JUDGMENT :

1. The present petition, under Articles 226 and 227 of the Constitution of India is filed by the company - original petitioner, challenging the impugned judgment and award dated 30.11.2007 passed by the Presiding Officer, learned Labour Court, Kalol (District: Mehsana) in Reference (LCK) No.357 of 1997, by which the learned Labour Court has reinstated the respondent - workman in service with continuity of service along with 20% backwages.

2. Brief facts of the case are as under:

2.1 The respondent - workman has raised an industrial dispute inter alia claiming that he was working with the petitioner company in Spinning Department as a Technical Maintenance In-charge and was earning Rs.9,000/- per month. It was further the case of the respondent that he came to be terminated orally on 18.04.1997. Thereafter, the respondent - workman has filed statement of claim and a copy of statement of claim is annexed herewith and therefore, the petitioner has appeared and has filed its written statement to the statement of claim, which is filed by the respondent - workman and has pointed out the true and correct facts before the learned Labour Court. It was further pointed out by the petitioner that the respondent - workman cannot be termed as workman within the meaning of Section 2(S) of the Industrial Dispute Act, 1947 . It was pointed out before the learned Labour Court that the respondent - workman was working as a maintenance consultant and was paid consultant fees but he was never employed by the petitioner in fact he was working as a consultant on contract basis.

2.2 The respondent - workman did not produce any documentary evidence; such as appointment letter, wages slip etc., to show that there was employer - employee relationship. Further, the petitioner - company has produced various documentary evidence; such as Bills, TDS statement, etc., before the learned Labour Court to show that the respondent - workman was working as consultant.

2.3 The respondent - workman has been examined before the learned Labour Court. One Bhaveshbhai Amin, Manager appeared on behalf of the petitioner company and has been examined.

2.4 The learned Labour Court has passed the impugned judgment and award dated 30.11.2007, as noted above. Feeling aggrieved and dissatisfied with the impugned judgment and award, the petition is filed.

3. Heard learned Advocates.

4. Learned advocate Mr. Dipak R. Dave for the original petitioner has submitted that the impugned judgment and award passed the learned Labour Court is absolutely illegal, unjust and improper. He has submitted that the respondent - workman cannot be termed as workman within the meaning of Section 2(S) of the Industrial Disputes Act, 1947 and while passing the award, the learned Labour Court has framed wrong issues by putting the onus upon the petitioner company to prove that the respondent - workman was working as consultant and not as a workman.

4.2 Further, he has submitted that the learned Labour Court has not appreciated as per the settled law of Hon'ble Supreme Court and it is the duty of the respondent - workman to prove that he has been employed with the petitioner. In this case, no proof of whatsoever nature was produced by the respondent - workman to show that he was working with the petitioner. In absence of any documents, the learned Labour Court ought not to have held that there was employer - employee relationship between the petitioner and the respondent - workman.

4.3 Further, he has submitted that the learned Labour Court has recorded finding that the bills, which have been produced on record are in one hand writing and there are some different amounts, therefore, the said vouchers are complicated and cannot be believed and this finding of learned Labour Court is perverse. In fact, on the face of documents like bill-cum-voucher, which is even shown to the respondent and in cross-examination he has said that the same was signed by him and the learned Labour Court ought not to have dis