Central Administrative Tribunal - Delhi
Rakesh vs Municipal Corporation Of Delhi on 10 February, 2011
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-447/2010
New Delhi this the 10th day of February, 2011.
Honble Dr. A.K. Mishra, Member (A)
1. Rakesh,
S/o Sh. Sardare,
R/o 16/359, Trilokpuri,
Delhi-91.
2. Hari Singh,
S/o Sh. Jaipal,
R/o B-154, Gali No.1,
Raju Colony, Village Gharoli,
Kondli, Delhi-96.
3. Avinash Mahajan,
S/o Sh. Chunni Lal,
R/o 8-A/493, DDA Janta Flats,
Trilok Puri, Delhi.
4. Jamuna,
W/o Bhupendra,
R/o 7/360, Trilok Puri,
Delhi-91.
5. Krishna,
W/o Sharan Lal,
R/o 16/216, Block-16,
Trilokpuri, Delhi-91.
6. Rekha,
W/o Sh. Vijay,
R/o 47, Block-30,
Trilok Puri, Delhi.
7. Pritam,
S/o Sh. Babu Lal,
R/o 12-A/33, Trilok Puri,
Delhi.
8. Hari Kishan,
S/o Sh. Bhane Ram,
R/o 8/165, Block-8,
Trilokpuri, Delhi-91.
9. Mukesh,
S/o Sh. Ved Prakash,
R/o 17/368, Block-17,
Trilokpuri, Delhi.
10. Tilak Raj,
S/o Sh. Piare Lal,
R/o 7/470, Trilok Puri,
Delhi-91.
11. Sudhir,
S/o Sh. Mahender,
R/o Ext. 30/511, Extension
Block 30, Trilok Puri,
Delhi.
12. Satish,
S/o Sh. Itwari,
R/o 426, Prakash Nagar,
Khoda Colony,
Indrapuram, Ghaziabad.
13. Sanjay,
S/o Sh. Siripal,
R/o 30/85, Trilok Puri,
Delhi-91.
14. Bala,
W/o Sh. Ramesh,
R/o 21/35, Trilok Puri,
Delhi-91.
15. Sarwesh,
W/o Sh. Sunder,
R/o A/10, Harijan Basti,
Dallu Pura,
Delhi-96. . Applicants
(through Sh. Tanveer Ahmed, Advocate)
Versus
1. Municipal Corporation of Delhi
through its Commissioner,
Town Hall, Chandni Chowk,
Delhi-6.
2. Assistant Commissioner (East),
Municipal Corporation of Delhi
Shahadara Zone (South),
Behind Karkardooma District
Courts, Delhi. .. Respondents
(through Sh. R.K. Jain for sh. Anil Kumar Jain, Advocate)
O R D E R
Aggrieved with the order dated 20.01.2010 of Respondent No.2 in which the sanction given for engaging the applicants as daily wage Safai Karamcharis (SKs) was withdrawn and their engagement was discontinued, this application has been filed with a prayer to set aside this order.
2. It is stated by the applicants that they were engaged as Substitute SKs from time to time on temporary spells during the period 1995 to 2005 and they were receiving their wages in cash from the Municipal Corporation of Delhi (MCD). Taking into account their intermittent temporary engagements for a long period, a list of 21 such substitute sweepers was brought out on 19.07.2005 and they were engaged as such in a formal office order dated 01.08.2005 against the sanctioned posts of SKs. They have mentioned that this engagement was in substitute capacity and was made after verification that they were old substitute workers (except for one Sh. Satish-S.No.12) and there was no other list of old substitute SKs.
2.1 Writ Petition No. 3229/2006 was filed by one Navjoyti MCD Safai Karamchari Ekta Manch Delhi Pradesh (Regd.) (hereinafter referred as the Manch), which is described by the applicants as one man show of Babbal Bhai, against the engagement of the applicants. It was alleged in the Writ Petition that the applicants were not genuine workers but were drawing salaries as ghost employees and that some of the workers out of the list of 21 were close relatives of one Municipal Corporator Praveen Massey. It is further stated by the applicants that MCD in the counter-affidavit filed on 24.07.2009 (Annexure-D) did not state that there was any irregularity in the engagement of the applicants. The applicants themselves also filed counter-affidavit (Annexure-E) before the Honble High Court making similar averments.
