JUDGMENT : K.M. THAKER, J. 1. Heard Mr. Dave, learned advocate for the petitioner and Ms. Vinita S. Vinayak, learned advocate for the respondent. 2. In present petition the petitioner who was claimant before the controlling authority has challenged order dated 28.3.2011 passed by the appellate authority in Gratuity Appeal No. 9 of 2010 whereby the appeal filed by present appellant (against order passed by controlling authority) came to be rejected by the appellate authority. 3. So far as factual background is concerned, the petitioner has averred and stated that:- 2.1 By way of present petition, the petitioner seeks to challenge absolutely illegal and unjust order dated 28th March, 2011 passed by the learned Appellate Authority under the Payment of Gratuity Act in Appeal No. 19 of 2010 whereby the appeal preferred by the respondent No. 1 came to be allowed and the order of the learned Controlling Authority under the Payment of Gratuity Act came to be set aside. 2.2 It is submitted that the petitioner was Serving as weaver with the respondent No. 1 with effect from January, 1993. The petitioner was drawing salary of Rs.4,106/- Per month. Since the petitioner came to be terminated (retrenched) with effect from 19th December, 2008 after putting up 16 years of continuous service without making payment of any amount of gratuity, the petitioner approached the respondent No. 1 requesting to release gratuity. Before the learned Controlling Authority the respondent No. 1 appeared and filed its reply. It is submitted that so as to harass the petitioner the respondent No. 1 demanded absolutely illegal documents, viz. copy of income tax returns. However, the said application of the respondent No. 1 came to be rejected. The respondent No. 1 was not given documentary evidence such as Wage Slip, Presence Card, etc. and therefore, the petitioner filed application demanding production of Wage Register and Presence Register from respondent No. 1 with effect from 1993 to 1999 and from April, 2006 to December, 2008. However, the respondent No. 1 filed affidavit that said documents are not available. 2.3 After hearing both the parties, the learned Controlling Authority came to the conclusion that respondent No. 1 had entered into paper arrangement and the contract was given to the father of the petitioner in the name of the petitioner. However, the respondent No. 1 filed affidavit that said documents are not available. 2.3 After hearing both the parties, the learned Controlling Authority came to the conclusion that respondent No. 1 had entered into paper arrangement and the contract was given to the father of the petitioner in the name of the petitioner. It has also been recorded by the learned Controlling Authority that it is not believable that petitioner was contractor. It is the case of the respondent No. 1 that petitioner was not serving as workman, but he was contractor with respondent No. 1. It is also further held by the learned Controlling Authority that if at all the petitioner was contractor in the respondent No. 1 establishment keeping 25 workers, then it is not possible that petitioner will leave the contract and will join services of respondent No. 1 as Weaver from 1st May, 2007 to 31st December, 2008 as is admitted by the Company. Thus, on the cogent reasons and findings the learned Controlling Authority allowed ‘the Gratuity Application of the petitioner and directed the respondent No. 1 to make payment of Rs.38,400/- with 10% interest. 2.4 Being aggrieved by and dissatisfied wit the said order passed by the learned Controlling Authority, the respondent No. 1 filed appeal being Appeal No. 19 of 2010 before the learned Appellate Authority under the Payment of Gratuity Act. It is submitted that the petitioner was not informed with regard to filing of Appeal and the petitioner was not aware with regard to filing of Appeal. It is submitted that no notice of Appeal was given to the petitioner and/or his union and the Appeal came to be allowed ex-parte. It is submitted that thus, the petitioner was not aware about passing of order, however, recently when the petitioner inquired as to why the amount of gratuity is not given to him in the office of the Controlling Authority, the petitioner came to know that Appeal of respondent No. 1 is allowed by the learned Appellate Authority and even the respondent No. 1 has withdrawn the amount of gratuity deposited with the learned Controlling Authority.” 4. In this background the petitioner had raised demand before controlling authority. The controlling authority adjudicated his claim application No. 4 of 2009 and allowed claim application vide order dated 15.5.2010 5. In this background the petitioner had raised demand before controlling authority. The controlling authority adjudicated his claim application No. 4 of 2009 and allowed claim application vide order dated 15.5.2010 5. When the company filed appeal before the appellate authority, the appellate authority examined the evidence on record and set aside the order of the controlling authority. Against said order dated 28.3.2011 the petitioner claimant has taken out present petition. 