Prem Singh vs P.O. Labour Court No. V & Anr
2012 Latest Caselaw 4371 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P. (C) No. 4093/1996

%                                            Reserved on: 13th July, 2012
                                             Decided on: 24th July, 2012

PREM SINGH                                                ..... Petitioner
                             Through:    Mr. Anuj Aggarwal, Adv.

                    versus

P.O. LABOUR COURT NO. V & ANR                ..... Respondents

Through: Ms. Amita Gupta, Mr. Parveen Kumar, Advs. for MCD.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present petition the petitioner lays a challenge to the award dated 27th October, 1993 whereby it upheld that the dispensing of the service of the Petitioner was not in violation of Section 25G of the Industrial Disputes Act (in short the ID Act) as the Petitioner did not present himself for work although he was a muster roll employee. The termination of the service was held to be not an act of victimization but because of the conduct of the Petitioner and that the Petitioner was entitled to no relief.

2. Learned counsel for the Petitioner states that the admitted case of the Respondent as per the statement of Shri Nathu Ram MW-1 is that the Petitioner initially joined the employment of MCD in 1979 and his services were terminated with effect from 27th June, 1986. Further it is also admitted that no show cause notice was served upon the Petitioner nor any service compensation was either offered or paid to him. The Petitioner has worked

for more than 240 days in the calendar year and he is entitled to benefits under Section 25F, 25G, 25H of the ID Act and Rule 77 of the Industrial Disputes Rules (in short IDR Rules). Reliance is placed on Hutchiah Vs. Karnataka State Road Transport Corporation (1983) ILLJ 30 Kant to contend that in a given case if the workmen had not worked for a period of 240 days immediately prior to the date of discharge or during any other year, it is a matter relevant for consideration for the computation of the amount payable under Section 25F(b) of the Act, however that does not mean that if for some other reason the workmen has not worked for 240 days in the year preceding the date of termination, his past service by the force of which he would be entitled to the notice and payment prescribed in Section 25F(a) &

(b) of the Act would be wiped out. There is a clear violation of Section 25G as it is admitted that the employees recruited from the year 1979 to 1986-87 are still continuously working. In the alternative it is stated that in case it is not a case of retrenchment then also the termination is stigmatic as it has been done on account of the fact that the Petitioner absented himself and no such termination could have been done without holding a disciplinary enquiry. In the absence of an enquiry, the Respondent has failed to prove that the absence was willful. Reliance in this regard is placed on Krushnakant B. Parmar Vs. Union of India & Anr. (2012) 3 SCC 178. Relying upon MCD Vs. Sukhvir Singh and Ors. 53 (1994) DLT 821 it is contended that in a case of abandonment a proper domestic enquiry is required to be conducted. Thus, in either case the Petitioner is entitled to reinstatement with back wages. Relying upon Delhi Cantonment Board Vs. Central Govt. Industrial Tribunal & Ors. 129 (2006) DLT 610 it is contended that in industrial law there is no difference between a daily wage

worker and a regular worker. Even in case of a daily wage or ad-hoc worker, as per the provision of Section 2 (oo) (bb) it has to be informed to the employee in advance that employment is for a fixed period and for a particular purpose and the same is required to be proved by way of evidence. Relying upon S.M. Nilajkar and Ors. Vs. Telecom District Manager, Karnataka (2003) 4 SCC 27 it is contended that in case of termination of services of worker employed in Government project or scheme on expiry of the project or the scheme, the burden to prove the ingredients of sub-clause (bb) is on the employer. The employment must be shown to be under contract which stipulates that it would come to an end with the expiry of the project or the scheme, and the workers must be shown to have been made aware of such stipulation at the commencement of their employment. Reliance is also placed on Harjinder Singh Vs. Punjab State Warehousing Corporation AIR 2010 SC 1116 to urge that for the purposes of Section 25G ID Act there is no necessity of showing that the workman had completed 240 days of continuous service in one calendar year.

3. Learned counsel for the Respondent on the other hand contends that admittedly the petitioner was employed as Malaria Beldar and since this was a seasonal employment and the Petitioner was on muster roll, the Petitioner is not entitled to the benefits under the Industrial Disputes Act and his disengagement cannot be held to be retrenchment under Section 2 (oo) of the ID Act. Admittedly, the Petitioner has not completed 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date of retrenchment as held in Mohan Lal Vs. The Management of Bharat Electronics Ltd. AIR 1981 SC 1253 and thus the Petitioner is not

entitled to retrenchment benefits. Further, in the case of a muster roll employee no enquiry is required to be conducted.

