchayta vs Dahyabhai Amarsinh reported in (2005) 8 SCC 750, relied upon by the learned counsel for the petitioner, the following findings were stressed upon:-