JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Clerk, learned advocate for the petitioner, and Ms. Kamani, learned advocate, for Mr. Pathak, learned advocate for the respondent. 2. In present petition, award dated 21.1.2006 passed by learned Labour Court at Bharuch is placed under challenge. By the impugned award, learned Labour Court directed the petitioner company to reinstate the respondent claimant on his original post with 60% backwages. 3. So far as factual background is concerned, it has emerged from the record, from the award impugned in present petition and from diverse submissions that, the respondent herein i.e. original claimant raised dispute with the allegation that the opponent company i.e. present petitioner illegally terminated his service. With the said allegation, the claimant demanded that he should be reinstated in service with all benefits. Appropriate government referred the dispute for adjudication to learned Labour Court at Bharuch. The dispute was registered as Reference No. 211 of 1998. 3.1 In his statement of claim, the claimant alleged that he joined the service with the company as Driver on 18.11.1995 and he was permanent workman of the company. He alleged that he was appointed after passing through interview which was conducted by Assistant Administrative Officer, Mr. Vyas. He also alleged that he was assigned duty as driver on company's vehicle bearing registration No. GJ.16.C.2089 and his salary was Rs.1,800/- p.m. He claimed that the company had not provided him appointment order, identity card or attendance card or any other document. He claimed that he performed his duty as driver with the Vice-President (Technical) of the company. According to the allegations by the claimant, his service was illegally terminated w.e.f. 16.12.1997 without following procedure prescribed by law and in violation of principles of natural justice. 3.2 The opponent company opposed the reference and denied the allegations by the claimant. The company contended that the claimant was not employee of the company, but he was engaged by the Vice-President (Technical) of the company as his personal driver and it was the Vice-President (Technical) who paid salary to the claimant and the relationship of employer and employee never existed between the company and the claimant. The company also claimed that the contract with the Vice-President (Technical) expired on 31.3.1993 and therefore, the person who was working as Vice-President (Technical) of the company left the company. The company also claimed that the contract with the Vice-President (Technical) expired on 31.3.1993 and therefore, the person who was working as Vice-President (Technical) of the company left the company. The company also claimed that when the incumbent in the office of Vice-President, (Technical) upon expiry of his contract with the company, left this country, the company also sold off his vehicle. On such submissions, the company opposed the demand of the claimant and submitted that the reference against the company should be rejected. 3.3 When the parties completed their pleadings and closed their evidence, the learned Labour Court heard submissions by learned advocates for the claimant and the company and upon appreciation of evidence, the learned Labour Court passed the impugned award with above mentioned directions. 4. Mr. Clerk, learned advocate for the petitioner company, assailed the impugned award and reiterated the contentions which were raised before the learned Labour Court and he submitted that the learned Labour Court failed to appreciate the fact that the relationship of employer and employee never existed between the company and the claimant and that therefore, the reference was not maintainable and such directions could not have been passed against the company. He also submitted that it was the obligation of the claimant to establish that he was appointed by the company and/or that he had worked with the company for more than 12 months and that he had worked for 240 days in preceding 12 months whereas the claimant failed to establish any factual aspect and despite such failure, the learned Labour Court proceeded on the presumption and in absence of any evidence, the learned Labour Court reached to the conclusion that the claimant was employee of the company and the company committed breach of Section 25F. According to learned counsel for the company, such conclusion is without any evidence to support the findings and the award based on such inference deserves to be set aside. 5. Learned advocate for the respondent claimant opposed the petition and submissions by learned advocate for the petitioner company. Learned advocate for the respondent claimant submitted that after evaluating and assessing the evidence available on record, the learned Labour Court reached to the finding of fact which are based on the documentary and oral evidence which obtained on record of the learned Labour Court. Learned advocate for the respondent claimant submitted that after evaluating and assessing the evidence available on record, the learned Labour Court reached to the finding of fact which are based on the documentary and oral evidence which obtained on record of the learned Labour Court. She submitted that the claimant had placed various vouchers on record which demonstrated that his salary was paid by the company and he was engaged as employee of the company. According to learned advocate for the respondent claimant, the findings are supported by material available on record and there is no error in the conclusion recorded by the learned Labour Court. She submitted that the learned Labour Court taken into account the evidence by Assistant Manager (Personnel) who was examined as witness of the company and in light of evidence by said witness, the learned Labour Court reached to the conclusion that the claimant was employee of the company since the said witness Mr. Ladha accepted during his deposition that the driver of the vehicle of Vice-President (Technical) was employee of the company. She submitted that the conclusion by learned Labour Court is based on evidence of company's witness and that therefore, there is no infirmity in the award. She submitted that the award and final directions may not be interfered with and the petition may be rejected. 