2.2 However, the impugned order of 20.01.2010 was passed behind their back disengaging them from daily wage work. It was only on 25.01.2010 that they came to know about it from the statement of the MCD made before the Honble High Court. Writ Petition filed by the aforesaid Manch was disposed of keeping in view the statement of the MCD about disengagement of the services of the applicants but there was no pronouncement either on the legality of their engagements or on the merits of their disengagements.
2.3 Applicants have filed this O.A. challenging the illegal action of MCD in disengaging them from service.
3. Respondents have stated that not only the matter of engagement of the applicants was challenged by the Manch before the Honble High Court but a similar complaint was also taken up before the Lokayukta, Government of NCT of Delhi vide No. C-169/Lok/2009/4556. The allegation was that the engagements had been made at the instance of Ms. Parveen Massey, who was the Councillor of the Ward No.68 during the period 2002-2007. She had managed to include names of her close relatives and other party workers for engagement as SKs. The respondents have admitted that the present applicants and few others (mostly her relatives) were, in fact, engaged at the instance of the then Municipal Councillor.
4. The averments made in Paragraphs-5 and 7 of the counter-affidavit are extracted below:-
5. That the order of appointment for 21 Safai karamcharies were made on the request of Ms. Parveen Massey, who was the Councilor of Ward No.68 for the period 2002 to 2007 and she used her position to get her relatives and party workers appointed as Safair Karamcharies.
7. That the approval of the appointment for 21 Safai Karamcharies employees was initiated after Durga Mohalla Sudhar Samiti and Ms. Parveen Masseys request vide letter No. 08/06/2005. It is further stated that these engagements were not made strictly in accordance with the seniority list which was prepared by the Supervisors of Ward No. 68 and out of 21 persons who were engaged, names of only 2 persons appeared at Serial Nos. 241 and 333 respectively. There was no invitation of applications for engagement against sanctioned posts neither any selection was made. They have supplied a copy of the seniority list of Substitute Sweepers drawn up on the basis of their initial dates of engagement (Annexure-R/1). When it was noticed that there was no proper selection and the engagement of 21 SKs was irregularly made, they were disengaged after taking approval of the competent authorities.
5. The applicants in their rejoinder have reiterated the averments made in the O.A. and have alleged that MCD has made false averments which are contradictory to their statement before the Honble High Court of Delhi. It is their contention that MCD had, in fact, supported the validity of their emgagement and further that there was no other approved seniority list of Substitute Sweepers. It is argued that a view could not be taken that Honble High Court of Delhi had quashed the order of engagement of the applicants. On the other hand, there is a clarificatory order in C.M. No. 1881/2010 in W.P.(C) No. 3229/2006, where it was made clear that the Writ Petition was disposed of as having become infructuous and that there was no direction as regards the legality or otherwise of their engagement/disengagement.
5.1 It is stated in Paragraph-5 of the rejoinder-affidavit that the sworn affidavit of the MCD before the Honble High Court placed at Annexure-B to the O.A. would clearly support their contention. It is also stated that when the matter was disposed of by Honble Sh. Manmohan Sareen, Lokayukta on 08.01.2010 the applicants had never been given any opportunity to state their case. They have also contested the claim of the respondents about alleged request letter dated 08.06.2005 of Ms. Praveen Massey, the then Councillor, which has not been produced.