6. At the time of hearing of this petition Mr. Dave, learned advocate for the petitioner challenged appellate authority's order on 2 grounds viz. (i) violation of principles of natural justice and (ii) that the appellate authority failed to appreciate that though he was shown as Director by the employer he was actually employee of the company and therefore entitled for gratuity because he had worked for more than 5 years with the company. 7. It is pertinent that so far as the claimant's case in support of his demand is concerned, it is rejected by the appellate authority on merits. 8. The appellate authority reached to the conclusion that the petitioner-claimant was actually employed by the company only for one year and he did not work with the company for minimum five years as an employee and that the appellate authority, on the basis of the evidence on record also reached to the conclusion that for previous period the appellant was actually independent contractor of the company who executed contract assigned to him. Having reached to such conclusion the appellate authority allowed the appeal and set aside controlling authority's order. 9. Per contra Ms. Vinayak, learned advocate for the respondent company submitted that actually the petitioner-claimant was executing different contract with the company and it was only during period of one year i.e. during 1.5.2007 to 31.12.2008 the appellant was engaged as Weaver and that he had not worked for minimum 5 years with the company and that therefore he was not entitled for gratuity. She submitted that the appellate authority reached to the said conclusion on the basis of the documents placed on record before controlling authority which were unjustifiably and arbitrarily disregarded by the controlling authority. 10. She submitted that the appellate authority reached to the said conclusion on the basis of the documents placed on record before controlling authority which were unjustifiably and arbitrarily disregarded by the controlling authority. 10. Learned AGP for respondent appellate authority referred to the affidavit filed by the appellate authority and submitted that the proceedings were conducted after issuing notice of intimation and after issuing several call letters however the petitioner appellant did not appear before the appellate authority and therefore ultimately the appellate authority was constrained to decide appeal in absence of the claimant/petitioner. 11. I have considered rival submissions and I have considered material on record and the orders passed by controlling authority and the appellate authority. 12. In view of the fact of the case and in light of the contention raised by the petitioner it would be appropriate to first deal with the contention raised on ground of principles of natural justice because if the petitioner succeeds on the said ground then it would not be necessary to examine case on merits and the matter can be remanded to the appellate authority for fresh decision after opportunity of hearing to the petitioner. 13. Leaned advocate for the petitioner submitted that the notice for proceedings by the appellate authority was not received by the appellant and the subsequent call letters were also not received by the petitioner and that therefore the petitioner could not remain present before the appellate authority. He submitted that the appellate authority heard and decided appeal in absence of the petitioner and that too without issuing any notice therefore, the impugned order suffers from vice of violation of principles of natural justice. 14. The said contention is vehemently opposed by the learned advocate for the respondent company as well as learned AGP. 15. Ms. Vinayak, learned advocate for the respondent company submitted that after appeal was filed the appellant had forwarded copy of the appeal to the petitioner and the acknowledgment of the appeal memo by present petitioner was placed on record before appellate authority and said acknowledgment is placed on record before the authority. She submitted that the said appeal memo was received by the claimant i.e. present petitioner and that therefore he ought to have remained present before appellate authority. 16. She submitted that the said appeal memo was received by the claimant i.e. present petitioner and that therefore he ought to have remained present before appellate authority. 16. The said submission is not sufficient to reject the petitioner's claim inasmuch as it is statutory duty of the appellate authority to inform the respondent about the date of hearing. 17. Therefore it is necessary and appropriate to take into account the explanation by the appellate authority. 18. The appellate authority has filed affidavit dated 31.5.2013 to deal with the petitioner's allegation that the notices were not issued/served to him. In the said affidavit dated 31.5.2013 the appellate authority has stated that:- “5.2 It is humbly submitted that the address of correspondence given by the petitioner before the Controlling Authority Valsad was “Shri Chhotelal Singh Jawala Prasad Singh, Yadavni Chal, At. Po. Solsumbha, Tal: Umargam, District Valsad” on the same address first notice for hearing of appeal and rest of all the call letter were sent. The first notice was sent on dt.27.7.2010 attached herewith marked as Annexure A-1. This notice followed by call letters dated 9.8.2010, 13.9.2010, 13.10.2010, 1.11.2010, 9.12.2010, 5.1.2012 and 24.1.2012 Annexure A-2 to A-8 are attached herewith. 