6. I have considered rival submissions and material available on record as well as the impugned award. 7. Before proceeding further, it is necessary to mention that learned advocate for the petitioner company informed that the claimant attained age of superannuation in 2011. The said submission by learned advocate for the petitioner company is not disputed by learned advocate for the respondent claimant. 7.1 In view of said submission by learned advocate for the petitioner company, the question about actual reinstatement would, now, not survive and the only question which remains for consideration by this Court is with regard to payment of backwages. 8. On this count, Mr. Clerk, learned advocate for the petitioner company, on instructions from concerned officer, submitted that without prejudice to his contentions against the findings recorded by learned Labour Court and the final directions by the learned Labour Court that from the date of award until 2015, the company has already paid Rs.1,91,000/- towards last drawn wages to the claimant under Section 17B of the Act. He submitted that though the claimant crossed age of superannuation way back in 2011, the company, in light of the interim order, continued to pay last drawn wages to the claimant until 2015. According to learned advocate for the petitioner company, the amount paid during the period from 2011 to 2015 is in excess than what was payable to the claimant and the company has paid Rs.77,000/- in excess than what was payable to the claimant under Section 17B. 8.1 The above mentioned aspects mentioned by the learned advocate for the petitioner company (on instruction from the concerned officer) need to be kept in focus while determining the issue with regard to learned Labour Court's direction to pay 60% backwages to the claimant. 9. From the record, it has emerged that the claimant had alleged that he was engaged by the company in November 1995 and he alleged that his service was terminated in December 1997. Thus, even if the allegation by the claimant viz. that he was employee of the company and his service came to be terminated are assumed to be true, then also, total tenure of the claimant's service with the company prior to date of termination would be of two years. The learned Labour Court itself has observed that the claim by the claimant that he was not gainfully engaged during interregnum cannot be accepted. From the award, it also emerges that the learned Labour Court proceeded on the premise that in the interregnum, the claimant must have been gainfully employed, more particularly having regard to the fact that the claimant possessed licence to drive taxi. After considering the said aspect, the learned Labour Court quantified backwages at 60%. The claimant has not challenged the said decision i.e. the direction to pay 60% backwages. Thus, if the said direction is not disturbed then also, in light of the fact that the learned advocate for the petitioner company has now brought out that about Rs. 77,000/- have been paid to the claimant in excess than what the company was obliged to pay in accordance with Section 17B of the Act, it appears that the petition can be decided by directing the company to pay lump sum compensation. 10. 77,000/- have been paid to the claimant in excess than what the company was obliged to pay in accordance with Section 17B of the Act, it appears that the petition can be decided by directing the company to pay lump sum compensation. 10. In this background, this Court is of the view that now, when the question of actual reinstatement of the original claimant does not survive, if the company is directed to pay lump sum compensation in lieu of reinstatement and backwages awarded by the learned Labour Court, then, the equity would be balanced and the interest of justice would be met. This Court is of the view that if the company is directed to pay Rs. 1 Lakh towards lump sum compensation, it would meet ends of justice and also balance equity. The learned counsel for the petitioner submitted that the company would be entitled to adjust the excess amount paid to the claimant towards last drawn wages under Section 17B of the Act. 11. Therefore, following order is passed :- "[a] The impugned award is partly set aside and modified. Since the claimant has already crossed age of superannuation, the question of actual reinstatement does not survive. Therefore, in view of direction passed by learned Labour Court, the company is directed to pay Rs. 1 Lakh as lump sum compensation to the claimant. [b] It is clarified that if the company has paid any amount in excess to the claimant towards last drawn wages than what was payable under Section 17B, i.e. for the period after the claimant crossed the age of superannuation, then, the company will be at liberty to adjust such excess amount from the lump sum compensation of Rs. 1 Lakh, as aforesaid." With aforesaid observations, clarifications and directions, present petition is disposed of as partly allowed and the impugned award is partly set aside and modified in aforesaid terms. Rule is made absolute to the aforesaid extent. Petition Partly Allowed.