4. I have heard learned counsel for the parties. Briefly the facts of the case are that the Petitioner was employed with the Respondent No.2 as Malaria Beldar in January, 1979. The services of the Petitioner were terminated on 13th May, 1986 without assigning any reason. On 26 th August, 1986 the Petitioner served a legal demand notice and the matter was referred for adjudication on 18th February, 1987. The terms of the reference of the dispute were "whether the termination of the services of Shri Prem Singh is illegal and/ or unjustifiably and if so what relief is he entitled and what directions are necessary in this respect". After adducing the evidence and hearing the parties, the learned Labour Court came to the conclusion that the management had proved that the workman was habitual absentee causing disturbance in essential duties of malaria eradication. Though notices were issued to the Petitioner, however he did not turn up for duty. The petitioner was absent from duties with effect from 24th April, 1986 and thus his services were finally terminated on 27th June, 1986 when the Petitioner failed to attend his duties. The Petitioner has failed to prove that his services were terminated on 13th May, 1986. The Petitioner was held not entitled to any relief.

5. A perusal of the evidence of MW2 shows that in the year 1981 the Petitioner worked only for 131 and a half days, in the year 1982 he worked only for 249 days, in the year 1983 the Petitioner worked for 194 days, and in 1984 he worked for 270 days. Again in the year 1985 he worked for 67

and a half days and in the year 1986 he worked for only 78 and a half days. The Hon'ble Supreme Court in Mohan Lal (supra) held:

"In a concurring judgment Pathak J. agreed with this interpretation of Section 25B(2). Therefore, both on principle and on precedent it must be held that Section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of Section 25B and Chapter VA."

6. The reliance of the learned counsel for the Petitioner on Hutchiah (supra) is misconceived as the said decision of Karnataka High Court failed to take note of the law laid by the Hon'ble Supreme Court in Mohan Lal (supra). Thus, as the Petitioner has not worked for 240 days in the 12 calendar months preceding his termination, the Petitioner is not entitled to the benefits under Section 25B of the ID Act.

7. As regards the next contention of the learned counsel for the Petitioner that the termination of the Petitioner is stigmatic, it may be noted that the Petitioner was a muster roll employee and whenever he presented for duty he was assigned the work. Since the Petitioner was absenting, a call back notice was issued to the Petitioner vide letter dated 12 th May, 1996. However, the Petitioner neither turned up for duty nor sent any reply. Learned counsel for the Petitioner relying on Krushnakant B. Parmar (supra) contends that it is duty of the management to prove not only that the workman was unauthorizedly absent from duty but also that it was willful. In the present case the Petitioner was a muster roll employee. He was given

a call back notice to which no reply was given. In a case of unauthorized absence the initial burden is no doubt on the management to prove that the workman was absenting, however thereafter the burden shifts to the workman to prove that the absence was not willful as it was due to compelling circumstances beyond his control like illness, accident, hospitalization etc. The Petitioner has placed nothing on record to show that the absence was not willful but for compelling reasons. In Krushnakant B. Parmar (supra) the Hon'ble Supreme Court was dealing with a case of departmental enquiry and it was held that besides proving unauthorized absence from duty it was also to be held by the disciplinary authority that the unauthorized absence was willful in nature. The said decision has no application to the facts of the present case as no evidence has been led by the Petitioner to show that he absented from duty for compelling reasons.

8. Learned counsel for the Petitioner relying upon the decision in S.M. Nilajkar (supra) has stated that in view of the provisions of Section 2 (oo) (bb) the employee has to be informed in advance and the same has to be proved by way of the evidence. In the present case it may be noted that the services of the Petitioner were not terminated on account of the project coming to an end but on account of the fact that the Petitioner was absenting. Despite call notice the Petitioner refused to attend the duties and sent no reply containing any possible explanation. There is no evidence on record to prove that the Petitioner presented himself for duties and he was denied work by the management. Hence the said decision has no relevance to the facts of the present case. In Harjinder Singh (supra) their Lordships held that in a case under Section 25G of the ID Act, for the principle of first come last go

to be applicable, the workman is not required to prove that he has worked for 240 days continuously during the 12 calendar months preceding termination. In the present case the services of the Petitioner were terminated on the ground that he failed to report on duty despite a call notice being given to him. Thus, it is not a case where the Petitioner was regularly attending the duties and his services were terminated in violation of the provisions of Section 25G and thus entitling him to a relief of reinstatement with back wages. The impugned judgment of the learned Labour Court is well- reasoned and I find no perversity or illegality therein holding that the management had no option but to dispense with the services of the workman since he did not present himself for work although he was a muster roll employee.

9. The writ petition is dismissed.

(MUKTA GUPTA) JUDGE JULY 24, 2012 'ga'