6. Heard both parties.
7. Learned counsel for the applicants submits that the applicants were the senior most Substitute SKs in respect of Ward No. 68 and their engagement in 2005 was not irregular. This fact, according to him, clearly emerges from the office notes placed at Annexure-B and was supported by the respondents before the Honble High Court. Now, let us examine whether the statement of the applicants that their engagement was supported by the respondents before the High Court is a correct one. Annexure-D is the affidavit filed by MCD before the Honble High Court (erroneously mentioned as Annexure-B at Paragraph-5 of the rejoinder-Annexure-B relates to the office Note about their engagement). The affidavit filed by MCD mentions about the enquiry ordered by the Commissioner and about the fact that on the basis of investigation report disciplinary action had been initiated against employees of the MCD who were responsible for delay and non-cooperation with the criminal investigation by the Crime Branch (Economic Offences of Delhi Police).
7.1 Writ Petition No. 3229/2006 in which all the applicants and some others besides official respondents were made parties was disposed of on 25.01.2010. Some of the observations of the Honble High Court read as under:-
Since respondents No. 4 to 24 whose appointments are alleged to be fake and bogus are ordered to be discontinued by the Commissioner, Municipal Corporation of Delhi, Mr. Ajay Arora learned counsel appearing on behalf of respondent No. 2 (Municipal Corporation of Delhi submits that the impugned order dated 01.08.2005 may be quashed by this Court.
XXXXX Mr. Ajay Arora learned counsel appearing on behalf of respondent No. 2 further submits on instructions that the documents required from the Municipal Corporation of Delhi by DCP, Economic Offences Wing in connection with a criminal case regarding fake and bogus appointments of respondents No. 4 to 24 have already been supplied and the investigation in that case is stated to be in progress. Mr. Arora appearing on behalf respondent No. 2 further submits that he has instructions from his client to make a statement that appointments against 21 posts vacated by respondents No. 4 to 24 consequent upon approval given by the Commissioner for discontinuance of their service shall be filled by the Municipal Corporation of Delhi from already existing list of 478 substitute sweepers in accordance with applicable rules. This submission made on behalf of respondent No. 2 satisfies prayer No. 2 made by the petitioner association in the present petition. 7.2 From these observations, it is clear that MCD had never supported the contention of the applicants that their engagement was validly made. On the other hand, they gave an assurance that after their discontinuance fresh engagement would be made from the existing list of 478 Substitute Sweepers.
7.3 It was clarified at the time of hearing that the policy of MCD was to engage SKs only from the seniority list of Substitute Sweepers and not to engage persons outside the list. The purpose was to provide engagement on priority to senior daily wage SKs who have been working for MCD for long time, depending upon availability of work load and to take up their regularization as per their seniority against permanent posts as and when such posts were sanctioned.
7.4 From the submission of the MCD before the Honble High Court, it is clear that they had adverted to the availability of an existing list of 478 Substitute Sweepers. They have also filed a copy of this list at Annexure-R1 along with their counter-affidavit. At the time of hearing, learned counsel for the applicants tried to assail this seniority list by stating that it did not bear the names of the officers who testified to its authenticity. I find that the list has been signed by a number of officials. It contains the names of 478 persons. The Honble High Court has made a reference to a list containing names of 478 persons. The office note, a copy of which is at page-23 of the additional-affidavit filed by the respondents also speaks of a seniority list of 478 SKs. The office note at page-21 of the additional affidavit mentions that Smt. Parveen Massy, Ex. Councillor had admitted in an affidavit filed before Honble Lokayukta that 06 persons out of 21 were related to her in the following manner:-
Name Relation Ajay Son Sunil Brother Renu Daughter-in-law Kavita Sister-in-law Vinay Son Nisha Daughter-in-law
Learned counsel for applicants argues at the time of hearing that these 06 persons are not applicants in the present O.A. But it does not take away from the allegation that close relations of the corporator were in fact engaged along with the applicants as SKs although they had no remote claim to such engagement.
8. The only argument which was strongly advanced at the time of hearing is that the disengagement of the applicants having been done without giving them an opportunity to defend themselves is against the principle of natural justice and on this ground alone the O.A. should be allowed. When asked how or in what manner the applicants had acquired any indefeasible right, learned counsel could only state that the applicants having been engaged and discharging their duties properly, they could not be disengaged in an arbitrary and whimsical manner.