5.3 It is respectfully submitted that the respondent no. 2 was not informed if there was any change in the address or if the petitioner was not available on the above address during the time when notices were sent to him. 5.4 It is submitted that the petitioner was not present in any of the hearing, so the decision to hold the proceeding ex-parte was taken and based on the documents and material available on record the decision dated 28.3.2011 was taken with full bona-fide intention. 5.5 It is respectfully submitted that it is also true that the amount deposited by the respondent No. 1 with controlling authority Valsad was withdrawn by them. The respondent no. 1 had made an application before the Controlling Authority, Valsad on dated 8.8.2011 to withdraw the amount deposited by them. Based on the application the controlling authority, Valsad wrote a letter dated 25.8.2011 to the petitioner asking whether he has filed any application before Hon'ble High Court against the order of respondent No. 2 or not? The respondent no. 1 had made an application before the Controlling Authority, Valsad on dated 8.8.2011 to withdraw the amount deposited by them. Based on the application the controlling authority, Valsad wrote a letter dated 25.8.2011 to the petitioner asking whether he has filed any application before Hon'ble High Court against the order of respondent No. 2 or not? Letter attached herewith marked as Annexure-B. The petitioner did not reply the letter or controlling authority dated 25.8.2011 After waiting for the reply the controlling authority refunded the amount of deposit Rs.43,520/- to the respondent No. 1 on dated 17.10.2011 Though looking to direction of Hon'ble High Court respondent No. 2 has written a letter to respondent No. 1 on dated 5.1.2013 to deposit the same amount with controlling authority, valsad, so that the said amount could be invested in FDR to comply with direction of Hon'ble High Court. Letter attached herewith marked Annexure-C. The respondent No. 2 on dated 1.3.2013 again asked the respondent No. 1 to deposit the amount of Rs.43,520/- with controlling authority so as to comply with the order of Hon'ble High Court dated 18.12.2012 and 8.2.2013 Letter attached herewith marked as Annexure-D. Though the amount has not been deposited by the respondent No. 1 so far. 6. It is further submitted that the respondent No. 2 the appellate authority in absence of any submission from the petitioner during hearing of the appeal passed order based on available record on file.” 15.2 It is pertinent that alongwith said affidavit the petitioner has placed on record copies of the intimations/call letters whereby the appellate authority had issued notice/intimation about date of hearing and the said notices/call letters were forwarded to the petitioner as well as company. 15.3 According to the appellate authority despite service of such intimations the opponent-present petitioner did not appear during hearing of the appeal and that therefore ultimately he proceeded to decide the appeal on basis of material available on record. 15.4 It is pertinent that before filing present petition the petitioner-original claimant did not appear before the appellate authority with an application and he did not state before the authority that the notice/s were not received by him and that therefore opportunity of hearing may be granted to him and the petitioner straightaway approached this Court against order dated 28.3.2011 passed by appellate authority. 15.5 When the appellate authority has made categorically statement in the affidavit that the notices were issued and thereafter separate intimation/call letters were also issued and when copies of the said call letters are placed on record this Court has no reason and any justification is not made out to convince this Court to disbelieve the say of the appellate authority and to disregard the submissions made in the authority's affidavit, more particularly when the petitioner has not filed any counter/rejoinder affidavit dealing with and denying the statement and assertion made in the authority's affidavit and/or the documents placed on record by the appellate authority along with his affidavit. 19. In view of this Court in absence of any counter affidavit against the affidavit of the appellate authority and in absence of any material to controvert the documents placed on record of this petition by the appellate authority, there is no reason or justification to disbelieve the case of the appellate authority that despite issuance of notice as well as subsequent call letters the petitioner did not appear during hearing of the appeal. 16.1 In this view of the matter the petitioner's case based on alleged violation of principles of natural justice cannot be believed and accepted. The said contention deserves to be rejected in light of the material on record. Consequently said contention is hereby rejected. 