Kanda Swami And Anr. vs Presiding Officer, Industrial ...
1999 Latest Caselaw 1206 Del

JUDGMENT

A.K. Sikri, J.

1. The petitioners in this writ petition raised dispute regarding alleged termination of their services, which was referred for adjudication to Industrial Tribunal No. III by the appropriate Government vide Notification No. F.24(5407)/89-Lab/41746- 51 dated December 8, 1989 with the following terms of reference:

"Whether the services of S/Shri Kanda Swami and Kuppu Swami have been terminated illegally and/or unjustifiably by the management and if so, to what relief are they entitled and what directions are necessary in this respect?

2. The case of the petitioners was that they were in service of Municipal Corporation of Delhi/respondent No. 2 herein w.e.f. June 15, 1987 as daily rated/casual/muster/roll workers and were being paid their wages under Minimum Wages Act for unskilled/casual workers while their counter-parts were being paid more than that. Their services were terminated w.e.f. December 15, 1988 without assigning any reason and making compliance of the provisions of Section 25-F of the Industrial Disputes Act, which amounted to unfair labour practice. In the written statement filed by the respondent-MCD, allegations made by the petitioners were denied and it was stated that as far as petitioner No. 1 Shri Kanda Swami is concerned he remained absent from duties w.e.f. August 15, 1987 to September 14, 1987, February 15, 1988 to April 4, 1988, June 15, 1988 to August 24, 1988 and September 15, 1988 to October 14, 1988 and did not turn up for duties after November 14, 1988. So far as petitioner No. 2 Shi Kuppu Swamy is concerned, MCD stated in its reply that he remained absent from duties from August 15, 1987 to November 14, 1987, February 15, 1988 to April 4, 1988, July 15, 1988 to August 24, 1988 and did not turn up after October 14; 1988. On the basis of these averments MCD contended that these workmen abandoned their jobs themselves and their services were not terminated by MCD.

3. On the basis of pleadings of the parties, Industrial Tribunal framed the following issues:

"1. Whether the workmen have abandoned their employment themselves and are not entitled to any claim?

2. Whether the Municipal employees have locus standi?

3. Whether the cause of workmen have been properly espoused?

4. As per the terms of reference."

4. Evidence was led and parties were heard. Thereafter, Industrial Tribunal passed impugned Award dated April 10, 1996. Issue Nos. 2 and 3 were decided in favour of the petitioners. Issue Nos. 1 and 4 were taken together by the Industrial Tribunal and the Industrial Tribunal returned the findings that these petitioners had not worked for 240 days and, therefore, provisions of Section 25-F of the Industrial Disputes Act were not applicable-It was also held that there was no contravention of the provisions of Section 9-A of the Industrial Disputes Act. Industrial Tribunal further held that it is the petitioners who voluntarily abandoned their jobs and their services were not terminated by MCD. In view of these findings Industrial Tribunal held that petitioners were not entitled to any relief claimed by them and reference was unanswered accordingly.

5. Aggrieved against the aforesaid Award dated April 10, 1996 petitioners have preferred the present petition.

6. Mr. Rajiv Aggarwal, Counsel for the petitioners assailed the findings in the impugned Award as perverse. It was contended that petitioners had produced and proved the documents showing the details of their muster roll numbers and actual working days etc. to the effect that they had competed 240 days of continuous service and the correctness of these documents was admitted by the witness of MCD itself. It was further argued that the witness of respondent No. 2 in his cross-examination had admitted that names of petitioners were not entered in the muster roll w.e.f. November 14, 1988 and October 14, 1988 respectively and, therefore, it clearly amounted to termination of services of the petitioners by way of retrenchment and the same was illegal as mandatory procedure of payment of retrenchment compensation and notice of pay was not complied with by the MCD before retrenching the services of the petitioners. The finding relating to abandonment of services by the petitioners was also assailed on the ground that the Industrial Tribunal had over-looked the law laid down by Supreme Court as well as this Court in various cases.

7. Counsel for the respondents in his arguments relied upon the reasoning given in the Award and stated that the said findings are correct in fact as well as in law.

8. From the arguments addressed by learned Counsel for the parties, it is clear that following two questions arise for determination:

1. Whether the services of workmen (petitioners herein) were terminated by the MCD or they have abandoned their services?

2. In case it is decided that services of the workmen were terminated by MCD, whether they had worked continuously for more than 240 days in one calendar year and whether their termination was illegal for non-compliance with the provisions of Section 25-F of the Industrial Disputes Act?

