ORDER :

The third respondent herein, by claiming that he was an employee of the petitioner Company from 01.08.1999 onwards as a Welder, had filed an application under Section 7(4)(B) of Payment of Gratuity Act, 1972 for determination of the gratuity amount payable to him. He had resigned his job on 18.02.2012 and had completed 12 ½ years 18 days of service. According to the second respondent herein, his last drawn salary was Rs.10,400/-. The authority under the Payment of Gratuity Act, 1972 had determined the gratuity amount as Rs.78,000/- 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/-. 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 :-

“ 16. In Range Forest Officer vs. S.T. Hadimani, (2002) 3 S.C.C. 25 - (At Page 26, Para 3), this Court held that "In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside."

17. More recently, in Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan & Another, (2004) 8 S.C.C. 161, Municipal Corporation, Faridabad vs. Siri Niwas, (2004) 8 S.C.C. 195 and M.P. Electricity Board vs. Hariram, (2004) 8 S.C.C. 246, this Court has reiterated the principal that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his alleged retrenchment and it is for the workman to adduce an evidence apart from examining himself to prove the factum of his being in employment of the employer.

18. In the light of the aforesaid, it was necessary for the workman to produce the relevant material to prove that he has actually worked with the employer for not less than 240 days during the period twelve calendar months preceding the date of termination. What we find is that apart from the oral evidence the workman has not produced any evidence to prove the fact that he has worked for 240 days. No proof of receipt of salary or wages or any record or order in that regard was produced; no co-worker was examined; muster roll produced by the employer has not been contradicted. It is improbable that workman who claimed to have worked with the appellant for such a long period would not possess any documentary evidenc