16.2 Now so far as rival contentions on merits are concerned, it has emerged from the record that present respondent company opposed the claimants gratuity claim application on the ground that the claimant did not work with the company as an employee continuously for minimum for 5 years and that therefore he is not entitled for gratuity. 16.3 The opponent claimed before the controlling authority as well as appellate authority that the claimant worked with the company as an independent contractor for executing contracts issued/awarded from time to time. The company also claimed that the petitioner was engaged for period from 1.5.2007 to 31.12.2008 and beyond that period he never worked with the company as its employee. 16.4 From the record available on present petition it has also emerged that the company had also placed on record copy of the license which reflected that the petitioner was contractor of the company and he was executing contract awarded by the company. 16.5 A copy of the said licence is placed on record. 16.4 From the record available on present petition it has also emerged that the company had also placed on record copy of the license which reflected that the petitioner was contractor of the company and he was executing contract awarded by the company. 16.5 A copy of the said licence is placed on record. 16.6 The said licence seems to have been issued for the period from 1.1.1999 to 31.10.2000 and thereafter it has been renewed on 1.11.2000 and thereafter on 1.11.2001 again 1.11.2002 and thereafter on 1.11.2003 then 1.11.2004 and 1.11.2005 16.7 The licence reflects name of present petitioner as contractor. 16.8 Thus, it is proved that during said period the claimant worked as contractor and that he was not employee during said period. 16.9 Besides this the company also seems to have placed on record a copy of Form No. 16-A filed before the Income Tax Authority. The said Form No. 16-A reflects 7.4.2006 as date of submission of the Form. 16.10 In the said form name of the claimant is shown as “Contractors & Sub-contractors” and payments made to the petitioner for the period from 1.4.2005 to 31.3.2006 are shown as payments to the contractor/sub-contractor. 16.11 The said two documents give out that the petitioner was respondent-company's contractor and he was working with it as contractor and he was paid agreed amount in lieu of execution of contract and payments to the claimant are shown as payment to the contractor in the TDS dated 7.4.2006 filed by the company before the income tax authority. There is no reason or justification to disbelieve the said two documents which also establish that the petitioner was not an employee during said period. 16.12 It is pertinent to note that the claimant has not placed any documents or any material on record which would dispute or controvert the documents and he has also not placed any document or any other material, much less appointment order, to demonstrate and establish that he was working as an employee of the company. 16.13 In absence of any other document which would establish petitioner's appointment as employee of the company, this Court has no reason to disbelieve and disregard the said two statutory form/document. 20. 16.13 In absence of any other document which would establish petitioner's appointment as employee of the company, this Court has no reason to disbelieve and disregard the said two statutory form/document. 20. It is noticed that the appellate authority has taken into account said documents and proceeded on the premise that until 2006 the petitioner was working as contractor of the company and that it was only in May 2007 that he was employed as employee and since he did not work as employee in the company for five years he would not be entitled for gratuity. 17.1 When relying on the said] two documents appellate authority recorded his conclusion and findings in view of the fact that said conclusion and findings are based on documents on record, there is no reason or justification to interfere with the findings of fact recorded by the appellate authority. 17.2 It is also noticed that the controlling authority, unfortunately overlooked said documents. 17.3 The findings recorded by the controlling authority cannot be sustained in light of the said documents and the said order has been rightly set aside by the appellate authority. 21. In view of the said documents coupled with the fact that the petitioner has failed to place on record any independent evidence or any document to establish that he worked as employee with the company for 5 years, this Court has to hold that the appellate authority's order does not suffer from any infirmity and conclusion and findings recorded by appellate authority are based on documents on record and do not warrant any interference. 22. The petitioner has failed to establish any error in the order of appellate authority. The petitioner has also failed to establish violation of principles of natural justice. Therefore the petition fails and consequently the petition is rejected. Rule is discharged. 23. Orders accordingly.