9. Before deciding these issues, some of the important facts may be mentioned first.

10. As per the averments made by these workers before the Labour Court they were engaged as beldar w.e.f. June 15, 1987 and worked till December 15, 1988. Thus the total period involved during which they worked is one year and six months. During this period, however, they have worked intermittently and there are breaks in the service. In fact as can be seen from the Award, the management witness has stated on the basis of record that Shri Kanda Swami remained absent for duty w.e.f. August 15, 1987 to September 14, 1987, February 15, 1988 to April 4, 1988, June 15, 1983 to August 24, 1988 and September 15, 1988 to October 14, 1988 and he never turned up for his duties after November 14, 1988. On the other hand Shri Kuppu Swami as per management witness remained absent from his duties from August 15, 1987 to November 14, 1987, February 15, 1988 to April 4, 1988, July 15, 1987 to August 24, 1988 and did not report for duty after October 14, 1988. These are significant gaps. It is further admitted case that these persons were not entered in the muster roll prepared by the management. There is a dispute whether these workers have worked for 240 days in a calendar year or not. Even if it is presumed that the allegations of the workmen are accepted, although this aspect is dealt with in detail in appropriate stage, the service put in by these workers is for total 241 days each in a calendar year. Thus these workers have hardly worked for any substantial period.

11. Insofar as the question of abandonment is concerned, the workmen alleged that their services were terminated. On the other hand, it was stated by the Management witness that after a particular date, as mentioned above, these workmen did not report for duties. It is also stated by him that these workmen did not submit any leave application nor medical certificate on the dates on which they remained absent and their names are not entered in the muster rolls prepared by the Management. Their names, according to witness, do not appear in the muster roll w.e.f. November 14, 1988 and October 14, 1988 respectively. It is stated by him in his evidence that as per the practice on a date when a particular daily rated muster roll employee does not turn up, his name is not entered in muster roll when the muster roll is commenced. After discussing the respective evidence of both the parties in the impugned Award, the Labour Court has accepted the version of the MCD. There is no reason to hold that the finding of the Labour Court in this respect is perverse. Although it was not required to do so strictly, still I summoned the record and went through the evidence. I observed that the view taken by the learned Labour Court is a possible view which could be taken after analysing the evidence of both the parties.

12. Mr. Rajiv Aggarwal, learned Counsel for the petitioner tried to argue that it cannot be treated as a case of abandonment. Inasmuch as for abandonment there has to be intention to desert work and he relied upon the judgment of Supreme Court in the case of G. T. Lad and Ors. v. Chemical and Fibres of India Ltd. followed by this Court in the case of Municipal Corporation of Delhi v. Shri Sukhbir Singh and Ors. .

13. The legal proposition stated in the aforesaid cases cannot be disputed. However, those were the cases of regular employees and due to absence for some period inference was sought to be drawn that workers in those cases abandoned the employment which contention was negated by the Courts. In the present case one has to bear in mind that these workers were daily wage workers employed on muster roll. They were not coming for work in between, which breaks are substantial. The practice adopted by the MCD is not to enter the name of workers in the muster roll on a particular date when he fails to come to the duty. As per these muster rolls, these workers did not come for duty w.e.f. November 14, 1988 and October 14, 1988 respectively. Therefore, it cannot be treated as a case where services of these workers were terminated by the Management as rightly held by the learned Labour Court. Once it is not a termination of their services by the Management, and the worker did not report for duty after a particular date, it is in that sense the Labour Court has used the expression that these workers have "abandoned" their job. Since these are the findings of fact based on the analysis of evidence and the view taken by the learned Labour Court is plausible, I will not interfere with the findings of fact in exercise of my powers under Article 226 of the Constitution of India particularly when it cannot be said that these findings are perverse or based on no evidence.

14. In view of what I have held in respect of first issue, second issue really does not arise for consideration. Once it is held that it is not a case of termination of the workmen's services by the Management whether they have worked for less than 240 days or more, becomes immaterial.

15. I may, however, mention that as per the chart produced by the workmen, they have worked for 241 days in preceding 12 months whereas as per statistics produced by the Management they have not worked for 240 days. Interestingly there is no cross-examination in respect of the details produced by the workmen and on the other hand the details given by the Management showing absence of the workmen, for substantial periods, on the basis of muster roll remains unchallenged as well. This leads to peculiar situation as to who is to be believed.

16. However, as stated above, I need not go into this controversy. Suffice it to state that even if I presume that both the workers have worked for 240 days as alleged by them, still as their services have not been terminated by the management and they remained absent after particular date(s), and themselves chose not to turn up for duties, the question of applicability of Section 25-F of the Industrial Disputes Act does not arise.

17. Let me examine the matter from another angle also. Even if it is presumed that there was termination of services by the Management and such termination amounted to retrenchment i.e. even if both the issues are decided in favour of workmen, one cannot lose sight of the fact that these persons were daily rated workers who worked on muster roll for hardly any period. On this ground itself one could refuse granting relief of reinstatement with back wages. Rolston John v. CGIT-cum-Labor Court and Ors., and Rattan Singh v. Union of India and Anr., . For this reason also case does not call for any interference.

18. This writ petition is, accordingly dismissed. No order as to costs.