9. The contention that there was no other seniority list of substitute SKs, but the one on the strength of which the applicants got their engagement can be described at best as a convenient fiction, notwithstanding the tendentious statement in the office note at Annexure-B. On the other hand the existence of a genuine seniority list containing 478 names was never in doubt. The Honble High Court had taken cognizance of its existence as well as the assurance of the respondents that they would abide by the principle of engaging the senior most Substitute Sweepers out of the genuine seniority list.
10. There is another aspect. The applicants and the relatives of the corporator were engaged for 89 days only. There is no document to suggest that any further extension was ever given beyond 89 days. This fact is also borne out from the noting at pages 23 and 24 of the additional affidavit, where a reference is given to the observations of the Honble High Court and the Honble Lokayukta. An extract of relevant portion of this note is given below:-
2. In this connection, it is stated that in the previous hearings, the Honble High Court is of the view that these Safai Karamcharis are appointed as Substitute for 89 days but they have been continuing in MCD for the last so many years. Also, inspite of a seniority list B of 478 Safai Karamcharis prepared by the Department, why were these 21 Safai Karamcharis appointed through out sourcing whereas appointment was to be made on the seniority basis. Further, clarification is sought whether the MCD had advertised the post of these 21 Safai Karamcharis before appointing them and the grounds on which the M.C.D. selection was made of these 21 Safai Karamcharis over the 478 substitutes who claim to be senior to them. The Honble Court has directed to clarify these things and a responsible official of the Department, who is well acquainted with the facts of the present case, be present in the Court to assist the Court on the next date of hearing i.e. on 25.1.2010.
3. Further, it is pertinent to mention that similar matter are also pending before the Honble Lokayukta, Govt. of NCT of Delhi, who had taken suo-moto cognizance of a report published in the Indian Express-Express News Line dated 18.5.2009 that one Shri Harish Beniwal, a safai karamchari has alleged that Smt. Praveen Massy, Ex Councilor of Shahdara (South) zone had managed to appoint 21 of her relatives as sweepers in the sanitary department of the MCD by influencing officers of the civic body. In the previous hearings, the Honble Lokayukta had also observed that the appointment of these 21 safai karamcharis were made on pick and choose basis..
11. At the time of argument, learned counsel for applicants fairly conceded that he had no other documents except the office note dated 19.07.2005 (Annexure-B) to establish the seniority of the applicants. He cited reliance on the decision of this Tribunal in Smt. Saroj and Ors. Vs. MCD (OA-2699/2009) in which dismissal of regular SKs of the MCD without holding proper enquiry was declared as invalid. I find that the facts of the cited case are entirely different. In this case the action of dispensing with inquiry against some regular employees of the Corporation under Section 95 (2)(b) of the Delhi Municipal Corporation Act, 1959 and Regulation-9(ii) of the D.M.C. Services (Control and Appeal) Regulations, 1959 was found fault with, consequently the dismissal of regular employees of the Corporation by way of disciplinary action without giving them any opportunity was declared invalid, whereas the present case is one of discontinuance of the temporary daily wage engagement of the applicants. Therefore, on facts, the cited case clearly being distinguishable, the decision therein will not be any help to the applicants.
12. As regards denial of natural justice, learned counsel for the respondents placed reliance on the judgment of the Honble Supreme Court in the case of State of Manipur and Others Vs. Y. Token Singh and Others, [(2007) 5 SCC 65] in which it was held that appointments which were made without following established procedure was nonest and therefore such appointments could be cancelled and the plea of denial of reasonable opportunity would not be of any avail. The Apex Court discussed the subject of natural justice at length and approvingly quoted the following observation in the case of M.C. Mehta Vs. U.O.I., [(1999) 6 SCC 237]:-
30We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. It also referred to its own following observation in Bar Council of India v. High Court of Kerala, [(2004) 6 SCC 311]:-
Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule.
