1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 5680 OF 2004 Mah. State Cotton Growing Marketing Federation Nagpur Vs Tanabai Laxman Gaikwad & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri U. K. Bisen Adv. for petitioner. Smt Wasnik AGP for respondent-State. CORAM: C. L. PANGARKAR J. Dated: 20 th APRIL, 2009. Heard. This Writ Petition is filed against the order passed by the Appellate Authority under the Payment of Gratuity Act 1972 and Additional Commissioner of Labour whereby he confirmed the order passed by the Controlling Authority under the Payment of Gratuity Act. The petitioner is an employer. It is alleged that the respondent No.1 was engaged as a labourer-weighman by the petitioner. Petitioner had made an application to the controlling 2 authority on 20.08.98 for grant of gratuity since her request for grant of gratuity was not considered by the present petitioner. It was her contention that she had worked for a continuous period of 18 years and yet gratuity has not been paid to her. After this application was moved, notice was issued by the present petitioner who filed a reply. Since the petitioner did not place before the Court any record showing exact dates of appointment and retirement, learned Controlling Authority relied upon the statement of the applicant i.e. the respondent No.1 and passed an order granting gratuity. Present petitioner preferred appeal before the Additional Commissioner of Labour. The said appeal came to be dismissed. Learned counsel for the petitioner contended that orders passed by the Courts below are not correct inasmuch as there are no proper dates of appointment and retirement before the Court and in the absence of that, order could not have been passed. He submitted that burden of proof was on the applicant i.e. respondent No.1 and not on the petitioner. The submission does not appear to be correct. Appellate Authority has referred to a decision of the Allahabad High Court in 1995 F. L. R. (Allahabad High Court) 671, wherein it is held that burden of proof lies on the employer to show 3 whether the employees were in continuous service or were seasonal employees. It appears from the order of the Court below that the petitioner himself had failed to produce the said record though available with him before the authority to disprove what was alleged by the applicant-respondent No.1. I, therefore, do not find that the said authority has committed any error in granting gratuity. Learned counsel for the petitioner submitted that the application is barred by limitation. It appears that the petitioner had not raised any such plea either in the Written Statement or in the grounds of appeal before the appellate authority. In view of that such ground cannot be raised for the first time in the Writ Petition. These were the only two grounds and I do not find any substance in this petition. Petition is dismissed in limine. JUDGE svk 4 5 6