Management Of New Delhi Municipal ... vs Mr. R.C. Yaduvanshi, Presiding ...
2006 Latest Caselaw 2111 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of the award dated 13.7.1988 whereby the Tribunal directed the petitioner that the workman/ respondent No. 2 be reinstated and paid full back wages w.e.f. 1.7.1980 till reinstatement. It was also ordered that in case last drawn wages were less than minimum wage he be paid minimum wages all along.

2. Briefly, the facts are that the respondent workman Chander Pal was a muster roll employee in Horticulture Department. He alleged that his services were illegally terminated on 1.5.1980 by refusal of duties. The stand of the management was that the workman had abandoned his service, he did not report for duties w.e.f. 1.5.1980 and an offer was made to him before the Conciliation Officer to join but he did not join. Following industrial dispute was referred to the Labour Court for adjudication:

Whether Shri Chander Pal abandoned services of his own or the same were terminated by the management illegally and / or unjustifiably and if so, to what relief is he entitled and what directions are necessary in this regard?

2. The Labour Court came to the conclusion that the workman had worked for 240 days during the preceding 12 months. He had not abandoned his service. The management had failed to prove that there was complete and total give-up of the duties by the workman so as to indicate an intention not to resume the same. The management had filed muster roll of Hot Mix Plant, showing that the workman had taken up job there from 5.5.1980. The Labour Court considered that this was not sufficient to prove abandonment, particularly, when the workman had been taking interest by addressing letters to the authorities and sending demand notices.

3. In the writ petition, the award has been challenged on the ground that it was a case of abandonment of jobs by the respondent. The respondent not only stopped reporting for duty but even during conciliation proceedings the respondent No. 2 was asked by the petitioner to report for duty, but he did not report. Even from the date of award till the filing of the writ petition there was no effort on the part of the workman to join the service and he did not report for duty but only sought execution of the money part of the award. The sole intention of the workman was to seek unjust enrichment. It was further submitted that the work in the Horticulture Department was not regular and was casual and seasonal in nature, the services of casual worker are required more in the season of flowers. There was no act on the part of the management to terminate the services of the workman. The Labour Court had not answered the second part of the reference i.e. if the petitioner had terminated the services of the respondent at any point of time. The Labour Court had only answered the first part that there was no permanent and complete abandonment of service on the part of the workman. The Labour Court did not appreciate the evidence produced by the management and wrongly came to the conclusion that the workman had put 240 days in a year.

4. It is undisputed that the respondent workman was a daily wager. A 'daily wager' is an employee, who is employed for contingent work, as and when available. A daily wager is not an employee, who is employed against any permanent post. If, no work is available for a daily wager he can be refused the work on the day when it is not available even if he reports for the work. Simultaneously, a daily wager is also free to come for work or not to come for work. He is not bound by any rules of service whereby he has to give a notice before he leaves the service. A daily wager is always free to explore better avenues of employment. He can leave his previous employer without even informing him, whenever he gets better opportunity or better job. The petitioner in this case had proved that the respondent workman had worked with it as a muster roll up to 30.4.1980 thereafter he failed to report and the petitioner also proved that the workman started working at another place i.e. Hot Mix Plant w.e.f. 5.5.1980. It is obvious that he could not have worked at two places. It is also obvious that the workman could not have got job in the Hot Mix Plant on the very day when he reported there for work. He must have been approaching the Hot Mix Plant before 5.5.1980 the day when he started working there. The workman was working at Hot Mix Plant and simultaneously he was serving notices upon the petitioner alleging that his services have been wrongly terminated. Even in the statement of claim, the workman has not stated that he was unemployed throughout. He simply stated that he did not receive any call letter from the employment exchange, where his name was registered.

5. In order to prove that the services of a workman have been terminated the workman should prove some act on the part of the management by which his services were terminated. A self serving affidavit is not sufficient to prove this. Either there should be a termination letter or if there is no termination letter, the workman should report to the labour department informing that he was not being allowed to join the service. Normally a Labour Inspector accompanies a workman for joining service to the department and gives his report or there should be a report of the Conciliation Officer that the department or the management refused to take the workman on duty. In this case, there was no report of the Conciliation Officer that the management i.e. the petitioner refused to take the workman on duty, no report of Labour Inspector of refusal of duty was filed. The workman failed to produce any evidence except his self-serving affidavit that he was not allowed to join. On the other hand the management has proved that the workman had started working as a daily wager in Hot Mix Plant at the relevant time when he raised the dispute.

6. In a writ petition challenging the validity of an award, this Court cannot re-appreciate the evidence and cannot act as a Court of Appeal, however, when the award is passed brushing aside the entire evidence and is contrary to the evidence on record, the Court can always interfere.

7. The Tribunal while answering the reference has held that there was no abandonment of the service because the management had failed to show that the workman had completely and absolutely no intention to join the service. I consider that once the management shows that the workman soon after leaving petitioner's job was working somewhere else the management discharges its onus of proving abandonment. Mere writing of letter to the management and sending notice may not show the real intention of the workman. The workman may be more interested in taking advantage of the labour laws and getting only back wages instead of actually joining the management as in this case. The respondent No. 2 in this case even after passing of the award did not report for joining the duties and did not file any complaint that he was not being allowed to join. He only filed execution of the recovery of the back wages. I consider that the entire conduct of the workman shows that he had actually abandoned the service and the conclusion arrived at by the Labour Court was contrary to the evidence. I hereby set aside the award. The writ petition is allowed.