IMPORTANT POINT
The court affirmed that the burden of proof lies with the employer to disprove a workman's claim of service duration once established by affidavit.

JUDGMENT :

Bhargav D. Karia, J.

1. Heard learned advocate Mr.K.R.Mishra for the petitioner in Special Civil Application No.12574 of 2019 and learned advocate Mr.Gaurav Chudasama for the petitioners in Special Civil Application No.21383 of 2019.

2. Both these petitions are filed challenging the Judgment and Award dated 20th July, 2018 passed by the Labour Court, Kalol in Reference (T) No.23 of 2001.

3. Special Civil Application No.12574 of 2019 is filed by the workman wherein, the rule is served, whereas, Special Civil Application No.21383 of 2019 is filed by the employer wherein, rule is unserved. Therefore, learned advocate Mr.K.R.Mishra appearing for the petitioner in Special Civil Application No.12574 of 2019 for workman waives service of notice of rule in Special Civil Application No.21383 of 2019. Learned advocate Mr.Gaurav Chudasama is appearing for the employer in Special Civil Application No.21383 of 2019 filed by the workman.

4. By the impugned Judgment and Award passed by the Labour Court, Kalol, lumpsum compensation of Rs.75,000/- is awarded in lieu of backwages as the workman had given up the claim of reinstatement during the pendency of the reference.

5.1. The brief facts of the case are that the workman was employed as a helper in the checking department of the employer-company on monthly salary of per day wages of Rs.72.50/-. As per the identity card placed on record by the workman at Exh.20, the date of birth of the workman is stated to be 01.06.1957. The workman filed a purshish at Exh.90/A on 18.11.2017 before the Labour Court stating that his age is around 60 years and accordingly, he has given up his right of reinstatement on account of superannuation and restricted the claim to the back wages, retirement benefits and other consequential reliefs.

5.2. As per the identity card issued by the employer at Exh.20, the date of joining of service of the workman is stated to be 16.06.1998.

5.3. It is the case of the workman that after undergoing the appendix operation, the workman was on leave in the month of June, 1999.

5.4. It appears that thereafter the workman has joined the duties on 16.11.1999 and continued to remain absent on duty from 16.11.1999 and ultimately, he was relieved orally from services on 17.09.2000 without issuing any notice or any retrenchment compensation.

5.5. The Labour Court stated that there is no evidence on record to show that the workman had actually worked from 16.11.1999 to 17.09.2000 and no evidence is produced on record by the employer except the presence register at Mark 13/1 wherein the name of the workman is shown at Sr.No. 35 and it is revealed from the said presence register that workman had worked from 11th to 15th November, 1999. In addition to the above document, voucher of payment of salary for the month of November, 1999 is placed on record at Mark 13/2 wherein, the workman had signed and the said voucher is prepared on 20.12.1999 showing the salary of Rs.383.25/-.

5.6. The Labour Court after considering the documents placed on record by both the sides and more particularly, the affidavit of the workman stating that he had worked for 240 days in the previous twelve months prior to the date of his oral termination and in absence of any other document to rebut such affidavit produced by the employer, it was presumed that the workman had worked for 240 days and is entitled to the benefit of Section 25F of the Industrial Disputes Act, 1947 (for short ‘the Act’).

5.7. The Labour Court, however, considering the fact that the workman had given up his claim for reinstatement due to attaining the age of superannuation and also the fact that the employer has closed down the business since 2005, instead of awarding the back wages, partly allowed the reference by awarding lumpsum compensation of Rs.75,000/-.

5.8. Being aggrieved, the workman has preferred the petition being Special Civil Application No.12574 of 2019 for enhancement of the lumpsum compensation whereas, the employer has preferred S