13. I find that the applicants, inspite of having been given many opportunities earlier in the Writ Petition before the Honble High Court and in the present application at many different stages, could not adduce any evidence (except for the solitary note at Annexue-B) that they were the senior most Substitute Sweepers who had been working for long and on that ground had valid claim for engagement. Besides, the allegation that 06 out of 21 persons who were engaged in August, 2005 were direct relatives of the Ex-Councillor has not been controverted. The list included her sons, brother, daughter-in-law and sister-in-law. Nor is it their case that they were recruited from the open market by following a fair selection process. On the other hand, from the foregoing discussion it is clear that their initial engagement itself is highly suspect and was not in accordance with the policy of the MCD. They have gate-crashed into the queue of Substitute Sweepers for reasons other than bonafide. Their ulterior objective was to get the benefit of regularization in course of time. As a matter of fact, learned counsel for applicant drew my attention to the letter dated 04.10.2004 of MCD and strongly argued that the applicants were entitled to regularization in view of the fact that 21 posts had been sanctioned for Ward No.68. He referred to the letter dated 14.09.2009 of the respondents (Annexure-I), in which the cut-off date for regularization was extended to 10.04.2006 in place of 31.03.2003, to claim the benefit of regularization.
13.1 Nothing can be more brazen than this attempt: cleverly manoeuver in collusion with dishonest officials and style yourself as senior most Substitute Sweepers and then try to snatch away the hope of regularization from the poor toiling genuine sweepers who have been patiently waiting for many years, that too at a time when the opportunity presents itself with the sanction of 21 posts.
14. As regards the genuineness of the seniority list, which has been produced by the respondents before us, I refer to the observations of Honble Justice Man Mohan Sarin, Lokayukat in his order dated 08.01.2010 in the Complaint No. C-169/Lok/2009/:-
..Mr. S.K. Sharma, Asstt. Commissioner, Shahdara (South Zone), MCD states that they have nothing to add. He confirmed that the seniority list produced before the forum is official list maintained in their records. He further states that recommendations are being processed regarding these questionable appointments. 14.1 Names of very few applicants find place in this list of MCD, at much lower Serial Nos. In view of the categorical assertions of the respondents about the genuineness of the seniority list containing 478 names before this Tribunal, but also before the Honble High Court and the Honble Lokayukta no reliance can be placed on the note at Annexure-B. How can a note which describes sons, brother and close relations of the then Municipal Councillor as old Substitute Sweepers be taken at its face value? Thus, their initial engagement procured on the basis of a false noting cannot be held to be bonafide, nor their continuance beyond 89 days without approval of the competent authority as authorized. Therefore, their discontinuance is in no way arbitrary or malafide or to be treated as constituting violation of rules or any indefeasible right of the applicants.
15. One has to be cognizant of the entire process as well as the consequence when a grievance of denial of reasonable opportunity is being alleged. It is not a mantra to be chanted on every occasion. It has to be seen in the totality of circumstances whether there was any arbitrary action which needed to be remedied. Both before the Honble High Court of Delhi as well as in this Tribunal plenty of opportunities had been granted to the applicants to substantiate their claim that their engagement was regular and bonafide in nature. No purpose would be served by remanding the case again to the respondents with a direction that the applicants should be given one more formal opportunity of defending themselves.
16. Before parting, I would like to direct the Commissioner, MCD to satisfy himself whether appropriate disciplinary action had been taken against officials who had given false notings in July 2005 on the basis of which irregular engagement could take place, and also whether officials responsible for their unauthorized continuance beyond 89 days have been taken to task. He would do well to investigate whether these persons were performing the duties of SKs at all and whether expenditure relating to their wage bill was justified or not.
17. In the circumstances, the O.A. fails and is accordingly dismissed, but with the aforesaid observations. No costs.
(Dr. A.K. Mishra) Member (A) /vv/