Delhi High Court
Ram Naresh Singh vs Delhi Jal Board on 10 May, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th May, 2011.
+ W.P.(C) 1911/2011
% RAM NARESH SINGH ..... Petitioner
Through: Mr. Atul T.N., Adv.
Versus
DELHI JAL BOARD ..... Respondent
Through: Mr. Arvind Kumar Verma & Mr.
Amitabh Verma, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition impugns the award dated 2 nd December, 2010 of the
Industrial Adjudicator on the following reference:
"Whether the services of Sh. Ram Naresh Singh S/o Sh. Udham
Singh have been terminated illegally and/or unjustifiably by the
management; and if so, to what sum of money as monetary
relief along with consequential benefits in terms of existing
laws/Govt. Notifications and to what other relief is he entitled
and what directions are necessary in this respect?"
2. The Industrial Adjudicator found that the petitioner workman was
simply disengaged on completion of work and that disengagement from
service does not amount to retrenchment within the meaning of Section
2(oo) of the Industrial Disputes Act, 1947 and that the petitioner workman
was not appointed on regular basis and had not performed continuous work
for a period of more than 240 days in any calendar year preceding the date of
his alleged termination and hence there was no question of his being
terminated. Accordingly the petitioner workman was held not entitled to
any relief.
3. It was the claim of the petitioner workman before the Industrial
Adjudicator that he was engaged as Beldar by the MCD (not a party to this
writ petition) on daily wages in the year 1998; that he worked with the MCD
for a period of 240 days; that his services were abruptly terminated towards
the end of the year 2000. The dispute was raised in or about the year 2004.
4. The respondent Delhi Jal Board (DJB) pleaded before the Industrial
Adjudicator that the petitioner workman had never worked with the
respondent DJB and there was no relationship of employer-employee; that
the identity card relied upon by the petitioner was a fake and forged
document; that DJB came into existence in April, 1998 and at that time the
CSE department under which the petitioner workman was claiming to have
worked, was under the MCD; that since the respondent DJB had never
engaged the petitioner, the question of terminating his employment did not
arise.
5. MCD was also impleaded as a party before the Industrial Adjudicator.
MCD also contested the claim of petitioner workman by pleading that the
petitioner workman had never worked for 240 days in a calendar year; that
he was engaged as a daily wager Beldar on muster-roll and was being paid
under the Minimum Wages Act; that he worked only for 66 days in the year
1998 and for 160 days in the year 1999; that upon the work of Sewer
Department being transferred to DJB, all staff relating to the said department
were also transferred to DJB in March, 2000.
6. The Industrial Adjudicator found that the petitioner workman in his
affidavit had not contradicted the claim of the MCD of his having worked
for 66 days in the year 1998 and 160 days in the year 1999; that the
petitioner workman had failed to prove the original documents relied upon
by him including the identity card aforesaid; that he though claimed to have
been transferred from MCD to DJB but did not produce any transfer order;
he did not even specify the dates when he performed duty with DJB and also
did not produce any document in that regard; that the demand notice dated
17th January, 2001 claimed to have been got issued by the petitioner
workman was not a demand notice but merely a letter to the member of
administration of DJB and had only made a prayer for appointment on
compassionate grounds; that no demand either to MCD or to DJB had been
proved. The Industrial Adjudicator has also recorded that the petitioner
workman in the cross-examination of the witnesses of the respondent DJB
had produced the Attendance Register Ex. MW1/W2; that the witnesses of
the respondent DJB had denied the said document to be of DJB; the
Industrial Adjudicator also found that even though it was the case of the
petitioner workman himself that he was terminated in the year 2000 but the
said document showed the presence of the petitioner workman in the year
2001, 2002 and 2003 also and which showed that the said document had
been manufactured or fabricated. The Industrial Adjudicator thus held that
the petitioner workman had never been the regular employee either of the
MCD or of the respondent DJB and had worked only for 66 days in the year
1998 and 160 days in the year 1999 and was not entitled to any relief as
aforesaid.
7. The petitioner workman in this writ petition has impugned the finding
of the Industrial Adjudicator of the petitioner workman having not
completed 240 days. However the said finding is a finding of fact ordinarily
not interfererable in writ jurisdiction. The petitioner workman has neither
pleaded nor urged as to how the said finding of fact can be said to be
perverse or unreasonable or not borne out from the evidence/material led
before the Industrial Adjudicator. Rather, the Industrial Adjudicator has
found the petitioner workman guilty of fabrication of and forging of
document put to the witnesses of the DJB.
8. The petitioner workman has in the writ petition also referred to
Director, Fisheries Terminal Department Vs. Bhikubhai Meghajibhai
Chavda AIR 2010 SC 1236 laying down that it is difficult for the workman
hired on daily wage basis to have access to all official documents, muster
rolls and/or to prove his/her continuous service of 240 days and once the
workman had deposed so on oath, burden of proof shifts to employer to
prove that the workman did not complete 240 days. I fail to see as to how
the said principle can be said to be applicable to the facts of the present case.
In the present case, the MCD and respondent DJB produced their records
and on the basis whereof the Industrial Adjudicator concluded that the
petitioner workman had not worked for 240 days. Similarly, the records
produced and relied upon by the petitioner workman to prove his
employment in excess of 240 days was found to be forged and fabricated as
aforesaid.
9. The counsel for the petitioner workman during the hearing has also
referred to UOI Vs. Ramchander (2007) 1 SCC (L&S) 439. However, in
that case the finding was of appointment as casual labour against sanctioned
post and of intentional breaks to prevent the workman from completing more
than 89 days of continuous employment and of sufficient work being
available for the workman by the employer. In this context the Apex Court
held a case of violation of Section 25G of the I.D. Act to have been made
out and refused to interfere with the direction of the High Court. Again, in
the present case, neither is it the case of the petitioner that there was a
sanctioned post against which he was casually employed nor is it the case of
the petitioner workman that artificial breaks were introduced to prevent him
from completing 240 days or that MCD/DJB had indulged in any unfair
labour practice.
10. No error is found in the award of the Industrial Adjudicator. There is
no merit in the writ petition; the same is dismissed. No order as to costs.
CM No.4087/2011 (for exemption)
Allowed, subject to just exceptions.
RAJIV SAHAI ENDLAW
(JUDGE)
MAY 10, 2011
bs
