MAHESH Vs. N.D.M.C

JUDGEMENT

(1.) By the present petition the Petitioner seeks setting aside of the award dated 22 nd March, 2004 passed by the learned Presiding Officer, Industrial Tribunal in an industrial dispute bearing ID No. 22/2002 whereby the learned Tribunal held that the workman Petitioner is neither entitled to reinstatement with back wages and continuity of service nor regularization.

(2.) Learned counsel for the workman Petitioner contends that the services of the Petitioner were verbally terminated in July, 1994 without complying with the principles of natural justice. No notice was issued to the workman asking him to report for duty, no enquiry was conducted and no charge sheet was given to him before termination of his services. The order of termination was penal in nature and one camouflaged for serious misconduct. It was not a case of a simpliciter discharge or simple termination and the Management ought to have conducted an inquiry. Reliance is placed on MCD vs. Praveen Kumar Jain and others, 1999 LabIC 619 and Madhabananda Jena vs. Orissa State Electricity Board and others, 1990 1 LLJ 463 Ori. It is further contended that during the period between 17 th October, 1988 and July, 1995 the workman had completed more than 240 days and despite this, the Management has not complied with the provisions of Section 25F of the Industrial Disputes Act, 1947 (in short "ID Act?) while terminating his services. The Petitioner was issued no notice, notice pay compensation etc. as required under Section 25F. The Management has also not complied with the provisions under Section 25G ID Act and cannot claim benefit of Section 2(oo) (bb). Several juniors of the Petitioner such as Kamlesh, Arvind Kumar, Rishi Kumar, Kusum Lata and Agnri have been regularized w.e.f. 1 st April, 1997, however, the services of the workman Petitioner were never regularized. Reliance is placed on Harjinder Singh vs. Punjab State Warehousing Corporation, 2010 3 SCC 192, Director, Fisheries Terminal Division vs. Bhikubhai Meghajibhai Chavda, 2010 LabIC 1089 and The Director General Works, CPWD vs. Davinder Singh, LPA 13/2008 decided by this Court on 12 th February, 2008. It is lastly contended that due to a typographical error in acquittal order dated 26 th August, 2000 showing the date occurrence as 7 th November, 1994 instead of 7 th July, 1994, the learned Tribunal has wrongly come to a conclusion that the workman?s services were not terminated in July, 1994 rather he himself did not report for duty in July and did not make any effort to resume his duty for seven months and thus he voluntarily abandoned his duties. Despite the fact that the Petitioner was taking all steps to resume his duties and even met the Section Officer of Management on 24 th January, 1995 when the workman was released on bail asking him to take him back on duties, he was refused duty.

(3.) Per contra learned counsel for the Respondent contends that the Petitioner worked intermittently as a muster roll employee with the Management and not as a regular muster roll employee. The services of the Petitioner were availed of as per the requirement with the Respondent. Further, the workman never completed 240 days in the year preceding his termination. In fact, in 6 1/2 year that he had worked with the Respondent he had completed only 728 days. Thus there was no need of compliance with Section 25F ID Act. Reliance is placed on Range Forest Officer vs. S.T. Hadimani, 2002 AIR(SC) 1147. The services of temporary muster roll employee were regularized in terms of their seniority. However, the seniority list was taken into consideration only when they were first taken on a regular muster roll. Since the Petitioner was only a temporary muster roll employee the regularization of his service was not considered by the Management. The learned counsel lastly contends that the workman has not produced any document to show that he was terminated from his services in July, 1994 or to show that he made any representation to the Respondent Management to take him back on duty after his alleged termination.