Delhi High Court
Municipal Corporation Of Delhi vs Shri Krishna Pal on 11 October, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. By this writ petition the petitioner has challenged the validity of the Award dated 7.4.2004 passed by Labour Court- IX, Karkardooma, Delhi, directing the petitioner to reinstate the respondent.
2. Briefly the facts are that the respondent/workman was employed as a Mali/Beldar with ADH-CL Zone of the petitioner on 26.3.1990 as a daily wager/casual employee. He worked for the days as and when work was available and his services were disengaged on 26.7.1991. The respondent alleged that his services were wrongfully terminated in violation of Section 25(F)(a), (b), (c) G and H of the Industrial Disputes Act, 1947 (for short the 'Act') and raised an industrial dispute which was referred by the appropriate government in following terms:
Whether services of Sh. Kishan Pal has been terminated illegally and/or unjustifiable by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?
3. Petitioner in his written statement before the Tribunal stated that respondent had not completed 240 days of continuous service in preceding 12 months and was not entitled to any benefit under the Act. He was engaged only against the specific development work for short period as and when required and when the development work came to an end, he was disengaged from the work. On the pleadings of the parties, the following issues were framed:
1. Whether the workman has completed 240 days?
2. Whether the services of the workman have been terminated illegally and/or unjustifiably?
3. Relief.
4. Tribunal observed that respondent was a muster roll employee and the MCD must have maintained muster roll in respect of respondent. MCD did not produce muster roll in order to establish that workman had not worked for 240 days continuously during the last preceding year. Since the MCD has not produced muster roll so adverse inference has to be drawn against the MCD for not producing muster roll. Therefore Tribunal concluded that petitioner has worked for 240 days.
5. The Tribunal also observed that no evidence has been produced that the respondent was employed for any specific assignment and the assignment has come to an end. The Tribunal therefore directed reinstatement of the respondent. However, Tribunal refused to grant back wages on the ground that the respondent had raised industrial dispute after two years of his termination and he had also sought several adjournments for filing the affidavit and got himself cross examined in the Court.
6. The Award of the Tribunal is contrary to the law laid down by the Supreme Court. It is settled law that a person who claims that his services were wrongfully terminated has to prove that he has worked continuously during the last preceding 12 months. This onus has to be discharged by the workman by cogent oral and documentary evidence. His self serving affidavit or his statement on oath is not sufficient to discharge this onus. One can refer to 2006 LLR 886- Chief Engineer Ranjit Sagar Dam and Anr. v. Sham Lal.
7. In this case the respondent raised industrial dispute after two years of his alleged termination. MCD is not supposed to retain muster roll of employee who are engaged from time to time in perpetuity. Muster rolls are maintained for the purpose of disbursing salary and to keep a record of the attendance of the daily wager. Muster roll is not a service record of permanent and regular employees. No fault can be found with the petitioner if muster roll is not produced in the Court when the dispute is raised by the daily wager after a long period. The respondent in this case has raised a dispute after about two years of his alleged termination and the muster roll was asked to be produced in the Court after about twelve years of his alleged disengagement. The onus was not on the MCD to prove that the employee had worked for 240 days. The onus was on the respondent to prove that he worked for 240 days. No adverse inference could be drawn against the petitioner for not producing muster roll of a daily wager after 12 years of his disengagement. The Tribunal went wrong drawing adverse inference against the MCD.
8. It is now settled law that Courts have not to encourage back door entries into the regular employment. If an employee is engaged as a daily wager/casual employee by Municipal Corporation which keeps on undertaking development work from time to time, as per budget, such an employee cannot be thrust upon Municipal Corporation as a regular employee for all times to come whether or not there is development work is going on. In the case of Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, Supreme Court observed as under:
It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arm's length-since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the courts were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it.
9. I find Award dated 7.4.2004 passed by Labour Court- IX, Karkardooma, Delhi, directing the petitioner to reinstate the respondent is perverse. Accordingly the writ petition is allowed. The Award is hereby set aside.
